The draft act of April 20, 2021 (date of
submitting the first draft to the Sejm – January
15, 2021) amending the act – the Code of Civil
Procedure and certain other acts, introduces
important changes, such as introduction of
provisions regulating e-auctions of real estate. It
also introduces changes, which will significantly
affect the existing rules of, inter alia, civil
proceedings. The proposed changes, at least in
the current intention, are to be temporary, as
they do not directly relate to the provisions of
the Code of Civil Procedure, but to the
amendment of the Act of March 2, 2020 on
special solutions related to the prevention,
counteracting and combating COVID-19, other
infectious diseases and crisis situations caused
by them (Journal of Laws of 2020, item 1842, as
amended), in which the functioning of the
judiciary was regulated due to the state of the
epidemic across the country (“Project”).
In the scope indicated above, the Project is
focused, inter alia, on the following issues:
- introduction of remote mode of conducting
hearings and open sessions; - increasing the possibility of referring cases
to in camera sessions
participation of parties; - delivering court letters to the parties’
attorneys by electronic means; - designating equivalent
courts
jurisdiction to examine cases.
Remote mode of conducting hearings and
open sessions. Pursuant to the Project,
hearings and open sessions will be conducted
with the use of technical devices enabling them
to be conducted at a distance with the
simultaneous direct transmission of image and
sound, and in the absence of the need for
participants to be present in a court building.
Therefore, this procedure would, in principle,
become the basic one in the work of courts. A
court will be able to refrain from holding a
hearing or an open session in the above manner
only if it is necessary to examine a case at a
hearing or open session, and if holding them in
a court building does not cause excessive risk to
the participants’ health. If, at least 7 days
before the date of the remote hearing, a party
or a person summoned indicates not having
technical equipment enabling participation in the
remote hearing outside a court building, the
court will have to ensure that s/he can
participate in the remote hearing in the court
building.
Referring cases to in camera sessions and
without participation of parties. A chairman
will be able to order an in camera session when
it is not possible to hold a hearing or an open
session remotely with the simultaneous direct
transmission of video and sound, and it is not
necessary to hold a hearing or an open session.
The Supreme Court will not be bound by
a complainant’s request to examine an appeal in
cassation at a hearing also in the event of
a significant legal issue being raised, regardless
of the date on which the appeal in cassation was
filed.
Delivery of court letters by electronic
means. A highly controversial change is the
proposal to introduce electronic delivery of court
letters to e-mail addresses of professional
proxies, i.e. attorneys, legal advisors, patent
attorneys and advisors of the Prokuratoria
Generalna
Rzeczypospolitej
Polskiej
(the
Solicitors’ Office of the Republic of Poland), with
effect of delivery. This aim is to be achieved,
inter alia by introducing an obligation to indicate
business e-mail addresses and telephone
numbers of the aforementioned proxies in the first submitted pleading. If it is not possible to
use the ICT system, a court will deliver digital
imaging of court letters, notices, summons and
rulings to professional proxies by posting them
on the relevant information portal. The above
documents are to be considered delivered on
the date the recipient reads the document
posted on a given portal, and in the absence of
such reading, after 14 days from the date of
publishing the document in such portal.
Designating equivalent courts in urgent
cases. The Draft also provides for the possibility
and rules of appointing equivalent courts in the
event of a complete discontinuation of work of
a competent court and delegation of judges to
perform their duties in another equivalent court.
Such solutions are intended primarily for
examination of urgent cases, which are
specifically mentioned in the Draft, including,
inter alia, hearing under the procedure of
securing evidence. The President of the Court
who designates another court competent to
examine urgent cases, is also entitled to indicate
non-urgent cases within the jurisdiction of this
court, for examination of which the designated
court is competent, if failure to examine them
could endanger the life or health of humans or
animals, could cause serious harm to social
interest, as well as when it is required by the
interests of the judiciary. The principles of
appointing equivalent courts and delegating
judges are provided for, respectively, the
functioning of courts of general, military and
administrative jurisdiction.
All the above changes are to be effective during
the period of the epidemic threat or epidemic
state announced due to the COVID-19 and
within one year of the cancellation of the last
one. The provisions of the amended act are to
apply to civil proceedings examined in
accordance with the provisions of the Code of
Civil Procedure, and not only future ones, but
also those already initiated and not completed
before the date of entry into force of new
regulations.
According to the justification of the Project, the
planned solutions are aimed at reducing the risk
related to the spread of the COVID-19 pandemic and, therefore, ensuring greater safety for
participants of the proceedings. On the other
hand, however, the proposed changes (largely
too general in the current content of the Draft)
may lead to the violation of the procedural
guarantees of the parties and, above all, violate
the principles of transparency and directness of
civil proceedings. On April 20, 2021, the 3rd
reading of the Draft took place at the Sejm
session and was submitted to the Senate in
order to continue the work. Lawyers, law
practitioners, but above all parties to initiated
and planned proceedings, are left to closely
observe the legislative process and verify the
text of the act, which will be finally adopted.
Michał Matak
Prawnik | Lawyer
T: +48 22 447 43 00
E: matak@millercanfield.com
Disclaimer: This publication has been prepared for clients
and professional associates of Miller Canfield, and is based
on the facts and guidance available at the time of its
release which may be subject to change. The purpose of
the publication is to draw attention to the legal events
indicated in it and should not be the sole basis for any
decision regarding a particular course of action; nor
should it be relied on as legal advice or regarded as
a substitute for detailed advice in individual cases. The
services of a competent professional adviser should be
obtained in each instance so that the applicability of the
relevant legislation or other legal development to the
particular facts can be verified.