Summoning a foreign witness to an online hearing before the Polish civil court – what is the content of the instructions issued by the Polish court to a foreign witness? What is the procedure of remote witness questioning by a Polish court.

More and more often, foreign clients of KIEŁTYKA GŁADKOWSKI KG LEGAL take part in online hearings as a part of civil lawsuits. This also applies to foreign witnesses in commercial proceedings conducted for foreign clients and settled by the Polish civil courts.

The widespread use of remote (online) questioning of witnesses results from a temporary change in the Polish civil procedure, which adapted the practice of conducting court cases in the realities of the pandemic. The proliferation of the practice of questioning witnesses has created the standard practice of summoning foreign witnesses in writing by document, which the Polish court delivers by conventional mail to the witness’ address and summons the witness to participate in the online hearing. The court in such a letter explains in great detail to the witness how and when the witness is to connect to the court online.

Due to the fact that the court informs the foreign witness in great detail about how the foreign witness is to connect online with the Polish court using a computer, KIELTYKA GLADKOWSKI KG LEGAL presents below the full content of the Polish Court’s summons and instructions.

It may turn out to be very helpful for foreign readers doing business in Poland, because this type of summons is very standard and is used in a very similar way by all Polish common courts.

The summons begins with the designation of the court by which the summons is issued. Full text of the summons together with instructions on the consequences of failure to appear online is presented below:

District Court for … in …

V COMMERCIAL DIVISION

…

Address for correspondence:

…

Fax: …

contact e-mail address of the 5th Commercial Division:

x@x.gov.pl

website address of the District Court for Kraków- Śródmieście in …:

www…….

——

THE CUSTOMER SERVICE OFFICE provides INFORMATION in matters, pavilion … – ground floor

Monday to Friday: 7:45-15:30, Tel. no: …

———

Case files reference number: ….

In response, file reference number should be provided

Mr.

Witness summons

(compulsory appearance in the form of an electronic connection)

District Court for … in … V Commercial Division

in the action brought by

against

for (in respect of)

summons you to a hearing which will take place on the day  … ,at the time  .., court room …,

… street, for interrogating you as a witness under the pain of imposing a fine on you for an unjustified failure to appear in court.

The court informs you that the appearance at the hearing takes place only remotely, with the use of technical devices enabling the appearance to be carried out at a distance with simultaneous direct image and sound transmission (via the Jitsi application) pursuant to art. 15zzs¹ section 1 of the Act of March 2, 2020 about special solutions related to prevention and combating Covid-19, other infectious diseases and emergencies caused by them.

A remote hearing is conducted on the basis of the above-mentioned provision of the Act and it does not require the consent of the persons summoned to or notified about the hearing, whereas these persons cannot oppose it.

The court calls for sending a return message confirming receipt of this e-mail.

The court informs that an English language interpreter will be present at the hearing to allow the witness to testify in the English language.

The court requires you to provide the information – within 3 days – by e-mail to the following address: ..@..pl, about the telephone number that will be used to contact you in case of technical problems with connection during a remote hearing.

A failure to provide a telephone number will result in the court not having contact with a person who has technical problems in joining the remote hearing and, consequently, the court may decide that the person did not appear at the hearing without good justification.

Witnesses can attend the hearing by accessing the electronic hearing via the JITSI application.

THE LINK FOR REMOTE CONNECTION TO THE COURT VIA JITSI APPLICATION:

(in this place, the court provides a link to the videoconference)

No special software or application installation is required to connect in remote mode – it is enough to have a device equipped with a camera and microphone with Internet access (e.g. computer, tablet, smartphone). The person connecting with the court should have an ID card or other document with a photo confirming identity.

On the indicated date and at the indicated time, please click on the link to the remote hearing.

In case of an unjustified failure to appear in court for remote hearing, i.e. failure to connect in electronic form by means of the link provided, the Court may consider the absence unexcused and sentence you to a fine.

The court informs about the creation of a tab on the Public Information Bureau website: https://xxx  concerning remote hearings.

Upon the order of the judge/assessor

Upon the approval of the Head of the Court Administration

Court reporter

This letter does not require a handwritten signature pursuant to § 19 section 4 of the Ordinance of the Minister of Justice of December 12, 2003 on the organization and scope of operation of court secretariats and other departments of the court administration as properly approved in the court ICT system.

INFORMATION

Any person summoned by the court through remote communication devices should report their presence on the date and time indicated in the summons and remain at the court’s disposal until the permission of the Presiding Officer of the Court to leave the meeting (hearing).

