Online Courts – Allowed by Technology and Facilitated by Law

As the number of COVID-19 cases continues to grow, governmental and judicial bodies have been forced to consider new measures to attend to public health directions and offer new pathways towards remote connectivity. Seeking to uphold the necessary safeguards to contain the risk of rising infection rates, while ensuring parties are granted access to fair hearings and upholding principles of immediacy and orality, new legal provisions have been introduced in a number of jurisdictions to clarify and facilitate the operation of litigation practices.

Despite being a public health concern, the pandemic has prompted considerable legal and policy responses that have severely impacted the ability of people to access justice.¹ As restrictions on the freedom of movement have grown, a number of laws have been introduced by the Austrian Parliament pertaining to interactions within its justice system.

This article will focus on the recent legislative developments impacting the operation of courts and court hearings in Austria. It will refrain from considering regulatory changes concerning inter alia the suspension or extension of substantive deadlines including limitation periods or default payment obligations. Instead this article will draw on the new rules for conducting legal proceedings by way of video technology and highlight their benefits particularly in relation to high risk groups for COVID-19. In this regard, the following will draw on recent submissions brought before the District Court Liesing by Oblin Rechtsanwälte GmbH and advocate in favor of a more holistic, flexible approach ensuring the continuous effective operation of the Austrian justice system as well as equal and timely access of its services.

Remote Hearings

Although party appearances in Austria have resumed since July 2020, at present they find only limited application, namely to ‘the extent necessary to safeguard procedural and party rights’² and are only to be conducted in ‘cases where it has been necessary to avert danger to life and physical integrity or prevent irreparable harm.’³

While Austrian civil procedure law requires oral, direct and public proceedings, it does permit for exceptions by allowing disputes to be litigated remotely via the use of alternative communication means, specifically electronic legal correspondence (Elektronischer Rechtsverkehr, ERV) or video-conferencing tools. The former has been successfully implemented in Austria for many years. Established in 1990, it constitutes a comprehensive framework for the ‘electronic transmission of applications or submissions and the automatic transfer of procedural data to the Automation of Court Procedures.’⁴ As a uniform and efficient instrument for the electronic service of documents by courts it continues to support efforts of delivering speedier justice for the users of courts and tribunals during the COVID-19 pandemic.

The use of video-conferencing is similarly not a novelty in Austrian legal proceedings, however, its application has thus far only been permitted in circumstances that would necessitate the taking of evidence in person or make such a procedure preferable for reasons of procedural economy. Video-conferencing conducted for purposes of evidence taking in civil matters is regulated under § 277 of the Austrian Code of Civil Procedure (Zivilprozessordnung, ZPO), while § 165 of the Criminal Procedure Code (Strafprozessordnung, StPO), stipulates its use in context of oral testimony of vulnerable witnesses requiring additional protection.⁵

In an effort to facilitate the continuation and remote functioning of civil trials throughout the COVID-19 pandemic, court procedures have undergone considerable change.

The Federal Act on Accompanying Measures for COVID-19 in the Judicial System, Federal Law Gazette I 2020/30 (Bundesgesetz betreffend Begleitmaßnahmen zu COVID-19 in der Justiz BGBI I 2020/30, [1. COVID-19-JuBG]),⁶ which entered into force on 6 May 2020, provides the legal basis for using video technology and conferencing in oral hearings. It purports to adjust court proceedings in a way that accommodates the needs of court users while also expanding on the established electronic communication tools addressed above.

