Coronavirus SARS-CoV 2: Implications for the Judiciary

The impact of the coronavirus SARS-CoV 2 on public life in Germany is increasing daily and has also reached the judiciary In the following, we will discuss the possibilities of (civil) proceedings to contribute to slowing down the spread of the virus.

No "standstill in the administration of justice"

At the present time (as of March 26, 2020), one cannot (yet) assume that the proceedings before the civil courts will be interrupted, which according to Section 245 of the German Code of Civil Procedure (ZPO) would occur by law in the event of wars or "other events". A prerequisite for this would be that the court organization would be completely paralyzed for an unforeseeable period of time. Even if in many places the court buildings are currently closed to the public, judges and judicial officers may continue to go to work or work from their home office and thus maintain the court operation.

Even if a court were to be completely closed down by order of the competent authority, this would probably be for a certain period of time and would therefore not be an incalculable condition. Moreover, due to the independence of the judiciary, the administration of justice can only de facto or indirectly restrict the administration of justice by the judges. Only in the event of a "lockdown" in such a way that citizens would have to stay at home for an indefinite period of time, would no longer be allowed to go to work and, as a result, even judges would actually cease to work, could the administration of justice come to a standstill - with the consequence of considerable legal uncertainty: for the standstill would also end again by virtue of law, possibly even with regional differences. It would therefore be very difficult to determine when and which time limits would continue to run in which court after the interruption due to the standstill.

Generous postponements and extensions of time limits

In order to avoid social contacts when traveling to court hearings and in the courtroom itself, many hearings are currently being postponed. This can be done ex officio (Section 227 (1) German Code of Civil Procedure (ZPO)) if a substantial reason is assumed - which is readily available - or at the request of a party to the proceedings. In this context, several bar associations recommend  that courts should consider such applications favorably.

As far as the extension of current or newly set time limits is concerned, in view of the current situation a generous standard is also appropriate in order to take into account the recommendations of the Robert Koch Institute and the German Federal Government. The same applies with regard to applications for reinstatement, which may become necessary after missed deadlines due to staff shortages in law firms.

Hearing by means of video and audio transmission and written procedure

If proceedings are not to be delayed, it is advisable - as far as technically feasible - to make use of video conference technology in accordance with Section 128a ZPO, so that judges, parties, authorized representatives, witnesses and experts can stay at different locations during the hearing. However, only a small proportion of German courtrooms are equipped with the necessary technology.

Hearings that are dispensable (e.g. when, in the case of a clear legal situation, only procedural requests are to be brought forward) can be replaced by a decision in written proceedings with the agreement of the parties in accordance with Section 128 (2) ZPO. In contrast to previous practice, it can be assumed that suggestions in this respect will increase in the future.

Outlook

According to a tweet from the provisional chairman of the Legal Affairs Committee of the German Federal Parliament, the Bundestag is currently considering reintroducing "judicial holidays". A corresponding provision already existed until 1996, according to which between July 15th and September 15th hearings were only held and decisions issued in "holiday matters" (i.e. in particular urgent matters); moreover, deadlines were suspended during this period.

In view of the current Covid19 crisis, the reintroduction of "judicial holidays" does indeed appear to be a very pragmatic solution with a considerable degree of legal certainty in practice. However, it is questionable how quickly politicians will be able to implement this. One cannot rely on the occurrence of a standstill in the administration of justice. Instead, hearings should be postponed, deadlines should be generously extended and applications for reinstatement into the precedent situation in case of missed deadlines should be granted favorably. More use should be made of procedures by video conference and written proceedings.