Critical commentary on the decision of the Supreme Court of March 29, 2023. III CZ 427/22
stating that submitting a document to court via the Internet does not produce any legal effects.
Many court practitioners have known the topic and the problem itself for a long time. Sometimes on legal forums there was a question, sometimes a suggestion - what should a lawyer or a citizen do if, for reasons partly beyond their control, they have trouble sending a letter to the post office on time. Well, can he send them to court online? Well, the Supreme Court in 2023. in a civilized country, in the middle of Europe, he found it absolutely unacceptable.
Why has such a problem with submitting documents not only arisen, but is even increasing?
Now, in the career of every experienced legal representative – that is, an advocate or a legal adviser – there has certainly arisen on several occasions the necessity to submit a pleading on the final day of a time limit. Sometimes due to a child’s illness, sometimes because of a holiday, sometimes because a client came to the law firm with their case exceptionally late, and sometimes because another client had to be extricated from custody, causing the time available to prepare an appeal or cassation complaint to shrink dramatically. Similar problems are faced by citizens of our country who act on their own behalf in court cases without professional assistance. At the same time, the most widespread postal operator in Poland, namely Poczta Polska S.A., is one of those organisations that have not done much to raise the standard of their services over the last 30 years, and recently have even lowered that standard – for instance, by closing down, in the coming days, the last 24-hour post office in Poland's second-largest city, Kraków. This naturally means that a citizen no longer has the right to file a pleading, as the provision states, up to midnight on the last day of the statutory time limit, and this time limit will instead expire at 21:00 or 22:00 when the last postal outlet closes. Of course, in many smaller towns, this shortening of post office opening hours happened long ago. It is simply a pity that, all in all, the procedural rights of our country's citizens suffer as a result.
The key issue is what should be the motivation of the adjudicating panel adjudicating on the adoption of such a letter?
Our task as lawyers is not only to protect the interests of our clients; in accordance with the oath of a legal counsel, we should also contribute to the protection and strengthening of the legal order of the Republic of Poland. Judges take a similar oath: "as a judge of a common court, to serve the Republic of Poland faithfully, to uphold the law." But let us begin by establishing the proper motivation – that starts with the question: why do we need this Republic and what is it? Is it some abstract creation? The good of the state apparatus? How can we best serve it? According to the Constitution, the Republic is the common good of all citizens. It is our common State. A State that we established together so that life might be better for us all. By serving the citizens, we serve the Republic. The key question – what to do so that life is better for the citizens of the Republic – should have been asked by the Supreme Court judges when they proceeded to adjudicate in a case where they were to decide whether a document submitted to a court via the ePUAP platform, despite the absence of appropriate provisions, was fully effectively submitted. Of course, due to the lack of appropriate provisions at the statutory level, they would have been forced to answer this question "rather not" – although surely no-one would have objected excessively if they had filled such a legal gap, in an area where the legislature evidently cannot keep up, by creating and adopting a pro-citizen interpretation for the purposes of this case by analogy from other regulations and procedures.
Potential effects of a legislative ruling using per analogiam interpretation
Should the Supreme Court in its graciousness determine that, seeing as other pleadings and almost all documents may be submitted to public administration authorities, the obligation to accept a procedural pleading submitted electronically also stems at least from the principle of a democratic state governed by law... Should the Supreme Court in its graciousness determine that, seeing as the Constitution dictates that "everyone has the right to a fair and public hearing without undue delay by a competent, impartial and independent court", after all, that everyone is also a citizen submitting a document to a court via the internet... ...this would fill an obvious gap that exists today in our legal system. The court can already today serve documents to professional legal representatives via a special information portal, which, for reasons known to no one, only works in one direction. At the same time, the ePUAP system infrastructure exists and (although it must be admitted that it would be inconvenient for this purpose) could also be used to receive documents for courts. Finally, such a ruling could cause a radical acceleration of the completely incomprehensibly sluggish IT and legislative work aimed at full computerisation and ensuring the possibility of fully electronic participation in court proceedings. In other words, if the Supreme Court were to rule on the effectiveness of a document submitted via the ePUAP platform, the Ministry of Justice would finally have to do something about it. Although I am convinced that our citizens, as usual, would cope well anyway, even without the introduction of these obvious functionalities into the ministerial system, and by simply using the good old inbox provided as part of the ePUAP system.