Pursuant to its provisions, negotiations as well as hearings may be conducted without the physical presence of parties or their representatives until 31 December 2020, thereby allowing evidence to be taken at oral proceedings or outside of it while reinforcing the right of individuals who are to be called to the proceedings (e.g. experts, witnesses, interpreters etc.) to attend irrespective of whether the requirements of § 277 ZPO are met. For the new rules to be enforceable, certain conditions have to be satisfied:

• Access to suitable communication technology must be secured (§ 3 Abs 1 Z 1 1. COVID-19-JuBG);
• All parties must consent to the use of said technology, which is deemed to have been given unless the parties object within a reasonable period set by the court (§ 3 Abs 1 Z 1 1. COVID-19-JuBG);
• • Non-contentious legal proceedings (Außerstreitverfahren) regularly taking place outside the courtroom are exempted from the prior approval requirement, e.g. nursing homes, hospitals etc. (§ 3 Abs 1 Z 2 1. COVID-19-JuBG);
• The parties are able to certify that an increased health risk exists both for themselves or individuals with whom they are in necessary private and professional contact with (§ 3 Abs 2 1. COVID-19-JuBG).

The law hereby affords courts considerable leeway to accommodate spatial limitations as well as to ensure necessary precautions are taken to minimise potential exposure to the virus. Determining the appropriateness of using video conference technology is solely at the discretion of the court.⁷ The assigned judge must thus examine which measures may be necessary in light of the health risks posed by COVID-19 and the extent to which their implementation can be guaranteed.⁸ If the court does not make use of video-technology and yet does not permit the hearing to be conducted in person (for the aforementioned reasons of lack of space or health concerns), parties may seek a motion to have the case heard by a set deadline (Fristsetzungsantrag) pursuant to § 91 of the Court Organization Act (Gerichtsorganisationsgesetz, GOG).⁹

The New Provisions in Action

The District Court Liesing (Bezirksgericht) recently considered submissions brought by counsel of Oblin Rechtsanwälte GmbH, which centred on the application of § 3 Abs 2 of 1.COVID-19-JuBG and the protections it offers to those at higher risk from coronavirus. Although a judgment is yet to be rendered, the following will draw on the facts of the case and outline the arguments asserted during the proceedings, highlighting how the use of video technology as enabled through the new rules, may contribute to, support and advance the proper administration of remote justice.

i. Health

• The Defendant is a German citizen and has been living with his family in the Philippines since retirement. As holder of a permanent Special Resident Retiree’s Visa (SRRV), Manila has been his primary place of domicile, a fact that is also evidenced in his passport. Prior to the outbreak of the virus, he would spend a few months in Austria on a case-by-case basis.
• In light of the fact that the Defendant is 77 years of age, male and suffers from underlying medical conditions he is at increased risk for severe illness from COVID-19. To avoid possible infection, he has been advised to self-quarantine at home as documented in a medical certificate and as of 13.08.2020 continues to be treated for conditions of heart failure, cardiac arrhythmias as well as high blood pressure.
• Drawing on the COVID-19 Risk Group Ordinance (COVID-19-Risikogruppe-Verordnung)¹⁰ of the Austrian Federal Minister for Social Affairs, Health, Care and Consumer Protection, indicators of individuals at high risk include:
• • Chronic heart disease with end organ damage requiring permanent treatment such as heart failure (§ 2 Abs 1 Z 2 lit b COVID-19-Risikogruppe-Verordnung); or
  • Arterial hypertension with existing end organ damage in particular chronic cardiac or renal insufficiency or uncontrollable blood pressure (§ 2 Abs 1 Z 9 COVID-19 COVID-19-Risikogruppe-Verordnung).

ii. Current state of the pandemic at place of residence and entry conditions into Austria

• Travel warnings to the Philippines have been issued by the Austrian federal Ministry for European and International Affairs (Bundesministerium für Europäische und internationale Angelegenheiten, BMEIA); the entry ban imposed on 15.03.2020 has been lifted and re-entry has resumed since 01.08.2020, albeit subject to strict conditions:
• • Negative PCR test upon arrival or entry into ten-day quarantine at suitable accommodation, the availability of which must be confirmed;
  • Evidence of access to pre-booked, local quarantine facilities must be provided;
  • Non-residents must prove they are visa holders.
• Since August, the country has entered a lockdown-like state. Individuals aged 60 or above are prohibited from leaving their homes.
• Quota regulations have been put in place to regulate the maximum number of daily arrivals and the number of international flights has been significantly narrowed.

iii. Outlook

The Defendant’s Special Resident Retiree’s Visa status, prevents him to re-enter the Philippines under section 13 of the Philippine Immigration Act 1940 following a temporary stay in Austria. Being neither domiciled in Austria nor having any relatives in the country that could provide the necessary support and care to look after him, renders any travel outside his current residence infeasible.

