Whereas electronic communication with the courts (“elektronischer Rechtsverkehr”) has been implemented successfully in Austria for many years, the concept of online courts is new and has so far not been adopted in Austrian legislation.
Up until recently, video conferencing in civil or criminal courts in Austria was permitted only in certain exceptional cases. Video technology can be used in civil courts in certain cases for the hearing of evidence (Section 277 Code of Civil Procedure, Zivilprozessordnung, ZPO) or in criminal courts in the context of oral testimony of witnesses or victims in need of special protection (Section 165 Criminal Procedure Code, Strafprozessordnung, StPO).
However, due to the COVID-19 pandemic, court arrangements have been changed as of 5 May 2020. According to the First COVID-19 Act and Accompanying Legislation for Justice (1. COVID-19 Justizbegleitgesetz) video technology may now be used in civil court hearings, provided that the involved parties in the proceedings agree and have access to the appropriate equipment. The Act also provides for the hearings of witnesses, experts, interpreters and other affected parties. The law will be in force for a limited period until 31 December 2020.
The Principle of Open Justice in Austria
As a matter of Austrian law, all court hearings in civil and criminal matters must be public. Judges have therefore been advised to conduct any video court hearing from a public courtroom. The principle that court hearings must be in public is anchored twofold in the Constitution – in Article 90 of the Austrian Constitution (Bundesverfassungsgesetz, B-VG) on the one hand, as well as in Article 6 of the European Convention on Human Rights (Europäische Menschenrechtskonvention, EMRK), on the other. It is also embodied in a law, Section 171 of the Austrian Code of Civil Procedure (Zivilprozessordnung, ZPO) which states that court hearings as well as the delivery of judgment must be public.
Feedback from the legal community after a few weeks of operation, however, is not very encouraging. Court hearings by video conference are regarded with great scepticism, not only due to the lack of direct interpersonal contact but also due to a perceived loss of efficiency caused by the divergence from the standard process of a court hearing (with particular difficulties with witness and expert testimony and dictating the actual judicial transcripts).
The standard conferencing software which is used must necessarily be easily available, because hardly any courtroom in Austria is equipped with professional video conferencing facilities.
The initial feedback from the legal community is that the judiciary sees video conferencing as an interim solution during the COVID-19 pandemic but does not see a great future for the process.
24 May, 2020