Dienstag, 05.05.2020
Corona crisis and face masks at court hearings
from
Dr. jur. Ingo E. FrommLawyer
Specialist in criminal law
Specialist in traffic law
Give me a call: 0261 - 404 99 25
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There is currently a dispute in the courts as to whether mouth-and-nose protection masks must be worn in the courtroom. A judge at the Hagen District Court made headlines when he ordered that breathing masks be worn in his civil proceedings to protect against the coronavirus. Otherwise, a notice was posted in the courtroom announcing that in the event of non-compliance, the court police would take action and/or the proceedings would be interrupted and postponed. The judge's action is based on § 176 I of the Court Constitution Act (GVG), according to which the maintenance of order in the session is the responsibility of the chair. The court's action must also be proportionate, which may raise concerns if there are hardly any proven cases of Covid-19 in the court district.
The author has also experienced the exact opposite case, in which a criminal court judge prohibited the wearing of mouth and nose protection in his court session. He invoked § 176 para. 2 GVG, which prohibits persons participating in the proceedings from covering their face completely or partially during the session. This includes covering the face with a mask, a burqa, sunglasses, a balaclava, or a motorcycle helmet. Medical mouth and nose protection is also likely to be covered, although nothing is stated in the legislative materials. The aim of the regulation is to be able to reliably verify the identity of the persons involved in the proceedings in a court case.[2] Furthermore, it should be possible for the judge, in the context of the evaluation of evidence, to use the facial expression of a witness or other party for the purpose of evaluating and, if necessary, interpreting their statement. However, the presiding judge may allow exceptions to the ban on veiling if and to the extent that revealing the face is not necessary for establishing identity or for the evaluation of evidence. The Koblenz judge's decision seems at least questionable in times when most state governments' regulations even prescribe the wearing of masks in public and defendants or defense attorneys only want to protect themselves from infection. It goes without saying that mouth and nose protection must be removed if, for example, in a fine proceedings, the judge has to check whether it was the driver by comparing the radar image. For the other persons present at the court hearing, such as the Lawyer, the interested public or press representatives, it does not appear justified to prohibit the wearing of mouth-and-nose protection masks. Other courts, however, do not make any ruling on face masks in court and leave it to the general requirement of keeping a distance of 1.5 meters. The different cases from practice show, in turn, how contradictorily courts are currently applying the procedural rules in connection with the Covid-19 virus. Here, too, the judiciary must first come to a unified approach.
Footnotes:
[1] www1.wdr.de v. 10.3.2020 ("Coronaschutz in Hagen: Maskenpflicht am Amtsgericht"); www.rp-online.de v. 10.03.20 ("Wegen Coronavirus in Sorge: Hagener Amtsrichter ordnet Atemschutz für seine Verfahren an").
[2] BT-Drucksache 19/14747, 43.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.