Fundamental Rights – Civil and Political Rights - Procedural safeguards, rights of the defence and fair trial – Right to a Hearing
Fundamental Rights; Civil and Political Rights; Procedural safeguards, rights of the defence and fair trial; Adversarial principle; Right to examine witnesses
22 September 2021
In a Commercial Court, a trial was held in insolvency proceedings. The purpose of this trial was to determine whether the insolvency stemmed from the wrongful actions of the company’s directors. The insolvent company itself and its directors are aimed by the proceedings and act as parties. The insolvency administrator is to be heard in the proceedings, among other persons.
In one of the trial hearings, held on court premises on March 3rd 2020, the insolvency administrator was examined but there was no time for the lawyer representing the insolvent company and its directors to make his own cross-examination. For this reason, the hearing was scheduled to continue on May 15th 2020.
Meanwhile, Law 1-A/2020 came into force. Among other measures it determined, in its article 7, paragraph 7, that court hearings should take place through means of distance communication (videoconferencing). Applying this law, the Commercial Court ruled that the May 15th 2020 hearing would be held via videoconferencing.
The lawyer representing the company and its administrators requested that the hearing continue on court premises, to ensure the right to adversarial proceedings and the equality of arms, but the Commercial Court rejected such a claim.
The company and its directors appealed against this decision to the Lisbon Court of Appeal, which confirmed it. They then appealed to the Constitutional Court.
II – Question to be addressed by the Constitutional Court
The unconstitutionality of the rule contained in article 7, paragraph 7, of Law 1-A/2020, interpretated in terms of validating the cross-examination of witness or declarant at a hearing in judicial proceedings by means of a distance communication system, whenever the counterparty had his own examination in person in a hearing held at an earlier date.
III.A. The Court centered the discussion on Article 20 of the Constitution (right of access to a court of law), from which emerged a fair trial rule, comprising the right to adversarial proceedings and the equality of arms. It characterised due process by emphasizing that the Constitution imposes an adequate «balance between the parties in terms of procedural rights. Although it does not imply an absolute formal identity of means, it requires the plaintiff and the defendant hold identical procedural rights whenever their position in the proceedings is comparable».
III.B. The Court dismissed the applicants’ arguments.
Firstly, it was underlined that the applicants based their reasons on the assumption that the difference between a face-to-face examination and one held via videoconferencing is so meaningful and with such consequences that the mere reference to that difference is sufficient to demonstrate a situation of a party’s inequality. The Court did not validate such a proposition.
On the contrary, the Court stressed that «there are few non-verbal indicators of lying that are scientifically validated and those that exist have a weak relationship with the detection of a true statement. Above all, judges do not have the knowledge or specific training to effectively ascertain lie indicators». Thus, the Court did not accept the assumption that face-to-face contact with witnesses entails evidence benefits that «the psychology of testimony does not recognize. The assessment of the reliability of a testimony derives, mainly, from the verbal channel of communication. The non-verbal channel assumes a residual and unsafe relevance». The Court stated that the physical presence of the witness before the judge is not, at least in itself and in any case, essential for the purpose of evidence assessing.
III.C. The Court has examined the European Court of Human Rights (ECHR) case-law on video hearings, noting that the ECHR has considered that this form of participation in the trial, as such, is not incompatible with the concept of a public and fair trial, although it must serve a legitimate purpose and the evidence procedures thus produced must be compatible with the requirements of due process (cases Marcello Viola v. Italy, §§ 63-67; Sakhnovskiy v. Russia, § 98; Gorbunov and Gorbachev v. Russia, § 37). Moreover, the ECHR has stated that States «have greater latitude when dealing with civil rights cases and obligations than when dealing with criminal cases» (cases Dombo Beheer B.V. v. the Netherlands, § 32; Levages Prestations Services v. France, § 46).
III.D. The Constitutional Court accepted that the in-person examination is not, in absolute formal terms, equal to an examination by means of distance communication. However, that difference does not mean it affects the position of a party in such terms that it can be stated, without considering other factors, that the party finds himself/herself bearing an unequal status in the proceedings. The remote examination maintains orality and although it diminishes some advantages of face-to-face proximity, it does not eliminate them completely. There is no «reduction of guarantees», since it cannot be said that videoconference, on its own, compromises the certainty and security of evidence.
III.E. The Court’s conclusion is reinforced at times, such as the present time, in which the State, faced with an exceptional situation of hardship in access to justice, is compelled to make the rights of the parties compatible with other constitutional values to which it is bound, in particular «quality of justice, and (…) the public interest in the efficiency of the judicial system and in achieving a swift outcome to the judicial dispute».
III.F. The difference between face-to-face examination and examination by means of distance communication may sometimes imply such a significant imbalance in the relative positions of the parties that it affects the right to a fair trial. But that will derive from special circumstances that need to be demonstrated, which did not happen in this process.
RL 249/97. RL 147/92. RL 176/21.