Virtual court hearings as part of the "new normal"? - Update 2023

The coalition agreement from 2021 already contains various digitalisation plans for the judiciary. The Federal Ministry of Justice's (BMJ) draft bill of 23 November 2022 was followed by the Federal Government's draft law to promote the use of video conferencing technology in civil jurisdiction and the specialist courts of 24 May 2023. The draft law was passed by the Parliament’s first chamber (the “Bundestag”) on 17 November 2023, along with a number of amendments. The main new feature is the possibility of so-called fully virtual video hearings in accordance with Section 128a (6) of the draft (ZPO-E). As a result, the chairperson should also be able to conduct the hearing from their home office in suitable cases.

However, on 4 December 2023, the Legal Affairs Committee recommended to the Parliament’s second chamber (the “Bundesrat”) that the Mediation Committee be convened with the aim of fundamentally revising the law.

I. The implementation of virtual negotiations

Both the BMJ's draft bill from 2022 and the recently adopted bill suggest various changes to different procedural rules. Among other things are plans for an audio visual recording of oral proceedings (instead of a mere audio recording in accordance with section 160a ZPO), and the virtual submission of motions for the record (instead of a declaration in person in accordance with section 129a ZPO). However, the focus of the intended reforms remains on adapting section 128a ZPO.

1. Essential contents and innovations of section 128a ZPO

a) Currently, the court can authorise parties to proceedings to participate virtually in the oral hearing upon request or ex officio, pursuant to section 128a (1) ZPO. However, even if authorisation for virtual proceedings has been granted, the parties are currently still able to appear in person at the oral hearing. Therefore, there is no obligation to participate by videoconference. The presiding judge can refuse to hold a video hearing even if both parties wish to do so. The court therefore has unrestricted discretion regarding the decision on whether or not to hold a virtual hearing.

b) In accordance with section 128a ZPO-E, the current draft bill provides the following:

1. The oral hearing may be held as a video hearing in appropriate cases. An oral hearing shall be held as a video hearing if at least one party to the proceedings or at least one member of the court participates in it via video and audio transmission. The parties and intervening parties, their authorised representatives as well as representatives and advisors, are parties to the proceedings in accordance with this provision.
2. The chairperson may authorise or order participation in the oral hearing by video and audio transmission for one, several or all parties to the proceedings. If a party requests to participate by video and audio transmission, the chairperson shall order this. The rejection of an application to participate by video and audio transmission must be justified, by taking into account the circumstances of the individual case.
3. The chairperson shall conduct the video hearing from the court office. He may authorise other members of the court to participate in the hearing by video and audio transmission.
4. The parties to the proceedings, and third parties, are prohibited from recording the video hearing. They must be informed about this at the beginning of the hearing. The video hearing may be recorded in whole or in part for the purposes of section 160a. The parties are to be informed of the start and end of the recording.
5. The addressee may lodge an objection to an order pursuant to paragraph 2 within a period of two weeks. The chairperson shall point this out in the order. If the objection is lodged within the time limit, the chairperson shall cancel the order for all parties to the proceedings. In this case, the chairperson shall allow those parties who have not lodged an objection to participate by video and audio transmission. Otherwise, decisions in accordance with this provision are final.
6. If all parties to the proceedings and all members of the court participate in the hearing by video and audio transmission, the chairperson may conduct the video hearing from a location other than the court venue. In this case, the ability for members of the public to attend must be ensured in public hearings by transmitting the video hearing in sound and vision to a publicly accessible room in the competent court.

c) According to the current draft bill, the chairperson may, pursuant to section 128a (2) ZPO-E, at the request of a party to the proceedings or ex officio, authorise or even issue a binding order for one, several or all parties to the proceedings to participate in the oral hearing by video and audio transmission. The presiding judge should order the transmission in accordance with section 128a (2) ZPO-E if a party applies to participate via video and audio transmission. If the court rejects such an application, it must give reasons for its decision in accordance with section 128a (2) ZPO-E. In addition, parties have the option of challenging the court’s refusal decision in accordance with section 128a (5) ZPO-E. As a result, (1) the possibility of an order as an alternative to mere authorisation, (2) the obligation to give reasons in the event of a refusal, and (3) the restriction of the court's discretion through the mandatory provision, together increase the chances of a future virtual hearing practice. Nevertheless, large parts of the draft bills and draft laws are formulated rather cautiously.

There is also a debate on where honorary judges, who play an important role in the labour courts, must be located during video conferences. Section 128a (3) sentence 2 ZPO-E of the draft bill provides for the possibility of authorising the participation of honorary judges via video and audio transmission. However, there is no entitlement to video participation. In any case, participation from the private study will have a different effect on the parties than actual presence in the courtroom. In this respect, it appears questionable whether the authority of the adjudicating body is sufficiently effective in the context of virtual court proceedings.

