Public trials with contact restrictions?
One of the many challenges posed by the Corona pandemic is the organisation of oral proceedings in court. In Germany, the general principle applies that hearings must be "public" as set out in section 169 of the German Judicature Act (GVG). This leads to challenges especially in patent cases, for which the Tenth Senate of the German Federal Court of Justice has jurisdiction as the second instance in patent invalidity cases and as the third instance in patent infringement cases. Often several attorneys at law, patent attorneys, the parties and other persons interested in the case are involved. How can contact restrictions be reconciled with the general principle that a trial must be "public"?
Digital transmission of the hearing
One possible way is shown by section 128a of the German Code of Civil Procedure (ZPO), which gives the court the possibility to "permit" the parties, their attorneys and advisors to stay at another location during oral proceedings and to perform procedural acts from there. In this case, the image and sound of the hearing are transmitted in real time to this location and to the court room.
The presiding judge of the Tenth Senate of the German Federal Court of Justice, Dr Klaus Bacher, has published his view on this option in a blog. It can be summarised as follows: The Tenth Senate implements this option by using "Microsoft Teams" for an online video conference. The claimant and the defendant may be represented in the court room by an attorney at law and a patent attorney. Further attorneys, patent attorneys, legal advisors, translators, etc. can participate online.
Limitation to a maximum of two attorneys per party
The most recent experience with oral proceedings before the Tenth Senate is that attendance in the court room is indeed strictly limited to two attorneys per party. Thus, the just mentioned possibility to "permit" the parties and their attorneys to be in another location during the hearing is interpreted in such a way that – with the exception of two attorneys per party – anybody else must mandatorily stay away from the court room during the hearing.
Whether the restriction of physical access to the court room is in line with the legal requirement that the hearing must be "public" is likely to generate interesting discussions in the future.
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