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 and without participation of parties
- delivering court letters to the parties’ attorneys by electronic means;
- designating equivalent courts having 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.