If a party does not agree with the video hearing that has been ordered as binding for all parties to the proceedings, but would prefer a hearing in person in the courtroom, they can lodge an objection to the order in accordance with section 128a (5) ZPO-E within a period of two weeks. This does not have to be substantiated. The chairperson is then obliged to cancel the order for the video hearing for all parties to the proceedings. In this case, the chairperson should allow the parties to the proceedings who have not lodged an objection to participate via video and audio transmission.

2. Court publicity remains unaffected

To uphold the principle of publicity under Section 169 (1) sentence 1 of the German Act on the constitution of Courts (GVG) in the case of fully virtual video hearings, the courts must allow the public to participate directly in the video hearing in accordance with Section 16 (1) ZPOEG-E. Federal and state ordinances are supposed to regulate the specific organisation and establishment of the framework conditions. For example, the provision of an access link can be tried and tested. The findings should be evaluated by the BMJ.

In addition, according to Section 128a (6) ZPO-E, fully virtual hearings must be made public by transmitting the video hearing in sound and vision to a publicly accessible room, e.g. by setting up a transmission room in the responsible court. According to the draft bill, the transmission room in the court does not have to be a courtroom in a legal sense. The only mandatory requirement is that viewers can follow the video hearing in real time. It would even be conceivable to broadcast several sessions in parallel in the broadcast room to save even more resources. As a result of the broadcast, the possibility of public scrutiny of judicial proceedings is therefore retained.

II. Technical requirements still unclear

In order to actually put theory into practice, the necessary technical framework conditions must be created. While law firms and private households are likely to be sufficiently technically equipped for virtual hearings, the current lack of equipment in the courts could become an obstacle to virtual sessions. After all, the court needs sufficient screens and cameras in the respective courtroom or transmission room.

The BMJ assumes that there are already around 435 digitised courtrooms with video conferencing capability. In addition, video conferencing technology can also be used via web-based applications and computers. However, technical equipment that fulfils the requirements is still far from being available in all courts. In particular, the ordinary courts are not yet technically ready to conduct virtual proceedings across the board.

In addition to the need for sufficient equipment with the appropriate hardware, there is also the crucial question of the applicable software. There is currently no software developed specifically for the German courts. With the current commercial solutions, e.g. Microsoft Teams, Zoom or Webex, the accessibility for the parties involved must always be taken into account. There are also data protection concerns. The personal rights of all persons to be seen and heard must be protected at all times against interference in the context of unauthorised recordings by other parties to the proceedings or third parties. However, no details are yet known about the specific design, publication, accessibility and handling of such an application. Neither the BMJ's draft bill nor the current draft bill conclusively clarifies the use of standardised software.

If simultaneous video and audio transmission is not possible or is disrupted for technical reasons, the presiding judge must ultimately interrupt or even break off the hearing and adjourn it (OLG Celle, decision of 15 September 2022 - 24 W 3/22). Otherwise, a violation of the principle of orality (Section 128 (1) ZPO), the principle of publicity (Section 169 (1) sentence 1 GVG) and the principle of immediacy (Sections 128 (1), 355 (1) sentence 1 ZPO), as well as the parties’ right to be heard in accordance with Article 103 (1) GG, could be considered. Only recently, the Federal Fiscal Court (BFH) ruled that the right to be heard is violated if the party present in court has to turn their head 180 degrees in order to be able to see the image transmission of their opponent (BFH, decision of 18 August 2023 - IX B 104/22). If a party does not appear at the location of the audiovisual transmission despite being properly summoned and ordered to attend the video hearing, they are deemed not to have appeared. The opposing party can then file an application for a default judgement.

III. Special features of labour court proceedings

There are some special features specific to labour court proceedings. Currently, Section 46 (2) sentence 1 ArbGG refers to hearings by video and audio transmission in accordance with the provisions of the German Code of Civil Procedure (ZPO). However, it is now planned to introduce a separate labour court regulation within the framework of Section 50a ArbGG-E:

1. The oral hearing may take place as a video hearing. An oral hearing shall be held as a video hearing if at least one party to the proceedings participates in it via video and audio transmission. The parties and intervening parties as well as their authorised representatives, agents and advisors are parties to the proceedings in accordance with this provision.
2. At the request of a party to the proceedings or ex officio, the chairperson may authorise the participation by video and audio transmission for one, several or all parties to the proceedings. Reasons must be given in case off a rejection of the request to participate by video and audio transmission.
3. The parties to the proceedings and third parties are prohibited from recording the video hearing. They must be informed of this at the beginning of the hearing. The video hearing may be recorded in whole or in part for the purposes of section 160a of the Code of Civil Procedure. The parties to the proceedings shall be informed of the start and end of the recording.
4. Decisions pursuant to this provision are final.

