Anna Adamska – Gallant,

Eulex International Judge

Supreme Court of Kosovo

Video conferencing in the practice of the international criminal tribunals

1. General remarks

The world is changing and becoming more open. Freedom of movement applies not only to people,

goods, ideas, and capital, but also to criminal activity which with every day is becoming increasingly

transnational. Perpetrators of crimes can travel from one place to another to escape from a crime scene

and to hide in a distant location much more easily than before. This makes the fight against criminality

more difficult. Institutions responsible for delivering justice must respond to these new challenges. What

is helpful for them is the rapid development of new technologies which are used in criminal proceedings,

no matter how much prosecutors and judges are addicted to traditional methods of dealing with cases.

The practice of hearing witnesses present in a courtroom in person becomes more difficult to

follow as they are often located far from the place where the trial is conducted. Furthermore, security

concerns are becoming more apparent, due to the specificity of criminal offences. It occurs frequently

that examination of a witness through videoconferencing is the only possible way to obtain the evidence,

often crucial for the case, from those who are unavailable or unwilling to come.

International criminal courts face difficulties in ensuring the presence of witnesses in the

courtroom on a regular basis. This results from different factors, as these courts are often located in a

different country than the one where the crime was committed (i.e. the International Criminal Tribunal
for the Former Yugoslavia and the Criminal Court for Lebanon are located in the Netherlands), and the

risk of witness intimidation is higher than usual.

Obviously, as with any modern technology applied in court proceedings, there are many legal and

practical issues which may raise concerns. Therefore, it is worth considering solutions and practices that

have been adopted in various international courts and tribunals where videoconference has become a

natural tool for witness examination.

2. Reasons to apply video – conferencing

There are many reasons to apply video – conference. One of the most important and frequent

reasons is protection of a vulnerable witness who, due to various circumstances, is unwilling or unable to

testify in an open court. In many legislations, it is provided that a child witness who is a victim of a crime

shall be heard via video – link from a remote location. The aim of such a solution is to avoid further

traumatization which would result from the necessity for the witness to stand and testify in front of the

defendant, the alleged perpetrator of the victim’s suffering. Forcing the victim to testify in an open court

may result in significant emotional distress and may impair his or her ability to communicate.

Vulnerable witnesses are also the ones who are threatened by defendants or their associates with

the intention to stop them from giving testimony. Such situations are particularly frequent in cases that

involve organized criminal activity. In these cases, witnesses are usually placed in witness protection

programs which also contain guarantees that their identity, including the personal data and image, will

not be disclosed not only to the defendants but also to the public.

Another reason why a witness may not be able to appear before the court to give testimony is his

or her state of health. It may occur that the person proposed to be heard is too ill to leave the hospital or

another place where he or she is being treated. In such a situation it would constitute inhumane
treatment to force the witness to come to the court and give a statement. If the potential relevance of

the evidence is high the only solution is to examine the witness via video – conference.

Unwillingness to appear before the court in order to give a statement may be caused by fear of

being apprehended. This has occurred many times in trials conducted by the International Criminal

Tribunal for the Former Yugoslavia when witnesses refused to come and stand in open court as they were

afraid of being arrested in investigations conducted against them. The only possibility to obtain their

testimony was to conduct the examination via video conference 1.

Another reason to examine persons via video conference is the situation when they live in a distant

location, and coming to court requires long travelling and incurs significant costs. Their unwillingness to

come to court is then quite understandable, particularly if these persons are not directly interested in the

outcome of the case. The distance from the place of residence of the witness and the court where the

trial is conducted might be significant, as due to the globalization the witness could be requested to

testify even on another continent.

This modern method of participation in court hearings may also be used in cases where the

defendant is placed in a remote location, i.e. in a detention facility, because of serious risks concerning his

or her transport to the court building. The reasons not to bring him to the courtroom are security issues

and costs of transport. Such a possibility shall be strictly regulated by law as it creates an obvious

exception to the right of the defendant to be brought before the competent court. In some countries, in

speedy or simplified proceedings, it is allowed that the defendant would stay in the remote location

during a court session.

There are also purely practical aspects which are taken into account when the decision is made

whether to hear a witness via video – conference. These are reduction of delays resulting from travel of

1
Prosecutor v. Tadic, case no. IT-94-1-T, Decision on the Defence Motions to Summon and Protect Defence
Witnesses, and on the Giving of Evidence by Video - Link
witnesses from the distant location, which are difficult to avoid when the witness is to testify in front of

the court, and reduction of costs of criminal proceedings. Professional state-of-the-art equipment for

video – conferencing is quite expensive, but the expense is paid only once, while the equipment may be

used for years and in many cases.

