Evidence in Civil Law - Poland

Front matter

AO LOCALIS

Evidence in Civil Law - Poland

Authors: Katarzyna Bagan-Kurluta Piotr Konrad Fiedorczyk

Foreword

The problem of evidence and evidence taking is one of the most important issues of all of the procedural laws, including civil proceedings. Changes of legal system of the post-communist countries touched also civil proceedings. Poland is one of the most vivid examples. The amendments to Polish Code of Civil Proceedings (CCP) of 1964 were very frequent. More and more contradictory rules are in power, the proceedings is getting more and more formal. There is almost nothing left from the previous times, when the role of the court in evidence taking stage of the trial was very important.

Other important change is connected with the influence of the EU law into Polish proceedings. These issues are discussed on the basis of EU regulations, which play more and more important role in the civil proceedings of the EU member states.

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>= Evidence in Civil Law — Poland J LEX m K.Bagan-Kurluta & P. K. Fiedorczyk LOCALIS

Part I 1 Fundamental Principles of Civil Procedure

Under Polish law civil proceedings are codified. First Polish code on civil procedure was passed in 1930 and was based on Austrian code by Franz Klein from 1895. Now the basic legal act regulating these proceedings is the Act of 17 Nov. 1964 Kodeks postępowania cywilnego (Code of Civil Proceedings — hereinafter called CCP). It has been amended more than 170 times since it was passed and now it is adopted to new economic situation. One of the most visible changes refers to the principle of disposability, which has been regulated wider in last years. Right now the CCP is composed of the introductory title (general provisions — Articles 1-13); and five parts: I — examination of civil law cases (Articles 15-694*); II — Proceedings to secure claims (Articles 730-757); III — Execution proceedings (Articles 758-1088); IV — Provisions on international civil proceedings (Articles 1096-1 153°); V — Court of Arbitration (Articles 1154-1217). The provisions concerning evidence are regulated in Articles 227-315 of the CCP. The current code is criticized by many as incoherent, vague, detailed and complicated.”

1.1 Principle of Free Disposition of the Parties and Officiality Principle

The CCP does not define the notion of the principles of civil procedure. They are formulated by the doctrine as the central and leading ideas of the system of the civil proceedings’, or as a constructing basis for the mechanism of the civil proceedings.* In Polish doctrine the descriptional way of presenting the principles dominates. It is based on writings of N. T. Gönner, the German pioneer in jurisprudence of the principles of the court proceedings.”

According to Article 321 of the CCP the court cannot neither pass judgments in reference to object which was not covered by the party’s claim nor pass judgments beyond claim (ne eat iudex ultra petita partium). It means that in Polish system the

> Bartosz Karolczyk, Pretrial as a part of judicial case management in Poland in comparative perspective, 15 Comparative Law Review (2013), p. 155.

à Zbigniew Resich, Istota procesu cywilnego, p. 118 et supra (Warszawa 1975).

* Henryk Mądrzak, O pojmowaniu naczelnych zasad postępowania cywilnego, in: Proces i prawo. Rozprawy prawnicze, p. 384-401 (Wrocław 1989).

5 Henryk Dolecki, Postępowanie cywilne. Zarys wykładu, p. 45 (LexisNexis, 5th ed., Warszawa 2013).

essence of the free disposition of the parties is based on two assumptions. First, the court does not institute the proceedings ex officio without an application or a motion of an entitled person. There are some exceptions from this assumption in non-litigious proceedings. There is a prohibition to pass judgments in reference the object that was not included in the party’s claim. Secondly the court can’t adjudicate any performances or rights besides the claim presented by the person interested. The party’s motions referring both to the subject and the scope of claims are absolutely binding on the court and the latter may not go beyond the party’s claims even if it was justified, for example due to the principles of social coexistence (e.g. higher compensation). The only exception from this principle is allowed in labour law cases, in which the court can ex officio pass judgment about alternative possible claims of the worker, even if they were not presented (Art. 477' CCP).

