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2018 | OriginalPaper | Buchkapitel

Informatization of the Civil Justice System in Poland: An Overview of Recent Changes

verfasst von : Bartosz Karolczyk

Erschienen in: Transformation of Civil Justice

Verlag: Springer International Publishing

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Abstract

In this contribution the author presents recent changes in the administration of justice in Poland, in particular civil litigation, involving the use of information technology (IT) systems. The introduction and expansion of such systems seems only natural, if not belated, in societies which have already embraced this phenomenon in other areas of life. While a sociologist or psychologist could argue over how this adversely affects humans or human interactions, the benefits of instant access to online or digital sources are there for everyone to see and experience. In the area of law some developments, such as the digitalization of public registers or access to judicial decisions, are clearly beneficial. Others, in particular in the area of civil litigation, are more complex or problematic due to, arguably, the very nature of procedural principles, most of which originated in the 19th century, in the times of quill pens and paper. Still, while the process surely brings its own challenges, they should not be a reason to stop, or should they be? As will be seen from the discussion below, investments in IT require prudent decision-making since what is useful (and costly) today may be obsolete tomorrow. Much attention should be paid while making such decisions because ultimately IT systems can hardly be perceived as a remedy to ever-present delays in the administration of justice.

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Vorheriges Kapitel Civil Litigation in Tribunals in South Africa: Creating a Unified Tribunal System

Nächstes Kapitel Between Reform and Dejudicialization: Current Trends in Spanish Civil Litigation

Data provided by the Ministry of Justice at the request of the author. On file with the author.

Since 1 April 2016 these proceedings can be initiated electronically provided that the user has set up a free trusted profile within the e-administration program called Electronic Platform of Public Administration Services. See http://epuap.gov.pl/wps/portal for details. According to the information on the website, the Electronic Platform of Public Administration Services (ePUAP) is a coherent and systematic action program developed to allow public institutions to make their electronic services available to the public. The website enables defining citizen and businesses service processes, creates channels of access to different systems of public administration and extends the package of public services provided electronically. See generally the Act on Informatization of Entities Providing Public Services dated 17 February 2005.

Data provided by the Ministry of Justice at the request of the author. On file with the author.

There is also a “qualified user” who can search the database using names of individuals or entities.

Cf. Flaga-Gieruszyńska et al. (2016, at 2).

The court writes the reasoning after it has delivered the judgment, provided a proper motion has been filed by a party. In practice, this is done by litigants and their attorneys as a matter of course. Cf. Uzelac (2011). It may be argued that this will change (at least with regard to certain cases), given the changes introduced in 2014. Specifically, if the hearings have been recorded (cf. main text below), the court may provide reasoning orally after the delivery of the judgment. In such a case, if a motion for written reasoning is filed, the court will provide the moving party with a transcript of the oral reasoning. Arguably, this is a way to significantly reduce the workload generated by the requirement to write reasons for the decision, which, by the way, is a major chunk of what Polish judges actually do. In the bill amending the Code of Civil Procedure and other Acts dated 27 November 2017, there are further changes to this area of procedure.

By court decisions I mean judgments by common courts (in Poland, courts of first instance and courts of appeals), which conclude the proceedings at a given instance, as well as by the Supreme Court.

There are 11 Courts of Appeals in Poland.

Some decisions are generally excluded, e.g. divorce cases and those concerning sexual crimes. The list is set down in each internal order that serves as a normative foundation for any given portal.

Published materials do not contain any personal information.

System for the Analysis of Judicial Decisions at https://www.saos.org.pl/. Accessed 7 June 2018.

http://www.sn.pl/en/SitePages/Main.aspx. Accessed 7 June 2018.

There was a four-year-long litigation regarding disclosure of such contracts. The Supreme Court has been vehement in its refusal to disclose such contracts (pursuant to the Act on Access to Public Information).

It can, of course, still be obtained on a motion pursuant to the Act on Access to Public Information.

Data provided by the Ministry of Justice at the request of the author. On file with the author.

