Hearings in German Civil Proceedings by Way of Video and Audio Transmission: An Overview
By Dr Karl Friedrich Dumoulin, FPS
In Germany, the number of hearings in civil proceedings by way of video and audio transmission (Section 128a of the German Code of Civil Procedure) has increased considerably since the start of the pandemic. The judicial administrations of the Federal States (Länder) are moving to equip the courts accordingly in terms of technology.
The court can allow the parties, their attorneys, and interpreters, upon request or ex offcio, to be present at another location during a hearing and to perform procedural acts there. The hearing shall be transmitted simultaneously in picture and sound to this location and to the hearing room. This shall apply accordingly – only upon request – to witnesses, experts, or parties during their examination. The transmission shall not be recorded. The decisions of the court on the question of the appropriate use of video and audio transmission shall be final. There are no special requirements for a hearing by means of video and audio transmission. It is only necessary that the hearing is transmitted “simultaneously in picture and sound” to the “other place” and to the meeting room. A hearing by way of a telephone conference is thus excluded, even with the consent of the parties. “Transmission of the hearing” means that not only the person speaking in each case is transmitted to the other place, but that all persons can always be seen. In order to ensure the publicity of the hearing, it must be possible for potential spectators to follow the hearing in the hearing room. The decision on whether to allow one or more participants to be in another location is at the discretion of the court. However, the court must exercise its discretion dutifully and justify it individually. It must consider the legislator’s intention to promote the use of video-conferencing technology and, at present, the risk of infection (especially for risk groups) associated with a hearing in a closed room. If the appropriate technology is available in the hearing room, however, the personal impression often plays a significant role in the examination of witnesses (or parties). In this case, a hearing by means of video and audio transmission only rarely seems appropriate. An argument against such requests for interpreting is that there are often considerable “friction losses”, even when all parties are present, and these losses are even greater when the interpreter is not present. By contrast, the court will only be able to refuse requests by party representatives or experts to be in a “different place” during the hearing in exceptional cases.
Even if the court allows a party to be in a “different place”, the party is of course still free to appear in person.
According to the prevailing opinion, the “other place” must be specifically designated. This is understandable for the examination of witnesses or parties to prevent them from being influenced. In that case, however, the court should, as a rule, consider refraining entirely from hearing the testimony via video-conference.
However, it is not clear why the court has to specify to attorneys or experts where they must be during the hearing, as long as the other location is suitable (no background noise). Thus, it is also permissible for a judge to only stipulate that attorneys and experts are permitted to be present during the hearing/examination, e.g. in their offce or in another location that ensures that the hearing/ examination can be conducted without disturbance. Then ad hoc participation from the home offce is possible. As in every presence hearing, the court must keep a record of the place from which the party is connected.
If the party does not appear either at the court location or by means of video and audio transmission, the court may, if necessary, issue a default judgment, unless the party was prevented from appearing (in person or by means of video and audio transmission) through no fault of his own (in particular due to technical problems). If a witness or an expert does not appear, the imposition of an order may also be considered.
Dr Karl Friedrich DumoulinGGI member firm
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Dusseldorf, Frankfurt, Berlin, Germany
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FPS is one of the largest fully independent German law firms, with four offices in Germany. FPS currently employs over 120 lawyers and notaries. One of the firm’s core areas of expertise is national and international litigation as well as dispute resolution.
Dr Karl Friedrich Dumoulin is Global Vice Chairperson of the GGI Litigation & Dispute Resolution Practice Group and Partner at FPS in Dusseldorf. His areas of expertise cover the entire range of corporate and commercial law, including litigation and dispute resolution, very often in an international context.
Publsihed: Litigation & Dispute Resolution Newsletter, No. 14, Spring 2021 l Photo: engel.ac - stock.adobe.com