Coronavirus and justice - what's next?

16.03.2020

The corona crisis also affects the German judicial system. However, this does not have to result in a complete freeze of the judicial system. In this article we will give a short overview of the already granted measures of the German legislature.

The corona crisis also affects the German judicial system. Recently, for example, a district judge in Hagen ordered breathing protection for his trials. [1]  The legal basis for this is the so-called "Sitzungspolizei" (session police) laid down in § 176 GVG, according to which the judge has the duty "to maintain order". In view of the school closures that have already been ordered in many countries, it is to be expected that the courts will soon also have to reduce their activities. However, this does not have to result in a complete freeze of the judicial system. In this article we will give a short overview of the already granted measures of the German legislature.

Since 2013, the possibility of the so-called video conference negotiation according to § 128a ZPO is available. This enables the parties, but also witnesses and experts, to "to stay at another location" during the hearing - for example at home instead of in a possibly fully occupied courtroom. The hearing can be ordered both at the request of the parties and by the court of its own motion (and against the will of the parties). The use of video technology is also possible in financial (§ 91a FGO), administrative (§ 102a VwGO), social (§ 110a SSG) and criminal courts[2].

But how promising is an application for an oral argument using image and sound transmission against the background of Covid-19? It is difficult to determine to what extent the courts actually make use of this. However, a list of the participating courts and public prosecutor's offices is made available and constantly updated on the justice portal of the federal and state governments.[3] Another overview, even sorted by city, can be found somewhat hidden on the website of the European Commission.[4] There is also published a handbook on cross-border operations[5] and an overview of the participating courts in the respective Member States.[6] The websites of some higher regional courts also provide information on the existing possibilities.[7]

Therefore, contrary to widespread prejudices, the technical possibilities for the use of video conferences exist in German courts. The use of breathing masks can therefore be largely dispensed. Originally, the legislature introduced the possibility of video conferences to avoid travel long distances.[8] Had it been foreseeable, however, crises such as international pandemics would certainly have been included in the justification for the law.

All this shows: In the field of the administration of justice, too, the parties to the proceedings can contribute to a delaying spread of the corona virus. However, a complete standstill is not (yet) necessary. A glance at the lists listed - but also a call to the court - quickly shows whether a hearing on site cannot be dispensed in favour of a video conference.

Status: March 16, 2020


[1]www.lto.de/recht/justiz/j/ag-hagen-sitzungspolizeiliche-verfuegung-atemschutzmaske-gerichtssaal/

[2] §§ Sections 58b, 118a, 138d (4), 163a (1), section 233 (3) sentence 3, 247a (2), 453 (1), 454, 462 (2) StPO

[3]justiz.de/verzeichnis/zwi_videokonferenz/videokonferenzanlagen.pdf

[4]e-justice.europa.eu/content_information_on_national_facilities-319-de-de.do

[5]e-justice.europa.eu/content_manual-71-de.do

[6]e-justice.europa.eu/content_information_on_national_facilities-319-de.do

[7] For Dresden for example www.justiz.sachsen.de/olg/content/568.htm

[8] BT-Drs. 17/12418, 13 ff.