Publication date: December 01, 2025
The defendant, as a party in Polish civil proceedings, is a subject of rights and obligations. Their role in achieving the goal of each proceedings — the issuance of a just judgment that concludes the case—is indispensable. As the subject of the lawsuit, they respond to the opposing party’s arguments, thus assisting the court in fulfilling its task of fairly resolving the dispute. The defendant offers the justice system their perspective, which is essential because the justice system’s clear duty is to hear both sides; otherwise, it would be impossible to speak of a fair trial in which citizens have the opportunity and right to defend their rights and interests. Far from being a passive recipient of allegations, they are an active participant in the process, influencing the shape and course of the entire procedure and its outcome through the exercise of their rights. It should also be noted that the defendant’s overall rights and obligations constitute the principle of equality of parties in civil proceedings, which precludes denying one party access to necessary legal tools, for example, by excluding the possibility of appointing a legal representative or the ability to submit evidentiary motions. These rights extend beyond court proceedings and also include the use of amicable dispute resolution methods, such as mediation. Mediation naturally serves to avoid lengthy and costly litigation by reaching a settlement that is at least partially satisfactory to both parties. However, court proceedings, similarly, cannot limit the rights of one party at the expense of the other. The purpose of this study is to review the defendant’s rights in both arbitration and pre-trial proceedings, as well as in selected areas of court proceedings (hearings).
Defendant’s rights related to mediation and amicable dispute resolution
As noted in the legal literature, the most important feature (principle) of mediation proceedings is their voluntary nature. A party cannot be forced to participate in mediation, continue it, or reach a settlement, even if they have previously entered into a mediation agreement. This also gives them the right to terminate mediation by submitting a declaration of non-consent to mediation – as provided for in Article 183 (10) § 2 of the Code of Civil Procedure. It is also worth noting the flexibility of mediation proceedings, which, as provided in Article 183 (1) § 4, can be conducted before the initiation of the proceedings or, with the consent of the parties, during the hearing. This regulation clearly illustrates the principle of equal rights, as mediation will never occur without the consent of both parties. Parties also have the right to participate in an informational meeting on amicable dispute resolution methods, particularly with information relating to mediation proceedings. Therefore, it is appropriate to agree that courts, when referring parties to mediation and simultaneously seeking their consent, should also explain the essence of mediation. Courts may, for example, use their authority to inform the parties about what mediation is, as well as its advantages and possible benefits for the parties. Information meetings serve to provide knowledge about mediation proceedings and to equalize opportunities for both parties in order to counteract any information imbalance that may arise between them.
Parties can also shape the course of mediation proceedings, primarily by appointing a mediator. Importantly, this provision further emphasizes the balance between the parties in civil proceedings, as the other party must receive a copy of the mediation application, which the mediator receives. The parties may unanimously select someone from the pool of permanent mediators or select someone who is not a permanent mediator but meets the requirements of Article 183 (2) of the Code of Civil Procedure – i.e., a natural person with full legal capacity and full public rights who is not an active judge. Furthermore, both the plaintiff and the defendant have a say in the mediation period. Pursuant to Article 183 (10) of the Code of Civil Procedure, the deadline for extending mediation may be extended, which requires one of two conditions: a unanimous request from the parties or other compelling reasons, if this would favor an amicable resolution of the matter.
From the defendant’s perspective, a key guarantee is the so-called confidentiality principle of mediation, set out in Article 183 § 4 of the Code of Civil Procedure. This principle is primarily expressed by the fact that mediation proceedings are not public. None of the participants, including the mediator, may disclose information obtained during mediation or report on its progress. Participants may be released from this obligation only with the consent of the parties. The obligation of confidentiality by the mediator and other parties to maintain the confidentiality of facts learned in connection with the mediation continues regardless of the results achieved during the proceedings. The sanction for violating this obligation is the ineffectiveness of invoking the indicated proposals and statements during court or arbitration proceedings – Article 183 § 4 of the Code of Civil Procedure.
