Virtual court hearings: Short-term Provisional or Permanent Solution?
Particularly during the corona pandemic, a functioning constitutional state and its courts are important. How can they master this challenge with the help of digitalisation? What opportunities can we gain from this crisis in terms of digitalisation?
During the pandemic, strict distance rules and in many places mandatory masks apply everywhere. This is an additional burden for the courts, which cannot meet these requirements with narrow spectator seats and often closely packed negotiating parties.
In addition, those involved in the process often belong to the risk group. Thus, face-to-face trials cannot always be conducted. One solution, which is being worked on nationwide, is digital court hearings. Video conferencing, which many know from the home office, is now coming to Germany’s courts.
What is the situation so far?
Although the legal framework for digital hearings has been in place since 2013, this concept is hardly used in everyday court life. The reasons are different. On the one hand, for a long time there was a great deal of scepticism on the part of lawyers about digitalisation in proceedings, but this resistance is gradually disappearing during the crisis. Furthermore, the equipment of many courtrooms in Germany is not sufficient for digital hearings to take place at all. But now several courts are starting to switch to digital hearings due to the pandemic.
What are other countries doing?
Other countries are also applying digital solutions to keep their judiciary capable of acting. For example, the Supreme Court of the United States and the Supreme Court of the United Kingdom hold their sessions entirely by video conference and stream them simultaneously. At the same time, a court in Norway ruled in a criminal trial without a trial at all, merely on the basis of texts submitted in writing – unimaginable in Germany.
Switzerland has also opened up the possibility of completely digital trials, where the press will have permanent access. Meanwhile, in China, many civil trials are already running completely digitally, and even before the pandemic. Via the country’s “WeChat” app, the entire process has been digitised, from the filing of the lawsuit, the exchange of evidence, to the pronouncement of the verdict.
But how do digital court hearings work in Germany? For this, the judges sit with the press and spectators in the regular courtroom. The parties, their lawyers and witnesses are then connected via video chat. It would also be conceivable to additionally stream the court hearings – taking data protection into account, of course – and thus expand the court public to include people who may not be able to attend the courtroom at the moment because of the pandemic or, after the crisis, for other reasons.
What does the legal framework look like?
Particularly when it comes to process innovations in the legal field, the question of the legal framework quickly arises. Are court hearings allowed to take place digitally? The principle of publicity states that the public and the press must be guaranteed access to the hearing. This is the case with a digital session – as explained above – the German Code of Civil Procedure even explicitly provides for this case.
Spectators in the courtroom can still follow the trial, even during the corona pandemic, with sufficient safety distance. However, if trials are purely digital and only accessible to the public via streaming, it is questionable whether they would satisfy this principle. While journalists certainly have the digital infrastructure to watch the trial, this does not apply to every citizen. Therefore, we will probably have to wait for completely virtual trials in Germany.
What are the opportunities for the judiciary after the crisis?
Another advantage of digital trials is the avoidance of travel costs. While many law firms and lawyers often have their locations close to the court buildings, this is often not the case for witnesses. Also, if a case goes through several instances, long distances may have to be travelled quickly. All this would no longer be necessary with digital hearings. This would also increase the efficiency of the law firms themselves, as they would no longer have to spend time on costly travel.
In addition, the increased use of virtual processes could increase the number of cases that can be processed by the courts. The civil courts in particular are sometimes very busy, so that this increase in efficiency would be of particular benefit to them. In this way, one of the currently biggest problems of the judiciary can be effectively solved. But citizens also benefit from it. If processes are faster and less time-consuming for law firms, they can get justice more quickly and possibly even enjoy better advice in the meantime.
What are the risks of this innovation?
But there is also criticism of the new trial system. For example, relatives of a digitally convicted person in the USA argued that the digital process was not humane. For many judges, too, the human level is important in trials. Especially when assessing the credibility of a witness, it is important to sit directly opposite him. The consequences of a wrong assessment can also be devastating in civil cases. Anyone who only meets colleagues in video conferences instead of in the office knows how much interpersonal communication can be distorted by digital means. Thus, in the worst case scenario, negotiations could also become dehumanised and wooden, leading to less just verdicts.
Currently, we have no alternative to digital trial and it helps to keep the judiciary operational during such a time of crisis. In the post-pandemic period, this technology is a great opportunity for the rule of law to function more efficiently. But even then, it must be constantly improved during its active use in order to eliminate the risks mentioned. Since there is still a long way to go, we can be optimistic.
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