Amendments may mean fewer headaches in court
Looking at the Polish court system, you could argue that not only is justice blind, but she also must have a substantial limp. Of course, Poland is not the only country plagued by a judicial system that sometimes operates at a snail's pace. However, that does not change the fact that all too often you can read in the press about cases in which the plaintiff had to wait for months, if not years, to get his day in court, or about alleged criminals going free on the technicality that the process has dragged on for too long and the time permitted to prosecute the matter has expired.
To make matters worse, Poland's slow court system has begun to attract international attention. The European Court of Human Rights in Strasbourg has ruled against Poland in cases involving such allegations of judicial abuse.
While justice may be blind, the government and Supreme Court fortunately have taken note of the situation, and a combination of amendments to the Code of Civil Procedure (CCP) and a recent Supreme Court decision should serve to curb two sources of delays, at least with respect to commercial matters.
Many reasons exist as to why legal proceedings take so long in Poland. Frankly speaking, a portion of the blame sometimes rests on the litigants themselves, who some would say, abuse their legal rights. One of the classic prolongation tactics is the introduction of new evidence. Up until recently, a litigant was able to introduce new evidence throughout the course of the trial court's proceedings. With the introduction of every piece of new evidence, a litigant could in effect prolong the trial for months, if not years.
On July 1, 2000, the CCP was amended, with the proviso that matters already commenced would continue to be governed by the old rules.
As part of these amendments, Article 47912 of the CCP now requires a plaintiff in a commercial matter to present all charges and supporting evidence in his or her initial claim. Otherwise, the court will, subject to certain extenuating circumstances, reject the introduction of new evidence after the fact. Similarly, Article 47914§2 now requires a defendant in a commercial case to present all defenses and supporting evidence in its answer to the claim. As with the plaintiff, the defendant does not have an unlimited right to introduce new evidence after the fact.
The exceptions under which the plaintiff or defendant in commercial cases may introduce new evidence are narrowly defined. Unlike before, the court is not required to admit new evidence simply because a litigant requests its admission. The court will now reject new evidence if the person seeking to introduce it can not prove that introducing the evidence earlier was not possible or that necessity to introduce the evidence did not arise until a later stage of the trial. The burden of proof is upon the litigant to convince the court that his request is justified.
At the risk of sounding flip, the jury is still out on whether these new provisions will stem the never-ending stream of new evidence that a litigant could previously introduce during a trial. If nothing else, litigants and their lawyers will have to be more diligent in making sure that all evidence is collected and presented in a timely manner. The amendments are still too recent to determine how strictly the courts will limit the introduction of new evidence once the litigants have filed their initial claim and answer. To guard against such uncertainties, it is essential for a litigant in a commercial matter to disclose all known information and evidence pertaining to the case to his lawyer in the very beginning. Failure to do so could very well prevent the introduction of this evidence during the course of the trial.
Another common delay tactic involved failing to show up at the trial. If the person could prove that his absence was justified, the trial judge would have no choice but to postpone the trial until the missing person could appear.
One of the classic justifications was illness. The CCP, unfortunately, does not provide for any specific method to verify the truthfulness of a litigant's claim of poor health. In practice, a statement by any doctor is sufficient to justify a litigant's absence from court. Despite this apparent avenue for abuse, one can take heart in the fact that the Supreme Court is aware of the problem and has attempted to close this loophole.
On June 1, 2000, the civil division of the Supreme Court issued a ruling stating that a court may require a party to a case to provide sufficient justification for his absence from court. In this particular case, a trial court decided that, after many years of "playing cat and mouse," an absent party may only use ill health as an excuse if examined and confirmed by a court-appointed doctor usually reserved for criminal cases. The Supreme Court held that the lower court was acting within the law.
Even though this ruling is not binding on other courts conducting civil matters, it is very likely that other courts will adopt this practice to limit this potential source of delay. Thus, if your debtor seems to be permanently ill, ask the court to make the defendant's absence conditional upon providing a medical certificate issued by a court-appointed doctor. Who knows, the debtor may make a miraculous recovery.
Litigating a matter in the Polish judiciary often not only tests the resolve of the litigants, but also one's patience. Hopefully, however, these attempts to limit two of the sources of delay in civil and commercial proceedings should mean fewer headaches.
This article was prepared by Lejb Fogelman, the managing partner of Hunton & Williams' Warsaw office, with the assistance of Robert Lis, an associate attorney.
