While many companies are sending their employees to home office or temporarily shutting down plants completely, the judiciary is (still) working – but on low scale only:
On 17 March 2020, the Ministry of Justice of North Rhine-Westphalia decided by way of decree that hearings should only be held if they cannot be postponed.
It recommends a generous use of procedural possibilities, but ultimately the courts decide in judicial independence on the cancellation or rescheduling of hearings and the suspension or interruption of ongoing proceedings according to the specific circumstances of each individual case.
Similarly, the access to public hearings should not be restricted in view of the principle of publicity. But, persons who show symptoms of corona disease or who have had personal contact with a corona infected person within the last 14 days or who have been in a corona risk area within the last 14 days will be denied access.
Furthermore, the service in all courts and public prosecutor’s offices should be limited to the necessary extent.
What does COVID 19 mean for deadlines set by the court?
An impact on the course of deadlines could be possible in the case of a standstill in the administration of justice within the meaning of § 245 of the German Code of Civil Procedure (CCP). Although an epidemic can be an “other event” within the meaning of § 245, the provision is only intended to regulate cases in which the court business is completely paralysed for an unforeseeable period of time. This may be the case if there is a suspicious case within a court and therefore all employees stay at home.
Peter Biesenbach, the Minister of Justice of North Rhine-Westphalia, also said that “the functioning of the courts and public prosecutors’ offices will be maintained despite the restrictions caused by the virus”.
What options do we have as lawyers?
Without a standstill in the administration of justice, all deadlines will initially continue to run. This concerns both deadlines, those which can be extended in accordance with § 224 (2), 225 CCP, and those statutory deadlines for which no application for an extension can be considered.
In addition, deadlines of substantive law also continue to run, so that claims must be asserted timely in court in order to suspend the limitation period in accordance with § 204 (1) No. 1 German Civil Code.
- Application for an extension of deadline
According to § 224 (2), 225 CCP, an application for an extension of deadline requires the demonstration of “substantial reasons” in a satisfactory way, for which in principle no too high requirements are made. The illness of the parties or their representatives will be sufficient here. However, even just because of the recommendation to avoid social contacts as far as possible, personnel bottlenecks may occur and communication between lawyer and client may be impaired.
- Application for restitutio in integrum
Statutory deadlines cannot be extended even in times of corona crisis. After a statutory deadline has expired, the application for restitutio in integrum is the only possibility (§ 233 CCP), whereby the party has to been prevented through no fault of its own.
This may be the case in event of sudden extreme work overload or illness. In the event that individual attorneys are prevented from attending, colleagues and employees must always ensure that the deadline is met. However, the ordered restrictions on action in the corona crisis affect each individual, so that it is not possible for colleagues to do one other’s job, too. Therefore, courts are called upon to decide generously on such applications.
- Postponement of scheduled hearings
Upcoming court hearings can be postponed upon application in accordance with § 227 CCP. “Substantial grounds” which are connected with the increased health risk due to the risk of infection with the coronavirus, are to be demonstrated to the satisfaction of the presiding judge should he so demand. The appeals of authorities and government to avoid social contacts and crowds of people weigh even more heavily in this respect, since the publicity of the proceedings and the journey to the court means that a large number of social contacts is very likely.
- Written procedure and digital hearing
Other options are to conduct written procedures in accordance with § 128 (2) CCP or to hold oral proceedings by video conference in accordance with § 128a CCP. As only very few German court rooms are equipped with the necessary technical equipment for a digital hearing, only the decision for written procedures should be practicable though.
- Further measures
In order to minimise the risk of infections in the case of necessary attendance, the court may question witnesses in writing (§ 377 (3) CCP) or introduce a written expert report into the proceedings (§ 411 CCP).
However, an exclusion of the public will not take place because of the principle of publicity. In comparison to the exclusion of the public according to § 172 No. 1a German Court Constitution Act, the cancellation or postponing of a scheduled hearing is a less severe means.
In spite of the Corona crisis, the following applies: court appointments must be attended and deadlines must be met, as long as no court order to the contrary is issued (upon application or ex officio). The CCP provides sufficient scope for action, which we should exploit as far as possible. As courts are also currently facing new challenges, it can be assumed that they will decide more generously than usual on applications for postponement or extension of deadlines and possibly even on request for suspension.