When Europe became the centre of the COVID-19 pandemic, the government in Poland proclaimed the state of epidemic (on March 20th 2020). Various public health emergency measures have been introduced. Amongst them closures of schools, businesses and borders. Polish courts have, too, been impacted.

For most Poles, social distancing turned into lockdown with working from home and using remote communication tools. However, unlike in many other lines of business or foreign jurisdictions, this trend has not, so far*, transformed the administration of justice in Poland.

In the framework of the impact on delivering justice, this post looks at the current situation in the Polish courts by presenting:

 

*At the time of publishing this post (on April 23rd, 2020) information regarding proposed changes to the functioning of the public courts appeared in the press.

 

Those proposals go in the direction of remote courts, with the use of teleconferencing for trials and e-administration.

 

We will look at those proposals in a separate post, coming in the next few days.

 

COVID-19 (NON) FUNCTIONING OF THE COURTS

 

On March 13th 2020, courts have gone into a pandemic functioning mode which is still ongoing (for now, at least until April 30th 2020).

Court trials and open sessions have been cancelled. They are to be postponed for the currently unknown future dates. There are some exceptions to the cancellation rule for urgent matters, as enlisted by the COVID-19-related governmental act. These are, for example, temporary arrest, detention, securing of evidence or taking away of minors issues. Matters other than the enlisted remain at the discretion of the judges in the specific proceedings.

Correspondingly, the opportunity to receive advice in these urgent cases has been narrowed. The judicial emergency “office hours” in relation to detention, psychiatric or minors issues, where decisions need to be taken urgently, are ongoing, albeit in a limited form.

On March 31st 2020, the flow of the procedural and court deadlines has been stayed for the duration of the COVID-19 emergency. However, the substantive limitation periods (other than administrative) are still flowing.

Court buildings have been effectively closed to the public, namely:

  • as a rule, people are asked not to visit courts but communicate remotely by telephone and email;
  • the only exceptions to suspending in-person functioning, therefore allowing strictly limited access to the court buildings, are: (i) summoned or notified persons; in urgent proceedings only: (ii) individuals who arranged to view court files in the reading room; and (iii) persons submitting files to the registry office;
  • court offices and units, such as the cash desks, client service, information points and registries (with urgent proceedings exception) are closed to the public who is asked to use remote communication tools (inquire by telephone and email, pay by bank transfers, send and receive requested documents using postal operators);
  • provision of free legal advice, civic counselling and mediation have been limited to remote means of communication (by telephone and email);
  • courts’ daily operating hours are shorter;
  • mandatory precautionary measures, like temperature checking and hand sanitisation, have been introduced – failure to conform prevents accessing the building.

For a more comprehensive summary of legislative changes introduced on March 31st 2020 (in English), including for the specific types of proceedings, view the information provided by the Ministry of Justice to the Council of Europe.

 

Upon learning of all this “negative” legislation – banning and cancelling most typical daily court activities – a question emerges:

is there anything to fill the void created?

Isn’t there any “positive” legislation introducing some new ways of delivering justice?

Any, be it temporary, substitutes to open court sessions?

If not the letter of the law, what’s the spirit or the actions on the ground?

 

 

NOT ZOOMING TOWARDS GOING ONLINE

 

When seeing the court as a place, one might say it’d been closed. Focusing on administering justice through its most visible aspect – the open court sessions – one might conclude it’d been suspended.

However, this is just the surface.

 

PRACTICALLY, WHAT’S HAPPENING IN THE COURTS?

In many ways, referring to all other aspects of court proceedings beyond trials, judges are working on cases as normal. Even more, from the perspective of dispute resolution lawyers, many judges seem more active and engaged, given the intensified remote contact with faster and greater responsiveness. Perhaps this is a positive side effect of freeing a large chunk of their working days, due to session cancellations. Judges do what can still be done, for example, discuss expert appointments with the parties.

