2020 is all about keeping one’s distance – specifically, the (public health) practice of social distancing. Are civil court procedures amenable to the current situation?
In September 2017 – long before the current pandemic became a concern – an amendment to the Code of Civil Procedure came into force which made it possible for the civil courts to use technology for audio and video transmission in court proceedings. Video conference technology can thus be used to arrange for the presence of the parties (i.e., the plaintiff and the defendant) or of an interpreter, or to hear witnesses, experts or the parties. Evidence may also be presented and heard remotely in a video conference.
The court may only take recourse to video conference technology upon the request of one of the parties, or if the use of such technology appears apt for the given purpose – e.g. because the presence of a witness or a party is required who is currently incarcerated or hospitalized, making it difficult to ensure their physical presence in the courtroom. By contrast, hearing a key witness via videoconference would not be expedient if their personal attendance of the court hearing is important in order to be able to assess their credibility.
Each such video conference must be preceded by verifying the identity of the participant. In practice, their identity will be established by an authorized court clerk or prison official, with the approval of the presiding judge. During the introductory instruction, the judge will explain the procedural aspects to the participant, i.e., in particular, their right to object at any time to the insufficient quality of the audio or video stream. The official who checked the identity of the participant is expected to remain with them in the same room throughout the entire video conference, so as to ensure that the video conference will have the proper weight. More generally, the video conference is still a judicial procedure and as such should be endowed with a sufficient degree of dignity and formality. All video conferences will be recorded; this audiovisual footage serves as proof of the course of proceedings.
Remote hearings are ultimately a welcome element of the continuing drive toward digital justice (and public administration in general), and are useful not only in times of crises such as the current one. One of the numerous benefits of the option to hold virtual court hearings is that it expedites proceedings and makes the administration of justice more efficient (e.g. because court hearings don’t have to be adjourned repeatedly because participants are not available).
Code of Civil Procedure (Act No. 99/1963 Coll., as amended)