On the 3th July 2021 the amendments of the Rules of Polish Civil Procedure and other statutory laws (especially the statutory law about solutions related to preventing, counteracting and combating COVID- 19) have entered into force.

The Act of the Council of Ministers’ initiative provides for a number of changes in the Polish civil procedure, including:

1. more online hearings,
2. participation of witnesses in remote hearings,
3. examination of the case by a single-judge panel,
4. new procedure for the service of judicial documents,
5. new formality requirement,
6. and other less relevant law changes.

In our opinion one of the crucial and relevant change (and one of the most controversial issue in that amendment) was a new procedure for the service of judicial documents. In the current wording of the Act dated 3 July 2021 judicial documents will not be delivered by the post-office operator (as is has been the case so far) but merely will be posted on the so-called court information portal. The amendment also provides for exceptions from that manner of service of documents (e.g. when the form or character of the judicial document makes it impossible to serve it by posting on information portal, the court will be able to dispense with this form of provision and use traditional methods (article 15zzs⁹ section 5 of the Act of 2 March 2020 on specific arrangements for preventing, counteracting and combating COVID-19, other communicable diseases and emergencies caused by them).

In order to reproduce the original text of the legislation, we place the entire article of that statutory law below.

Article 15zzs⁹

Sec. 1. During the period of the state of epidemic threat or the state of epidemic announced due to COVID-19 and within one year from the cancellation of the last of them, in cases conducted in the manner specified in Art. 15zzs1, the first pleading lodged by an advocate, legal advisor, patent attorney or the Attorney General of the Republic of Poland shall include an e-mail address and telephone number intended for contact with the court. Failure to comply with this obligation constitutes a formal failure of the pleading.

Sec. 2. In the period specified in sec. 1, if it is not possible to use the ICT system that supports the court proceedings, the court shall deliver the letters to the advocate, legal adviser, patent attorney or the General Prosecutor’s Office of the Republic of Poland by placing their content in the ICT system used to make these documents available (information portal). This does not apply to letters that are subject to service together with copies of the parties’ pleadings or other documents not originating from the court.

Sec. 3. The date of delivery is the date on which the recipient reads the letter posted on the information portal. In the event of failure to read the letter, the letter is considered delivered after 14 days from the date of placing the letter on the information portal.

Sec. 4. Service of a letter via the information portal produces procedural consequences specified in the Code of Civil Procedure, appropriate for the service of a document.

Sec. 5. The chairman shall order that the letter should not be served via the information portal if it is impossible to deliver the letter due to the nature of the letter.[1]

WHAT THE CHANGE IS ABOUT

Roughly speaking, this amendment introduces the principle of electronic service and circulation of pleadings. In the explanatory memorandum to the bill there can be read as follows:

These changes are related to the progressive epidemic in the country and in the world. In the light of the existing circumstances, which may paralyze the judiciary, the principle of holding hearings and public hearings in a separated form should be adopted. If there is no such possibility, for the sake of the safety of the participants in the proceedings and the judiciary employees, it is necessary to depart from the strictly perceived principle of external openness and to refer the case to a closed session. In the opinion of the project initiator, the speed of the proceedings is also a value that should be followed in this case, in particular as it does not adversely affect the party’s rights to a fair hearing of the case.[2]

This statement regards the procedure of hearing but also it implicitly relates to the service of judicial documents due to a) the health security of court and postal workers and b) departure from the principle of external openness and hence the change of the entire functioning of the justice system in times of pandemic. Beyond the controversy about that amendments we can read the explanatory and explicative statement of the Ministry of Justice:

These letters and pleadings (judicial documents) are already published on the portal, so the new regulations will allow for more effective use of proven IT solutions. They will free the courts from printing and sending such correspondence by traditional mail. The letter will be available in the system immediately after its placement, and the delivery will take place on the day it is read by an attorney – no later, however, than 14 days from its placement on the portal. Currently, the period between sending the letter and attaching the return receipt to the files may take more than a month.[3]

THE PRACTICAL ASPECTS OF THE AMENDMENT

1. New formal requirement

Henceforth (since the amendment entry into force) during the period of the state of epidemic emergency or the state of epidemic announced due to the COVID- 19 pandemic and throughout the year after these states in the cases pursued by the court in an online form (article 15zzs¹ of that Act) it is necessary to put in the pleading the address of electronic mail (email) and telephone number intended to contact with the court. Lack one of the said data will be found as a formal failure of the pleading.

• New information portal

During abovementioned period under circumstances of no-possibility to use the ICT system, the court serves the letter by placing its content on the information portal. Thus it will be a full digitalization of provision and circulation of the judicial documents (having regard to the exceptions). The information system will be (and indeed it is) a platform of communication between the law attorneys and the court.