To date, there has been no large scale impromptu use of remote communication as a substitute for trials nor calling for its use as a bottom-up initiative from the courts. Such suggestions, so far, have been mostly raised by the legal counsel. Having said that, from hearsay, there are signals that individual judges might be using teleconferencing tools for some sessions.

Do judges work remotely? Partially.

The pandemic has brought a possibility to take court files out of the court buildings. Hence, judges may be able to legally work from home. This is a big change, given that normally the removal of files beyond the court might constitute a disciplinary offence. Taking the files is only possible on the basis of an order (or other permission) of the specific court’s president and so is not universally guaranteed across the country. Also, in some cases, it might be simply hard or impractical (given the size of files). So, it appears that many judges still might be physically going to their offices and working from the court buildings.

Beyond working with files (like reading or producing reasons for the judgments) and contacting the parties, at this point, not much can be done remotely by judges and even less by the administrative staff, if they were to work from home.

The serving of pleadings and writs to and from the court is still delivered in a regular way – in hard (paper) copies, using the postal operator.

Therefore, many secretarial employees still do go to work, although with some precautions. For example, to limit the number of people in offices, work is rotational (i.e. half of the staff present at half of the week, the other half on the other days).

This situation overwhelmingly results from the lack of digitalisation of the Polish court system, which, in turn, is caused by:

  • (i) hardware;
  • (ii) software; and
  • (iii) skills/access obstacles.

Let’s briefly look at those issues. For now, we are leaving aside some bigger picture societal, political and formal aspects of the situation. Namely, as to (a) what would be the reception of the digital transformation by the judiciary and the society at large; (b) whether there is a will to lead such a transformation amongst the government or the administration’s public servants; and (c) whether the current law allows for the use of digital copies and actions.

 

HARDWARE

Firstly, the majority of the documents, including case files, are in a paper form. It appears that the task of turning those documents into some rudimentary digital copies, by simply scanning and uploading them to the system available to court staff is impossible. In the words of Judge Beata Morawiec of the District Court in Kraków, as reported by prawo.pl:

There is no possibility for digitalising court files because there is no equipment. From 2015 to 2017 I’ve been fighting for scanning devices, but there were more important matters to be handled by the Ministry of Justice. It [digitalisation] would be good for the parties, prosecution, administration offices and the judges.”

Using the court teleconferencing system by the Penitentiary Court in Piotrków Trybunalski because of COVID-19. As reported by epiotrkow.pl (screenshot of the portal; photo AŚ Piotrków, text Ł. Michalczyk).

On the somewhat positive side in regard to hardware: most courts now have dedicated teleconferencing rooms or equipment necessary for remote audio/video transmission. This is only a somewhat positive message because the way this technology can be used seems somewhat peculiar (at least to the digital natives). This is regulated individually for each type of proceedings in, respectively, the Codes of the Civil, Criminal and Administrative Procedures. Across them, the general approach is similar in that:

  • When the court is connecting with, say, a witness to be heard, there must be a designated person with this person on the other end of the cable. This would be an employee of the sitting court or an employee of the other court or an institution.
  • What is more, the sitting judge must use this dedicated room in his or her court and the said witness shall be in another court’s building and its teleconferencing room, where possible.
  • And, lastly, the circumstances in which teleconferencing can be used are rather limited to cases such as grave difficulties or inabilities to travel to the sitting court building, like being bedridden in a hospital.

This approach is more on the formalistic and complicated side. Presumably, this control serves to avoid tampering with evidence and guarantee due process. Yet, as a result, teleconferencing is rather not commonly used.

As to using teleconferencing in a more typical way – wherever the parties are located and potentially with the use of their own devices and maybe even popular videoconferencing communicators – currently, it is not possible.

In February 2019 the District Court in Gliwice had submitted a legal question to the Polish Supreme Court (case III CZP 13/19). In that case, a participant undergoing oncological treatment in Austria was willing to participate in proceedings remotely. Hence, the Court had asked the following question:

“Can participants in non-litigious proceedings and parties in litigation, in particularly justifiable circumstances, take part in the hearing via the internet social communicators?”

