Crisis pushing Hungarian courts into digital transformation - trial on skype!?
The Act CXXX of 2016 on the Code of Civil Procedure (Ccp.) currently in force, in order to meet the requirements of accelerated technical development, already incorporated - upon its entry into force in 2018 - the rules for the use of electronic technologies and devices. However, no one would have thought that their use will be tested so widely in action, in such a short time. The coronavirus epidemic is sweeping across the globe, bringing significant changes not only into private and economic life, but also into the life of the courts. The first regulation concerning lawsuits was the Government Decree No. 45/2020. (III.14.) which ordered an extraordinary judicial vacation but remained indebted with setting of the detailed rules for lawsuits in this extraordinary situation - especially the deadlines -, thus left considerable uncertainty behind. The President of the National Office for the Judiciary (NOJ) tried to settle this situation with his decisions, however, the elimination of the uncertainties and the elaboration of the detailed rules finally took place at the Government Decree No. 74/2020. 1. Rules for trial hearings Given the diversity of the trial structure of the new Ccp., which entered into force on 1 January 2018, and the old Ccp. (Act III of 1952), the Government Decree lays down different rules depending on when the lawsuits were initiated. If the lawsuit was filed after 1 January 2018, the trial is divided into two stages (preparatory phase and phase of the merits). From 1 April, according to the provisions of the government decree, the preparatory phase in these new lawsuits must be conducted without a trial hearing, i.e. the first phase is held now basically in writing. Although, the government decree also allows an oral statement to be obtained electronically (currently primarily through Skype for Business, which is preferred by the courts), but that can be only done in exceptional, extraordinary cases. Hearings on the merits under the new Ccp. and all hearings under the old Ccp. shall be generally held via an appropriate and approved electronic communication network or via other devices capable of transmitting electronic images and sound. However, it is important that if the necessary technical conditions are not available - which is expected to be the case for multiple courts - the court will not hold any hearings, but will obtain the statements to be made at the hearing in writing or through an electronic device, which is capable of identification. For the question of which programs are suitable for holding procedural acts electronically, the Opinion No. 2/2020. (IV.30.) of the Civil College of the Curia provides guidance. The opinion of the College is that presently only the ‘Skype for Business’ is suitable and acceptable to ensure the identification, thus, to hold procedural acts. It is also important that the parties may not request a hearing in appeal or review cases. Moreover, the court may not hold the previously scheduled hearings, but the parties must be notified immediately about this change. In this case – if the hearing was scheduled before the epidemic outbreak - it is possible to hold the hearing electronically in case the parties jointly request it within 15 days of receiving such notification of the court. We may ponder to what extent the electronic proceeding impacts the principle on the public nature of court hearings. There are no clear-cut answers. According to the opinion of the Civil Collegium the provisions on the publicity of the hearings shall be applied on the „site specified for the hearing” that is, the site where the judge is located. But it would be difficult to specify where it is in case of using the application of Skype and whether the wider public may in fact attend, wearing protective masks. The practical course of life will bring solutions to these questions. 2. Regulations on deadlines and submissions According to the foregoing government decree, issued in late March, in case of litigation the state of emergency - after 30 April 2020 - does not impact the calculation of the course of deadlines. Submissions cannot be filed in person at the administrative office, they must be placed into mailboxes located for that purpose at the entrance of the court building. Further provisions apply to private persons who proceed without a legal representative: they shall submit their files including the statement of claim and related documentation, the response to the claim and the setoff documentation and written counterclaim only in written form, but for easier submission the use of forms hitherto prescribed by the law can now be omitted. A unique regulation in response to the pandemic is that if the statement of claim is incomplete, i.e. it does not include mandatory elements, then the court shall provide detailed information on all deficiencies and omission to the laic party unfamiliar with the provisions of law, to put the application in order, and only if the party fails to comply with that, shall the court reject the statement of claim. 3. Interruption and stay of the proceeding Following the communication of the state of emergency, the ongoing lawsuits were handled differently by the courts as some ordered the interruption and others the stay of the proceedings. According to the government decree, in lawsuits where the proceeding was interrupted with referral to the extraordinary court vacation, the period of interruption ended when the government decree took effect. Where a stay of proceeding was in order, there regulations were more lenient: from now on (or currently) in litigation, the stay is possible upon the joint request of the parties against all previous legal restrictions, in an unlimited number.