On 31 March 2020 Poland introduced an emergency bill, Shield 2.0, which suspended time limits in administrative, civil and criminal proceedings. Six weeks later a second bill, Shield 3.0, came into force on 16 May 2020. This is designed to restart proceeding terms and repeals the prohibition on holding court hearings.
Ending the suspension
All administrative time limits, as well as judicial and procedural deadlines before courts and offices, were suspended or delayed by Shield 2.0 – the bill ruled that all terms should be suspended during the covid-19 pandemic, although there is some debate over the precise start date of this suspension. The Ministry of Justice says that the suspension started on the date that the bill entered into force (ie, 31 March 2020); however, others argue that the state date should be the date that the covid-19 pandemic was announced in Poland (ie, 14 March 2020). The answer to this question may prove crucial for determining compliance deadlines once the suspension is lifted. It seems that date 31 March 2020 as defined by Ministry of Justice shall be treated as start of the suspension.
In accordance with Shield 3.0, all time limits that were suspended or time limits that did not start to run due to the covid-19 pandemic should begin to run after seven days from the date of entry into force of Shield 3.0, ie, 24 May 2020.
Pursuant to Shield 2.0, courts suspended public hearings as of 31 March 2020. The Polish Patent Office suspended all public hearings as of 13 March 2020 until further notice.
Shield 3.0 repeals the prohibition to hold hearings and public sessions during the covid-19 pandemic. Pursuant to Shield 3.0, it is possible to use technical devices to carry out hearings or public sessions remotely with direct transmission of image and sound. The parties do not have to be physically present in the courtroom and they may take part in the hearing via video-conferencing, connecting with the court using a special IT system. Under the bill, e-hearings of this type can be held during any emergency lockdown – including the covid-19 pandemic and within one year after the last lockdown is lifted.
Despite this, courts may still run traditional hearings when this will not unduly threaten the health of the participants, although the bill does not define the term ‘unduly threaten’. Would it cover where parties would have to use public transport (eg, trains) to get to court? Or perhaps where cases involve a large number of witnesses? Based on Shield 3.0, it appears that all parties have the right to ask for their case to be heard remotely. It might be that some courts are not able to start e-hearings on 25 May 2020 and needs some time to make adjustments. Moreover the Ministry of Justice has yet to define the IT system that should be used to organise and run e-hearings.
Shield 3.0. extends the possibilities of cases being heard in closed sessions for both civil and court administrative proceedings during the covid-19 pandemic and for a year after the last lockdown is lifted.
A case may be examined in a closed session if:
- the court deems examination necessary;
- the hearing may unduly threaten the health of the participants;
- there are technical obstacles to running an e-hearing; and,
- in case of civil proceedings, the parties do not object.
All these conditions must be fulfiled. In civil proceedings, a party may oppose a case being referred to a closed session within seven days of delivery of such notice.
A case may be settled during a closed session when all evidence has already been taken, and the parties and participants submit their positions in writing.
Civil appeals may be examined in closed session if:
- the court deems the examination necessary;
- the parties did not ask for an e-hearing and did not oppose the closed session; and
- the parties did not file a motion to hear the witnesses or parties to the proceeding.
An appeal will be examined in closed session when a claim or appeal is withdrawn or the proceedings were void.
A cassation appeal in administrative proceeding may be examined in closed session if all parties consent to this within 14 days from the date of delivery of the notification of the intention to refer matters for closed session.
All parties must look closely at their pending proceeding to check and recalculate any deadlines. As e-hearings are a brand new procedure, there is a risk that courts will instead choose to run traditional hearings or examine cases in closed sessions.