As of March 14, this year, meetings concerning cases conducted behind closed doors, specified as divorce cases, cannot take place remotely unless participants join the courtrooms. The rules let evidence to be provided at a distance only if it importantly accelerates this procedure or importantly reduces costs. Plenipotentiaries already feel this effect – the first scheduled for distant meetings were postponed and judges set fresh fixed dates.
The e-adventures proved to be beneficial to courts and parties during and after the pandemic. They allowed attorneys to run cases, including divorce cases, without having to travel around the country. Nevertheless, any judges preferred fixed sittings, reasoning that they would increase the chances of reaching an agreement. The amendments included, inter alia, Article 154 of the Code of civilian Procedure and Article 427, concerning matters relating to marriage.
In accordance with the amendment of Article 154, the parties, side interveners, their representatives and attorneys, the prosecutor and 2 persons of trust from each side may be present at meetings behind closed doors. The provisions on distant meetings shall not apply unless all participants are in court buildings. On the another hand, ‘new’ Article 427 (marriage matters) establishes that meetings, including those concerning divorce, are held behind closed doors, unless both parties request a public examination of the case and the court considers that disclosure is without prejudice to morality. Although the gathering is held behind closed doors, it is permissible to carry out distance evidence in the context of a distant gathering if the proceedings are importantly accelerated or cost-saving.
If you want to divorce, you gotta wait.
Legal representatives from our law firm believe that this change will most likely not service divorce cases. The amendment of the rules means that hearings in cases conducted excluding disclosure cannot be conducted remotely unless all participants are present in court. This means in practice that it will be impossible to process yourself remotely in divorce cases. This constitutes a major obstacle, given that distant trials have made these cases importantly easier. Now all divorce cases are virtually gone due to the fact that they are conducted with the exception of disclosure. In addition, the consequence of this is the request to wait for fixed dates, which can presently take up to many months. The parties must besides take account of the request to travel to court.
In the last fewer days, there have been specified situations that the hearings have been planned remotely, but according to the fresh procedural rules courts have begun to postpone them and set a fresh deadline, of course stationary.
On the 1 hand, I realize the legislator's approach: distant trial can lead to abuse, including infringement of the rule of confidentiality of proceedings, as the court has no chance to verify who is in the area where a distant proceeding takes place outside the rightful persons. On the another hand, since the pandemic, distant trials have become increasingly common in the Polish judicial strategy – this form of conduct is becoming little and little problematic technically, and judges and participants of the process have already gotten utilized to it. This is frequently besides a major organizational facilitation for parties or witnesses, especially erstwhile individual lives abroad and the divorce concerns a Polish couple surviving abroad.
The judges have doubts, too.
Judge Ewa Wiżny of the Gdańsk territory Court and the president of the Association of household Judges in Poland notes that fresh regulations concerning distant meetings in cases conducted behind closed doors rise any concerns. At the same time, however, it stresses that in practice it has been possible that the conditions in which the parties or witnesses attended distant trials did not always guarantee due respect for the authority of the court and did not warrant the absence of 3rd parties in the room.
– It is presently possible to hold a distant sitting at a closed door, but only if all participants of the activities are in the court building, as is apparent from Article 154 of the Code, states. – The question remains whether courts in which the main proceedings are not conducted and only a distant trial is held are able to organizationally guarantee the appropriate conduct of these activities, whether they will at this peculiar time have a free room, equipment and worker who will handle this equipment – all this requires cooperation between the courts – says the judge.
According to her, it is not good that the option of conducting trials remotely was limited to the anticipation of carrying out evidence at a distance. He points out that, in the current legal state, a individual who resides abroad, in a criminal institution or in a hospital, for example, will not be able to participate remotely in the full trial or preparatory session.
– At the first trial, the court usually does not carry out evidence but simply establishes the views of the parties, hears the parties in information, proposes an effort at reconciliation, mediation or tries to scope a consistent position. The deficiency of a distant presence of the organization in specified situations can importantly influence the extension of the course of proceedings, says justice Ewa Wżny.
The legislator did not apply – a contradiction in regulations
Judge Katarzyna Wesołowska-Zbudniewek from the territory Court in Łódź pays peculiar attention to another crucial aspect.
– I see, of course, a contradiction with respect to the rules for holding a closed-door sitting as referred to in Articles 154 k.p.c and 427 k.c. This demonstrates the sleazyness of the legislature, not the first time with the rest. The judges, of course, will gotta deal with this. In Sukurs we go, of course, the systematics of the code itself – he points out.
According to her assessment, an crucial article for the conduct of matrimonial proceedings, especially divorce cases, but not only is Article 427 of the Code of civilian Procedure, which allows for the conduct of evidence in distant form.
– Article 154 of the General Court will apply to another proceedings which may be conducted but in cases concerning matrimonial matters. In my opinion, however, the rule of directness must always be taken into account, and what this entails, the holding of distant meetings should be an exception alternatively than a rule," the justice points out.
In her opinion, it is simply a pity that there has been specified a change of rules. “We barely managed to implement this fresh way (remotely) of case designation by courts, and we already have another revision of procedural rules. But the Polish professional lawyer is not amazing – the legislature frequently does not let us get bored and into a routine, inactive offering us fresh procedural rules – the justice points out.
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