A few months later, The Supreme Court refused to issue a decision. It can be understood that the issue does not require interpretation, as the regulation is clear and with no need to disperse practical discrepancies in applying the law by courts. The participant was unable to join the proceedings via an internet communicator.

 

SOFTWARE

Secondly, there is no one centralised court database or a system available to all participants of the proceedings, and especially available online – even only to the court insiders. Intranet, accessible remotely, is not universally available, with a notable exception of the Supreme Court (whose judges and administration can access digital files in proceedings before the Supreme Court).

Electronic access and actions within those databases which do exist are fragmented and limited to a few functionalities:

So, over the years, there has been some progress towards some digitalisation of the judiciary. What appears to be the biggest problem (and an objection from the system users) comes down to the fragmentation of those tools and significant gaps. By way of example, the Information Portal of the Common Courts frequently is a useful tool and a source of information where some courts upload all their procedural orders and resolutions. Yet most strikingly, it lacks any digital court files as submitted by the parties in proceedings. Moreover, the serving of those files still needs to be delivered by the postal operator, in hard copy. Practically, though, some judges ask the parties to additionally send their submissions by email. However, these are rare and isolated requests with no formal anchoring in the law or bearing on the proceedings.

 

SKILLS

Thirdly, on top of the raised hardware and software issues, there is some (familiar) reluctance and objections of those potentially affected. These are varied groups with frequently differing points of views (goals, interests, experiences) representing many subjective as well as objective arguments and ensuing difficulties. Undoubtedly, when rolling any digitalisation programmes, a problem of a lack of skills and the following necessity to undergo extensive training will appear. Culturally, some mindsets will require reshaping, horizons expanding. There are worries about short-term chaos. On the bigger scale – societal, in regard to constitutional and human rights – many bring up an issue of unequal digital access and ability. In some cases, this could deepen digital exclusion and limit access to justice. It might also result in further polarisation and stratification amongst the court users. This refers to both the members of society (pro se participants), as well as law firms where the level of sophistication and digital fluency are varied (frequently the wealth is directly correlated with digital abilities, in both “skill & gear”).

What is worth noting, while the common courts’ system in Poland has largely gone into hibernation, so far reluctant to move its open sessions online, the alternative dispute resolution (ADR) sector did not hesitate. The largest Polish arbitral institutionThe Court of Arbitration of the Polish Chamber of Commerce in Warsaw (SAKiG)has swiftly moved its hearings online. All involved are satisfied and managing to adjust to this new mode of resolving cases. It bears reminding, however, that the users of arbitration in Poland tend to be on a more sophisticated side when it comes to digitalisation. Hence, they might not be representative of Polish society as a whole.

 

CONCLUSION

 

Assessing the developments of March and April one could say that going online by the Polish courts seems a long way ahead.

From the point of view of the legal community, COVID-19 has frozen the Polish judiciary, just like the economy. However, not all is lost and the situation is dynamic. It appears that changes are looming.

Given that the abnormal situation is turning into a state of the “new normal”, coming up with some solutions to the prolonged disruption in delivering justice seems simply necessary. Judges (and all others involved) are aware that the cancelled sessions are not disappearing, but will require rescheduling, causing significantly longer waiting times for cases to be decided and overwhelming them with work. There are also difficulties with securing enough personal protective equipment for staff still working in the courts.

Everybody knows that as the emergency measures will need to last longer something must be done.

So, in lieu of a conclusion, we would like to invite our readers to stay tuned for our next posts. There we will look at:

  • what changes (including some bringing the Polish courts towards the remote administration of justice) are being considered in the latest governmental proposal;
  • the most important question: why the reaction to “defrosting” the Polish justice system with online tools is amongst many… rather frosty.

Stay tuned!

Looking forward to comments and questions – get in touch! Thank you for reading ?

 

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