There is no doubt that the epidemic COVID-19 has led to paralysis of most institutions related to the functioning of the state. This also applies to justice. We look at whether the government's adopted anti-crisis shield package will help improve the work of courts.
Under the orders of the Presidents of the various courts, the hearings, meetings, the service departments of the interested party, the administration offices and the reading rooms were cancelled.
In addition, the possibility of access to post offices has been largely limited due to the safety rules implemented and significantly shorter opening hours. Of course, due to the health risks and the introduced state of epidemic, the restrictions should be regarded as being most legitimate.
On the other hand, to professional representations constitute a significant obstacle to the performance of their duties, in particular those relating to procedural deadlines.
The government's draft amendment of the Act, in addition to fairly widely commented solutions for entrepreneurs, also includes regulations relating to the functioning of the justice system during the epidemic
Act dated 2 March 2020 specific prevention, prevention and eradication solutions COVID-19, Journal of Laws of 2020, item 374 (hereafter referred to as the "Law") as it stands, it does not contain solutions for the functioning of justice during the epidemic.
Therefore, the government's draft amendment of the Act, in addition to fairly widely commented solutions for entrepreneurs, also includes regulations relating to the functioning of the justice system during the epidemic.
In this article I will focus on third aspects of the amendment which will significantly influence the conduct of judicial proceedings and the logistics of the judiciary.
Cooperation between courts
In accordance with the rules contained in the draft amendment in the event of complete cessation of proceedings by the general court because COVID-19 the President of the Court of Appeal may designate another equivalent court, situated in the area of the same appeal, to be competent for the recognition of urgent matters belonging to the jurisdiction of the court which has ceased operations, with a view to ensuring the right to the court and the organisational conditions of the courts of designation being carried out for a specified period resulting from the envisaged period of cessation.
On the other hand, in the event of a complete cessation by all courts common in the area of appeal due to COVID-19 This first The President of the Supreme Court shall, at the request of the President of the Court of Appeal, in whose area the courts have ceased their activities, designate another court as competent for the examination of urgent matters located, as far as possible, in the area of the neighbouring appeal. In the case of provincial administrative courts, the appointment of other courts for urgent cases is to be carried out by the Chief Administrative Court.
Court which has completely ceased its proceedings COVID-19, forward the file of urgent cases opened and unfinished to the court designated as the competent court. The court designated as the court competent for the examination of urgent cases shall remain competent for the completion of the proceedings at the instance in question. During the period during which an outbreak or an outbreak occurs, there should not be a hearing or public hearing, except in cases of urgency and public meetings.
The President of the Court of Appeal may delegate a Judge of the District Court or a Judge of the Court of Appeal, with his consent, to the performance of the duties of a Judge in another District Court, a District Court or an Appeal Court, for a limited period of time, to the recognition of urgent matters if due to COVID-19 the welfare of justice requires this. Similar rules apply to administrative courts.
Without doubt, in the current situation, the transfer of urgent cases, the delegation of judges and the transmission of the file will be an organisational and logistical challenge for judges and other judicial staff.
Furthermore, this solution is doubtful as the parties and their representatives will most likely be forced to move to other locations where the court temporarily entrusted with the handling of the case is located.
Given the government's recommendations to refrain from moving, this aspect of the solution should be considered rather unfortunate.
Suspension and suspension of time limits
According to Article 15zzr draft amendment of the Act during the period of the emergency or epidemic declared due to COVID-19, the following time limits are to be suspended for that period and the following time limits are to be suspended. i.e.:
- the time-limits for the conduct of which it is subject to the provision of legal protection before the court or body and the time-limits for the performance by the party of the acts determining the rights and obligations thereof; or second parties to legal relations,
- time limits, limitation periods and other time limits whose failure to retain results in the expiry or amendment of rights in rem and claims and claims arising from civil relations, and late,
- the dates of enviable non-preservation of which the Act has negative effects on the party,
- the time-limits to be entered in the relevant register by the entities or bodies which require them to report to that register and the time-limits for those entities to comply with their obligations under the rules on their system.
Notwithstanding the above, the performance of the power or obligation during the period of interruption of the commencement or suspension of the time limits shall be effective.
