Anti-crisis shield 3.0 - impact on the functioning of the judiciary and the impact on terms
Author: Agnieszka Starzyk - Attorney at law trainee
The Act of 14th May, 2020 amending certain acts in the field of protective measures in connection with the spread of the SARS-CoV-2 (anti-crisis shield 3.0) contains a number of provisions regarding the functioning of the judiciary during an epidemic, as well as after its cessation, and regulates the issue of running procedural and substantive terms.
Impact on of procedural and substantive legal terms
The provisions of the Act of 31st March 2020 amending the Act on special solutions related to the prevention, counteracting and dealing with COVID-19, other infectious diseases and crisis situations caused by them, as well as some other acts, known as the Ant-Crisis Shield 1.0 introduced the suspension of the deadlines. Pursuant to the provision of art. 15zzs paragraph 1 of this Act during the epidemic terms did not start or were suspended in:
court proceedings, including administrative court proceedings,
criminal tax proceedings,
proceedings in cases of offenses,
proceedings and controls conducted under the Tax Code,
customs and tax inspections,
proceedings in cases referred to in art. 15f paragraph 9 of the Act of 19 November 2009 on gambling,
other proceedings conducted on mentioned acts.
The situation with the terms prescribed by the administrative law was similar. Pursuant to the provision of art. 15zzr paragraph 1 Anti-crisis shield 1.0 during the epidemic threat or the state of the epidemic announced due to COVID-19 term did not start, or was suspended for this period in case of:
the conduct of which the granting of legal protection before a court or authority,
performing by the party activities shaping its rights and obligations,
which failure to comply results in the expiry or change of rights in rem as well as claims and claims, as well as falling into delay,
closed terms, which non-observance Act entails negative effects for the party,
to perform by the entities or organizational units subject to entry in the relevant register of activities that cause the obligation to report to this register, as well as terms for the performance by these entities of the obligations arising from the provisions of their system.
Shield 1.0 also suspended the expiration period for criminal offenses and the expiration period for executing punishments in cases of fiscal offenses and other offenses. Hearings and open sessions were held only in urgent cases and only in such cases were the terms run. The urgent matters catalogue contained Shield 1.0. In addition, the presidents of individual courts could decide on matters which belonged to the urgent category by way of ordinances.
In accordance with the provisions of the Anti-Crisis Shield 3.0 the provisions regarding suspension of time periods have been repealed. Shield 3.0 entered into force on 16th of May, 2020. This date is important because in accordance with the provisions of the Act, terms start running or continue after 7 days from the date of its entry into force. In practice, this means that if the term starts before the entry into force of Shield 1.0 and was suspended under its provisions, then from 24th of May, 2020 it will continue to run. On the other hand, in a situation where the beginning of the term has been stopped by Shield 1.0, it will start running from 24th of May, 2020.
It is also worth pointing out that on the day of the entry into force of Shield 3.0, again start running the expiration period for the criminal offences, cases of fiscal offenses and other offenses.
The provisions of the Anti-Crisis Shield 3.0 provide that during the period of epidemic emergency or the state of an epidemic announced due to COVID-19 and within one year of calling the last of them in cases examined pursuant to the provisions of the Code of Civil Procedure a hearing or a public hearing is conducted at a distance, using technical devices with simultaneous direct transmission of video and audio. Participants in the remote hearing do not have to be present in the court building during this time. Hearings or meetings may take place in a "traditional" way if their conduct does not cause an excessive threat to the health of the persons participating in them. Similarly, the issue of conducting hearings was regulated in administrative courts.
Pursuant to the regulations of Shield 3.0, during the period of the epidemic emergency or the epidemic announced due to COVID-19, as well as within a year of cancellation of the epidemic status, in cases recognized according to the Code of Civil Procedure the chairman may order a closed meeting to be held if he deems the examination of the case necessary, and conducting a hearing or a public meeting could cause an excessive threat to participants' health and at the same time it is not possible to conduct the hearing remotely. Each of the parties may object to the holding of a closed session within 7 days from the date of delivery of the notice of referral to the closed session.
Closed meetings may also be held in cases where a civil appeal has been lodged before 7th of November, 2019, if the second instance court considers that a hearing is not necessary. The case will not be referred to the closed meeting if a party submits a request for a hearing within 7 days from the date of delivery of the notice on referral to the closed meeting. A closed session will not be conducted if a party has requested that a non-skippable evidence be taken from testimonies of witnesses or hear the parties. In any case, the court will, hear the case in camera in the event of withdrawal of the claim, withdrawal of appeal or if the proceedings are null and void.
At the closed meeting, the Supreme Administrative Court may also hear cassation complaints, if all parties within 14 days from the date of delivery of the notification of the intention to refer the case to the closed meeting agree to this. In addition, closed meetings may take place in administrative courts on the basis of an order of the chairman who deems it necessary to consider the case, while conducting the hearing would constitute an excessive threat to the health of participants and it is not possible to conduct a distance hearing.
Importantly, Shield 3.0 also introduced a regulation according to which if in a case heard according to the provisions of the Code of Civil Procedure the evidentiary proceedings have been carried out in full, the court may close the hearing and issue a judgment on closed meeting after collecting the written positions from the parties or participants.
As it results from the above, the entry into force of the Anti-Crisis Shield 3.0 implies, the need to be particularly vigilant in resuming the running of terms and related actions.