- The global situation of the COVID-19 pandemic has been causing radical changes in almost every aspect of life: the remote hearings, set as a default remote court system procedure from 31st March 2020, is one of them.
- As to civil litigation, the Government Decree 74/2020. (III.31) set remote hearings as default procedure, yet state courts used electronic means on hearings to a limited extent before.
- The question poses itself: how can Hungarian courts run remotely all of a sudden? Viktor Radics and Beatrix Pólya, experts of DLA Piper Hungary are assessing the remote court system put forward by the emergency legislation and its possible implementation in the Hungarian civil litigation practice.
As of 31 March 2020, special rules on court proceedings are in effect according to the Government Decree 74/2020. (III.31) (“Emergency Decree”): court buildings are closed to clients, but adjudication shall still operate. Civil proceedings continue to run and so do deadlines. Hearings are also to be held in a limited number. The question poses itself: how can Hungarian courts run remotely all of a sudden?
The regulatory call for remote hearings
The Emergency Decree orders judges to hold hearings either via the electronic communication network or by other audio-visual electronic means. Referred to as “electronic communication network” in legislation, Via Video is a well-tested official video conference system suitable for remote interrogations (more to that below).
Audio-visual electronic means is specified by the guidance of the National Courts Office (OBH) as such private programs as Skype or Microsoft Teams.
If no such electronic means are available, judges may accept the parties’ submissions in writing as last resort. In cases where the physical presence of a party is necessary, submissions are to be obtained in writing or the person may be interviewed by eligible electronic means capable to identify persons, which practically means the same options as above.
Since audio-only means are not specifically mentioned by the Emergency Decree, it follows from Article 621 of the Code of Civil Procedure that hearings conducted via conference calls are excluded under the Hungarian law.
Options available for judges to answer the call
An audio-visual system with established legislative background is Via Video, an internal video conferencing system of the OBH. Data suggest that at the end of 2019, with the almost 200 Via Video facilities across the country, courts are now able to communicate on a secure and well-regulated platform remotely. Up until February 2020, Via Video has been applied in more than 6400 cases (mostly criminal) for remote interrogations, witness and expert hearings.
The downside of Via Video is its limited access.
One equipped conference room per court building is highly unlikely to quench the demand for court hearings, let alone civil hearings in commercial cases, which usually come after all other civil or criminal matters. Multi-party hearings would occupy even more of the court’s video-conferencing capacities.
Remember, each party and the judge themselves would need a separate courtroom dedicated to conducting remote hearing Via Video in order to be channeled to the official electronic network. Obviously, Via Video is not suitable for such multi-party hearings, but may come useful for one-party submissions, or smaller cases.
Private audio-visual tools
Skype for Business, and Microsoft Teams are expressly recommended by the OBH for online hearings, but judges are free to make use of other encrypted programs, too. These tools are suitable for dealing with even multi-party hearings including inviting interested parties which assures the requirement of publicity, as demonstrated with Zoom in the National Bank of Kazakhstan v Stati case in the UK. As the use of these private programs is not in any way regulated so far, the cooperative attitude and adequate technical background of lawyers is essential. Although a protocol from OBH or the courts is expected, as done by many other countries, as for now, it rests entirely upon judges to choose the audio-visual means and the host for the virtual hearing. As there is no official information on whether state judges are provided with the necessary set of hardware and software technologies fit for remote hearings, we listed the following options with the assumption that they are.
Skype for Business offered with Office 365 is widely available on business laptops. Meetings of Skype for Business can be attended by normal Skype accounts, which makes it accessible for any users. Options as sharing screens, files may come handy when handing a document up to the judge, recording meetings facilitate the post-administration of the hearing.
Much the same way, Microsoft Teams offers the recording of meetings, and allows it only for the host, in this case the judge to manage it. In this program, multiple teams can be set up thus allowing private meetings with the client, a separate team for the advocates and one for the courtroom. Although the platform is built for businesses primarily, it also can be reached by Skype individually, which is free to download.
Not specifically mentioned by the OBH’s brief guidance, but it is worth to take account of Zoom, which, according to many, is the current most reliable and easiest software to use for business conferences. Zoom has a competitive advantage over Skype and Microsoft Teams, that it is reachable through web browsers with an invitation link, making it seamless to use for larger audience as well. However, the program has recently raised data security and privacy concerns as it lacked back-end infrastructure to support end-to-end encryption. The company promised a soon solution to the problem, until then file-sharing through this platform is not recommended
The safe play of written procedures
In case none of the above is available for a party or the judge itself, the judge may change the procedure to a document-only basis. Written electronic communication with clients is indisputably the safest solution for a Hungarian judge, as it is carried out through their own well-established network system, called E-Per.
To use E-Per, one has to register an official administrative account (Ügyfél/Cégkapu) in a civil registration office or online, and download additional programs as ÁNYK for official forms, E-szignó or AVDH for generating electronic signatures. Since 2018, law offices are obliged to file submissions via these programs, thus the system is now commonly used and tested.
Nevertheless, E-Per is not a viable alternative for oral hearings for a number of obvious reasons. To submit any documents through E-Per, first, the official forms of the program ÁNYK have to be filled, attachments shall be electronically signed by the authorised signatory party with the help of another program and then the whole package shall be sent to the court through Cégkapu. Shortly after, the sender receives an official reply that its document has been downloaded by the court. Pushing through pleadings and rebuttals back and forth through this system would be painfully slow, let alone the technical complications that occur from time to time. Procedures running on a document-only basis would be also a radical step towards the inquisitorial model, undermining the parties’ right to public hearings.
Next to E-Per, a very handy remote tool was introduced recently under the name E-Akta. E-Akta is a great remote solution for accessing case files without visiting the court’s clerk office. Unfortunately, it is only available for cases started after 1 January 2020, but may add to the project remote courts.
Ready or not?
There is no doubt that the judiciary faces now an immense digital challenge under the special rules of the state of emergency. All of the above and yet none of the above options offer the perfect solution to replace physical contact with the courts by themselves. But however imperfect the technology is, with lawyer’s right innovative mindset and constructive attitude, the shift to remote operation is feasible under the courts’ current digital capacities.
So far no judiciary forum has published any listing of online hearings using the above remote methods.
As for our experiences, we have received orders in several cases, where the judge called us upon handing in our final submissions within a shortened time-limit of 15 days even in complex international cases where more jurisdictions are involved. In the same judicial orders, joint filing for proceedings by the parties was highlighted as a strongly recommended option. The pressuring message to end or suspend the proceedings not only raises practical concerns, challenges fundamental principles of procedural law but seems to be against the sense of the Emergency Decree.
We remain hopeful that this ill-considered response to the state of emergency is only of an initial faux pas and with time a more progressive approach will shape up that will eventually bring about a genuine discussion among judges, lawyers and clients on how remote courts could work in Hungary after the pandemic.
Please read the original article HERE.