Last week, the Federal Ministry of Justice published a draft bill which aims at making video hearings standard practice. The scope of Section 128a Code of Civil Procedure (ZPO) will be expanded; the provision will supplemented by a new Section 284 para. 2 ZPO dealing with the taking of evidence by video.
In an earlier post, I had set out the current practice of remote courts in Germany. It characterised by a modern and forward-looking code not translated into practice: As far back as 2002, legislation was introduced to allow the conduct of court hearings using videoconferencing technology. However, prior to the pandemic, this was law in the books, not law in action. Courts lacked the required IT infrastructure. Covid has totally changed the landscape. As the infrastructure is now in place, the law is ready for an up-date.
First, the basic concept will change: Going forward, the courts will have powers to order a video hearing which parties have to attend via remote. Under the current rules, it can merely permit attendance via video and parties still have the option of attending in person. The new model will be “opt-out”: parties must seek the court‘s permission to attend in person.
Secondly, if all parties want the hearing to be conducted by video, the court must in ordinary circumstances honour the parties’ request and order a virtual hearing. If the court rejects the parties’ request for a video hearing, it must so in an order stating its reasons, with such an order being subject to a immediate challenge (sofortige Beschwerde).
The third major step is to allow fully virtual hearings. Currently, the judges have to be present in the courtroom, with only parties, witnesses and experts attending by video-link. This requirement will fall away.
The fourth element concerns the taking of evidence: The bill will extend the scope for taking evidence by video, allowing for example the inspection of pieces of evidence by video rather than in situ.
Finally, as regular reades of this blog may know, there are no verbatim protocols in German civil litigation. As a (small) step into this direction, it will be possible for hearings to be provisionally video-taped. Parties will then be able to access the audio or video documentation of witness evidence.
The draft deliberately omits the cross-border use of video hearings. On that subject, it defers to the EU Commission’s draft on the topic of December 2021 (see here for the EU proposal). Currently, the German courts appear to be more liberal than the majority of legal commentators and tend to allow the cross-border use of video-links without prior approval from the foreign state concerned (see here for recent German case law on the issue).
Over at LinkedIn, Philipp H. Haberbeck posted interesting news on Switzerland‘s proposed new approach to the issue: Switzerland is set to liberalise access to cross-border video procedures. Under the government‘s proposal, it will be possible to hear individuals domiciled in Switzerland in foreign civil proceedings by telephone or video conference without prior approval by the Swiss authorities, provided that certain rules are observed. I have a lot of sympathy for that approach and would love to see it discussed in the context of Germany‘s reforms.