Governance of the Judicial System and Procedural Deadlines in times of COVID-19
Austrian Federal Act on Covid-19-Measures for the Judicial System
The Austrian Federal Act on Covid-19-Measures for the Judicial System (Bundesgesetz betreffend Begleitmaßnahmen zu COVID-19 in der Justiz, hereinafter “COVID-19 Judicial Act”) has an impact on civil proceedings, criminal proceedings and provides for special rules for the enforcement of prison sentences.
The COVID-19 Judicial Act came into force the day after it was published in the Austrian Federal Law Gazette and will be in effect until 31 December 2020.
The first part of the COVID-19 Judicial Act provides for rules regarding civil matters (civil proceedings).
Interruption of procedural deadlines
In court proceedings (civil proceedings, including so called non-contentious proceedings (Außerstreitverfahren), proceedings regarding the land registry and the commercial register, enforcement and insolvency proceedings), all procedural deadlines that have not expired at the time when the COVID-19 Judicial Act entered into force or that begin to run after it entered into force will be interrupted until the end of the day of 30 April 2020.
All deadlines therefore start to run again on 01 May 2020. This applies to statutory and judicial deadlines.
The Minister of Justice may by ordinance provide for a general extension of this rule.
The law however, does not apply to the deadlines to comply with a judicial order (Leistungsfristen), deadlines under the Federal Act on the Compulsory Hospitalisation of mentally ill People (Unterbringungsgesetz), or the Epidemic Act 1950.
The courts, however, can provide for an exception for an individual case and issue an order setting an appropriate deadline. Such a court order cannot be appealed (Sec 1 para 2).
The general interruption and therefore the uniform commencement of the statutory and procedural deadlines, as currently provided for on 01 May 2020, creates legal certainty.
Suspension of Deadlines regarding Statute of Limitation
Sec 2 provides for the suspension of certain deadlines to initiate proceedings, including the statute of limitation (Hemmung von Verjährungsfristen) (Article: Effects of the 2. COVID-19 Act on time limits under civil law). The time between 22 March 2020 and 30 April 2020 is not taken into account for the period during which an action or an application should be filed with a court or a declaration should be submitted therewith. According to the explanatory remarks to the law, this covers deadlines regarding the statute of limitation, but also, for example, the deadline to submit annual accounting documents to the court (in particular the nine months deadline according to Sec 277 para 1 of the Austrian Business Code and the two months deadline to issue fines for the failure to comply with the obligations under Sec 283 para 4 of the Austrian Business Code) or the deadline to file an action due to the unlawful interference with the use of property.
Restrictions for Oral Proceedings and Service of Process
As long as the restrictions on the freedom of movement and for social contacts are in place due to COVID-19, the following applies. During this period
- only absolutely necessary oral hearings shall take place,
- appropriate technical means of communication (video or telephone conferences) shall be used instead, and
- decisions and documents that have to be served physically shall be dispatched by the court in urgent cases only.
- Service of process by means of the Electronic Court Filing System will continue.
Further provisions address the potential discontinuation of operation of particular courts (Sec 4), the adjustment of the provisions on the payment default under Sec 156a para 1 of the Austrian Insolvency Code (Article: Liquidity support for companies) (Sec 5), an extension of deadlines regarding merger control (Sec 6), provisions regarding pre-payments of alimony (Sec 7) and grant additional far-reaching competences for the Minister of Justice (Sec 8).
These special provisions of the COVID-19 Judicial Act do not apply in Arbitration Proceedings. Here, it is up to the arbitrators and the arbitral tribunal how they deal with COVID-19 in pending arbitrations. Certain institutions have already reacted. On its website the Vienna International Arbitral Centre (VIAC) has published a checklist for the conduct of (oral) hearings. On 17 March 2020 the Secretariat of the ICC International Court of Arbitration announced that all oral hearings that should have taken place at the ICC Hearing Centre in Paris until 13 April 2020 have been postponed or cancelled.
Precautionary Measures for Criminal Matters
The second part of the COVID-19 Judicial Act provides for extensive powers of the Minister of Justice to issue ordinances in criminal matters; the third part deals with the enforcement of prison sentences.
Amendment of the Enforcement Act
The 2. COVID-19-Act also amends the Austrian Enforcement Act (Exekutionsordnung). Section 200b of the Enforcement Act now also allows - under certain circumstances - to suspend enforcement acts in case of an epidemic or pandemic. Previously, this was already possible in the event of a natural catastrophe (high flood, avalanches, pressure resulting from snow, landslide, mountain slide, hurricane, earthquake or similar, comparably major disasters).
Amendment of the Code of Criminal Procedure
Section 286 of the Code of Criminal Procedure is amended by adding a new para 1a. That allows, in accordance with an ordinance issued by the Minister of Justice to also hold the oral hearing for appeals and the appeal for nullity by means of a video conference in cases where the defendant is detained in prison.
Amendment of the Service of Process Act
A new Section 26a of the Service of Process Act (Zustellgesetz) provides for facilitations that avoid contact between the postman and the addressee. It is no longer necessary for the postman to physically hand over the document and obtain the recipient’s signature to confirm the service. It is for now sufficient to place the document into the mailbox (Abgabeeinrichtung bei der Abgabestelle) or to leave it at an appropriate location, e.g. at the apartment door, at the house or the garden door. Thereafter, the addressee shall be notified directly in writing, orally (e.g. via the intercom or through the apartment door) or by telephone.
Please note: This newsletter merely provides general information and does not constitute legal advice of any kind from Binder Grösswang Rechtsanwälte GmbH. The newsletter cannot replace individual legal consultation. Binder Grösswang Rechtsanwälte GmbH assumes no liability whatsoever for the content and correctness of the newsletter.
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