30. March 2020

In Germany, the spread of the new Coronavirus SARS-CoV-2 has resulted in many severe restrictions on all areas of private lives and the economy, many of which seemed inconceivable just a few weeks ago. In order to contain the virus, authorities ordered the closure of many establishments, bars and stores in March. Numerous trade fairs, concerts and other public events were prohibited. Germany is in an unexpected state of shock, which is also affecting the judicial system, so many parties must ask themselves how the crisis situation will impact their court proceedings.

The judicial system is slowing down its operations – but it is not closing them

The judicial system is facing a difficult balancing act: On the one hand, the health of all parties must be protected. On the other hand, it must ensure the fundamental claim guaranteed in German Basic Law that the state provides any citizen with recourse to a court (Justizgewährungsanspruch). Therefore, the judicial system is significantly slowing its operations down but is not closing them.

In line with the recommendation made by the president of each court, many judges have cancelled hearings and are only holding proceedings in individual cases that cannot be deferred. Due to judicial independence, every court will ultimately decide on its own whether it heeds the recommendations or keeps holding proceedings. In cases where the court has not “officially” ordered the cancellation or deferral of a court hearing as well as in matters with fixed periods, lawyers must ensure that periods are extended and court hearings are deferred.

Extension of periods

The requirements for the court to extend periods prescribed by law or set by a judge can be found in the German Code of Civil Procedure (Zivilprozessordnung – ZPO), according to which periods may be extended upon application if “substantial grounds” can be demonstrated (Sec. 224 Para. 2, Sec. 225 ZPO). The officially ordered restrictions on the freedom of action constitute such substantial grounds. Currently, a (first-time) application for the extension of a period with reference to the ordered restrictions is readily being granted.

An extension of periods is not allowed in cases of so-called “statutory periods” (Sec. 224 Para 1, 2 ZPO) such as the appeal period after a default judgement. Instead, a so-called restauration of the status quo ante (Sec. 233 ZPO) could be considered. This restauration requires that the lawyer was prevented, through no fault of his own, from complying with the period. While it is usually affirmed that the lawyer is not at fault in cases of the lawyer’s serious illness, that will be difficult to argue in cases where reference is made to the restrictions on the freedom of action or even in cases where quarantine is officially ordered. After all, these measures were known long in advance and lawyers had time to prepare technically.

Deferral of court hearings

The deferral of court hearings works the same way: Upon the lawyer’s application, the court may cancel or defer a court hearing due to “substantial grounds” (Sec. 227 ZPO). As the attendance at a court hearing leads to travel and social contacts and thereby constitutes a health risk due to an increased risk of infection and spread, substantial grounds can surely be presumed. Therefore, courts should grant a deferral upon application in most cases.

In those few cases, where courts do not cancel or defer court hearings, it can currently be observed that courts take measures to comply with the recommended minimum distance of 1.5 metres between all participants in the courtroom.

The decision on the cancellation or deferral of a court hearing is incontestable (Sec. 227 Para. 4 Sen. 3 ZPO). If the court hearing is not deferred, but a party or its representative does not attend for fear of infection, the question whether that absence is without one’s fault and would not allow for a default judgement is still being discussed.

Possibilities for the conclusion of proceedings

A cancellation of a court hearing and the prospect of possibly only setting a new court date after a year are very unsatisfactory for most parties of the proceedings. Hence, lawyers should look for other ways to conclude proceedings. One solution is the transition to proceedings conducted in writing pursuant to Sec. 128 Para. 2 ZPO.

That law allows for a court to conduct proceedings in in writing with the consent of both parties. Parties do not have a right to proceedings conducted in writing, but they can suggest them to the court. The court will decide on the suggestion at its discretion, while considering the efficiency of proceedings. This solution is problematic, as the conduct of proceedings in writing often fails because one party does not consent to it.

Another possibility for the conclusion of proceedings is the court hearing using image and sound transmission pursuant to Sec. 128a ZPO. Unlike the conduct of proceedings in writing, the parties’ consent is not necessary for court hearings via video conference. Court hearings can be conducted via video conference upon application or official order. Such an order is not at the contestable discretion of the court.

Yet most courts will not have the necessary technical equipment to conduct court hearings via video conference. Another obstacle not to be underestimated will probably be the resistance of the mostly older judges to conduct proceedings in such an unusual manner. That attitude may change, especially if the protective measures including contact limitations must be upheld for a prolonged period.

Furthermore, the regulations allow for the examination of experts and witnesses via video conference, should an examination be necessary. In the current situation, the examination of witnesses in writing (Sec. 377 Para. 3 ZPO) and written expert reports (Sec. 411 ZPO) should also be considered by courts.

Conclusion

In the current unusual situation, lawyers and courts should utilize all available procedural possibilities to ensure both the parties’ health protection as well as access to the judicial system. Courts and lawyers should particularly try to conclude ongoing proceedings by transitioning them to proceedings conducted in writing or by conducting proceedings via video conference, thus preventing the expected delay of up to one year due to the rescheduling of court hearings.