On 1 January 2025, a revision of the Swiss Civil Procedure Code (CPC) introducing key amendments intended to facilitate the practical application of the CPC and improve access to courts in Switzerland will enter into force (see our blog post with a summary of the key amendments). This revision will also introduce provisions allowing the use of electronic means in civil proceedings in Switzerland, which was not explicitly mentioned in the CPC before (cf. art. 141a and 141b of the revised CPC).
The court may use electronic means for the transmission of audio and images in hearings, including the examination of witnesses, the questioning of parties and the taking of expert evidence (art. 170a, 187, para. 1, and art. 193 revised CPC). However, this requires that all parties to the proceedings consent to the use of such electronic means. Moreover, article 141b of the revised CPC defines other prerequisites, namely that both audio and image must be transmitted to all participating persons simultaneously and that data protection and data security are ensured.
The Federal Council has now published a draft of an ordinance further specifying the technical requirements for the use of electronic means in civil proceedings (VEMZ/OMETr), which is currently subject to public consultation. In this contribution, we summarize the most important points covered by the new ordinance.
SCOPE OF APPLICATION OF THE VEMZ/ OMETr
This ordinance applies to all proceedings in which the use of videoconferencing or teleconferencing is permissible under the revised CPC. It only covers oral proceedings in that regard. This includes not only hearings, but also other oral acts by the civil court, such as examinations. Written pleadings, such as the submission of briefs, are excluded.
TECHNICAL CONDITIONS AND DATA PROTECTION REQUIREMENTS (ART. 2 AND ART. 3 VEMZ/ OMETR)
The ordinance defines the technical equipment required by the court and the persons taking part in the proceedings to ensure that the proceedings can be carried out properly. It must be ensured that the servers used, in particular those used by the participants and system operators, are located in Switzerland or in a country providing an adequate level of protection within the meaning of art. 16 para. 1 of the Federal Data Protection Act (art. 3 para. 1 let. a VEMZ/ OMETr).
Sound and image must be transmitted in encrypted form (art. 3 al. 1 let. b VEMZ/ OMETr). Only encrypted channels may be used. Courts must also guarantee that the server system used for transmission is up to date in terms of security, and that known critical flaws are corrected (art. 3 al. 1 let. c VEMZ/ OMETr ).
Additional legal guarantees are required if the retransmission system is supplied by a private service provider (art. 3 para. 2 VEMZ/ OMETr).
If the technical conditions and data protection and security requirements are not met, the proceedings may not be conducted by videoconference or teleconference. In this case, the court will refuse the request, or abandon the use of electronic means if it had planned to use them on its own initiative.
COURT’S DUTY OF COMMUNICATION AND ORGANIZATION (ART. 5 to 7 VEMZ/ OMETr)
The court must communicate to the persons concerned the login and other access data enabling them to participate in the videoconference (art. 5 let. a VEMZ/ OMETr). It must also inform participants about the equipment they need (art. 5 let. b VEMZ/ OMETr). It can also require participants to be in separate rooms to prevent them from influencing each other (art. 7 al. 3 VEMZ/ OMETr). More generally, it is the court’s responsibility to ensure that only authorized participants follow the proceedings, and that the debates run smoothly.
Finally, while participants in a videoconference must connect individually to the transmission system, it should be noted that parties and their representatives may connect together and use the same equipment (art. 6 para. 2 VEMZ/ OMETr).
ACCESS OF THE PUBLIC
The public’s right to access to court proceedings must also be respected in oral proceedings conducted by electronic means and the public, including journalists, parties’ relatives and other interested parties, must be able to follow the proceedings if they are public (art. 9 VEMZ/ OMETr, art. 54 CPC, art. 141a para. 3 revised CPC).
TRANSITIONAL PROVISIONS AND ENTRY INTO FORCE
Art. 407f nCPC stipulates that the new legal provisions on the use of electronic means also apply to ongoing proceedings at the time of the entry into force of the revised CPC, i.e. 1 January 2025. The VEMZ/ OMETr, as an implementing ordinance, comes into force on the same date and also applies to ongoing proceedings at the aforementioned date (art. 11 VEMZ/ OMETr). However, as mentioned, the draft VEMZ/ OMETr is currently still in consultation proceedings and can still be amended based on the feedback received from relevant stakeholders.
