Ombudsman (hereinafter referred to as ‘RPO’), by letter dated 3 November 2017 addressed to the Minister of Justice, he drew attention to a rather important issue concerning the criminal procedure, namely the issue of issuing injunctions.
In this letter the Ombudsman asked whether the institution of the order judgment was compatible with Article 45(2) The Constitution of the Republic of Poland in fine, predicting that the sentence is publicly announced. In this case, the RPO 30 July 2019 decided to send a remanding letter to the Minister of Justice to take a position in this area[1].
Characteristics of the order judgment a Article 45(2) Constitution
Sentence, according to Article 500 Act dated 13 August 2019 Code of Criminal Procedure. (Journal of Laws, item 555 i.e.
dated 14 September 2018, Journal of Laws of 2018, item 1987, hereinafter referred to as ‘k.p.k.’), it may be issued in the cases in which the investigation was conducted, taking the view, on the basis of the material collected in the preparatory procedure, that a hearing is not necessary.
The court may, in such cases as to enable the sentence of restriction of liberty or fine to be ordered to be ordered to be ordered to the court if, on the basis of the evidence collected, there is no doubt about the facts of the action and the defendant's fault.
The court shall issue a judgment in a sitting without the participation of the parties.
Despite the tide two years after the submission of the letter by the RPO dated 3 November 2017 The issue of issuing prescriptive judgments remains a controversial and broad issue. We look forward to the position of the Minister of Justice on this issue, all the more so that the solutions proposed by the RPO should be assessed positively
In line with the current Article 418a k.p.k., in the case of judgment at a meeting held with the exception of disclosure, the content of the judgment shall be made available to the public by submitting a copy of it for a period of time 7 the days in the Registry of the Court, to be mentioned in the minutes or official note of the meeting.
The vast majority of commentators 2 points to the problem of differences in content Article 418a k.p.k. between z Article 45(2) dd. 2 The Constitution of the Republic of Poland according to which the verdict is published in public.
Part of the doctrine indicates that the provision in question complies with the principle of the public’s judgment envisaged under Article 45 sentence second Constitution of the Republic of Poland. According to this part of the literature, the article. 418a k.p.k. concerns only judgment at meetings excluding disclosure (Article 95b), so it does not concern public meetings where the judgment is in accordance with the principle of the public (see Article 98b(2))[3].
On the other hand, in the doctrine are also presented second commentators' view that the constitutionality of the provision Article 418a K.P.K. raises serious doubts.
According to this part of the doctrine, the Constitution does not allow any exception to the public delivery of a judgment, since it allows a derogation from the principle of open examination, but no longer allows an undisclosed delivery of a judgment, stating unequivocally that a judgment is public (Article 45(2) dd.
2 Constitution of Poland)[4].
In the light of the above considerations, an important aspect has been highlighted, stressing that the publication of a judgment given outside the hearing in accordance with the procedure envisaged Article 418a is severely restricted by the way in which the person concerned is informed that the decision has been taken and is made available by 7 days in the Registry of the Court, especially when the judgment was given at a sitting which no one was notified of.
The Ombudsman proposed in his position two solutions that could ensure compliance Article 418a k.p.k., i.e. the institution ‘making the judgment available’, with the essential law.
Placement of the minutes of the secret meeting
In the Ombudsman's view, if, in the event of the issuing of prescriptive judgments, both parties who are not informed of the date of the meeting and the public, do not have the right to participate in the sitting, they will not have the opportunity to obtain information about the fact that a prescriptive judgment in a particular case has been concluded and have the right to make available to the institution, not to mention the content of the ruling. All the more so, in the case of proceedings at a hearing or at a meeting in which the parties have the right to attend, the date, time and number of the Chamber, concerning a particular hearing or sitting, shall be indicated on the so-called in the case where the sitting is held without the participation of the parties, but belongs to the closing parties, the hearing shall be drawn up, but ex posti no normative obligation to suspend it[5].
In the light of the above considerations, the opinion of the RPO cannot be considered that the regulation itself Article 418a k.p.k. fulfilled the principle of the public understood in accordance with Article 45(2) The Constitution, i.e.
having an answer to the question the person concerned is to take the message that a specific case has been completed and a copy of the judgment which has been filed in it is lodged at the judicial office[6].