The technical reasons for the replacement of an examination of a witness present in the courtroom

with a statement given from a remote location cannot be a sole and decisive motive to make such

decision. The defendant’s right to be directly confronted with the witnesses against him remains a

fundamental fair trial principle.

3. Concerns related to video – conference examination

Examination of a witness via videoconference constitutes an exception to the principle that all

evidence shall be presented directly in open court. This is an element of fair trial and a right of the

defence which is of great importance in criminal cases. Generally, the defendant must be given an

opportunity to challenge the credibility of a witness testifying against him, and this possibility must be

real and effective. Traditionally, the most proper way for realizing this right is the presence of a witness in

the courtroom where the defendant has the possibility of face –to – face confrontation.

In the United States, courts are particularly sensitive when deciding whether or not to allow the

examination of a witness via video link as they are concerned about the risk of violation of the

confrontation clause. It is a constitutional right of each defendant to be confronted with the witnesses

testifying against him. In many cases courts did not allow the use of video conference as they found that

if examination were conducted in this way the right of confrontation would be violated. 2

2
To follow the development of US courts’ approach see: Maryland v. Craig, 497 U.S. (1990); United States v.
Gigante, 166 F.3d (2nd Cir. 1999), United States v. Drogoul, 1 F.3d (11th Cir. 1993), United States v. Yates, 438 F.3d
11th Cir. 2006)
 There are also concerns of limited interaction between a witness and an examiner which, on the

one side, may influence the way in which the witness testifies, and on the other side, may impact on the

assessment of the credibility of the testimony given. During an examination conducted via video link, the

possibility to properly observe and evaluate nonverbal cues may be limited. It may have a diminishing

effect on the possibility to react to the behavior of the witness.

It is also much easier for a witness to behave improperly when he is not present in person in the

courtroom. He may show a lack of deference required by court decorum. Obviously, no disciplinary

measures could be applied. Therefore, a judge’s role to ensure proper conduct of such proceedings is

much more difficult to fulfill than in cases when the witness stands directly in front of him. Furthermore,

good cooperation with the person accompanying the witness in the remote location is of particular

importance to make sure that the witness behaves adequately.

In cases where the defendant stays out of the courtroom during the hearing, there is also a serious

risk of limitation of his communication with his defence counsel. This may seriously infringe upon his

rights to defend himself and to have a fair trial. Therefore, all steps must be taken to provide the

defendant with all possible solutions to ensure his unrestricted contact with his defence counsel.

4. EHCR standard for video – conference participation of defendants

Participation of defendants in court hearings via video link appears as an exceptional solution.

Therefore, standards established in the jurisprudence of the European Court of Human Rights seem to be

of special importance. EHCR decided in two cases dealing with the use of video conference while

defendants were located in a remote location. It had to assess whether ensuring the defendants’

presence during court sessions only by video link constituted a violation of their fundamental rights, i.e.

the rights to a fair trial and to defence.

 These questions were raised in two cases against Italy (Viola3 and Zagaria4) where in 1998 a law

was implemented which allowed for the presence of the defendants in a remote location during court

hearings. The law provided that such a solution may be applied upon the decision taken by a competent

judge only when very specific requirements are met. Participation from a distance seeks to obtain the

following aims: (a) protect public order in the event of possible acts of intimidation by the accused against

other parties in the trial; (b) prevent the transfer of the accused from prison to the hearing room from

becoming an opportunity to renew contact with the criminal organisations to which they belong; and (c)

expedite the conduct of particularly complex and long trials, which often take place in different courts.

