18-year-old law helps German courts tackle backlog

Courtroom video conferencing became legal in Germany in 2002, with a limited uptake. But despite its limitations, this ‘dead law’ has become a potential solution for Germany’s backlogged courts in the Covid-19 crisis. 

Under s.128a ZPO, the court can order an oral hearing via video conference without the request or consent of the parties, though each party is still free to attend the oral hearing in person. Because the oral hearing (Mündlichkeitsgrundsatz) is not impaired, the law does not see the use of video conference technology as a limitation of the rights of one of the parties. Upon request, the court can also order that a witness, an expert or one of the parties be examined via video conference.

However, the system is by no means perfect. It is not admissible to present or inspect documents or other exhibits via video conference as they have to be submitted to the court if the court orders the party to do so. Consequently, as soon as one of the parties has to produce documents or other exhibits to the court, it would not make sense to order a video conference.

Furthermore, the accessibility of the trial can cause complications. Though hearings must be broadcast to the respective parties, German law does not allow for the hearing to be made available for streaming or broadcast online as oral hearings must not be recorded. Nonetheless, all court hearings must still be open to the public (Öffentlichkeitsgrundsatz). Therefore, it is necessary that at least the audio is made available in the courtroom. 

In contrast to the courtroom, where the live broadcast must be made available to the judge(s) and the party attending in person, the rooms of the other participants do not have to be accessible for the public in video conferencing. The courts also must consider that examining witnesses located outside of Germany might interfere with the territorial sovereignty of the respective state. Therefore, it must comply with the framework of international contractual or non-contractual legal assistance.

Nevertheless, with Covid-19 meaning that the number of people who would have to attend the hearing in person must be reduced dramatically, video conferencing offers an imperfect solution for big litigation cases with multiple interveners.

Covid-19 has created court backlogs around the world. In the UK, the backlog extends back over half a million cases, with some trials not expected to start until December 2021. The situation is similar in Germany, where the German Association of Judges’ managing director, Sven Rebehn, suggested that many postponed cases will not be worked off until the end of the year.

Social distancing measures have created a logistical nightmare for many courtrooms. Even as countries begin to ease quarantine restrictions, trials simply cannot be held in many courtrooms as officials look to maintain social distancing.

This might, in particular, be suited to time sensitive cases like patent litigation. As the patent chambers at German courts are very busy, failure to reschedule hearings might lead to patents expiring in the course of litigation. German courts try to maintain the functionality of the legal system by focusing on urgent cases like preliminary injunctions. ’Regular’ (patent) litigation cases usually do not match this definition. 

It remains to be seen whether German courts will make use of the instruments of s. 128a ZPO. However, the Dusseldorf Regional Court (Landgericht Düsseldorf), as one of the first courts in Germany, reacted to the crisis caused by the Covid-19 pandemic and announced that it will provide the opportunity to hold oral hearings via video conference.

Even if, in general, German courts probably do not like the idea of having video conferences in their courtrooms, it provides the clearest solution to the backlog. Nevertheless, video hearings are not the perfect solution, and require further work as the pandemic persists. 

Dimitri Kosenko is an associate with EIP in Düsseldorf