Evaluate, Adapt, Litigate
Litigation in times of crisis
2020 turned out to be quite a challenge. Public life as we knew it until February 2020 ceased to exist for an extended period of time and we are still trying to adapt to the new situation. The coronavirus does not only keep schools, companies and the health sector on its toes, public life, including the courts, is also affected.
With the whole country in shutdown, courts still operated, but to a lesser extent than usual, and hesitantly started operating again in May 2020 by scheduling (virtual) hearings and ordering parties to submit briefs. Still, proceedings have been delayed and parties and litigators are wondering how the corona crisis will impact their own cases. This article aims to give a brief overview of the legislation and adaptation process Austrian state courts have implemented.
As a reaction to the coronavirus crisis, the Austrian Ministry of Justice issued a Decree on dealing with the corona pandemic (Einführungserlass zum Umgang mit der aktuellen Corona-Pandemie (SARSCoV-2)), followed by the implementation of an Ordinance by which the Rules of Procedure for courts of I. and II. Instance were amended (Verordnung der Bundesministerin für Justiz, mit der die Geschäftsordnung für die Gerichte I. und II. Instanz geändert wird), the legislation also passed the 1st and the 2nd COVID-19 Act regarding the judicial system (1. und 2. COVID-19-Justizbegleitgesetz) and the 4th and 8th COVID-19 Act (4. und 8. COVID-19-Gesetz).
Right to judicial remedy / party rights
In March 2020, pursuant to the newly implemented rules, court administrative staff were limited to only a vital few, and courts limited their accessibility. Courts have meanwhile lifted certain measures, but some will apply in the foreseeable future.
The restrictions on the courts' administrative operations, however, must not keep parties from exercising their procedural rights. Parties may inter alia:
- access court files either in person upon appointment or electronically by a lawyer (if represented);
- submit written applications or other documents in person, by post or electronically by their lawyers (if represented);
- address concerns or issues to the courts in person upon appointment or by phone; and
- attend the court's "open day" on Tuesday mornings to address legal issues and concerns about appointments.
At the beginning of May, courts started to schedule oral hearings again. Anyone attending an oral hearing in court must wear a face mask, disinfect their hands, maintain 2m distance at all times and have their temperature checked when passing security. Judges are also trying to keep the number of persons attending a hearing to a minimum and have been known to ask beforehand how many people will attend a hearing in order to plan and procure a larger room, if needed.
Further, face masks are worn by judges, parties, lawyers, witnesses, translators and experts. Additionally, see-through, plastic walls are installed at the judge's desk.
Until 31 December 2020, courts may hold hearings via videoconference with the parties' consent. The parties' consent is assumed unless they say otherwise within a deadline set by the court. Witnesses, expert witnesses and translators must generally attend the hearing in court unless the parties request for them to attend via videoconference. Only if they certify that they themselves or persons close to them have an increased health risk due to COVID-19, they may request to attend the hearing via videoconference. It remains to be seen whether the provision, expiring on 31 December 2020, will be extended.
Keep calm and carry on
The standstill from March and April 2020 is over. The November and December 2020 shutdown did not lead to another standstill at court, even if a few hearings were cancelled and rescheduled. Courts are at least partially back to normal. But what does this mean for litigators and parties? Litigators have quickly adapted to the new situation by adhering to the protective measures in court, keeping in phone contact with the courts, relying on the courts' electronic services and even setting up mock-court rooms for videoconferencing. Parties do not need to be concerned that they will suffer any profound disadvantages – other than a slightly longer duration of proceedings.