There must be also adequate technical equipment provided which would enable the effective

participation of the defendant in the hearing. 5

The analysis of these two EHCR judgments shows that the Court accepted that participation of the

defendant in the hearing is not equal to his physical presence in the place where a session is held, and it

may be realized by video conference. Standards were indicated which shall be met by solutions applied

during video conference to guarantee that the right to a fair trial is respected. First of all, there must be a

justified reason not to bring the defendant to the courtroom, and this shall be evaluated independently

by the court. The defendant must hear and see from a remote location persons who participate in the

proceedings in the courtroom; he must be heard and seen by the judges, witnesses and other participants

in the session. The defence lawyer must be able to communicate with the defendant in a confidential

manner, both from the courtroom and from the place of detention.
3
Case of Marcello Viola v. Italy, application no. 45106/04
4
Case of Zagaria v. Italy, application no.58295/00
5
According to Article 146 bis of the Code of Criminal Procedure (CCP) of Italy, introduced by the Law no. 11 of 7
January 1998, “1. In proceedings concerning one of the offences provided for in Article 51, paragraph 3 bis, and
Article 407, paragraph 2, sub-paragraph (a), no. 4 of the Code [ that is, mainly Mafia-related and other serious
offences], a person who, in any capacity, is detained in a prison shall participate in the hearings at a distance [a
distanza] in the following cases: (a) where there are serious requirements of public safety or order; (b) where the
proceedings are particularly complex and participation at a distance is deemed necessary in order to avoid delays. In
considering the requirement of avoiding delays in the proceedings, regard shall also be had to the fact, where
applicable, that other proceedings are pending at the same time against the same defendant before different
courts.
 The law which allows for the participation of the defendant in the court proceedings from a remote

location was also examined by the Constitutional Court of Italy as to its compatibility with the

Constitution. In its judgment6, the Constitutional Court held that participation a distance was compatible

with the “right to a defence”, as guaranteed by Article 24 § 2 of the Constitution. It stated that the idea

that only the physical presence of the accused in the hearing room would ensure the effectiveness of this

right could not be accepted, since the Constitution required only the personal and conscious participation

of the defendant in the proceedings. Article 146 bis provided a set of procedural guarantees for the

defedant to ensure that his right to defence is effective. The judge was responsible for ensuring that the

technical means installed were appropriate to the aims sought to be achieved and could, if necessary,

order the accused to be present in the hearing room. The Constitutional Court underlined that the fact

that the new provisions departed from “tradition” did not upset the balance and the dynamics of a trial

remained substantively unchanged.

The participation of the defendant in the criminal proceedings against him from a remote location

has been accepted by the European Court of Human Rights. Therefore, there cannot be doubt that

examination of a witness who is not present in the courtroom is also allowed and does not constitute a

violation of the rights to a fair trial and effective defence, providing all technical requirements are met.

5. Tests applied by international courts:

As mentioned above, various international courts have used the possibility to hear witnesses via

video conference on a day – to – day basis. They apply standards and good practices which help them to

determine whether it is justified to permit the witness to be examined from a remote location. There is a

visible difference in the approach to the issue of admissibility of video-conference as some courts apply

stricter requirements than others.

6
Judgment of the Constitutional Court of the Republic of Italy, no. 342 of 22 July 1999
 The analysis of the practice of various international courts shows that the ICTY allows for the

possibility of hearing witnesses via video link quite frequently. In one of its cases, the Tribunal stated that

hearing of an unavailable witness via a video link was neither a denial of the defendant’s right to confront

the witness, nor he lost materially from the fact pf the physical absence of the witness. The ICTY

explained that “video conferencing is, in actual fact, merely an extension of the Trial Chamber to the

location of the witness (…) Video conferencing therefore respects the right of the accused to cross-

examine and directly confront witnesses while observing their reactions, and allows the Chamber to

assess the credibility and reliability of the testimony in the same manner as for a witness in the

courtroom. Testimony by video – conference link should be given as much probative value as testimony

presented in the courtroom”. 7 A decision whether such a solution should be applied is taken upon the

assessment if it is justified and necessary. Each time the court must determine whether a witness is

unable to come, or whether he has good reasons to be unwilling to appear in person 8. Furthermore, the

testimony that is expected from the witness by the requesting party must be of sufficient importance to

make it unfair to proceed without it. Additionally, the accused must not be limited in the exercise of his or

her right to confront the witness.9

As a principle resulting from Rule 90(A) of the ICTR’s Rules of Procedure and Evidence, witnesses

should testify in person in the court. Nevertheless, the ICTR permits remote video link testimony when it