The parties and participants in the proceedings may shape the subject of the proceedings (called substantive disposability) and enjoy procedural rights (called formal disposability). The principle of free disposition of the parties is exercised by deciding whether to instigate the proceedings and whether to act in the proceedings, including whether to undertake dispositive acts such as the right to a court settlement, the waiver of a claim (Article 203 of the CCP) or the acknowledgment of a claim.’ You may however admit that under Polish law the court is entitled to control these acts of parties.

This principle is limited by the introduction of the possibility for civil proceedings to be instigated by a public prosecutor, social organization or other persons entitled to act. Also, in non-litigious proceedings, the court may instigate proceedings, ex officio. However, the above mentioned limitations of the principle of free disposition are exceptions.

The system of contingent accumulation (Eventualmaxime) is an inherent element of the system of preclusion. The said rule makes it mandatory for the parties to submit all allegations and evidence, at certain stage of the proceedings, including potential procedural material (in omnum eventum), namely allegations and evidence that could become relevant.* This provision exists in Polish civil proceedings (Art. 207 § 3 of the CCP):

The President may also before the first hearing oblige the parties to submit subsequent preparatory writings, indicating the sequence of submitting written statements of claim, deadlines, in which they should be submitted, and the circumstances that have to be

6 Grzegorz Trojanowski, Polish Civil Proceedings, in: A Synthesis of Polish Law, part 1, ed. Tadeusz Guz et al., p. 576 (Peter Lang, Frankfurt am Main 2009).

7 Feliks Zedler, Civil Procedure, in: Handbook of Polish Law, ed. Wojciech Dajczak, Andrzej J. Szwarc, Paweł Wiliński, p. 61 1(Wydawnictwo Szkolne PWN, Warszawa — Bielsko-Biała 2011).

8 Bartosz Karolczyk, Preclusion of late allegations and evidence as a tool to increase efficiency of civil proceedings in Poland: A short story of the ugly past and the long way towards the bright future. Presentation delivered during conference ,,Public and Private Justice. Dispute Resolution in Modern Societies” in Dubrovnik on May 27th, 2013.

explained. In the course of the case submitting preparatory writings occurs only if the court decides so, except that the writing includes only evidence offered.

Pursuant to Art. 5 of the CCP the court, in case of a justified need, may instruct the party acting without an advocate about the necessity of conducting certain acts during proceedings.

1.2 Adversarial and Inquisitorial Principle

This principles concern the question who is obliged to collect and present evidentiary material. The CCP has given strong preference to the adversarial principle. In trial proceedings the plaintiff should indicate the facts and evidence supporting his claims and motions. It is expressed in the first sentence of Art. 232 of. The CCP: “The parties are obliged to point out the evidence to prove the facts, from which they infer legal effects”. The principle is connected with the principle coming from Art. 6 of the Civil Code” that the burden of proof is on the person who infers legal effects from a given fact.

Generally the role of judge in Polish Civil proceedings seems to be a role of an independent arbitrator who is only evaluating the evidence presented by the parties. In some instances application of the principle of adversarial proceedings is qualified, giving the way to the inquisitorial principle. This happens when the court undertakes ex officio actions to supplement the trial material provided by the parties (admission of evidence) or when it conducts a proof not offered by the parties (Art. 232 sentence 2 of the CCP). Numerous doubts may arise in connection with this wording. In practice this takes place in family law cases and when there is a suspicion of a fictitious trial or collusion between the parties." In the non-litigious proceedings the cases do not have an adversarial trail nature, and in a number of instances non-litigious proceedings may be instigated ex officio. It may also be applied when the court takes judicial notice of certain facts. It means that the court may learn facts from the parties evidentiary submissions or acknowledge the notorious facts. Nevertheless the principle should be invoked only in exceptional circumstances. This is reflected in the court's obligation to close the hearing of the case after conclusion of evidentiary proceedings by the parties. Before 2004 amendments to the CCP the court was obliged to close the hearing of the case when it came to the conclusion that the case was sufficiently examined.

1.3 Hearing of Both Parties Principle (audiatur et alter pars) — Contradictory Principle

The principle of adversarial proceedings should be distinguished from the adversarial nature of the proceedings. The latter means that parties hold opposing views at trial. The most characteristic feature is a court hearing during which the parties orally present their motions and conclusions, while also offering evidence to prove them.

