As a general rule, if the national law of the Member State in which the proceedings take place provides for the recording of hearings in civil or commercial matters, the same rules apply to hearings held by videoconference or other distance communication technology. In this case, the parties should be informed of these provisions and, where appropriate, of the possibility of objecting to the recording. Recordings should be made and stored securely and it should be guaranteed that they will not be publicly disseminated.
1 Is it possible for evidence to be taken by videoconference either with the participation of a court in the requesting Member State or directly by a court of that Member State? If yes, what are the relevant national procedures or laws that apply?
Evidence may be taken by videoconference in the two ways provided for in Regulation (EU) 2020/1783, i.e. the direct taking of evidence (Articles 19 to 21) and indirect taking of evidence (Articles 12 to 14).
In national proceedings, Article 129-bis of the Code of Civil Procedure (LEC) states that, in general, proceedings should preferably be carried out remotely. However, this is conditional on the judicial office having the equipment to do so.
In principle, the law states that acts relating to the hearing, declaration or cross-examination of parties, witnesses or experts, the questioning of minors, the judicial recognition or questioning of persons with a disability should not be carried out remotely given that, as a rule, they require the physical presence of the person concerned and, when that person is one of the parties, the presence of their legal defence counsel.
Nevertheless, there are exceptions to the provisions of this section:
a) cases where the court or tribunal rules otherwise, in the light of the circumstances of the case;
b) cases where the person called to appear resides in a municipality other than that in which the court hearing is taking place. In such cases, a person may, at their request, appear in a secure room in the municipality in which they reside, in line with the rules on the use of technology in the administration of justice.
c) cases where the intervening party does so in its capacity as a public authority or official, making their contribution from a secure access point.
The competent authority holding the hearing ensures accessibility for all parties and their representatives, including persons with disabilities.
The national law to be taken into account is:
- Article 129-bis of the Code of Civil Procedure (Ley de Enjuiciamiento Civil (LEC)) and Article 229 of the Organic Law on the Judiciary (Ley Orgánica del Poder Judicial, (LOPJ)) with regard to the holding of videoconferences;
- in addition, Article 137 of the Code of Civil Procedure regulates how judicial proceedings are to be conducted by videoconference (see paragraph 4);
- Regulation No 1/2018 on international judicial assistance and international judicial cooperation networks.
2 Are there any restrictions on the type of person who can be examined by videoconference – for example, is it only witnesses or can others such as experts or parties also be examined in this way?
There are no restrictions on the subject or type of examination regarding the involvement of parties to the proceedings or of any other person giving evidence by videoconference, whether they are witnesses or experts.
The only special circumstance or restriction is in cases where the declarant is a minor or a person subject to judicial measures in support of persons with a disability, who have to testify from a judicial office.
3 What restrictions, if any, are there on the type of evidence that can be obtained by videoconference?
Neither are there restrictions as to the type of evidence that can be obtained by videoconference where this possibility is provided for the examination of the parties as witnesses or experts. However, the use of videoconferencing must be requested in good time and, in any event, ten days before the date indicated for the proceedings in question.
4 Are there any restrictions on where the person should be examined by videoconference – i.e. does it have to be in a court?
Pursuant to Article 137 of the Code of Civil Procedure, professionals, parties, experts and witnesses who are required to participate in proceedings by videoconference shall do so from the judicial office of the legal district of their home or place of work. If appropriate means are available, their participation may also be from the magistrates’ court of their home municipality or of their place of work.
This means that, as a general rule, the examination should take place in a judicial office. That rule always applies in cases where the declarant is a minor or a person subject to judicial measures in support of persons with a disability.
However, the judge may, depending on the circumstances of the case, consider it appropriate to allow the examination to take place from any location disposing of suitable equipment to ensure the identity of the participant in accordance with the provisions laid down by law.
In such a case, victims of gender-based violence, sexual violence, human trafficking, child victims or victims with disabilities will be able to participate from the places where they are officially receiving assistance, attention, advice or protection or from any other location which the judge deems appropriate, as long as it has appropriate equipment to ensure their identification and the appropriate conditions for their participation, in accordance with the law.