Defendant’s rights in preparatory proceedings
The preparatory proceedings are a crucial stage before the actual hearing, during which the court attempts to reach a preliminary resolution of the dispute, aiming to limit its scope or even conclude it without the need for further hearings. This stage involves the parties to the proceedings and their attorneys, who have the right and obligation to co-determine the course of the proceedings. Pursuant to Article 205 § 7 of the Code of Civil Procedure, a party’s participation in the preparatory hearing may be limited at the request of the party or its attorney. If the circumstances of the case indicate that the attorney’s presence alone will be sufficient to achieve the hearing’s objectives, the Presiding Judge may exempt the party from the obligation to appear in person. The defendant also has the right to influence the date and course of the proceedings. Pursuant to §§ 2 and 3 of Article 205 § 7 of the Code of Civil Procedure, the parties may, upon mutual request, adjourn the preparatory hearing for a specified period, not exceeding three months, and may exercise this option twice. This provision allows the parties to adequately prepare for the hearing and attempt to resolve the dispute amicably during this time. Additionally, the court may adjourn the preparatory hearing ex officio, particularly if it has referred the parties to mediation. The hearing is then adjourned until the mediation is completed or, importantly, until it is terminated, which the defendant has the right to influence independently by expressing their disagreement with further participation in mediation.
During the proceedings, the defendant has the right to present allegations and evidence in support of his or her own motions, as well as to rebut the opposing party’s allegations and motions. This right remains in effect until the court approves the draft trial schedule or prepares a trial schedule. In exceptional circumstances, the defendant may present new allegations or evidence even after the deadline, provided, however, that the defendant demonstrates that it was impossible to present them earlier or that the need to present them arose only during the proceedings. In such cases, the court is obligated to consider the new evidence and allegations and cannot ignore them. This regulation protects the defendant’s procedural rights, providing him with a real opportunity to defend himself and shape the evidence, and also guarantees that no important circumstances will be omitted during the proceedings, which is the foundation of a fair trial.
The defendant’s rights related to participation in the hearing
A fundamental right of a party in civil proceedings, including the defendant, is the right to seek the appointment of a court-appointed attorney or legal counsel. This right is available to parties unable to cover the costs of private legal assistance on their own, partially guaranteeing their right to a fair defense of their interests. It should be emphasized that this right is optional, as reflected in the use of the word “may” in Article 117 § 1 of the Code of Civil Procedure. According to this provision, this right is available to individuals exempt from court fees in whole or in part, as well as non-exempt individuals who submit an appropriate declaration that they cannot bear the costs of an attorney’s fee without detriment to the necessary support of themselves and their family. It is also worth noting that this right also applies to legal entities and other organizational units with legal capacity, as indicated in Article 117 § 1 of the Code of Civil Procedure. Thus, the legislator provides legal protection not only to natural persons, but also to other entities participating in the process who may need legal support at the state’s expense.
The 2019 amendment to Article 162 § 1 of the Code of Civil Procedure grants both parties the right to bring to the court’s attention any violations of procedural provisions. These violations are noted in the transcript of the hearing at the request of a party, but can be raised no later than the next session. Pursuant to Supreme Court judgment II CSKP 2317/22, objections submitted to the transcript do not require the court to indicate the procedural provisions violated to be effective. This is justified by the fact that the regulation does not require citing specific procedural provisions and by the fact that parties are often not represented by a professional attorney, which can happen because a power of attorney granted ex officio is optional, as indicated above.
Another important right of the defendant is the ability to justify their failure to appear in response to a summons or court notification due to their own illness, as well as the illness of their legal representatives, attorneys, witnesses, or other participants in the proceedings. Pursuant to Article 214 § 1 of the Code of Civil Procedure, this justification requires the presentation of a medical certificate confirming the inability to appear at the scheduled hearing. Such a certificate should be issued by a court-appointed physician, guaranteeing the reliability and objectivity of the assessment of the absent person’s health. This provision aims to protect the rights of the parties and participants in the proceedings by ensuring they can participate in the proceedings without endangering their health. At the same time, it serves to maintain the proper course of proceedings, as a failure to appear justified by a medical certificate does not result in negative procedural consequences for the party. This ensures that a party unable to participate in a hearing or session due to illness is not automatically deemed inadmissible, and their procedural rights remain intact.
A judgment issued in the defendant’s absence will not be considered a default judgment if the defendant has previously requested a hearing in their absence or has provided explanations, both orally and in writing, during the proceedings. Pursuant to Article 340 § 2 of the Code of Civil Procedure, the court cannot issue a default judgment against a defendant who has actively participated in the proceedings by providing explanations or has expressed a willingness to participate. This avoids situations in which a judgment is issued without considering the defendant’s position, which is contrary to the principle of equality of arms and the right to a fair trial. As explained in the case law, a written explanation submitted by the defendant (Article 340), contesting – in whole or in part – the request submitted in the lawsuit, precludes the issuance of a default judgment, regardless of the validity of the allegations contained in that explanation and the evidence presented therein. However, the fact that a party has undertaken preparatory activities, e.g., submitting a power of attorney, a request to adjourn the hearing or to grant a deadline for filing a response to the claim, or obliging the plaintiff to specify or justify the claims in the claim, does not constitute evidence of participation in the case. A default judgment cannot be issued against a defendant who has filed an application for exemption from court fees in whole or in part and for the appointment of an ex officio attorney, because such applications, which do not directly concern the defendant’s position on the claims filed against him, include the defendant’s intention to participate in the hearing in the sense that he wishes to defend himself in the proceedings, which should be considered a decisive negative premise in the context of issuing a default judgment.
