Video-Conference Testimony in Civil Proceedings
In the workplace, digital communication has long been part of everyday life. Meetings are increasingly held online, and physical presence is no longer necessary. In civil proceedings and in court, however, physical presence is generally required; only in exceptional cases is it sufficient to participate in the hearing online. On the one hand, there is the option of a “video hearing” under Section 132a of the German Code of Civil Procedure (ZPO), and on the other hand, the option of examining witnesses via video conferencing under Section 277 of the ZPO. This article focuses on the examination of witnesses via video conferencing.
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Civil procedure is fundamentally characterized by the principle of immediacy. The judge who evaluates the evidence in reaching a decision should also hear the evidence directly and form a direct, personal impression of it. This applies in particular to the examination of witnesses. For this reason, hearings and examinations are generally conducted on site, as it is assumed that this is the best way to form an impression.
However, there are situations in which it is not possible or practical for the presiding judge to examine a witness in court. The Code of Civil Procedure has long provided for the option of taking evidence through a designated or requested judge—that is, through another judge or court—which may, for example, be more convenient for the witness to reach. The requirements for this are strict, however, since, as explained above, the judge who takes the evidence is also the one who renders the judgment.
Hearing the witness via videoconference strikes a balance in this situation. The witness is then not required to appear before the trial court; however, the video examination still allows the judge to form at least a (partial) direct impression. The examination of the witness via video therefore takes precedence over examination by another judge through mutual legal assistance, but is subject to the same legal requirements.
However, just because the examination is conducted via video does not mean that the witness can be examined from his or her couch. The Supreme Court recently ruled on this matter (OGH 2 Ob 60/25z), stating that witness examinations via video conference must also take place between courts. This means that a witness who is to be examined via video must appear in person at a court near them, where the trial court will then conduct the examination via videoconference.
Conclusion
In summary, the availability of videoconferencing has had little impact on day-to-day civil procedure. The direct examination of witnesses in person by the court remains the norm. The examination of a witness via video is only permitted in cases where the examination was previously conducted by a judge from another jurisdiction; however, it does at least allow the presiding judge to conduct the questioning. In any case, it is not possible to conduct the video questioning from one’s sofa.