5 Is it permitted to record videoconference hearings and, if so, is the facility available?
Yes, all hearings by videoconference will be recorded on a medium appropriate for the recording and reproduction of sound and images. Provided that the necessary technology is in place, these will guarantee the authenticity and integrity of the recording or reproduction.
To that end, the court officer will use an electronic signature or other security system which, under the law, offers such guarantees.
In the event of the direct taking of evidence in accordance with Regulation (EU) 2020/1783, the judicial authority of the requesting State and that of the requested State should agree on the practical arrangements for the hearing or cross-examination.
6 In what language should the hearing be conducted: (a) where requests are made under Articles 12 to 14 of the Taking of Evidence Regulation; and (b) where there is direct taking of evidence under Articles 19 to 21 of the Taking of Evidence Regulation?
a) Where requests are made pursuant to Articles 12 to 14 of Regulation (EU) 2020/1783, an official language in the Autonomous Community in which the examination is to be conducted should be used (i.e. Spanish or a co-official language).
b) When evidence is sought pursuant to Articles 19 to 21 of Regulation (EU) 2020/1783, the language used is that provided for in the national legislation of the Member State to which the requesting court belongs. If the person called upon to give evidence cannot speak the language in question, the requesting court may, in line with its national law, appoint an interpreter to be present during the hearing in the requesting court or request the assistance of the requested judicial authority to that effect.
7 If interpreters are required, who is responsible for providing them and where should they be located (a) where requests are made under Articles 12 to 14 of the Taking of Evidence Regulation; and (b) where there is direct taking of evidence under Articles 19 to 21 of the Taking of Evidence Regulation?
a) Indirect taking of evidence (Articles 12 to 14): If the person who has to give evidence does not know any of the official languages of the Autonomous Community in which the requested court has its seat, and where Spanish law applies, Article 143 of the Code of Civil Procedure provides that the registrar of the court may, by decree, appoint as interpreter any person who knows the language in question, requiring of them an oath or promise to provide a faithful translation.
Without prejudice to the above, interpretation is always guaranteed in cross-border cases involving persons who do not know Spanish or, if applicable, the official language of the Autonomous Community, under the terms laid down in Law No 1/1996 of 10 January 1996, which regulates legal aid.
A report will be drawn up on the proceedings in these cases. The report will transcribe the proceedings in the original language and translate them into the official language. This will also be signed by the interpreter.
In order to effectively guarantee cross-examination during the proceedings, the interpreter may be located either at the court or with the person who will appear at the hearing by videoconference.
b) Direct taking of evidence (Articles 19 to 21): In this case, in the context of collaboration between the requesting and requested judicial body, and at the request of the applicant, assistance will be provided to find an interpreter if necessary.
8 What procedure applies to the arrangements for the hearing and to notify the person to be examined about the time and place (a) where requests are made under Articles 12 to 14 of the Taking of Evidence Regulation; and (b) where there is direct taking of evidence under Articles 19 to 21 of the Taking of Evidence Regulation? For both options, how much time should be allowed when arranging the date of the hearing to enable the person to receive sufficient notification?
a) When an application is made in line with Articles 12 to 14 of Regulation (EU) 2020/1783, the procedure in Spain for taking evidence is governed by:
- the provisions of Articles 301 et seq. of the Code of Civil Procedure on the questioning of parties;
- Articles 360 et seq. of the Code of Civil Procedure on the examination of witnesses, and Articles 335 et seq. of the Code of Civil Procedure on the issue of legal reports and cross-examination at public hearings by experts.
The shared communication service of the judicial authority will execute the summons and will provide the means necessary for the taking of evidence.
b) When evidence is sought pursuant to Articles 19 to 21 of Regulation (EU) 2020/1783, the requested legal authority will collaborate as necessary.
Under normal circumstances, a deadline of 30-45 days is deemed reasonable for most courts for summoning the parties and preparing the necessary equipment, but there is no obligatory deadline laid down in national law.