As the facts of this case suggest, given the current circumstances it has become essential to establish a legal framework that balances risk-averting emergency measures with the interest of protecting the rule of law as well as access to justice and due process. Video-conferencing in times of COVID-19 has proven to be a technology capable of reducing disruptions to usual court practices, minimising possible prejudices faced by court users and ensuring that respect for the life and health of others is not disregarded.¹¹ Irrespective of the challenges that may arise from recent legislative developments, there are many benefits to be gained from the new provisions to the way cross-border disputes are resolved.

In absence of waiting for physical court rooms to become available, applications may not only be dealt with at greater speed, court case backlogs may also be significantly reduced.¹² As the number of virtual hearings increases, institutions will also be better positioned in the future to continue the functioning of the justice irrespective of unforeseeable and extraordinary events that necessitate the closure of court buildings.¹³ For these reasons, the use of virtual communication tools should be encouraged and perceptions of its inadequacy dispelled. As a shift to virtual justice is gaining momentum, its permanent integration into existing law must be preceded by discussions among legal practitioners and at political level to ensure that any potential tension with recognized procedural principles is rectified.

Footnotes

1. UNODC (2020) Ensuring Access to Justice in the Context of COVID-19. UNODC Guidance Note. Available at: https://www.unodc.org/documents/Advocacy-Section/Ensuring_Access_to_Justice_in_the_Context_of_COVID-191.pdf [accessed 10.10.2020], p6.

2. Knoetzl, B. (2020) COVID-19 Pandemci. Impact of COVID-19 on Court Operations and Litigation Practice. IBA Litigation Committee, p8.

3. Knoetzl (n ii), p8.

4. Federal Ministry Republic of Austria Digital and Economic Affairs (2017) Administration on the Net. The ABC guidance of eGovernment in Austria, p177.

5. European e-Justice Portal – General Information (2018) Taking evidence by videoconferencing – Austria. Available at: e-justice.europa.eu/content_taking_evidence_by_videoconferencing-405-at-en.do?member=1 [accessed 11.10.2020].

6. Available at: https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20011087&FassungVom=2020-03-25.

7. Scholz-Berger, F.; Schumann J. (2020) Die Videokonferenz als Krisenlösung für das Zivilverfahren. ECOLEX. Available at: https://zvr.univie.ac.at/fileadmin/user_upload/i_zivilverfahrensrecht/Scholz/ecolex_2020-06__469_Florian_Scholz-Berger.pdf [accessed: 12.10.2020], p470.

8. Scholz-Berger; Schumann (n vii), p471.

9. Scholz-Berger; Schumann (n vii), p471.

10. Available at: https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20011167.

11. “COVID-19 and the Global Approach to Further Court Proceedings, Hearings.” Global Law Firm | Norton Rose Fulbright, www.nortonrosefulbright.com/en/knowledge/publications/bbfeb594/covid-19-and-the-global-approach-to-further-court-proceedings-hearings [accessed 10.10.2020].

12. Baker McKenzie (2020) The Future of Dispute Resolution: Which changes should survive the return to “normal”. Future of Disputes – Thought Leadership. Available at: https://www.bakermckenzie.com/-/media/files/insight/publications/2020/06/future-of-dispute-resolution–what-changes-should-survive-the-return-to-normal.pdf [accessed 11.10.2020], p7.

13. Baker McKenzie, (n xii).

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