In addition, during the period of the outbreak or outbreaks reported due to COVID-19, for that period, it is not to start and the following procedural and judicial time limits are to be suspended in:
- • judicial proceedings, including judicial and administrative proceedings,
- • enforcement proceedings,
- • criminal proceedings,
- • tax criminal proceedings,
- • infringement proceedings,
- • administrative procedures,
- • procedures and checks on the basis of Act dated 29 August 1997 – Tax Ordinance,
- • customs and tax checks,
- • proceedings in the cases in question under Article 15f(9) Act dated 19 November 2009 about gambling (Journal of Laws of 2019, item 847, as amended),
- • other proceedings under the laws
Suspension of the start and suspension of time limits shall not apply to time limits in urgent cases, in cases of election or appointment of constitutional bodies of the State, in the case of agreements concluded with employees based on Article 632(5) Act dated 26 June 1974 – The Labour Code) and time limits in proceedings in cases of applications and legal questions initiated and not completed before the Constitutional Tribunal. On the other hand, during the period of the emergency or epidemic situation are to be suspended from the limitation period of criminality of the act and the limitation period of enforcement of the penalty in criminal matters, offences and fiscal misdemeanour and in criminal matters.
In this respect, the interpretation of the vague statement contained in Article 15 zzr section 1 point 1) Draft amendment i.e.
„the time-limits for the conduct of which it is subject to the provision of legal protection before the court or body and the time-limits for the performance by the party of the acts determining the rights and obligations thereof; or the other party to the legal relationship.’ Moreover, the question of the duration of the period during which the deadlines are to be suspended/ suspended is also raised.
The question is, where exactly the time limits will be suspended/stopped. It must be borne in mind that the state of the epidemic was introduced on 20 March 2020
Urgent Cases Directory
The above-mentioned proposals for solutions are closely linked to the definition of the so-called urgent cases catalogue, which in the draft amendment covers the following matters:
- • requests for application, extension and amendment of provisional arrest;
- • where detention is applied;
- • where the safety measure has been established;
- • hearings of a witness in preparatory proceedings by a court based on Article 185a-185c either Article 316(3) Act dated 6 June 1997 – Code of Criminal Procedure (Journal of Laws of 2020, item 30), when the suspect is detained;
- • the European arrest warrant;
- • order a interruption in the execution of the penalty in the electronic surveillance system;
- • to apply and extend detention measures in the form of the placement of a foreigner in a secure facility, to apply or extend detention for foreigners;
- in which a custodial sentence or other penalty or coercive measure resulting in imprisonment is exercised, where the decision of the court concerns the release of a person deprived of liberty from a detention or detention facility or is necessary for the execution of such penalty or coercive measure in that establishment or detention;
- to receive a person under parental or dependent authority;
- referred to In the Act dated 19 August 1994 on mental health (Journal of Laws of 2018, item 1878; of 2019, items 730, 1690);
- concerning the placement or extension of a minor in a juvenile shelter;
- concerning the placement of a minor foreigner in a care and training facility;
- from the scope of the implementing proceedings in the cases in question Under point 8-12;
- requests for the appointment of a curator to represent the interests of minors in the proceedings before a court or other body in urgent matters;
- referred to In the Act dated 22 November 2013 on the treatment of persons with psychiatric disorders posing a threat to the life, health or sexual freedom of others (Journal of Laws of 2019, item 2203; of 2020, item 278); – 15 –
- the hearing by the court of a person in the manner of securing evidence or of which there is concern that he or she will not be able to be heard at the trial.
Urgent matters dealt with by administrative courts are to be cases for which the Act sets a time limit for their consideration by the court and for requests for suspension of the act or act.
The President of the court appointing the court competent for the examination of urgent matters falling within the jurisdiction of the court which has ceased operations may also indicate cases other than urgent matters belonging to the jurisdiction of that court to which the competent court designated will be competent. In addition, the President of the competent court may order the recognition of any matter as urgent if its failure to recognise it could result in a danger to the life or health of humans or animals, a serious injury to the social interest, or due to the imminent material harm and where the good of the judiciary so requires.
At this point, it should be noted that the above-mentioned proposal for a catalogue of urgent cases does not contain cases concerning the establishment of safeguards in civil proceedings. Of course, the draft amendment envisages a kind of "failure furk", that is, recognition of a given case of what urgency or referral of a case other than urgent to be examined. However, it will be dependent on the decision of the President of the Court to consider the matter urgent or to refer it to the court.
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 conducts 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.