Justitia 4.0 – the pros and cons of digital court proceedings and notarial records in Austria

As in numerous other countries, digitalisation is also being incorporated into all areas of life in Austria. With Initiative 4.0, the justice department also wants to provide an offer of digital services and thus promote digital file and procedural management for the courts and public prosecutors – including oral hearings by means of video technology. It has already been possible to conduct individual interviews digitally using “appropriate technical means of communication for the transfer of words and images” – but not entire hearings. With the civil procedure amendment 2021 – ZVN 2021, the required statutory accompanying regulations are now being created. The assessment period of the ZVN 2021 ended on 05.09.2021.

Currently, the legal proceedings by means of video transmission are only possible for the area of disputed civil law. The legal basis for court hearings by videoconference is the Federal Law concerning accompanying measures 1st COVID-19 Justice Accompanying Act. Criminal proceedings or matters relating to family law are therefore left out for the time being. The basic principle of public domain can also be complied with – for example, by transferring the hearing in a public court room. Whether hearings are conducted by means of videoconference is at the discretion of the court; the parties can suggest a videoconference. Prerequisites for holding a digital court hearing are:

• the agreement of the contracting parties. However, their consent is already deemed granted if they do not object within a time limit determined by the court.
• the use of suitable technical means of communication for the transmission of words and images,
• the suitability of this procedure for the programme provided for in the session
• that this procedure is also feasible from the point of view of procedural economy and that the technical prerequisites are present in order to hold the session in accordance with the procedural provisions.

The Covid-19 pandemic has laid the foundation for court hearings via videoconference and lawyers of our law firm have already had numerous experiences in this regard. In particular, preparatory meetings in civil proceedings were mainly held via Zoom meetings due to the Covid-19 pandemic. These hearings were very well accepted by the parties who generally had no objections to holding the session via Zoom meeting as they also partially did not have to make a long journey to the court.

Implementation in practice was relatively simple. Certificates are “submitted” to the hearing judge in the session, e.g. by email. However, from our point of view, the hearing via videoconference is not yet suitable to fully replace an in-person hearing since the personal impression cannot (yet) be gained to the same extent in the context of taking evidence. Our practical conclusion: For shorter hearings such as preparatory meetings during which settlement discussions are held and the process programme is discussed with the parties, hearings via videoconference are advantageous since you save yourself the travel to the court or any necessary deputising by a colleague on site.

Since the amendment of the notarial regulations in 2020, notarial documents, other public or publicly certified documents and notarial certifications can be established by means of electronic communication possibilities in relation to the notarial act.

Immediately after the entry into force of the 4th COVID Act and the associated amendment of the Notarial Code, our law firm accompanied the first conclusion of a notarial deed in Austria regarding a share assignment to a GmbH via videoconference and mobile phone signature. The parties involved in this, were, among others, from Los Angeles, Berlin and Munich.

The practice will show to what extent virtual court proceedings and notarial acts become a rule and will replace hearings in the courtroom.

Autor: Michaela Nill
Autor: Clemens Harsch