25 May 2020 – need2know
According to the previous “Corona legal situation”, oral hearings were only to be held if, after careful consideration of all circumstances, the continuation of the proceedings appeared to be urgently necessary and the public interest in preventing the dissemination of COVID-19 did not prevail. Furthermore, restrictions apply to the operation of the court. In order to avoid a backlog of negotiations, the possibility of holding hearings via video conference has now been established:
Videoconference with the agreement of the parties
For the time being, until the end of the year, it will be possible to conduct negotiations without the physical presence of the parties, using appropriate technical means of communication; this is subject to the agreement of the parties. In matters of accommodation, home stay or adult protection, as well as in proceedings under the Tuberculosis and Epidemics Act, hearings may also be conducted without such consent using video technology if the hearing would have to take place outside the court anyway (e.g. in a hospital). The parties may also suggest that the proceedings be conducted by means of video conferencing.
It is also possible, for example, to call a witness from another room in the same courthouse in order to minimize the number of people in the courtroom at the same time. A right to participate in a hearing in this special way only exists if you yourself or a person with whom you have necessary contact is exposed to an increased health risk due to COVID-19.
Negotiation modalities
The Ministry of Justice generally uses zoom for video negotiations. However, whether and with which software a hearing is to be conducted via video conference is ultimately at the discretion of the court.
However, if the parties to the negotiations are to be contacted from their homes or premises, this presupposes that they have the appropriate means of communication. This must be clarified in advance.
There is no obligation to purchase them. If parties or witnesses do not have the technical means for video-connection, unrepresented parties may request adjournment of the hearing and represented parties or witnesses may request provisional seclusion from their hearing until (currently) no later than the end of December 2020. Party representatives, experts or interpreters are deemed to have the necessary technology. In order to ensure that the witnesses’ testimony is uninfluenced, judges may, within the scope of their competence as negotiators, also request witnesses to prove, by means of panning the video camera through the room, that the testimony is uninfluenced by third parties.
If a hearing is conducted by means of video conference, the parties’ signature on the minutes of the hearing is not required in exceptional cases. The list of costs, which must in principle be submitted by the end of the oral proceedings, is deemed to have been submitted in good time if it is sent by electronic means or simply by e-mail to the address notified by the decision-making body no later than the end of the working day following the oral proceedings. The time limit for objections to the other party’s list of costs begins with its service.
If the parties wish to conclude a settlement, the court must either make the text of the settlement visible to the parties on the screen or read the settlement text out loud and clearly or play the settlement text recorded on a sound carrier so that it is clearly audible to all. Each party must clearly and unambiguously express its will to conclude this court settlement.
Disclaimer
Please note that the information provided here is not a substitute for legal advice. The regulations presented here can be changed by the legislator at short notice. We therefore invite you to visit our information area on a regular basis.
Authors: Florian Neumayr, David Pukel
Practice Group
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