The defendant’s position in civil proceedings has been shaped to guarantee them effective participation in the resolution of the dispute. The legislature has provided the defendant not only with the ability to defend themselves against the plaintiff’s claim but also with influence over the conduct of the proceedings, their pace, and their scope. These rights include the ability to refuse participation in mediation, to submit evidentiary motions and procedural objections, as well as the right to retain the assistance of a professional attorney or to appeal a default judgment. The above considerations are summarized in the diagram below, which concisely presents the defendant’s key rights at each stage of civil proceedings – from mediation and pre-trial proceedings to the trial.
List of defendant’s rights
1. The right to participate or not to participate in mediation (Art. 205 § 2 of the Code of Civil Procedure; (Art. 183 § 8 § 2 of the Code of Civil Procedure); Art. 183 § 1 of the Code of Civil Procedure).
2. Participation in an information meeting on amicable dispute resolution methods, in particular mediation (Article 183 § 8 § 4 of the Code of Civil Procedure).
3. Lack of transparency of mediation proceedings (Art. 183 § 4, paragraph 1 of the Code of Civil Procedure)
4. Possibility of extending the mediation deadline (Article 183 10 § 1 of the Code of Civil Procedure)
5. Possibility of postponing preparatory proceedings twice (Article 205 7 § 3 of the Code of Civil Procedure)
6. Possibility of terminating mediation (Article 183 10 § 1 of the Code of Civil Procedure; Article 183 1 § 1 and 2 of the Code of Civil Procedure)
7. Possibility of conducting mediation with the consent of the parties also during the course of the case (Article 183 1 § 4 of the Code of Civil Procedure)
8. Principle of confidentiality in mediation – The mediator and other persons participating in the mediation proceedings are obligated to maintain the confidentiality of any facts they have learned in connection with the mediation. The parties may release the mediator and other persons participating in the mediation proceedings from this obligation (Article 183 § 4 § 2 and 3 of the Code of Civil Procedure).
9. The right of the parties to appoint a mediator (183 6 § 2 of the Code of Civil Procedure)
10. The right to extend mediation upon the parties’ joint request or for other important reasons, if this will facilitate an amicable resolution of the matter. (Article 183 10 § 1 of the Code of Civil Procedure)
11. Adjournment of the preparatory session when there are prospects of an amicable settlement of the dispute or when there is a need to clarify circumstances relevant to the resolution of the case or in the event of a justified failure to appear by a party, as well as at the joint request of the parties, for an indefinite period of time not longer than 3 months (Article 205 7 § 2 of the Code of Civil Procedure)
12. The right to be released by the presiding judge from the obligation to appear at the preparatory hearing if the circumstances of the case indicate that the participation of the attorney will be sufficient (Article 205 § 1 of the Code of Civil Procedure)
13. The right to cite allegations and evidence to support one’s motions or to refute the opposing party’s motions and allegations until the hearing schedule is approved. Claims and evidence submitted after the hearing schedule is approved will be disregarded unless the party substantiates that their submission was impossible or that the need to submit them arose later (Article 205 12 § 1 and 2 of the Code of Civil Procedure).
14. The right to draw the court’s attention to procedural violations by requesting that an objection be entered into the minutes. Objections may be raised no later than the next hearing (Article 162 § 1 of the Code of Civil Procedure).
15. Justification for failure to appear due to illness of the parties, their legal representatives, attorneys, witnesses and other participants in the proceedings, requiring a certificate confirming the inability to appear in response to a summons or notification from the court, issued by a court-appointed physician (Article 214 1 § 1 of the Code of Civil Procedure)
16. A judgment issued in the defendant’s absence will not be issued by default if the defendant requested a hearing to be held in his presence or has already provided explanations in the case orally or in writing (Article 340 § 2 of the Code of Civil Procedure)
17. A party (also a legal person) may request the appointment of a legal representative (Article 117, paragraphs 1, 2 and 3 of the Code of Civil Procedure)
18. Representation is not mandatory (Article 117 § 1 of the Code of Civil Procedure).