The taking of evidence by videoconference is permitted in German civil proceedings under the first sentence of Section 128a(2) of the Code of Civil Procedure (ZPO ‑ Zivilprozessordnung) where the parties so agree. The examination must be transmitted simultaneously in video and audio form to the place in which a witness or expert is located during the examination and to the courtroom. Where parties, legal representatives or advisors have been authorised to be in another place, the examination must also be simultaneously transmitted in video and audio form to that place. For video examinations by a German court on the basis of an incoming request in accordance with Regulation (EC) No 1206/2001 (‘active’ judicial assistance), Section 128a of the ZPO may have to be applied with some modifications, because the court taking evidence is not the same as the court hearing the proceedings, which is interested in the direct impression given. Where the requesting court asks to take evidence directly under Article 17 of the Regulation (‘passive’ judicial assistance), in principle all requests for the direct taking of evidence using communications technology must be granted, and the taking of evidence over and above Section 128a of the ZPO is also possible. Requests may be refused only for the reasons listed in Article 17(5). However, the central body may lay down conditions for the direct taking of evidence in accordance with German law.
Witnesses, experts and parties can be examined by videoconference (first sentence of Section 128a(2) ZPO).
Under German civil procedure law, evidence may be taken by examining witnesses, experts and parties via videoconferencing technology (Section 128a(2) ZPO). The taking of other evidence (documents and visual inspection) by videoconference is not specifically permitted.
The law does not specify in what place the person to be examined must be. However, under German civil procedure law the place from where transmission to the courtroom is carried out must be in Germany.
The first sentence of Section 128a(3) ZPO prohibits the recording of videoconference hearings. This prohibition also covers evidence taking in the course of judicial assistance with the direct taking of evidence under Article 17 of the Regulation, since it is a fundamental principle of German procedural law.
a) For requests under Articles 10 to 12, the hearing must be in German. Where the proceedings involve persons who do not have a command of German, an interpreter must be used. The services of an interpreter may be dispensed with where all the persons involved have a command of the foreign language concerned.
b) In the case of judicial assistance with the direct taking of evidence, the requesting court determines the language of examination. However, the authorisation under Article 17(4) can be used by the central body to lay down conditions for the direct taking of evidence such as the language of the hearing or examination.
In the case of ‘active’ judicial assistance, the German court providing the assistance is responsible for conducting proceedings and taking evidence. An interpreter must be used for the taking of evidence by German courts even when only one of the persons involved does not have a command of German. Whether the person has the required knowledge of German must be checked by the court whether or not the parties so request. The court is free to choose the interpreter. In the case of the ‘passive’ taking of evidence under Article 17, whether interpreters are required and which interpreters are selected is decided by the requesting court. Under Article 17(4) the central body may grant authorisation under certain conditions: it may for example require that interpreters be used. As part of those conditions, the central body may also order that the evidence be taken in German.
In the case of active judicial assistance, witnesses and experts are summoned informally by the administrative office of the requested court unless the requested court decides that formal service is to be made. Where the court orders the examination to be conducted by videoconference, the persons whose testimony is to be transmitted must be summoned to appear at the premises from where the transmission is to take place. The summons must specify the parties, the subject of the examination, the date of the examination and the consequences of failure to appear. The summons must include precise details of the location and time of the examination. No specific period of advance notice is laid down.
Where evidence is to be taken directly by the requesting court under Article 17 of the Regulation, the person to be examined must be informed about the time and place of the examination by the requesting court. Time and place generally depend on the situation in the German courts (where the system is located and when it can be used). The time and place of the examination are therefore closely linked to authorisation from the central body. In principle, there is no fixed deadline; however the fact that international deliveries by post take longer should be taken into consideration.
There is no provision for a special procedure relating to planning the actual videoconference. In practice, the central body routinely nominates a contact person at the court where the videoconference is to take place. This person is then able to answer any practical questions.
The use of videoconferencing technology entails the cost of purchasing, maintaining and operating the facilities. These costs cannot be charged to those involved in civil proceedings. Telecommunications fees are also incurred. The requested court may request reimbursement of the telecommunications fees under Article 10(4) in conjunction with Article 18(2) of the Regulation.
Under Section 63(2) of the Regulation on Judicial Assistance in Civil Cases (ZRHO ‑ Rechtshilfeordnung für Zivilsachen) the requesting court must inform the person to be examined that the examination is being conducted on a voluntary basis.
Where there are doubts as to the identity of the person to be examined the court is required to verify this at any stage of the proceedings.
Where a German court is requested to take evidence for the requesting court by videoconference, this, and therefore also the taking of oaths, is done in accordance with the procedural rules of the requesting court. Since the cooperation of the person providing the information in the direct taking of evidence and therefore their cooperation in the taking of an oath is in any case voluntary (and the person must be formally so advised), it is not possible for the requested State to lay down further requirements for the taking of oaths. However, the central body must in any event ensure compliance with any prohibition from giving testimony or being examined which the person providing the information is not entitled to waive (under German law). Examples of this are the bans on examining German public servants without the prior approval of the authority for which they work, or examining doctors without their being released from their duty of confidentiality.
Whether it is possible to take an oath and what information is needed from the requesting court is determined by the relevant central body. In deciding on authorisation, the central body must ensure that any prohibition from giving testimony imposed on the person providing the information is not circumvented. For that reason, the central body may for example ascertain the circumstances in which the person providing the information is supposed to have acquired it. For example, German law makes the testimony of German public servants subject to the prior approval of the authority for which they work.
The judicial system is organised federally and is the responsibility of the relevant Land’s judicial administration. This means that there are no standard rules on this issue at national level and that the evidence-taking procedure is conducted and implemented by the relevant Land’s judicial administration. The procedures may therefore vary considerably between Länder. In practice, the procedural rules are drawn up by the Higher Regional Court in whose jurisdiction the requested court is located.
Requests for the taking of evidence received from abroad and communications in accordance with Regulation (EC) No 1206/2001 must be in German or be accompanied by a translation into German (Section 1075 ZPO).
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