In his position, the RPO indicated that by submitting a copy of the judgment in the Registry of the Court for public review only the right of a citizen to obtain information on the activities of the public authority, which are also courts (Article 61 Constitution of Poland) 7 , not a real guarantee of the principle of external transparency.
Therefore, the RPO in its position pointed to first solved, i.e. including the extracts of the minutes from the sitting in the bulletin board of the court. The obligation and procedure for drawing up and announcing discharges from judicial protocols should be governed by the Rules of Procedure of the General Court.[8].
In addition, the RPO indicated that such a solution cannot be considered to be aggravating in relation to the accused, since it would not mention the content of the judgment, but only the conditions, time and place of hearing it.[9].
Suspension of decisions of the sitting on the delivery of the order judgment
second from the solutions proposed by the RPO is the suspension of the vokanda from the sitting on the delivery of the injunction on the board of notices of the court.
Under current legislation (section 28 section 1 Order of the Minister of Justice on the organisation and operation of judicial secretariats and other departments of judicial administration dated 19 June 2019 2019 item 138) from the sitting on the delivery of the order judgment, the Registry of the General Court shall draw up a hearing.
However, it is not known whether this solution (proposed 2 years ago) remains in the light of the new rules.
According to section 28 section 1 Order of the Minister of Justice on the organisation and operation of judicial secretariats and other departments of judicial administration, dated 19 June 2019 2019 item 138, the information indicated in the vacancy covers only the time of actual commencement and completion of the meeting, the reason for any change in the planned time of the meeting, the number of persons interviewed and the results of the examination of the cases mentioned at the hearing.
By virtue of a pre-existing order of the Minister of Justice dated 12 December 2003 on the organisation and scope of the proceedings of the judicial secretariats and other departments of the judicial administration, the order of the hearing on the delivery of the judgment contained the names of the Judges, the signature of the file of cases appointed for the sitting, the indication of the hours for which the cases were designated, the names of the parties, the signature of the act of the public prosecutor and the legal qualification of the action alleged.
Despite the tide two years after the submission of the letter by the RPO dated 3 November 2017 The issue of issuing prescriptive judgments remains a controversial and broad issue. We look forward to the position of the Minister of Justice on this issue, especially since the solutions proposed by the RPO should be assessed positively.
1 https://www.rpo.gov.pl/pl/content/jak-zapewnic-publiczny-charakter-wyrokow-nakazowych-ponaglenie-rpo-do-ms
2 Code of Criminal Procedure. Comment ed. prof. UwB dr hab. Andrzej Sakowicz, dr Katrzyna T. Boratyńska, dr Paweł Czarnecki, prof. UJ dr hab. Adam Górski, prof. UW dr hab. Michał Królikowski, Dr Marcin Warchoł, Dr Andrzej Ważny, Krzysztof Eichstaedt, Commentary to Article 418(a) the Code of Criminal Procedure, 31 March 2019, Tomasz Grzegorczyk Comment to Article 418(a) Code of Criminal Procedure 10 April 2014, Caesary Kulesza Comment to Article 418(a) Code of Criminal Procedure 15 August 2018
3 Caesary Kulesza Comment to Article 418(a) Code of Criminal Procedure 15 August 2018
4 Op. cit., Krzysztof Eichstaedt, Comment
5 https://www.rpo.gov.pl/pl/content/jak-zapewnic-publiczny-charakter-wyrokow-nakazowych-ponaglenie-rpo-do-ms
6 S. Waltos, Main trends of the amendment of the criminal procedure, PiP 2003, z. 4, p. 8; S. Zabłocki, Public announcement of the judgment given at the sitting – a real guarantee or fiction?, Gdańsk Law Studies 2003, t. XI, p. 320.
7 T. Grzegorczyk, Code of Criminal Procedure. Tom I. Comment to Article 1-467, Warsaw 2014, p. 1382–1383
8 S. Zabłocki, Public announcement of judgment..., op. cit., p. 320–321.
9 S. Durczak-Żochowska, Release of the content of the injunction, Prok. and Pr. 2009, No 2, p. 41.
Author: Hanna Żołnierkiewicz
Lawyer in the Legal Department. From 2017 associated with Russell Bedford Dmowski & Partners Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He runs the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.