? Act of 23 April 1964, Journal of Laws, No. 16, item 93. 10 Tadeusz Ereciński, Civil Procedure, in: Introduction to Polish Law, ed. Stanislaw Frankowski, p. 124 (Kluwer Law International, Zakamycze 2005).

The audiatur et altera pars principle is a part of the constitutional right to fair trial [Art. 45(1) of the Constitution]: “every person has the right to a fair and public resolution of the matter without undue delay”, but in Polish doctrine it is rather not regarded as an independent principle. It is closely connected with the principle of equality of parties and with the contradictory principle."

This principle is not defined by the CCP. You may however derive it from Art. 3 which obliges parties to produce the evidence. The right to be heard is realized by the provisions concerning hearing — the parties must be informed about the time (Art. 208 of the CCP). They generally should be present during hearing, although the parties may also ask the court to conduct the hearing during their absence (Art. 209 of the CCP). During the proceedings the parties must have identical measures to present their statements (non debet actori licere, quod reo non permittitur). Pursuant to Art. 212 § 1 of CCP the parties at the beginning of the hearing have the duty to submit the evidence.

The preclusions may limit the right to be heard. Pursuant to new Art. 217 § 2, applying to the trial — the court ignores untimely allegations and evidence, unless moving party can show with high probability that the lack of their submission in due time has not been negligent, their admission should not delay the disposition of the case or other extraordinary circumstances exist.

The passivity of the party is evaluated by the court and it may obviously have negative consequences. According to Art. 233 § 2 the court will evaluate the party’s refusal to submit the evidence as well as interfering in conducting the evidence.

If the defendant fails to defend himself, the court gives a default judgment (Art. 339 of the CCP). As a rule, a default judgment ascertains the claim by assuming that the statements of the petition are true.

The important guarantee of the audiatur et altera pars principle is the provision of Art 321 § 1 of the CCP, which prohibits the court to adjudicate beyond and over a claim.

If the parties right to heard is violated, you can raise this objection in the procedure of appeal. According to Article 379 p. 5 of the CCP the nullity of civil proceedings takes place when the party has been deprived from defending his rights.

1.4 Principle of Orality — Right to Oral Stage of Procedure, Principle of Written Form

The principle of orality exists in Polish legal system and it is connected with the principle of directness and the principle of public hearing, because oral hearing best assures contact between the court and the parties. It is an essential factor in simplifying

!! Aneta Łazarska, Rzetelny proces cywilny, p. 482-484 (Wolters Kluwer business, Warszawa 2012).

and de-formalizing civil procedure and a necessary prerequisite for its transparency. ” The principle of orality is limited to court hearing.

The principle of oral proceedings (Art. 210 CCP) is the right of the party to present the court with their claims and demands in the course of the proceedings in an oral way, according to one’s oratorical abilities.

Although during the hearing of evidence the court directs the participants also orally, the principle of proceedings in writing binds since all court activities should be documented, either in the minutes of the court session or in written decisions. The written form allows to control the proceedings by the appellate courts. The principle of oral proceedings does not exclude the right of the parties to present their standpoints also in a written form. "°?

Written form is required to start the proceedings (Art. 187 of the CCP), with one exception concerning labour law and social security law cases (Art. 466 of the CCP). Outside the public hearing the written form dominates. Written statements of claim are compulsory. Filling of a suit, an appeal, an interlocutory appeal or a cassation complaint should be in written form. According to Art. 125 $ 2 of the CCP, sometimes it is required to use official forms. Generally, in the appellate proceedings the written form dominates. The same refers to the execution proceedings.

It should be stressed that the principle of orality refers to actions undertaken by the parties, the written form is obligatory in court's decisions.

1.5 Principle of Directness

This principle plays important role in Polish system of civil proceedings. It means that the court examines procedural material directly. This principle is realised primarily in the course of the evidentiary proceedings. According to Art. 235 $ 1 of the CCP the evidentiary proceedings take place in front of the court issuing the decision. The principle of directness is a rule, and the existence of it cannot be limited by the parties.

