COMPOSITION OF THE COURT OF APPEAL
Who decides the appeal in a Hague case in Poland?
Composition of the Court of Appeal – seemingly straightforward, but not quite… Until 8 March 2020, the Court of Appeal ruled with a panel of 3 judges. After a case had been heard by one judge at first instance, the case was looked at by 3 professional judges. After deliberation by these 3 judges, the decision was announced.
COVID epidemic and the composition of the court of appeal
In connection with the covid epidemic, a provision has been introduced (art. 15zzs ust. 1) of the Act on Special Arrangements for the Prevention, Control of Covid-19, Other Infectious Diseases and Emergencies Caused by Them of 2 March 2020 replacing the three-member panel with a single judge.
The epidemiological threat continued in Poland until 1 July this year. This means that until now the composition of the Court of Appeal is one judge.
Surely a single judge?
On 26 April 2023. The Supreme Court of the Labour and Social Insurance Chamber adopted a resolution (file reference: III PZP 6/22) with the following content:
The hearing of a civil case by a court of second instance with a single judge formed on the basis of Article 15zzs1(1)(4) of the Act of 2 March 2020 on detailed solutions related to the prevention, prevention and combating of COVID-19, other infectious diseases and crisis situations caused by them (consolidated text: Journal of Laws of 2021, item 2095 as amended) restricts the right to a fair hearing (Article 45(1) of the Constitution of the Republic of Poland) because it is not necessary for the protection of public health (Articles 2 and 31(3) of the Constitution of the Republic of Poland) and leads to the invalidity of the proceedings (Article 379(4) of the Code of Civil Procedure), and decided to give the resolution the force of legal principle and determined that the interpretation of the law adopted in the resolution is valid as of the date of its adoption.
Rule of law
The legal principle is binding on other formations of the Supreme Court (file reference: III PZP 6/22), but not on lower courts. This means that – under the current law (at least for the duration of the epidemiological emergency), the composition of the appellate court is still single-member, but – in the event of a cassation appeal – the proceedings will be declared null and void. It is difficult to predict how the judiciary will react to this resolution. Until the rules are changed, the appellate court will decide whether to staff the appellate court – with one judge (in accordance with the current law, not in accordance with the Supreme Court resolution) or with three judges (inferring exactly the opposite).
If the appeal case is heard by a single-judge court and the case goes to the Supreme Court, the court will declare the proceedings invalid.
The legal mess
Following the mentioned resolution of the Supreme Court – in my experience, the appeals were heard by a panel of three judges. Since 1 July 2023, an amendment to the Code of Civil Procedure has been in force. It introduced the principle that the appellate court will hear the appeal in a three-judge panel at a hearing, but in closed-door proceedings (this is allowed when the parties have not requested the case to be heard at a hearing), a single-judge panel has been reintroduced. The problem therefore remains and will unfortunately create confusion in the light of the Supreme Court decision referred to.
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