• The date of service of the document and a failure of reading the document

The date of the letter’s service will be the date of letter’s reading by the recipient when the pleading is made available (posted) on the information portal. But if the recipient (e.g. the law attorney) does not read the posted pleading in the proper time, the pleading will be deemed to have been received 14 days after the day on which the pleading was posted. That situation may be referred to as a presumption of service.

It can be explained in the following way:

1. The court posts a pleading on the information portal (considering the exceptions).
2. Posted pleading creates procedural effects at the time of the service (pursuant to the Rules of Civil Procedure).
3. The moment of service is the moment when the recipient has read the pleading (e.g. the attorney).
4. After the moment of reading the document which is the moment of service, the pleading creates procedural (law) effects.
5. If an authorized person does not read the posted pleading then the presumption of service of the pleading shall be applied. And the pleading is deemed to have been received 14 days after the day on which the pleading was posted on the information portal.
6. Exception to this rule: a chairman may order that the service of a pleading by means of information portal be dispensed in the situation in which the nature of the judicial document makes service impossible.

CONTROVERSIES

The entire discussed amendment aroused a lot of controversy. On the one hand, lawyers accused the amendment of breaking the rule of law standard regarding the article 45 of Polish Constitution including the principle of public hearing and the principle of a fair trial (procedural justice)[4]. Even the Supreme Bar Council adopted a resolution criticizing and expressing disapproval of the changes.[5] On the other hand, lawyers criticize this amendment from the procedural perspective. The introduced law changes may become a problem and difficulty for professional attorneys due to, inter alia:

1. lack of transitional provisions,
2. too short vacatio legis (14 days),
3. failure to take account of the fact that several attorneys can act in the same case,
4. imprecision of the notification system.[6].

Additionally, the National Chamber of Legal Advisers has expressed its views on the issue and published a position paper on the subject including the proposed amendments that had not been taken into account by the legislative (to see the position paper: https://kirp.pl/zmiany-w-kpc-sejm-podjal-decyzje/).

To see the legislative path: https://www.sejm.gov.pl/Sejm9.nsf/PrzebiegProc.xsp?nr=899

CONCLUSIONS

For the time being, it is too early to make an assessment or critique of the amendments introduced based on empirical evidence. Considering the controversies (constitutional and procedural) not only the development and progression of the COVID-19 epidemic and its impact on the justice system, but also the legislative solutions recently introduced including changes to civil procedure to improve the legal system in the face of pandemic should be closely monitored.

Webography:

1. https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20210001090/O/D20211090.pdf
2. https://www.gov.pl/web/premier/Projekt-ustawy-o-zmianie-ustawy–kodeks-postepowania-cywilnego-oraz-niektorych-innych-ustaw
3. https://www.sejm.gov.pl/Sejm9.nsf/PrzebiegProc.xsp?nr=899
4. https://www.adwokatura.pl/z-zycia-nra/petycja-w-sprawie-projektu-nowelizacji-kpc/
5. https://www.rp.pl/W-sadzie-i-urzedzie/304209957-Nowelizacja-KPC-jeden-sedzia-i-rozprawy-on-line-staja-sie-zasada.html
6. https://www.rp.pl/W-sadzie-i-urzedzie/301309988-Adwokaci-krytykuja-projekt-zmian-w-KPC-na-czas-epidemii.html
7. https://kirp.pl/zmiany-w-kpc-sejm-podjal-decyzje/
8. https://legalis.pl/doreczenia-przez-portal-informacyjny-sadow-powszechnych-w-ocenie-profesjonalnych-pelnomocnikow/

[1] https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20210001090/O/D20211090.pdf (access date: 2^nd August, 2021)

[2] https://orka.sejm.gov.pl/Druki9ka.nsf/0/57F5306C7E6B9378C1258663003EADF5/%24File/899.pdf page 8 of the explanatory memorandum (access date: 2^nd August, 2021).

[3] https://www.rp.pl/W-sadzie-i-urzedzie/304209957-Nowelizacja-KPC-jeden-sedzia-i-rozprawy-on-line-staja-sie-zasada.html (access date: 2^nd August, 2021).

[4] https://www.rp.pl/W-sadzie-i-urzedzie/304209957-Nowelizacja-KPC-jeden-sedzia-i-rozprawy-on-line-staja-sie-zasada.html (access date: 2^nd August, 2021)

[5] https://www.rp.pl/W-sadzie-i-urzedzie/301309988-Adwokaci-krytykuja-projekt-zmian-w-KPC-na-czas-epidemii.html (access date: 2^nd August, 2021)

[6] https://legalis.pl/doreczenia-przez-portal-informacyjny-sadow-powszechnych-w-ocenie-profesjonalnych-pelnomocnikow/ (access date: 2^nd August, 2021)

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