There are some exceptions to this principle. They are regulated in the above mentioned Art. 235. If, due to the subject to be proven or serious inconvenience or incommensurability of costs, the hearing of evidence would be impossible or excessively difficult, the evidence may be heard by one judge appointed from the sitting court or another court called “summoned court” ($ 1). Also, according to § 2, technical equipment in distance hearing of evidence can be used. In that case the court is undertaking these hearing activities in presence of summoned court or a court's clerk. You may argue that is not an exception of the principle of directness in fact.

Important exception arises a contrario from Art. 323 of the CCP. It reserves the possibility of pronouncing a judgment only for the judges in front of whom the hearing

12 Ereciński, supra n. 10, at p. 125. 13 Trojanowski, supra n. 6, at p. 578.

(sitting) directly preceding the judgment took place. It should be understood that in the course of the proceedings, since its beginning to the end, the personal composition of the bench may be changed, even many times. It is only required that judgment must be given by the judges who heard the sitting directly before the delivery of the judgment. * It means that only the judge who closed the hearing is entitled to pass the judgment. After closing the hearing no evidence can be submitted, unless the judge opens the hearing again.

The principle of directness is limited also in the appellate proceedings. According to Art. 386 § 4 of the CCP you cannot conduct the hearing of evidence in total during this stage of the proceedings. If such situation occurs, the judgment of the lower court will be quashed. A contrario it means the court of appeal may complete the evidence in part. It is stressed that hearing of evidence in the court of appeal is the continuity of the hearing of evidence in the lower court”. The appellate court may evaluate the evidence in a different way than the lower court. There is one important exception: in the simplified proceedings the court of appeal does not conduct the hearing of evidence (exception: document), unless new evidence arose later than during the proceedings in the lower court (Art. 505’! of the CCP).

1.6 Principle of Public Hearing

Article 45 of the Constitution states that everyone has the right to a public hearing of his case. The CCP realizes the constitutional provision in Art. 9, in which the principle of open examination of a case is introduced unless a special rule provides otherwise. Under Art. 148 of the CCP hearings in general are public and may be attended not only by parties and participants but also by third parties. The parties have also a right to view case records and obtain copies of documents kept in the records (the principle of internal openness). The limitation to openness refers only to external openness (e.g. when examination of the case poses a threat to the public order or morality — Art. 153 $ 1 CCP). There is also a possibility of limiting openness towards the third persons (so called trial in camera) on party’s motion. Examination of the party’s motion takes place excluding the outside openness. The announcement of the sentence always takes place openly. Breaking the principle of open proceedings causes the nullity of the proceedings if it deprived a party of the possibility of defending their rights.

The proceedings in camera (closed sitting) occurs more often in non-litigious proceedings. According to Art. 514 § 1 the hearing takes place only in cases pointed in the Code.

The hearing is the central point of the proceedings, during which all principles of the proceedings are in use.'°

4 Zedler, supra n. 7, at p. 612.

'S Jan Turek, Czynności dowodowe sądu w procesie cywilnym, p. 60 (Wolters Kluwer, Warszawa 2011).

'6 Wielka encyklopedia prawa, ed. Eugeniusz Smoktunowicz and Cezary Kosikowski, p. 873 (Wydawnictwo Prawo i Praktyka Gospodarcza, Warszawa 2000).

Part I | 7 1.7 Principle of Pre-trial Discovery

This principle does not exist in Polish legal system, although there are proponents of introducing them.'’ The CCP lacks provisions based on judicial discretion, that would provide for a general tool to achieve proper concentration of procedural material. The CCP does not provide for a modern pre-trial stage. Its structure is ancient. As a result, there is no effective exchange of information prior to trial. For example, questioning of the parties for informative purposes and potential discussion may only take place once the trial has just begun. The court may not rule on evidence outside of actual trial hearing, except for motion for expert witness. Although the parties are under the duty to specify the evidence in their pleadings, their access to each other’s information is otherwise basicall non-existent. *