7
Prosecutor v. Mucic & Landzo, Decision o the Motion to Allow Witnesses K, L and M to Give Theri testimony by
Means of Video Link Conference (29 May 1997)
8
Circumstances which accordingly the ICTY satisfied the requirement that the witness be unable or unwilling for
good reason to testify in person: concerns related to the witness’s health, advanced age (f.e. Prosecutor v. Stanišić
Case No. IT-03-69-T, Decision on Prosecution Motions To Hear Witnesses by Video-Conference Link); witness’ fear of
arrest (f.e. Prosecutor v. Tadíc); not high relevance of testimony combined with high costs of travelling to the Hague
(f.e. Gotovina, Case No. IT-06-90-T, Reasons for Decision Granting Prosecution’s Motion To Cross-Examine Four
Proposed Rule 92 bis Witnesses and Reasons for Decision To Hear the Evidence of Those Witnesses via Video-
Conference Link)
9
Prosecutor v. Tadic, case no. IT-94-1-T, Decision on the Defence Motions to Summon and Protect Defence
Witnesses, and on the Giving of Evidence by Video – Link; Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Decision on
Prosecution’s Motion for Testimony To Be Heard via Video-Conference Link, Prosecutor v. Gotovina, Case No. IT-06-
90-T, Reasons for Decision Granting Prosecution’s Motion To Cross-Examine Four Proposed Rule 92 bis Witnesses
and Reasons for Decision To Hear the Evidence of Those Witnesses via Video-Conference Link,;
is necessary to safeguard the witness’s security or it is in the interest of justice. In deciding whether VCT

witness testimony is in the interest of justice, the ICTR evaluates the following circumstances: (1) the

importance of the witness’ testimony, (2) the witness’ inability or unwillingness to attend 10, and (3)

whether there is a good reason for that inability or unwillingness. 11 Additionally, the ICTR also considers

the rights of the parties to the proceedings, to ensure that the video conference testimony does not

reduce the parties’ ability to evaluate the testimony and to cross-examine the witness.

The International Criminal Court seems to be the most flexible one with regard to video conference

examination of witnesses. Actually, the analysis of its practice leads to a conclusion that any witness may

be heard via video conference. The main concern is to provide sufficient technology which permits the

witness to be examined by all parties at the same time when the testimony is given. Additionally, the

witness must be located in a venue which encourages him to give truthful and open testimony in

conditions guaranteeing his safety, physical and psychological well-being, dignity and privacy 12.

The ICTY has adopted recommendations on how to conduct a video conference in a way which

guarantees fair trial and preserves the evidence. It is important that the session is held in an appropriate

venue which indicates to the witness that he is participating in a relevant event which may contribute to

the delivering of justice. It must be a place which provides sufficient dignity and guarantees privacy to the

witness. Therefore, the witness testifies usually from another courtroom, or premises of an embassy or

consulate. The presence of a “Presiding Officer” in the remote location is especially important as such a

person verifies the witness’ identity, instructs him about his rights and duties, and observes whether the

witness may give his testimony freely. It is worth mentioning that in many countries the law requires a

10
Circumstances which accordingly the ICTR satisfied the requirement that the witness be unable or unwilling for
good reason to testify in person:, safety health (f.e. Prosecutor v. Rukundo, Case no. ICTR-2001-70-PT, Decision in
the Prosecution’s Urgent Motion for Witnesses BPA and BLR to Give Testimony via Videolink (1 March 2007)), work
related travel concerns (f.e. Prosecutor v.
11
Prosecutor v. Nizeyimana, Case No. ICTR-00-55C-T, Decision on Prosecutor’s Extremely Urgent Motion for
Testimony via Video-Link, 5 (Feb. 14, 2011)
12
http://www.icc-cpi.int/NR/rdonlyres/F1E0AC1C-A3F3-4A3C-B9A7-B3E8B115E886/140164/Rules_of_procedure_
and_Evidence_English.pdf.
judge to be present in a remote location. Furthermore, the ICTY underlines the importance of a proper

view for all participants. The witness must be seen by the members of the panel, the parties, and also the

public. In case of the latter, the possibility to see the witness may be limited when protective measures

are applied for the witness. It is of particular importance to use the advanced equipment which allows the

participants to observe a speaking person, her mimic, gestures, etc. 13

6. Experience from Kosovo

Due to a difficult history and a complicated political situation, the judiciary in Kosovo faces a lot of

problems in dealing with criminal proceedings. Furthermore, the particularities of local society, where

family and clan relations are still of great importance, do not facilitate proper conduct of criminal

proceedings. Unfortunately, it is not unusual that witnesses are intimidated by defendants, who are often

very influential persons in Kosovo because of their political and economic status. Therefore, the only

possibility to preserve a witness’ evidence is to grant him protection which is often combined with

anonymity from public and the defendants. On the other hand, weak and not well organized states in the

Balkans unfortunately constitute a perfect environment for the development of organized criminal

activities, usually on transnational level. The ethnic issues, which were so important during the wars and

armed conflicts in this part of Europe, are completely irrelevant for perpetrators of criminal offences.

