Critical comment to ultimate Court order of 29 March 2023. III CZ 427/22
stating that the online submission of a letter has no legal effect.
The subject and the specified problem of many court practitioners has known for a long time. Sometimes in the legal forums there was a question, sometimes a proposition – what a lawyer or a citizen should do when, for reasons partially independent of himself, he has problem writing to the post office within the time limit. Can he just send them to court online? The ultimate Court in 2023 in a civilized country, in the mediate of Europe, found this absolutely unacceptable.
Why is there not only a problem with writing, but it is growing?
Well, in the career of any experienced lawyer or lawyer, there was a certain request to compose on the last day. Sometimes due to the child's illness, sometimes through leave, sometimes due to the fact that the client reported to the law firm highly late with his case, and sometimes another client had to be pulled out of jail and time to prepare an appeal or cassation dramatically shrunk. The citizens of our country are confronted with akin problems, who, without professional assistance, themselves act in their cases before courts.
At that time, the most common postal operator in Poland, namely Poczta – Polska S.A., is 1 of those organisations that has not raised the standard of services provided in the last 30 years, and late even lowers this standard. For example, by closing the last 24 hours of open message in the second largest Polish city, or Krakow. This means, of course, that the citizen no longer has the right to submit a letter as the provision says – by 24:00 on the last day of the statutory deadline, and that time limit will expire at 21:00 or 22:00 erstwhile the last post point is closed. Of course, in many smaller cities it's a simplification in message hours, it's long gone.
It is only a pity that the procedural rights of citizens of our country endure from this.
Key issue – what should be the motivation of the ruling on the adoption of specified a letter?
The task of us – lawyers, is not only to defend the interests of our clients, we should besides contribute to the protection and strengthening of the legal order of the Republic of Poland according to the oath of the legal advisor. The judges vow similarly: “as a justice of the universal court to service faithfully the Republic of Poland, to uphold the law” But let's start by establishing the right motivation – this starts with the question: why do we request the Republic and what is it? Is this about any abstract thing? The welfare of the state apparatus? How can we service her best?
According to the Constitution, the Republic of Poland is the common good of all citizens. This is our common state. The country that we called together to make things better for us all. In serving citizens, we service the Republic.
The key question – how to make the citizens of the Republic live better – should be asked by the ultimate Court judges erstwhile they took the decision on the substance in which they were to decide – whether the letter brought to the court via the E-PUAP platform, despite the deficiency of the applicable legislation, is full effective. Of course, due to the deficiency of appropriate government at the statutory level, they would gotta answer this question "not necessarily" – although no 1 would have objected excessively if specified a legal gap had been such, in an area where the legislature clearly did not keep up, buried in creating and adopting a pro-citizen explanation for the purposes of the case per analogue from another provisions and procedures.
Potential effects of a law-making ruling utilizing explanation per analogy
If, in his graciousness, the ultimate Court felt that if another writings and almost all papers could be submitted to public administrations, the work to accept a procedural paper brought electronically was due to the rule of a democratic legal state...
If, in his graciousness, the ultimate Court considered that since the Constitution states that ‘everyone shall have the right to a fair and open trial without undue hold by a competent, independent, impartial and independent court,’ I mean, it's besides the citizen who brings a letter to court online...
...that would fill the apparent gap in our legal strategy today. The court can already service papers to professional attorneys through a peculiar information portal that for unknown reasons only works 1 way. In parallel, there is an infrastructure of the EPUAP strategy and (although it must be admitted that it would be uncomfortable to do so) can besides be utilized to accept letters to courts.
Finally, specified a ruling could consequence in a extremist acceleration of the completely incomprehensible IT-legislation work aimed at full computerisation and the anticipation of full electronic participation in judicial proceedings.
In another words, if the ultimate Court had ruled on the effectiveness of the letter submitted via the E-PUAP platform, then the Ministry of Justice would yet gotta do something about it. Although I am convinced that our citizens, as usual, would have done so well, even without introducing these apparent functionalities into the ministerial system, and utilizing only the old, good transportation box available under the E-PUAP system.
Potential effects of the compromise ruling
The SN judges could have done a small differently. They could have ruled (and this was an explanation supported so far by a very many lawyers and judges) that the letter to the court was then filed, but it was a letter containing a deficiency of formality. Non-formal in the form of no signature, which must then be completed within 7 days by submitting a signed letter on the draft log or by post. A good emergency gate, for those who request to usage the court services, and for various reasons were incapable to send a letter on a key day before the message closure.
Such a ruling would keep the existing position quo. No 1 who did not gotta usage this solution was abused, but was simply a safety valve for maintaining the citizen's procedural guarantees or, as in the case of attorneys, the client.
What are these procedural guarantees and how have citizens been deprived of their rights as a consequence of the ruling of the ultimate Court?
The procedural guarantees are precisely the right to examine the case – in 2 instances, by ‘competent, independent, impartial and independent court’,
In this case, the situation is very simple. SN ruled that the letter brought to court via the EPUAP platform did not have any procedural effect. This means, for this peculiar citizen, the failure of the right to assert their rights in court. And it doesn't substance if he utilized the aid of a professional attorney. The effect is the same – he lost the right to a substantive examination of his case.
Is that good? In my opinion, no, and not again. About formalism.
This ruling is another peculiarly gross outburst of illness that has been moving our courts for years. It is simply a illness of utmost formalism, which in fact brings the judicial process to the expression process today. It follows from regular practice that many judges seem to wait for any mistake of the citizen, and even better his proxy. Subsequently, the existence of specified an mistake is utilized by the decision-making body (though one-person) as shortly as possible to complete the case as possible for procedural reasons. That is easier to say, due to the fact that no 1 will look at whether the court ruled correctly or rightly in this case – the only subject of review is purely formal examination of whether the court could have concluded specified a case for procedural reasons. And no 1 is looking at whether it's good or bad and what problem specified a ruling leaves a citizen with. The crucial thing is that the court found a reason not to settle it.
As a consequence of specified a procedural decision, the case is terminated, the statistic agree and, as the young people say ironically, “the time for CS”.
And be ashamed, you judges of the ultimate Court, that you deny citizens of our country – the right to a substantive examination of the case. You were to work for people and do everything possible to guarantee that their civilian rights, including the right to court, were guaranteed as best as possible. Rhetorically, I'm just going to ask whose rights would endure so much if the court simply accepted a letter adopted through the E-PUAP?
Author:
Piotr Kłodziński
Legal adviser
P.S. It has been pointed out to me that I am defending the mistake of a professional attorney, due to the fact that I am 1 myself, and that he should have foreseen that specified a form of writing could, in the light of the regulations, be considered ineffective by the court. Of course, this proxy had to anticipate specified a risk, and I do not know the applicable reasons why he decided to take this risk, but I know that it was yet the decision of the court that caused the citizen unnecessarily to suffer. And as for criticism of the actions of this proxy, I will usage the analogy: erstwhile I go by fans of another squad of Kraków Azores in the scarf of Cracovia, of course, we all know that I am unpredictive and mostly do unwise, but do I truly deserve criticism, and not especially those who will settle my body with this knife?
The lawyer made a mistake, of course, or took a risk, but in this story, in my opinion, it was above all the judges who found no another option than to take the citizen's right to court that were "the bad ones." It is precisely specified decisions that the courts should be most critical.
P.S.2. As for this change, which was to take place in the courts – to make it more for the people, unfortunately, it should be noted with sadness that the above-mentioned provision was issued by the most prominent judges who, in the framework of this change, began their ruling in the ultimate Court in fresh years.
