Online interrogation of a foreign witness by a Polish court in a commercial court case – practical bullet points on the example of a specific witness summons.
Online interrogation of a foreign witness by a Polish court in a commercial court case – practical bullet points on the example of a specific witness summons.
The changes in the functioning of the justice system caused by the COVID-19 have been ongoing since the first quarter of 2020. The first of them were introduced in the Polish legal system at the beginning of March 2020, and to date these regulations have already been amended several times. The changes mainly concern court proceedings, the way in which cases are dealt with, as well as the issue of questioning witnesses. The present article will focus on the latter issue, in order to explain in detail how a witness is summoned and examined by a Polish court.
In accordance with article 15 zzs1 of the Polish Act of March 2, 2020 on special solutions related to the prevention, counteraction and combating of COVID-19, other infectious diseases and crisis situations caused by them (hereinafter as the “Act”):
During the period in which the state of epidemic emergency or the state of epidemic declared due to COVID-19 is in force and within one year from the revocation of the last of them, in cases heard in accordance with the provisions of the Act of 17 November 1964. – Code of Civil Procedure, hereinafter referred to as the “Code of Civil Procedure”:
1) a hearing or a public hearing shall be conducted with the use of technical devices that enable them to be conducted remotely with simultaneous direct transmission of video and sound, with the proviso that the persons participating in them don’t have to be in the court building, unless conducting a hearing or a public hearing without the use of the above-mentioned equipment won’t cause an excessive risk to the health of its participants.[1]
The Polish court, summoning a foreign witness to the hearing, sets the date and time. In case of unjustified failure to appear at a remote hearing, the court may then sentence the witness to a fine (article 274 § 1 of the Polish Code of Civil Procedure). It should be noted that justification of a failure to appear due to illness requires the presentation of a certificate confirming the inability to attend the summons, issued by the court-appointed physician. The consent of the persons summoned to the hearing is not required for a remote hearing to be held. They cannot oppose it. The court will include information to this effect in the summons or witness notification. (See Fig. 1)
[2] (the above text is a fragment of the summons sent by the Polish court to the foreign witness to an online hearing; whereas the remote hearing is conducted in accordance with the above-mentioned provision of the law and doesn’t require the consent or objection of those who have been summoned or given notice of the hearing).
The court also decides how to question the witness. The legislator has provided for two forms of proceedings taking place within the framework of a remote hearing. It is possible to participate in a remote hearing in the court building or to connect to the court from any location. What is important, however, is the fact that a traditional hearing can be held if it does not pose an undue risk to the health of those taking part.
The examination of a witness in accordance with article 268 of the Polish Code of Civil Procedure begins with questions concerning his/her person as well as his/her relation to the parties. The witness shall be required to take the following oath: Being aware of the importance of my words and of my responsibility before the law, I solemnly swear that I will tell the honest truth, not hiding anything from what I know.[3] As to the order of answering questions, first the witness answers the chairman’s questions about what is known to him in the case, then the judge and the parties may also ask him questions on this subject (article 271§1 of the Polish Code of Civil Procedure). In civil proceedings, the principle of official service of documents applies. Therefore, pursuant to article 131 §1 of the Code of Civil Procedure, the court makes service by a postal operator. The witness and the parties also receive an e-mail with a link to the remote hearing.
The witness shall be required to have access to the Internet and to have a working device capable of establishing an internet connection. This may be a laptop, tablet or mobile phone. Importantly, the parties and witnesses should also provide their telephone number so that a link to the call can be sent and so that they can be contacted if there are connection problems.
[4] (the fragment from the court summons indicating that no special software or installed applications are required for remote connection – all the witness needs is a device with a camera and microphone and access to the Internet. A person connecting to the court should have an identity card or other document with a photograph).
Importantly, no special software is required. The remote hearing is conducted at the judge’s choice using one of the applications: MS Teams, JITSI, Avaya Scopia. Information about which application will be used to conduct the remote hearing is included in the e-mail received by the witness.
[1] ACT of 2 March 2020 on special solutions related to the prevention, counteraction and combating of COVID-19, other infectious diseases and crisis situations caused by them, Journal of Laws 2020, item 374.
[2] Figure 1 (the above text is a fragment of the summons sent by the Polish court to the foreign witness to an online hearing; whereas the remote hearing is conducted in accordance with the above-mentioned provision of the law and doesn’t require the consent or objection of those who have been summoned or given notice of the hearing).
[3] https://arslege.pl/kodeks-postepowania-cywilnego/k14/s623/
[4] Figure 2 (the fragment from the court summons indicating that no special software or installed applications are required for remote connection – all the witness needs is a device with a camera and microphone and access to the Internet. A person connecting to the court should have an identity card or other document with a photograph) .
