(Apr. 27, 2020) On April 20, 2020, a regulation entered into force that temporarily amends Switzerland’s rules of civil procedure to enable the resumption of court proceedings amid the COVID-19 pandemic. The COVID-19 Regulation Justice and Procedural Law (COVID-19 Justice Regulation) establishes general rules for the conduct of proceedings and temporarily allows the use of videoconferencing in civil trials. It will automatically expire on September 30, 2020.
General Rules for Proceedings
The COVID-19 Justice Regulation provides that all courts and administrations must abide by the hygiene and social distancing guidelines of the Federal Office of Public Health when they conduct stages of the proceedings that involve the participation of parties to the trial, witnesses, or other third parties, such as the main proceedings or questioning. (COVID-19 Justice Reg. art. 1.)
As a general rule, when phone and videoconferencing are used, steps must be taken to ensure that the transmission of sound and image between all parties occurs simultaneously, the questioning of witnesses and the personal hearing in matrimonial matters are recorded and added to the case file, and data protection and data security are guaranteed. (Art. 4.) The Explanatory Memorandum requires the use of end-to-end encryption, the use of servers located in Switzerland or the European Union, and the prevention of unauthorized data transfers or access.
Civil hearings and the oral delivery of the judgment must generally be conducted in public. (Code of Civil Procedure art. 54.) In derogation from that general rule, the temporary amendment allows civil proceedings to be conducted by videoconferencing when the parties agree or there are important reasons for doing so—in particular, the urgency of the matter. Furthermore, the questioning of witnesses and expert testimony may be done by videoconference on an exceptional basis. The public, with the exception of the press, may be excluded when videoconferencing is used. (COVID-19 Justice Reg. art. 2, paras. 1–3; Code of Civil Procedure arts. 171, 174, 176, 187.)
For personal hearings in matrimonial matters, phone and videoconferencing may be used when the parties agree and there are no important reasons against it. As an exception, the agreement of the parties is not necessary if the matter is urgent. (COVID-19 Justice Reg. art. 3.)
If conducting the proceedings by phone or videoconferencing is not possible or unreasonable, the matter is urgent, and there are no important reasons against it, the court may use a written procedure instead of an oral hearing. (Art. 5.) An important reason against it might be that one party is not represented by counsel. (Explanatory Memorandum art. 5.)
In child and adult protection cases, personal hearings may be performed by a single member or delegation of the child and adult protection authority or by the judicial appeals body, and through the use of phone or videoconferencing. If the main proceedings take place, they may also be conducted by phone or videoconference. (COVID-19 Justice Reg. art. 6.) The agreement of the person concerned is not required. (Explanatory Memorandum art. 6.)