9 What costs apply to the use of videoconferencing and how should they be paid?
In principle, videoconferencing is free, but if interested parties wish to obtain a copy of the recording, they must provide the appropriate medium.
Article 22 of Regulation (EU) 2020/1783 provides for the possibility for the requested court to request reimbursement of fees or costs, including those of interpreters.
In civil cases, interpretation services both during and after the proceedings in order to document the proceedings, if not provided by the party needing it, may be provided by the judicial services or by the Ministry or the Autonomous Communities to which this responsibility has been transferred, in which case there will be a charge.
10 What requirements, if any, are there for ensuring that the person examined directly by the requesting court has been informed that the performance shall take place on a voluntary basis?
In the summons to give evidence, which will include the date and place of the hearing, the person will also be informed that they appear on a voluntary basis.
11 What procedure exists for verifying the identity of the person to be examined?
Videoconferencing or distance communication technology should allow the competent authority to authenticate the identity of the persons to be heard, and should enable visual, audio and oral communication during the hearing. The technology used should meet applicable standards for the protection of personal data, the confidentiality of communications and data security, irrespective of the type of hearing for which it is used.
The registrar at the court before which the proceedings are conducted must establish, at the court itself, the identity of the persons participating by videoconference, through the prior submission or direct presentation of documents or through personal knowledge.
12 What requirements for taking oaths apply and what information is needed from the requesting court when an oath is required during direct taking of evidence under Articles 19 to 21 of the Taking of Evidence Regulation?
It is necessary to distinguish between the following cases:
a) The parties are not required to take an oath or swear during questioning, although in the summons the party concerned must be informed that, in the event of an unexcused failure to appear, the court may consider the facts about which this party should have testified as having been proven, even if highly detrimental to that party.
b) Witnesses: before giving evidence, each witness is required to take an oath or swear to tell the truth, under threat of the penalties established for the crime of perjury in civil cases. The court will inform the witness of these penalties if the witness is unaware of them.
Witnesses under the age of criminal responsibility are not required to take an oath or swear to tell the truth.
c) When submitting their opinion, experts must declare under oath that they have acted and, where appropriate, will act as objectively as possible, taking into consideration both the factors that may favour and those likely to be detrimental to either party, and that they are aware of the criminal sanctions that could be incurred if they fail to fulfil their duty as experts. This oath or promise is reiterated during the hearing when the opinion is submitted for the adversarial proceedings between the parties and the court.
13 What arrangements are there for ensuring that there is a contact person at the place of the videoconference with whom the requesting court can liaise and a person who is available on the day of the hearing to operate the videoconferencing facilities and deal with any technical problems?
As provided for in the Annexes to Regulation (EU) 2020/1783 (Forms L and N), the requesting judicial authority will have provided information on the date and time as well as technical information on the hearing and will have taken the contact details of the person who will be performing the procedural operation. It will be for the joint services of the courts of first instance to ensure that these staff are provided.
Arrangements for the audiovisual media will be made jointly in advance. The services of the courts of first instance will have set the date, time and place where the videoconference will take place, ensuring a sufficient number of staff. Tests are usually performed in advance to ensure that the connections and equipment are functioning properly.
14 What, if any, additional information is required from the requesting court?
The forms to be used can be found on the e-EDES portal (ris.justicia.es)
In order to apply for the direct taking of evidence by videoconference (Articles 19 to 21 of Regulation (EU) 2020/1783), the requesting court must indicate in box 12 of Form L that it wishes to obtain evidence by using the communications technology set out in form N, which can also be found annexed to Regulation (EU) 2020/1783.
The information to be provided to the requested court is detailed in Form N:
1.- technical data of the videoconferencing equipment used by the requesting court and the preferred form of connection if there are several options;
2.- the date and time of the connection, as well as the date and time for a test connection;
3. name and contact details (telephone number) of the person providing assistance with the videoconference;
4.- information on the need for interpretation and the language of communication;
5.- information on whether a recording of the taking of evidence will be made or not.