Witness Testimony in Times of Pandemic
by Joanna Duda, Dispute Resolution & Arbitration practice, Wardynski & Partners
Published: May, 2020
Submission: May, 2020
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In March, the European Commission recommended that member states introduce temporary restrictions on travel to the European Union (through 15 May 2020). The vast majority of European countries coordinate border control measures at the EU level. States are again fencing their territories, suspending the free movement of persons also between regions. Restricting travel may not only interfere with holiday plans and delay the delivery of goods and services, but also slow down legal proceedings. However, this can be prevented through legal assistance from cooperating courts of member states.
As citizens of the European Union have exercised their freedom of movement and businesses have exercised their freedom of establishment within the Schengen area, migration has increased significantly and cross-border economic relations have grown. In turn, this has resulted in an increase in the number of court cases with aforeign element, e.g. where aparty has its registered office in another country or there is aneed to take evidence abroad. In proceedings in Poland, parties often seek to admit testimony of witnesses living outside Poland. As arule, asummoned witness travels from his or her place of residence to the location of the court hearing the case. However, there are cases where such travel may entail severe inconvenience or prove impossible, and this is even more likely during the ongoing COVID-19 pandemic.
Witness’s travel to Poland
Currently, the presidents of Polish courts are issuing orders cancelling scheduled hearings, except for urgent cases. So far, this has been the case for most hearings in April, and decisions are now being issued to cancel hearings in May. However, the parties may remain uncertain as to the dates of hearings scheduled for the near future that have still not been cancelled. Such uncertainty also remains for witnesses living abroad who have already been summoned and should plan their trip to Poland, but due to travel restrictions or health concerns will not be able to appear before the adjudicating court on the prescribed date, or at least would face serious inconvenience in doing so. In such asituation, awitness who has been summoned to testify on aspecific date should justify his failure to appear, or risk afine. However, this means that the witness’s testimony will be postponed until the next hearing date, and in general the evidentiary proceedings will be prolonged, depending on the duration of the threat hindering the witness’s appearance in court.
The parties may try to prevent this and promote quicker resolution of the case by the court. Solutions for achieving this end are offered by the Evidence Regulation (Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters).
Testifying at adistance
Evidentiary proceedings shall be conducted in accordance with the principle of directness expressed in Art. 235 §1 of the Civil Procedure Code. This rule requires the adjudicating court to become directly acquainted with the claims of the parties and the material to be used in evidence. However, the code provides for departures from this rule, including where examination of evidence involves serious inconvenience. Then the court will assign the examination of evidence to one of its members (designated judge) or another court (requested court).
Evidence can also be taken using technical devices at adistance, if allowed by the nature of the evidence. This solution is particularly helpful for resolving cases with aforeign element.
Taking evidence in international civil proceedings
The Civil Procedure Code includes provisions on cooperation with other courts for the purpose of taking evidence (Art. 1130 and following). However, it is important to bear in mind the rule of the primacy of EU law over national law, according to which relevant national rules are excluded from the scope of application of EU regulations between member states. National law applies when the issue is not regulated under EU law (as indicated by the Supreme Court in its order of 30 June 2017, case no. ICSK 668/16), i.e. when the case involves relations with countries outside the EU or with which Poland is not bound by some other international agreement governing these issues.
Cooperation between the courts of EU member states (except Denmark) in the taking of evidence in civil or commercial matters is governed by the Evidence Regulation. The regulation provides for two approaches to taking evidence: either through the requested court (i.e. aforeign court) or directly through the requesting court (the Polish court). Thus the court hearing acase in Poland may choose between these two methods and submit arequest for taking evidence accordingly.
Approach no. 1: taking evidence through requested court
This solution is governed by Art. 10–12 of the Evidence Regulation, under which the requested foreign court shall execute the request in accordance with the law of its member state. Although aPolish court may request execution of the request in accordance with Polish procedure, it will only be possible to take evidence in accordance with such rules if they are consistent with the law of the state of the requested court and there are no practical difficulties.
Significantly, the Polish court may also ask for evidence to be taken using ateleconference or videoconference. But using this option depends on the procedure in force in the foreign country and access to technical means.
This solution does not eliminate the possibility of participation by the parties and their representatives in the taking of evidence. The Polish court shall notify the foreign court in the application that the parties and representatives will be present and when their participation is required. However, if their participation is required during the taking of evidence, the conditions for their participation will be determined by the requested foreign court, which will notify them, indicating the time and place of the proceedings. Furthermore, the requested foreign court itself may require the appearance and participation of the parties and their representatives if this is provided for by the law of the foreign state. Arepresentative of the requesting (Polish) court may also be present for the taking of evidence by the foreign court.
Importantly, when evidence is taken by aforeign court, that court may, if necessary, apply appropriate coercive measures in accordance with the foreign law.
The request of the Polish court will not be executed if the witness exercises his right to refuse to testify or cannot testify under the law of the state of the foreign court or under Polish law.
Such arequest shall be executed by the foreign court within 90 days of receipt of the request.
Therefore, in this case, the witness residing abroad will have to appear in aforeign court having jurisdiction over him or her, without having to cross state borders, and will be heard by the foreign court, which may be attended by the parties, their representatives, and arepresentative of the Polish court by teleconference or videoconference.
Approach no. 2: direct taking of evidence by the requesting court
An important feature of this solution, which is provided for in Art. 17 of the Evidence Regulation, is that evidence is taken in accordance with the law of the member state of the requesting court (Polish court).
In this case, the evidence is not taken by aforeign court, but directly by the Polish court. However, the witness must be informed in advance that the testimony will be provided voluntarily. Consequently, the witness can refuse to testify, and in this case coercive measures cannot be applied.
The requested state shall notify the Polish court within 30 days whether the application has been accepted and under what conditions of foreign law it is to be carried out, and may also designate aforeign court to take part in the proceedings.
In practice, awitness living abroad will also appear in aforeign court having jurisdiction over him or her (if they agree to be heard under this procedure), but will be heard by aPolish court and in accordance with Polish law.
Therefore, the first solution guarantees the appearance of the witness, as the foreign court may apply appropriate coercive measures, but the actions are carried out in accordance with the law in force in the member state of that court. However, the second method allows for the proceedings to be conducted in accordance with Polish law, but the witness may refuse to testify in this manner.
It should be stressed that it is up to the adjudicating court to decide whether to take evidence at adistance, using one of the methods described, thus departing from the directness principle. Nevertheless, this is an important solution during the pandemic, which can be requested by aparty not only for the sake of the health and safety of the witnesses but also to prevent excessive delay of the case.
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