The authority for such an order is found in Article 22 of the Act on the Organization of Common Courts of 2001 in connection with § 106 sec 1 of the Regulation of the Minister of Justice of 2015—Rules pertaining to the operation of common courts. This provision stipulates that the president of the court may decide to provide the litigants and their attorneys with information about the case, as well as copies of transcripts, judicial decisions and parties’ submissions through a dedicated IT system. This is now being changed. The bill amending the Code of Civil Procedure and other Acts dated 27 November 2017 provides such a basis by amending the Law on the organization of common courts of 27 July 2001. Pursuant to a proposed provision (Article 175 h) the Minister of Justice will be formally in charge of the Portal. Still, the Minister will be able to delegate this task to a court. Moreover, the normative content regarding the public (open) character of proceedings was changed in September 2016. Specifically, Article 9 of the Polish Code of Civil Procedure now expressly states that minutes of hearings, pleadings as well as audio/video recordings can be provided to the parties through a dedicated IT system.

According to the information I have received from the Ministry of Justice, disclosure of information is within the authority of each particular division. So, apparently there is no central hub for any given court to perform the task. Instead, every division takes care of its own business, so to speak. Perhaps a bit surprisingly, the dividing line does not run between congested urban courts—courts in a more remote location, with a (presumably) lighter workload. There are some remote courts that are exceptionally diligent in keeping their portals updated (i.e. if a hearing was held at 9:00 a.m., the transcript will be uploaded to the portal at 2:00 p.m. on the same day), while others apparently ignore it almost completely. Courts of Appeals are notorious for not disclosing information in a timely fashion.

Fortunately, an online system for notification of errors or delays exists and works rather well. Problems are usually resolved within 48 h.

See e.g. written opinion to the bill amending the Civil Code, the Code of Civil Procedure and other Acts dated 10 July 2015, at 1. On file with the author. Sections of that bill, which eventually became law, are discussed below.

Technically speaking, the first form of digitalization was the introduction of computers. This, however, is now ancient history.

Some courts of first instance (district courts, Polish sądy rejonowe) were left out. In total, the system was implemented in 2267 courtrooms. Data provided by the Ministry of Justice at the request of the author. On file with the author. See also Gołaczyński (2016).

Data provided by the Ministry of Justice at the request of the author. On file with the author.

Some judges will simply make their own (private), handwritten notes during the hearing.

See Sect. 3.3 below.

Supreme Court resolution dated 23 March 2016, III CZP 102/15. Available online at http://www.sn.pl/sites/orzecznictwo/Orzeczenia3/III%20CZP%20102-15.pdf. Accessed 7 June 2018.

For a discussion about how this affects the law of evidence, see Karolczyk (2013).

See CCP Article 162¹.

See Article 1 point 2 of the bill amending the Code of Civil Procedure and other Acts dated 27 November 2017 (proposed CCP Article 9 § 1).

See written opinion to the bill amending the Code of Civil Procedure and other Acts dated 27 November 2017, at 125. On file with the author.

Similarly Flaga-Gieruszyńska et al. (2016, at 73–77).

This was one of the goals indicated by the Ministry of Justice in its strategy regarding the introduction of e-protocol. See Flaga-Gieruszyńska et al. (2016, at 74).

See CCP Arts. 505²⁸–505³⁷.

The court fee is 1.25% of the amount in dispute in comparison to 5% in regular court proceedings.

In fact, but for EPU these businesses would find it more difficult to achieve economies of scale. Given the volume at which they operate and the fact that most business processes are automated, each digital advancement in the area of civil procedure is likely directly beneficial to such market actors.

See Flaga-Gieruszyńska et al. (2016), 115.

See e.g. Gołaczyński (2016), 1022.

See written opinion to the bill amending the Civil Code, the Code of Civil Procedure and other Acts dated 10 July 2015, at 3.

See written opinion to the bill amending the Civil Code, the Code of Civil Procedure and other Acts dated 10 July 2015, at 7. On file with the author. Other categories can be established, especially regarding the form, i.e. written (classic form) and electronic (digital).

CCP Article 245. [Private documents] A private written or electronic document is a proof that its signatory has made a statement contained in such document.

CCP Article 244 [Official documents]

§ 1. Official documents drawn up in the form prescribed by relevant public authorities and other state authorities constitute proof of the facts officially stated therein.

§ 2. The provisions of § 1 apply mutatis mutandis to official documents issued by authorities other than those provided for in § 1 within the scope of public administration tasks delegated to them by the law.

For example, the CCP provides restrictions with regard to the use of testimony to prove a fact against or beyond the contents of a document. Also, it introduces certain burden-shifting rules if authenticity is challenged.

See Kościółek (2017), 3.

