Many are currently working from home due to the coronavirus pandemic. Video conferencing has become part of everyday life. Enabling communicative exchange while avoiding physical contact has led to numerous "zoom meetings" at home, as well as numerous legislative innovations. Shareholders' meetings and annual general meetings can now be held without physical presence (see blog post Federal Government Legislative Package to Mitigate the Effects of the COVID 19 Pandemic). In future, even "digital" works council decisions are planned to be made possible (see blog post, Digital Works Council Work on the Home Straight).
However, even though the German Association of Judges publicly states that the administration of justice is not at a standstill during the coronavirus pandemic, it can nevertheless be noticed that in civil proceedings numerous oral hearings are postponed or not scheduled at all for fear of contagion. Still, these numerous postponements would not even be necessary. Video hearings are also permitted in civil proceedings. What very few people know: According to section 128a of the German Code of Civil Procedure, ZPO, the possibility of a "hearing for oral argument using image and sound transmission" has existed already since the ZPO reform law of 2001. Nevertheless, the "video hearing" has not yet become established in court practice. The corona pandemic might change that.
1. Hearing for oral argument using image and sound transmission pursuant to section 128a ZPO
Pursuant to section 128a ZPO, hearings for oral argument using image and sound transmission have been generally permitted since 2001. This provision allows parties to proceedings to take actions in the proceedings or be heard in a place other than the courtroom via an audio-visual connection. Section 128a ZPO aims at procedural economy by using modern technical possibilities as well as saving time and costs by eliminating the need to travel long distances to and from the place of jurisdiction. In times of corona, in addition to avoiding long journeys under difficult conditions, it is also important to avoid the risk of contagion by reducing the number of people present in the courtroom.
2. Legal and technical requirements for video hearings
The video hearing according to section 128a (1) ZPO first of all requires a decision by the court. This decision allows a party to the proceedings (or more parties) to audio visually connect from a place other than the courtroom, the broadcasting location. This is done at the request of the parties to the proceedings or can also be done ex officio. Although the consent of the party concerned is no longer required since an amendment in 2013, it is always possible to appear in person, even if the video hearing is ordered. The decision is at the court's discretion which has to take into account in particular the costs and time involved for the concerned party.
It is further required that it is technically possible to simultaneously broadcast image and sound of the hearing to the courtroom and to the broadcasting location. Recording and playback devices are necessary at both locations. The person participating by videotelephony must be able to follow the entire hearing. The events in the courtroom must be transmitted where at least the Court itself must be physically present, as well as the other participants, whether they are in the courtroom or also participating by videotelephony. The parties participating by videotelephony must be broadcast to the courtroom. The public ‑ which is only allowed in the courtroom ‑ must only be able to follow the broadcast sound. The broadcast images and sound must not be recorded pursuant to section 128a (3) sentence 1 ZPO. Its content is documented in the minutes as part of the oral hearing.
The technical requirements for broadcasting do not have to be particularly high. A recognisable broadcast of the image and the comprehensible broadcast of sound are sufficient, which can be guaranteed nowadays without major technical and financial expenditure. In some courts, for example, the use of the software "Skype for Business" has become established, where the party participating by videotelephony only needs a computer equipped with camera and microphone. Only the court needs a more comprehensive technical equipment. In addition to the broadcasting software, recording and playback devices must be available for the courtroom. Some courts are equipped with video conference rooms, while some courts also have mobile equipment that can be taken to the respective courtroom. So far, however, not all courts are by far equipped with the necessary technology.
If the technical equipment is available, the court still might have doubts about the suitability of the video hearing. Broadcasting is certainly not equivalent to personal presence. The disadvantage is the reduced immediacy, the lack of an impression obtained when personally faced with someone. However, that is not necessarily needed in every hearing. For example, if there is no extensive taking of evidence or only short formal matters are involved, no physical presence is usually required.
3. The parties' right to file an application
The party may request that a video hearing be opened by means of an application. However, there is no legal claim that courts have the necessary technical equipment, nor that it will be used in a specific case. Moreover, the discretionary decision of the court on section 128a ZPO cannot be contested (in isolation). Experience has shown that it therefore depends on the respective court or judge whether the possibility of video hearings can be used, which can usually be clarified in advance.
During the coronavirus pandemic, video hearings in civil proceedings are an effective means of avoiding the risk of contagion and, at the same time, a standstill in the administration of justice.
Once the crisis is over, digital oral hearings do not have to become the norm. However, with the technical possibilities of video hearings once created - and possibly an increased willingness to do so due to good experience or at least less reluctance - the purpose of section 128a ZPO could be achieved in the long term: in appropriate cases, the avoidance of considerable time and travel expenses for parties to proceedings with only insignificant disadvantages for the hearing by means of digital broadcasting to the courtroom. In this respect, the coronavirus pandemic can also be understood as an opportunity.
Finally, the legislator intends to further promote the possibility of video hearings in other court proceedings as well. For example, the draft of section 114 of the German Labour Law Courts Act (ArbGG) even provides for the possibility of the participation of lay judges in labour law court proceedings by means of video and audio broadcasting in addition to section 128a ZPO.