COVID-19 / Coronavirus
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Yesterday, the Swiss Federal Council, on the basis of its authority to legislate in cases of necessity, enacted an ordinance (COVID-19 Judiciary and Procedural Law) which sets the requirements for Swiss civil courts to order the use of teleconferencing or videoconferencing in lieu of holding an ordinary hearing whenever the sanitary recommendations of the Swiss Federal Office of Public Health cannot be complied with. These measures are intended to maintain the operation of the judicial system in civil and commercial matters during the coronavirus crisis and will come into force on 20 April 2020; they are meant to remain in force until 30 September 2020.
The possibility given to Swiss civil courts to hold "virtual hearings" in certain circumstances derogates from the procedural principle that all hearings shall be public. The Swiss Federal Council considered that a restriction of this principle was a sacrifice that has to be made in order to ensure the progress of civil and commercial proceedings in these times of crisis.
This new possibility for Swiss civil courts to hold hearings by teleconference or videoconference is a major step towards the digitalization of important parts of Swiss civil procedure. Without the coronavirus crisis, this legislative development would likely not have come into effect for many years.
Although from next Monday there will be a clear legal basis in Switzerland for holding teleconferences or videoconferences as an alternative to in presence hearings, the possibility of using these techniques will remain at the discretion of the respective civil courts, which will first need to put in place the necessary technical equipment. Thus, only a systematic implementation of these new techniques by the courts will actually ensure the progress of the civil and commercial proceedings.
With the same objective, the Swiss Federal Council also decided that the Swiss civil courts may - in cases of emergency - renounce holding a hearing and use written procedure when the use of teleconferencing or videoconferencing is not possible or cannot be implemented.
This adjustment to the civil procedure rules is in line with the decision made on 20 March 2020 by the Swiss Federal Council by which it had resolved that the Easter stay was starting earlier (see our Newsflash of 20 March 2020). In its most recent ordinance, the Swiss Federal Council decided not to take specific measures in the fields of administrative and criminal proceedings, as those already allow the limited use of videoconferencing systems.
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