The legislator is deliberate in the use of the term “through the IT system” and specifically distinguishes this method from “electronic”. Thus, the term “electronically” is not a legal term and is used here generally, for the sake of simplicity.

See Regulation (EU) No. 910/2014 of The European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC. This Act has been partially implemented in Poland. On 5 September 2016 the Polish Parliament passed the Act on Trust Services and Electronic Identification.

See n. 2 above.

See generally CCP Article 131¹ § 1.

See Kościółek (2017, 5).

See written opinion to the bill amending the Civil Code, the Code of Civil Procedure and other Acts dated 10 July 2015, at 54. On file with the author.

The battle over Poczta Polska S. A.’s monopoly in the justice system warrants a separate paper. Suffice it to say that there are Supreme Court rulings according to which in order to submit a motion or a pleading on time, it must be dispatched at Poczta Polska, even though the courts (at the time) could use a different postal operator to effect service of process. See e.g. the Supreme Court’s ruling dated 14 July 2015, II UZ 10/15. Interestingly, the Supreme Administrative Court, during the same period, ruled the opposite for judicial administrative proceedings, saying that it was the only constitutionally sound result. See e.g. Supreme Administrative Court’s ruling 22 April 2015, I OZ 343/15. Finally, on 19 July 2017 the Polish Supreme Court (III UZP 3/17) asked the Court of Justice of the European Union to resolve this strictly procedural matter, linking it to the interpretation of provisions of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of the quality of service.

See § 3 of the Minister of Justice Regulation on procedure and manner of electronic service of process dated 20 October 2015 (Dz.U. z 2015 r. poz. 1776).

For details see § 4 of the Minister of Justice Regulation on procedure and manner of electronic service of process dated 20 October 2015 (Dz.U. z 2015 r. poz. 1776).

See CCP Article 142 § 1.

This is the rule in the EPU procedure described above.

See CCP Article 132 § 1.

See proposed Article 132 § 1³.

See CCP Article 324 § 4.

The details are set down in the Minister of Justice Regulation regarding the manner and features allowing for verification of the existence and contents of a document in the IT system utilized in judicial proceedings dated 7 September 2016 (Dz.U. z 2016 r. poz. 1422).

This section is based on information available at: https://www.ms.gov.pl/pl/informacje/news,9881,losowy-przydzial-spraw-sedziom-gwarancja.html; http://www.rp.pl/Sady-i-prokuratura/310289966-Klamstwa-na-temat-losowego-przydzialu-spraw-sedziom.html; http://www.rp.pl/Sady-i-prokuratura/310119985-Losowanie-spraw-bedzie-w-ministerstwie.html; http://www.rp.pl/Sedziowie-i-sady/312119900-Sa-problemy-z-losowaniem-skladow-trzyosobowych.html. Accessed 7 June 2018.

Issued based on statutory delegation contained in the Act on the Organization of Common Courts of 2001.

Flaga-Gieruszyńska K, Gołaczyński J, Szostek D (eds) (2016) Informatyzacja postępowania cywilnego. Teoria i praktyka, CH Beck, Warszawa

Gołaczyński J (2016) Elektronizacja postępowania cywilnego—nowelizacja KPC i KC wchodząca w życie 8.9.2016, Monitor Prawniczy 19:1024

Gołaszyński J, Szostek D (eds) (2016) Informatyzacja postępowania cywilnego. CH Beck, Warszawa

Karolczyk B (2013) Admissibility of “illegal evidence” in civil procedure: a comparative look through Polish and American lenses. ZZPInt 18:189–221

Kościółek A (2017) Elektroniczne czynności procesowe w świetle nowelizacji z 10.7.2015, PME 1:3

Uzelac A (2011) The need to provide reasons in court judgments: some developments in East and West. In: Gudowski J, Weitz K (eds) Aurea praxis, aurea theoria. Księga Pamiatkowa ku czci Profesora Tadeusza Erecinskiego, LexisNexis, Waszawa, pp 1547–1566

Titel: Informatization of the Civil Justice System in Poland: An Overview of Recent Changes
verfasst von: Bartosz Karolczyk
Verlag: Springer International Publishing
Buch: Transformation of Civil Justice
Print ISBN: 978-3-319-97357-9

Electronic ISBN: 978-3-319-97358-6

Copyright-Jahr: 2018
DOI: https://doi.org/10.1007/978-3-319-97358-6_6

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