Insights into remote justice in the Austrian justice system
Oblin Rechtsanwälte, Austria
In the context of the ongoing Covid-19 pandemic, governments continue to introduce unprecedented measures aimed at curbing the spread of the virus. As a result, many individuals and businesses alike are required to adjust their modes of operations and routines in order to comply with government-mandated Covid-19 restrictions. Regardless of such restrictions, certain essential services must continue in order to maintain social order and stability.
The pandemic and states’ responses have had a noticeable impact on the proper functioning of the justice systems. Naturally, judicial systems – the very essence of which is predicated on social interactions – will face certain challenges in ensuring due process while maintaining the necessary safeguards to reduce the public health risks associated with the virus. In this regard, courthouses may need to close or reduce the scope of their services, which in turn may negatively impact the administration of justice. In the interest of upholding the rule of law, order and legal stability, it is essential for judicial systems to remain available to the extent feasible to allow the parties to an agreement, a contract or a dispute to exercise their respective rights. As a consequence, many states have introduced measures with a view to promoting remote justice in the form of virtual hearings (ie, video, telephone and the like) and other e-justice tools as safer alternatives to traditional court hearings and procedures which require physical presences of legal and natural persons.
This article will focus briefly on the changes that have been made to the judicial system in Austria, including the pre-existing tools to ensure the administration of remote justice. It will also highlight certain challenges that may arise out of the use of remote means of justice.
Administration of justice in Austria and the Covid-19 Act
The Austrian Constitution (Bundes-verfassungsgesetz or B-VG) requires the parties to a dispute to litigate in person at a competent court and that all court hearings in civil and criminal matters are held in public. The Austrian legal system, however, does permit exceptions to the above rule so that the parties may participate remotely in the justice system. Two such features will be briefly explored below, namely electronic means of communication and the use of video conferencing in court hearings. These features, among many others, together form the foundation that enable the administration of remote justice in Austria.
The use of ‘electronic legal communication’ (Elektronischer Rechtsverkehr or ERV) as a means of communication between the court and the parties in a set of proceedings is considered an essential feature of the Austrian justice system. The ERV service was established in 1990 and offers a statutory compliant medium of communication that may be used to exchange or submit legal documents, including evidence, and communicating information relevant to ongoing proceedings. In practice, individuals involved in a dispute are no longer required to physically submit legal documents (either in person or by post), and instead may do so electronically through the ERV service. Within the context of the Covid-19 pandemic, the ERV service acts as a tool that continues to contribute to and support the remote functioning of the justice system.
The use of video conferencing in civil proceedings is enshrined in the Austrian Code of Civil Procedure (Zivilprozessordnung or ZPO). Pursuant to section 277 of ZPO:
‘the court may, if technically possible, take evidence by using technical means to transmit words and images, unless taking evidence in person at the court is more appropriate or necessary due to special reasons, taking into account the principle of procedural economy.’
There is a similar provision for criminal proceedings in the Criminal Procedure Code (Strafprozessordnung or StPO). To facilitate the use of video conferencing, all courts, public prosecutors’ offices and prisons have been equipped with video conferencing systems. However, while provisions enabling the use of technology in civil and criminal proceedings exist, in practice their use has been limited and reduced to exceptional situations.
On 16 March 2020, the Covid-19 Act entered into force which forms the legislative basis for the implementation of further measures to curb the spread of the virus. The Covid-19 Act sought, among other considerations, to adjust court procedures for civil trials to continue during the pandemic. In this regard, the main features of the Act were to:
- restrict access to judicial buildings;
- cancel or postpone hearings;
- limit the use of oral hearings in civil matters and make use of video conferencing wherever possible;
- limit enforcement measures to those that are urgent and necessary for the orderly administration of justice; and
- to exclude the public from oral hearings. 
Considering the widespread use of the ERV system and the possibility of video conferencing in oral hearings, the Covid-19 Act merely sought to expand on the use of these pre-existing tools to promote the remote functioning of the justice system. More specifically, parties that are in agreement may now freely choose to have civil court hearings be conducted using video conferencing and thereby ignoring the requirement of having to be physically present in court. It could therefore be said that this change marks a shift in the use of video conferencing and technology in oral hearings, and in theory facilitates the remote functioning of the justice system.
It is undeniable that the possibility of using technology such as video conferencing and other electronic forms of communication provide certain benefits in the administration of justice. Parties that would otherwise not be able to attend court hearings may now do so using technology. This becomes more relevant in times of the pandemic where travel restrictions and safety precautions limit the possibility of physical access to the justice system. Further, considering the essential role of the justice system in society, it is only desirable that the use of technology allows the judicial system to continue to operate normally during the pandemic or other crisis.
The use of technology in the courtroom does not, however, come without its challenges. Though virtual hearings may allow for a hearing to take place that would otherwise be cancelled, it could be argued that virtual hearings do not fully encapsulate the experience of physically appearing in a court in the traditional sense. In this regard, research has shown that virtual technology degrades the quality of human interactions. Legal counsel might find it more difficult to communicate with or support their clients over video conferencing, communication may be distorted or unclear, technology may malfunction and misunderstandings may go unnoticed. Such undesirable gaps may lead to an outcome of justice that could be prejudiced.
Understanding the benefits as well as the challenges of the use of technology and remote justice is essential in ensuring that the right to a fair trial and due process is not compromised. One may reasonably expect that unprecedented crisis such as the Covid-19 pandemic will lead to a sudden expansion in the use of technology in court proceedings. In this respect, much learning and discovering, lessons to be learned and recommendations on how to improve the use of technology in the administration of remote justice in future will surely ensue.
Understanding the challenges of remote justice is essential in ensuring that lawyers, clients and judicial stakeholders alike do not experience a lesser but more streamlined judicial process.
Legislature enacted in response to the Covid-19 pandemic merely expanded on the pre-existing legal framework in Austria and made remote justice more accessible. Understanding the challenges that may arise in the remote functioning of the justice system is crucial in ensuring that the integrity of justice system is upheld.
Federal Ministry of Constitutional Affairs, ‘IT Applications in the Austrian Justice System’, 2018, available at https://perma.cc/D8LN-JRJF, 35.
Please note that there have been subsequent iterations and accompanying legislature to the initial Covid-19 Act. For the sake of brevity ,reference to the Covid-19 Act is being made in general, and specific reference will be cited accordingly. A full list of all Covid-19 related laws in Austria can be found online at: www.oesterreich.gv.at/themen/coronavirus_in_oesterreich/Rechtliche-Grundlagen.html.
For example, see the 1. Covid-19-Justiz-Begleitgesetzt, available online at: www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20011087
Penelope Gibbs, ‘Defendants on video – conveyer belt justice or a revolution in access?’ (Transform Justice, October 2017) available at https://www.transformjustice.org.uk/wp-content/uploads/2017/10/Disconnected-Thumbnail-2.pdf, 33.