LexisNexis

Austria: Litigating via video conference

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Bettina Knoetzl
Knoetzl, Austria
bettina.knoetzl@knoetzl.com

Judith Schacherreiter
Knoetzl, Austria
judith.schacherreiter@knoetzl.com

Since the lockdown began in mid-March in Austria, the Austrian Parliament has passed various laws in response to the effects of Covid-19 on the justice system. The first legislative package was passed shortly after the lockdown and regulated, among other things, the interruption of procedural deadlines and the postponement of oral hearings. These measures were put into force until 30 April and have subsequently been replaced by less restrictive measures. Oral hearings have again been taking place since the first of May. However, new rules now allow for oral hearings conducted via video conference.

New rules on remote hearings

The use of video conferencing in oral hearings is not new under Austrian procedural law. In the past, it has been possible to examine witnesses or parties via video conference in certain cases in which they had troubles to travel to the courthouse and would have otherwise be heard only via a judicial system through comity or would not at all available. However, the technology had not been available to conduct the entire oral hearing via video conference.

This has now changed, at least for a trial period. The new rules permitting the whole hearing to be conducted via video conference apply until the end of 2020. The court now has the possibility to conduct a full trial, ie all oral hearings including the taking of evidence, through video conference where all parties agree to it in advance. Consent of the parties is an important principle. However, consent is deemed to have been given if the parties do not oppose the court’s order within a period deemed reasonable by the court. There are also exceptions for certain cases, such as enforcement and insolvency proceedings. In such cases, the court can conduct its hearings via video conference even without the consent of the parties, unless the parties do not have the necessary technical means to participate.

Parties, witnesses and other participants (eg, experts or interpreters) may request a video conference if they belong to a risk group or are in necessary (professional or private) contact with someone from a risk group.

Video hearings are – according to the legislative commentary – to be called at the courtroom, which itself is accessible to the public provided attendees comply with the security rules (physical spacing rules, masks, etc). It is not contemplated that video conferences will be made available online to the public.

New practices in court hearings

Currently, it appears that one of the parties frequently withholds its consent for strategic reasons and a number of hearings continue to be conducted as ‘normal’ physical hearings, albeit in compliance with general safety regulations (masks, distance, disinfection of hands). For almost every court hearing scheduled, we have received invitations to Zoom video court hearings. However, it is rare that all parties consent. Therefore, Austrian courts are frequently forced to revert to physical hearings.

Nevertheless, we are undergoing a change. We are convinced that the use of video conferencing for the participation of parties’ representatives as well as for the examination of parties and witnesses is becoming, and will be, more common.

Lessons learned from recent examples show that advanced preparation overcoming all technical hurdles that could possibly arise in a video conference hearing is key. The Austrian justice system lacks certain useful technical means. For example, not every judge possesses the technical equipment (computer with camera or headset) that would be optimal for video conferencing. In general, counsel is well advised to supplement any court deficiencies with their firm’s own equipment.

So far, we have experienced the following settings.

Court hearing via video conference

The challenge is how to be sufficiently well-heard and suitably persuasive when making oral arguments and how to present new exhibits on the spot. We have used email to transmit a script of our oral argument as well as the new exhibits for this purpose. Austria has a full electronic filing system. However, to come as close to an oral hearing as possible, it seemed more appropriate to use email, where our messages are delivered without delay.

Another challenge is when judges are wearing masks, as it is sometimes quite hard to understand them.

Giving ad hoc advice to the client, or taking the client’s comments, when that person is present via a separate line, is a challenge. In such circumstances, we decided to communicate separately with an open secure telephone line or another video conferencing system.

In our view, the lack of witnessing body language – in a living, breathing, squirming, three-dimensional way – of all parties in the court room is clearly a minus, and imposes even greater challenges to clear communication in a setting that is difficult anyway.

Overall, it appears that the use of this technology has a considerable effect of slowing the pace of the oral hearing.

Civil proceedings with remote party representative

We have been invited to an oral hearing in which our client’s representative attended the hearing via remote video conference because it was a foreign party subject to public health traveling restrictions. As counsel of the ‘remote party’, we faced considerable technical challenges. Of course, we tried to overcome these as nimbly as possible.

First, we established an internal line with our party representative through which we could communicate during the hearing. We opened another line via a different video conferencing system which we maintained open throughout the whole hearing.

Second, we made sure that the client was able to follow the proceedings in the courtroom as well as possible. In our case, the court’s video connection was established via the judge’s computer. The parties were not provided with microphones or similar useful equipment. Therefore, our client could only see (and hear) the judge. However, we had brought our own laptops with us, which we dialed into the video conference and positioned in such a way that our client was able to also see and hear us, and the witness during his testimony.

Third, it is important that a foreign client can not only hear what is being said but also follow the proceedings. Depending on the technical equipment, it might be necessary to have a separate ‘whisperer’ in the courtroom who is connected with the client via a separate line and explains what happens. In case the client does not speak the language of the proceedings, as we have experienced, the ‘whisperer’ needs to have the ability to simultaneously translate and summarise. We recommend engaging a tried-and-true professional court interpreter for this task.

Trends and future developments

The Covid-19 related security measures, restriction of freedom of movement and traveling restriction and the new regulations on video conferencing are likely to fundamentally change the importance of video conferencing in hearings; maybe not so much for the entire trial, but at least for the participation of parties’ representatives and the examination of parties and witnesses.

We expect that, in the future, judges might be less reluctant to use video conferences as a tool – if not for the entire trial, at least for the examination of witnesses and parties. We believe that, in particular, if foreign parties or witnesses would be required to travel by air, this tool will become more popular: perhaps even after we have overcome the pandemic, which will hopefully happen soon. While court hearings in person seem to be more efficient and effective, and therefore still preferable, we nevertheless must be prepared to adapt our trial effectiveness to the new, cumbersome, reality for at least the foreseeable future.

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