On December 22, 2021, the Supreme Court of Finland found in two criminal appeal court cases that the participation of the judges via videolink constituted a procedural error, and remanded one of the cases.
Criminal Procedure in Finland
The Act on Criminal Procedure provides that parties may participate in proceedings electronically if the defendant agrees and the court finds it appropriate. (8 kap. 13 § Lag om rättegång i brottmål (FFS 1997/689) (BRL).) In addition, the law provides that party representatives such as the defense attorney or a plaintiff’s attorney may participate via videolink under the same circumstances. (8 kap. 13 § 2 st BRL.) The law does not explicitly mention judges or prosecutors. The Trial Procedure Code provides that in appellate courts the presence of three judges constitutes a quorum. (2 kap. 8 § 1 st Rättegångsbalken (FFS 1734/4) (RB).) Additionally, in certain cases, proceedings may continue despite the absence of one judge following the main hearing. (2 kap. 12 RB.)
The Two Cases Before the Supreme Court
In the Turku Appeals Court case, all three appellate court judges had been physically present for the initial hearing and issued a partial (interlocutory) judgment before one judge had to quarantine due to COVID-19 exposure. Following this judge’s exposure to COVID, the judge participated via videolink, and measures were taken to allow the parties to present their cases again. The Supreme Court found that the judge participating virtually should not be considered as having been absent from the proceedings but as having participated incorrectly. Nevertheless, the judge’s participation via videolink during the subsequent proceedings had not hindered the defendant from defending his case to the extent that a rehearing by the appeals court would be required. The case was therefore not remanded.
In the Vaasa Appeals Court case, the use of the electronic videolink was the result of a convenience request from the prosecutor who was retiring, and unrelated to the ongoing COVID-19 pandemic. The prosecutor, the parties, and one judge had participated from a district court building while the two other judges had been present in person at the Vaasa Appeals Court. The Supreme Court found that the defendant had not provided clear consent to the judge participating via videolink and that it was not justifiable to hold the hearing via videolink. The Supreme Court ruled that the case must therefore be reheard by the appellate court.
Following the two decisions by the Supreme Court, it became established that under Finnish law that judges cannot participate via videolink absent a legislative change because the law does not allow for such participation. Specifically, the Trial Procedure Code does not regulate how and when judges can participate electronically, and the Supreme Court found that, absent a clear mandate to participate electronically during the main proceedings, judges cannot participate via videolink.