OGH: Exclusion of the public does not have to justify nullity

May 5, 2021 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that exclusion of the public from oral hearings in civil proceedings is not a ground for nullity to be challenged by the courts if both parties waive their right to appeal against the exclusion decision.

In the present proceedings, the plaintiff requested by means of multistage proceedings (Stufenklage) that the defendant tolerate the valuation of a property. With the consent of both parties, the court of first instance then held a hearing by video conference. Upon commencement of the hearing, the first judge announced the exclusion of the public "due to the general curfew restrictions", whereupon the parties waived their right to a copy of the decision and to appeal.

On the basis of the plaintiff's appeal, the Court of Appeal set aside the first judgment and the hearing as null and void. It was of the opinion that the court of first instance had unjustifiably excluded the public without the existence of one of the elements of Sec. 172 of the Code of Civil Procedure (Zivilprozessordnung, ZPO). Therefore, the ground for nullity under Sec. 477 (1) (7) (unjustified exclusion of the public), which had to be recognized by the court, had been realized. As the general public was a fundamental procedural principle, the waiver of an appeal or the consent of both parties could not remedy a nullity.

However, the OGH rejected the Court of Appeal's view. Sec. 462(2) ZPO (which limits the appellate court's power of review) is also applicable to a binding decision to exclude the public. Its review by the Court of Appeal is therefore not admissible if the parties have waived their right to appeal.

According to the case law of the European Court of Human Rights (ECHR), the waiver of the right to a public hearing is permissible unless the proceedings deal with important public interests. According to the OGH, this was not the case here. The OGH left open whether a waiver of Sec. 462 (2) ZPO would be necessary if important public interests actually existed.

OGH 2 Ob 173/20k (25.02.2021)