Controversial draft changes to civil procedure – will closed hearings be the rule?

A government draft changes to the Code of Civil Procedure and other acts has been submitted to the Sejm. Many of the proposed solutions, however, may violate the fundamental principles of the civil process, offering speed of case hearing at the expense of the principle of openness and impartiality.

Hearing cases in closed sessions

The draft states that the traditional way of holding hearings at the court building is to become an exception, possible only if the hearing of a case at a trial or a public hearing is necessary and holding the hearing in the court building would not pose an excessive risk to the health of the persons participating in it.

As a rule, hearings are to be held remotely (videoconference), but if the technical possibilities do not allow it, the chairman will be able to order that the proceedings be held in a closed hearing instead. Given the current problems with organising remote hearings, especially in smaller courts, closed hearings may become the norm and the openness of the trial an illusory right.

The authors of the draft argue that it will not affect the quality of the cases , because the circumstances of the case may be established by the court on the basis of documents, written testimony of witnesses and expert opinions. However, it is difficult to agree that written testimonies of witnesses are as valuable as those given at trial, when the possibility of their verification is significantly limited.

The proposed changes are intended to remain in force for one more year after the revocation of the state of an epidemic/epidemiological emergency.

Change in the composition of the court

Due to the epidemic threat, the draft provides for cases to be heard by a single judge only, which is supposed to reduce the risk of judges infecting each other.

The justification for the proposed changes reveals that their authors see no need at all for cases to be heard by a collegial composition, regardless of their nature and complexity, arguing that: „There is no objective and verifiable data allowing the assumption that a judgment made by a single judge is less just than one made by an enlarged composition, or that a case has been less thoroughly examined by one judge than three”.

Electronic service on professional attorneys

The proposal to send court letters to professional attorneys by e-mail to be deemed delivered on the next working day after the court has entered them into the electronic means of communication in such a way as to enable the addressee to learn about their contents raises a lot of concerns.

The adopted fiction of delivery may put parties represented by a professional attorney at a disadvantage – deadlines for actions will run regardless of whether the attorney actually got acquainted with the letter e.g. during illness or holiday.

No transitional period

The draft legislation assumes that the new provisions will enter into force already on the day following its announcement, also with respect to changes in the composition of the court, which may be diminished in the course of the case.