For an unjustified failure to attend, unjustified refusal to testify, or to submit affirmation the court will order the witness to pay a fine of up to PLN 3,000 (Article 274 § 1 of the Code of Civil Procedure, Article 276 § 1 and Article 287 of the Code of Civil Procedure in conjunction with Article 163 § 1 of the Code of Civil Procedure), and if the witness fails to appear again – regardless of the imposition of a new fine – the court may order the witness’s compulsory presence. (Article 274 § 1 of the Code of Civil Procedure).

Justification for failure to appear due to illness requires the presentation of a certificate confirming the inability to appear at the court’s summons, issued by a doctor.

If the court has doubts as to the witness’s ability to perceive or communicate observations, it may order that the witness be heard with the participation of an expert doctor or psychologist, and the witness may not object to this.

A witness may justify his failure to appear within a week from the date on which he was served the order sentencing him to a fine or at the first meeting to which he was called. In the event of justification for the failure to appear, the court will release the witness from the fine and from being forced to appear.

The witness and the person accompanying the witness, if the witness was unable to attend the court without the care of that person, are entitled to reimbursement of earnings or income lost due to appearing at the court, even if the witness was not heard despite appearing remotely. Loss of earnings or income related to the appearance in a remote form at the summons of the court, the witness and the person accompanying the witness, if the witness was unable to appear at the summons without the assistance of that person, should be duly demonstrated [(article 85, sections 1, 3 and 4, article 86, sections 1 and 4, article 87 section
1 and article 88 of the Act on Court Costs in Civil Cases (Journal of Laws of
2010, No. 90, item 594, as amended)]

The return of lost earnings or income and wages is granted at the request of a witness, the person accompanying the witness or the party or third party entitled to receive the payment, submitted in writing or orally to the record of the court hearing.

The application for the award of costs related to the appearance at the request of the court in a remote form shall be submitted orally to the protocol or in writing, within 3 days from the date of completion of the activities with the participation of the person entitled to these costs, and in the case of a person accompanying the witness, if the witness was unable to appear in court without the care of that person – within 3 days from the completion of the activities involving the witness who was accompanied by this person (Article 92 sections 1, 2 of the Act on Court Costs in Civil Cases). An application submitted after the deadline is subject to dismissal.

Costs of lost earnings or income are awarded upon application. The application shall be submitted orally to the court minutes or in writing within 3 days from the date of completion of the activity to which the appearance related. Together with the application, the witness should indicate the bank account number if the refund is to be transferred to the bank account.

Rules for the reimbursement of travel expenses of witnesses and for reimbursement of lost earnings or income.

Costs for reimbursement of travel expenses and lost earnings or income are awarded upon request. Application shall be submitted orally to the court minutes or in writing within 3 days from the date of completion of the activity to which the appearance related. Together with the application, the witness should indicate the bank account number if the refund is to be transferred to the bank account.

The reimbursement of travel expenses is due to witnesses and experts in the actual amount incurred, reasonable and purposeful costs of traveling by car or other means of transport:

• in the case of traveling by own car, the amount of travel costs is determined taking into account:

b) the number of kilometers traveled from the place of residence to the place where the procedural act is performed,

c) average fuel consumption per 100 km,

d) type of fuel and its purchase price,

• in the case of travelling by public transport  (bus),  the costs are reimbursed on the basis of a copy of the ticket attached to the application. People living in the place where the procedural activity is performed, the reimbursement of travel costs is made in the amount of purchasing public transport tickets,
• in the case of travel by train, the principle is to reimburse the costs of purchasing tickets in a second-class carriage (a copy of the train ticket should be attached to the application),
• the return of earnings or income by a witness due to the summons should be documented by attaching a certificate from the employer about the amount of the lost average daily earnings calculated according to the rules for calculating the equivalent for leave,
• return of lost income – persons running a business, in the case of submitting an application for return of lost income, should present a document confirming running a business activity,
• reimbursement of accommodation and subsistence costs at the place where the procedural activities are performed – the witness is entitled to reimbursement of accommodation and subsistence costs,
• reimbursement of travel, accommodation and subsistence costs at the place where the procedural activities are performed – the witness is entitled to reimbursement of travel, accommodation and subsistence costs at the place where the procedural activities are performed. The witness and expert are entitled to reimbursement of accommodation and subsistence costs in the amount of actually incurred, reasonable and purposeful costs. Their amount and the necessity to pay should be duly proven by the witness / expert (in particular, the necessity to use the accommodation, its cost, the legitimacy of expenses, e.g. for meals, etc., should be justified and demonstrated),
• The person accompanying the witness is also entitled to reimbursement of travel, accommodation and subsistence costs in the place where the procedural activities are performed, if the witness cannot appear upon the summons without such person’s care – the need to come with an accompanying person should be documented by attaching a certificate on the degree of the witness’s disability or a certificate from a doctor, that he requires the care of another person on the day he is summoned.