Like section 128a of the Code of Civil Procedure, this provision is intended to expressly refer to the possibility of oral proceedings as video hearings. However, within the framework of Section 50a of the draft Act on Labour Law Proceedings ArbGG-E, the court merely authorises such a video hearing; in contrast to the planned extension of Section 128a ZPO, there should be no possibility for the court to issue a binding order for a video hearing at labour courts. This is intended to take account of the special features of labour court proceedings. Labour law disputes in particular, e.g. regarding the existence of an employment relationship, are often of existential importance for the employees concerned. Against this background, a meeting on the mere screen, where subtle differences in body language or similar are more difficult to recognise, could fall short in many cases.

The desire and need to work towards an amicable settlement in conciliation negotiations or at any stage of the proceedings is also likely to be easier to realise when all parties involved meet in person than in fully virtual video negotiations. After all, statistically speaking, legal disputes are rarely settled by purely legal means, especially in labour courts, and the majority of proceedings end in an amicable settlement.

IV. Advantages and disadvantages of virtual court hearings

Virtual proceedings are intended to expand the court's hearing options and guarantee the court's ability to function.

1. Positive effects

• Lengthy postponement and scheduling processes can be avoided by switching to a hearing by video and audio transmission. Video hearings allow for greater flexibility and in this respect comply with the principle of acceleration pursuant to Section 272 (1) and (3) ZPO.
• In the case of a virtual hearing, there is no need for the parties to travel, which saves time, money and environmental resources. In particular, small claims can be enforced in court digitally in a citizen-friendly and simple way (as already stated in the coalition agreement of the Ampel). Digital participation makes it easier to save resources, especially for people who only attend the proceedings for a short time, such as witnesses, experts and interpreters.
• Access to courts is made easier for people with limited mobility. Video hearings can contribute to more inclusive access to justice.
• Urgent proceedings, such as unfair dismissal proceedings, can be conducted effectively and without significant loss of time.

2. Negative effects

• The oral hearing, which the Federal Council describes as the centrepiece of every court case, should not lose its outstanding importance for establishing the truth, because the seriousness and authority of a trial disappear in the context of video hearings.
• Facial expressions and gestures are often of great importance in the context of the judicial culture of dispute. The personal presence of witnesses can be decisive, especially for assessing their credibility, but also for the confrontation between the opposing parties. In addition, the usual "handing over" of documents and evidence is not possible in virtual proceedings.
• Technical disruptions to the video conference delay the course of events. In addition, they can result in a judgement by default in the event of a complete failure to negotiate, if the presiding judge is not convinced that the connected party is not at fault for the technical disruption.

V. Outlook

The digitalisation of court proceedings should be seen as an opportunity. However, the technical requirements must be guaranteed by both the parties and the courts in order to ensure that hearings are as free of disruption as possible. Especially regarding the technical requirements, there is still an urgent need for action to expand a comprehensive IT infrastructure.
It remains to be seen to what extent the changes to the law regarding digital jurisdiction will have an impact even without a global pandemic. In particular, the planned amendment to Section 128a of the German Code of Civil Procedure (ZPO) seems quite likely, considering the draft bill and its current consultation.

Whether virtual court proceedings will ultimately become the norm and (completely) replace oral hearings with the physical presence of the parties in the courtroom remains to be seen in practice. One thing is certain: a personal appearance still has a different effect than the mere presence on the other party's screen.

Links

• Draft bill of the BMJ of 23 November 2022
  
• Draft law of the Federal Government of 24 May 2023
  
• Draft law of the Federal Government of 23 August 2023
  
• Recommendation for a resolution and report by the Committee on Legal Affairs (6th Committee) on the Federal Government's draft bill (printed matter 20/8095) of 15 November 2023 (printed matter 20/9354)
  
• Coalition agreement 2021 - 2025 between the SPD, Alliance 90/The Greens and the FDP
  
• Federal government bill on the digital documentation of main criminal court proceedings (printed matter 20/8096)
• Recommendation for a resolution and report by the Committee on Legal Affairs (6th Committee) on the Federal Government's draft bill - Printed Paper 20/8096 - Draft Act on the Digital Documentation of the Main Criminal Trial (Main Trial Documentation Act - DokHVG), Printed Paper 20/9359
  
• Recommendation of the Legal Affairs Committee for the Bundesrat to convene the Mediation Committee, Act to Promote the Use of Video Conferencing Technology in Civil and Specialised Courts, printed matter 604/1/23