Therefore, in many cases witnesses stay in locations distant from a place where the trial is held. For these

reasons, the use of video conference appears as a daily routine in Kosovo courts.

The Kosovo Criminal Procedure Code does not provide clear regulations on how the examination of

a witness from a remote location should be conducted. Therefore, the standards applied by international

courts are of particular importance as they provide guidelines on how to perform this action properly,

with the full respect for the principles of fair trial and guarantee of the right to defence.

13
F.e. Prosecutor v. Tadic, case no. IT-94-1-T, Decision on the Defence Motions to Summon and Protect Defence
Witnesses, and on the Giving of Evidence by Video – Link;
 In some cases the examination via video conference is the only possible way to obtain the evidence

from a witness who is under protection, with granted anonymity from the defendant. The defence cannot

effectively contest the fact that the witness is not heard viva voce but is located in another place, directly

connected with the courtroom.

In other cases, were the safety of the witness is not at stake, the defence is more reluctant to
accept the examination of a witness not standing face – to – face with the defendant. Therefore, the
court must decide whether this way of examination of a witness will be justified and proper to realize all
the aims of the criminal trial. In deciding whether to permit examination of a witness by video
conference, the court takes into consideration the following elements:

1. the general principle that evidence and arguments should be presented directly in open court;
2. the importance of the evidence to the determination of the issues in the case;
3. the effect of the video conference on the court’s ability to make findings, including
determinations about the credibility of witnesses;
4. the importance in the circumstances of the case of observing the demeanor of a witness;
5. the reason why a witness is unable to attend;
6. the balance of convenience to the party wishing the video conference and the interests of the
party or parties opposing it; and
7. any other relevant matter.

The specific political situation of Kosovo, whose independence is still not recognized by many
states, is one of the reasons why examination via video conference is applied quite frequently. It often
happens that witnesses from Serbia or Bosnia and Herzegovina are proposed to be heard, but providing
their presence in a court in Kosovo is difficult because the process of obtaining a visa for them is long and
complicated, if possible at all. This has a negative impact on the length of the trial. Therefore, the only
possible solution is to hear them via video link, if of course courts in these two states agree to execute, on
the basis of reciprocity, requests for international legal assistance sent from Kosovo. At this moment,
when there are still international judges working within the Kosovo judicial system, this way of
cooperation is quite effective. There are serious concerns that with the termination of the executive
mandate of EULEX judges the cooperation of Kosovo courts with Serbia and Bosnia and Herzegovina will
be completely frozen, which will have a detrimental effect on the fight against organized criminal activity,
widespread in this region of Europe.
 Regarding technical aspects of the examination of witnesses from a remote location, the courts in
Kosovo mainly use the VCT technology which allows for secure transmission of data in real time.
Sometimes it happens that a more speedy and effective way of communication is to use Skype, and
generally this practice is accepted by judges and parties. As the Criminal Procedure Code of Kosovo
provides only for examination of a witness via video – conference, it is not possible to examine him if the
image is not available. Therefore, the phone or audio conference is not allowed.

The equipment used in Kosovo unfortunately does not guarantee the proper presentation of all
participants in the session when a video conference is conducted, as there is not a sufficient number of
cameras which would make it possible to zoom on a person speaking in a specific moment. This is
definitely a weak point of the system applied here. On the other hand, courts in Bosna and Serbia are
definitely better prepared for conducting the examination of a witness via video link, as there are
separate cameras for every participant in the court hearing, which allows everyone to observe the
proceedings in a manner much closer to reality.

The natural element of all sessions held in Kosovo involving the participation of international judges
is translation, often into three languages. Generally, interpreters are located in the courtroom, but
sometimes it is necessary to provide an interpreter directly to the witness at the remote location if his
hearing abilities are limited to some degree. The judge must decide how to proceed with an examination
on a case – to – case basis.

7. Conclusions
The door already has been opened for the use of video conferencing in courtrooms, not only to
hear witnesses, but also to provide the participation of a defendant in the criminal proceedings against
him. International courts and the European Court of Human Rights have accepted the approach that
video conferencing is mainly the extension of a trial chamber to another location. With further
development of technologies, video conference will soon become a natural and obvious element of court
proceedings.