Potential effects of a compromise ruling
Supreme Court judges could also have acted somewhat differently. They could have ruled (and this was an interpretation previously supported by a great many lawyers and judges) that the submission of a document to the court occurs at that time, but it is a document containing a formal defect. A formal defect in the form of a missing signature, which must then be rectified within a term of 7 days by submitting the signed document at the registry office or sending it by post. A good emergency loophole for those who need to use court services and, for various reasons, were not able to send the document on the crucial day before the post office closed. Such a ruling would have maintained the existing status quo. No one who did not have to use this solution did so, it was not abused, and it merely constituted a safety valve for maintaining the procedural guarantees of a citizen or, as in the case of legal representatives, a client.
What are these procedural guarantees and how were citizens deprived of their rights as a result of the Supreme Court's ruling?
Procedural guarantees include the right to have the case heard - in two instances, by "competent, independent, impartial and impartial court"In this case, the situation is very simple. The Supreme Court ruled that a document submitted to a court via the ePUAP platform does not produce any procedural effects. For this particular citizen, this means the loss of the right to assert their claims before a court. And it does not matter whether they were using the assistance of a professional legal representative. The outcome is the same – they have lost the right to have their case examined on its merits.
Is that good? In my opinion, no, no and no again. About the disease of formalism.
This ruling is yet another exceptionally glaring symptom of a disease that has been plaguing our courts for years. It is a disease of extreme formalism, which nowadays essentially reduces a court trial to formulaic proceedings. Daily practice shows that many judges seem to be just waiting for any mistake by a citizen, and even better, by their legal representative. The fact that such a mistake has occurred is then exploited by the adjudicating panel (even a single-judge one) in every possible way to terminate the examination of a given case on procedural grounds as quickly as possible. It is easier to rule this way, because after all, no one is going to look at whether the court ruled correctly or incorrectly in the case – the sole subject of review is a purely formal check on whether the court could terminate such a case for procedural reasons. And no one looks at whether this is good or bad, or what kind of problem such a ruling leaves the citizen with afterwards. What matters is that the court found a reason not to resolve it. As a result of such a procedural decision, the case is closed, the statistics add up, and as young people ironically say, "boom, time for some Counter-Strike". Shame on you, Judges of the Supreme Court, for denying the citizens of our country the right to have their cases examined on the merits. You were supposed to work for the people and do everything to ensure that their civil rights, including the right to a court, are guaranteed as best as possible. I will just ask rhetorically whose rights would have suffered so much if the court had simply accepted a document submitted via ePUAP?
Author: Piotr Kłodziński solicitor
PS It has been pointed out to me that I am defending a professional error by a legal representative because I am one myself, and after all, he should have foreseen that such a method of submitting a pleading might, in light of the regulations, be deemed ineffective by the court. Of course that legal representative must have foreseen such a risk, and I am not aware of any valid reasons why he decided to take that risk, but I do know that in the end it was a citizen who suffered needlessly as a result of the court's decision. And as for criticising the actions of that legal representative, I will use an analogy: when I walk through the Azory district of Kraków, which is overrun by fans of a rival team, wearing a Cracovia scarf, of course we all know that I am lacking in foresight and generally acting foolishly, but is it really me who deserves to be criticised, rather than, first and foremost, those who ultimately plunge the knife into my body? The legal representative obviously made a mistake, or took a risk, but in this story, in my view, it was primarily the judges who could find no other option than to deprive a citizen of the right to a court who were "the bad guys". And it is precisely such court rulings that deserve the most criticism.
PS2. As for the change that was to take place in the courts - to make them more for people, it is sad to note that the decision described above was issued by the most prominent judges who, as part of this change, began their rulings in recent years Supreme Court.