increase, under no circumstances must it become an unconditional convenience: above all it must
be clearly regulated. The CGLPL has thus set out the following recommendations:
-
as a general rule, video conferencing cannot be used without any official legal basis that
lays down its conditions for use, and it can never be compulsory;
-
in the same way, no video conference may be held unless the informed consent of any
plaintiff or defendant or responsible third party excluding the administration has been
obtained;
-
in subjects where questions of fact prevail over questions of pure law or when the
personality of the person concerned or his or her explanations are determining factors
in the decision to be made, use of video conferencing must be the exception. On the
other hand, it must generally be possible for hearings of a purely formal or purely legal
nature;
-
even when the person concerned has given their consent, the police or judicial authority
must be able to decide not to use video conferencing, including during proceedings, at
the request of the person concerned or their legal counsel or in the event of a technical
hitch;
-
when the law provides for the hearing to be broadcast publicly, all of the rooms
connected by the video conferencing system must be open to the public; on the other
hand, when the law provides that the hearings are confidential, the video conferencing
system must be able to guarantee this confidentiality;
-
in all cases, the presence of legal counsel must be ensured as must the guarantee that
exchanges between the person concerned and their legal counsel remain confidential;
-
the consideration of the savings made on the cost of external movements is not
sufficient grounds for using video conferencing;
-
in all cases, the decision to use video conferencing must be made on a case-by-case basis
and solely by the authority responsible for the proceedings and the final decision.
The Ministers of the Interior, Justice and Health were all consulted prior to the publication
of this opinion, but only the Minister of State for Health responded, to the tune that she did not
wish to make any comments.
The Prison Administration Director did, however, send a reply to the CGLPL concerning
this opinion on 16 September 2016, so five years after its publication in the Journal officiel (Official
Gazette). She particularly maintained that the use of video conferencing remained optional and that
it could only be enforced in the event of a serious and characterised risk of public disorder or
escape. She indicated that its use and development as a communication tool between lawyers and
people placed in custody was in no way under consideration. Finally, she considered that the case
law of the European Court of Human Rights and of the Court of Cassation struck a relevant balance
between respect for rights of defence and use of video conferencing.
Act No. 2016-274 of 7 March 2016 on foreigners' rights in France has extended the
possibility of using video conferencing to hearings before the administrative judge when the latter
is referred an appeal to annul a decision to deport a detained foreigner. All of the CGLPL's
recommendations on the use of video conferencing naturally apply to this new procedure.
In view of an extended use of video conferencing, the CGLPL draws attention to its previous
recommendations, according to which the use of such means may only be volunta ry, subject
to a decision that is always reversible by the judge with the final say and subject to the consent
of the person concerned. It particularly points out that the use of video conferencing may not
alter the public or confidential nature of hearings or affect lawyer-client privilege.
59
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