1.8 Other General Principles in Polish Legal System

You may argue that the principle of procedural formalism exists in Polish civil proceedings. The parties cannot act before the court without any restrictions. In order for the undertaken actions to have a legal consequence, they should be performed in a definite form, time and place. Breaking these rules usually brings about negative consequences for the parties. The performance of a legal act that has been carried out without observing the form prescribed for it, or the time prescribed by the statute or outside the place specified by law, is null and void. There are however some legal measures to mitigate the rigorous effects of the application of this principle. According to Art. 126 of the CCP, the formal defects of the document may be dissolved in the interlocutory proceedings. If the proceedings are not performed in a timely manner, it is possible to extend the time limit, if a participant in the proceedings has failed to perform an act through no fault of his own (Art. 168 of the CCP).”°

The system of preclusions is good example of existing the principle of procedural formalism.

2 General Principles of Evidence Taking 2.1 Free Assessment of Evidence

Polish civil proceedings, like all modern systems, is based on the principle of free assessment of evidence. This principle gives the court absolute freedom in appraisal of evidence. According to Art. 233 $ I of the CCP the court evaluates the credibility and the force of evidence at its own discretion on the basis of a comprehensive analysis of the collected material. According to $ 2 on the same basis, the court may assess how

17 Bartosz Karolczyk, Koncentracja materiału procesowego w postępowaniu cywilnym przed sądem pierwszej instancji, p. 561-563 (Wolters Kluwer business, Warszawa 2013). 18 Bartosz Karolczyk, Supra note 8, p. 15. 1 Trojanowski, supra n. 6, at p. 578. 20 Zedler, supra n. 7, at p. 613.

8 | Partl important it is that party refuses to reveal the evidence or hampers the examination of evidence.

Freedom of the assessment should not be mistaken with arbitrariness. The former consists of the lack (with few exceptions, discussed later) of strict guidelines or orders from the legislature in relation to the interpretation and estimation of the collected evidence. At the same time the court, while considering the evidence, is obliged to make its factual analysis in accordance with the rules of logical reasoning as well as life experience, in an impartial manner.” The statute requires the judge to evaluate the reliability and persuasiveness of a given piece of evidence in conformity with her own consciousness. Such an evaluation must always be based upon thorough examination of all the evidentiary material. The appropriateness of the judge’s evaluation is subject to the appellate court review.” A court of higher instance, which investigates a case after an appeal is brought, may alter the evaluation only if the assessment has infringed logical reasoning.

In some instances the application of the principle is limited. According to Art. 11 of the CCP the court is bound by the final guilty judgment rendered in a criminal trial. This refers to the fact of committing the crime. Also certain legal presumptions, including presumptions relating to official documents, and the precedence of proof from testimony of witnesses or statements of the parties over other means of evidence, may limit the principle of free assessment of evidence.

2.2 Relevance of Material Truth

Polish law of civil proceedings has undergone spectacular evolution after 1989 with regards the principle of material truth. In the socialist times it was stressed that, according to Art. 3§ 2 of the old text of the CCP, the court had the duty to investigate the case comprehensively and to reveal the real content of the factual and legal relations binding the parties. The court was obliged to carry out the investigation, even against the will of the parties. It was called the principle of the objective truth and was demonstrated as an example of the superiority of the socialist law over capitalist law. In fact this was an important way to control the society through civil proceedings, and it was an important feature of the totalitarian state. These provisions were eliminated from the CCP, especially in 1996, 2000, 2004 and finally in 2011. The amendments cannot be however interpreted as a resignation from the principle of truth, which is the obvious ground for just and adequate trial. According to some authors, Polish civil proceedings moved towards adopting the principle of formal truth, which enhances the principle of parties’ autonomy and the adversarial nature of the proceedings.” Probably this conclusion goes too far.

21 Trojanowski, supra n. 6, at p. 579. 22 Ereciński, supra n. 10, at p. 126. °3 Zedler, supra n. 7, at p. 613.

24 Ereciński, supra n. 10, at p. 123.

After the novelisation of 2011 Art. 3 of the CCP stipulates that parties and the participants of the proceedings are obliged to undertake procedural activities in accordance with good morals, to give explanations about the circumstances of the case in accordance with truth and without concealing anything and to submit the evidence.

However, the party cannot be forced to give true explanations. That’s why they are not an evidence. You should always bear in mind that according to Art. 232 sentence 2 the court can admit the evidence, which was not submitted by the party. Despite the clear wording of the provision, under certain circumstances this right turns into a duty. Specifically, the Supreme Court has ruled that “the court should introduce the evidence on its own accord in special circumstances”. This include, among others, a risk that an unrepresented party’s interest, deserving special protection, may be infringed due to lack of activity on her part, despite proper instructions by the court””. The Supreme Court passed other judgment, in which it was ruled that “sometimes due to existence of public interest in social security cases the discretionary right to introduce evidence ex officio becomes the court’s duty”.”° Even more characteristic was the Supreme Court judgment in which it was announced that if the only way avoid an incorrect decision on the merits is to take witness evidence, then the court’s lack of initiative in that regard violates Art. 232 2" sentence, regardless parties’ initiative.” This provision and judgments show that neither Polish legislator nor courts have not resigned from the necessity to reveal the truth. However, in accordance with the principle of adversarial proceedings the parties are generally obliged to point out the evidence.

The limitations to the principle of truth derive from prohibition of certain evidence: Art. 248 § 2 of the CCP, concerning documents, which a person can refuse to demonstrate if he/she could refuse to be a witness about the circumstances revealed in the document at the some time; Art. 259(1) of the CCP according to which the mediator cannot be a witness about the circumstances connected with the mediation; Art. 260 of the CCP concerning joint participant of the proceedings; Art. 261 which allows certain persons to refuse to be a witness. Also there are some special situations in which the court can resign from settling the truth because of the principle of the best interest of the child.”*

Currently under Polish law the principle of relevance of material truth should rather be understood as a postulate to decide the matter on the merits after a diligent, but reasonable factual inquiry.”

25 See Supreme Court judgment of 8 December 2009, I UK 195/09, OSNCP 2011, No. 13-14, item 190. See Karolczyk, supra n. 8, at p. 6.

© Supreme Court judgment of 4 January 2007, V CSK 377/06, OSP 2008, No. 1, item 8.

21 Supreme Court judgment of 15 January 2010, I CSK 199/09, LEX No. 570114.

28 Dolecki, supra n. 5, at p. 47.

? Karolczyk, supra n. 8, at p. 5.

2.3 Other General Principles Regarding Evidence Taking in Polish Legal System

You may point out the principle of concentration of procedural material as a general principle of the whole proceedings and especially regarding evidence taking exists.

Pursuant to Art. 6 $ 1 of the CCP the court should counteract delay in the proceedings and strive to resolve the matter at the first hearing, if it is possible without compromising the inquiry into the dispute.

Moreover, according to newly introduced Art. 6 $ 2 of the CCP parties and participants in the proceedings are under the duty to submit allegations and evidence without delay, so that the proceedings can be concluded efficiently and swiftly.

The dominating role to assure the existence of this principle in Polish civil proceedings is attached to the system of discretional power of the judge. It is the judge who decides whether to accept or to reject new (untimely) averments of evidence late in the proceedings. Art. 217 of the CCP is crucial for the existence of this principle. General rule is expressed in $ 1 which states that the party can, until closing of the hearing, submit facts and evidence. However, according to $ 2, the court ignores untimely allegations and evidence, unless the moving party can show with high probability that the lack of their submission in due time has not been negligent, their admission shall not delay the disposition of the case or other extraordinary circumstances exist. Similar provisions refer to the reply to the statement of claim. Pursuant to Art. 207 $ 6 the court ignores untimely allegations and evidence, unless moving party can show with high probability that their omission from the complaint, answer or other preparatory written submission has not been negligent, their admission should not delay the disposition of the case or other extraordinary circumstances exist. Analogous provisions have been introduced in special proceedings (order of payment, simplified) and in relation to appeal against default judgments.