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Civil procedure rules on instructions must be streamlined, HFHR writes to CoE Committee of Ministers

♦ The Helsinki Foundation for Human Rights has sent a communication to the Council of Europe’s Committee of Ministers referring to the execution of the ECtHR judgments entered in Parol v. Poland (application no. 65379/13) and Adamkowski v. Poland (application no. 57814/12).

♦ In the judgments, delivered in 2018 and 2019, the ECtHR held that rejection by civil courts of appeals lodged by the applicants, who were deprived of their liberty, constituted excessive formalism, which is impermissible under Article 6 of the Convention. The fact that the applicants had not been properly instructed by the court about formal requirements for lodging their appeals was a factor that determined the ECHR’s decision.

♦ In its communication, the HFHR noted that to ensure the proper execution of the Court’s judgments it is necessary to streamline the rules for provision of instructions in civil procedure, specifically by ensuring uniform templates of instructions. Legislative work in this area is already underway.

A failure to instruct parties to the proceedings led to excessive formalism, rules the ECtHR

The facts of Parol and Adamkowski cases are very similar. In both cases, applications were submitted to the ECtHR by individuals deprived of their liberty who had brought actions for infringement of their personal rights against the State Treasury on account of inadequate conditions in prisons, in which they were detained. After their actions were dismissed by first-instance courts, they appealed against those judgments. Unfortunately, while lodging appeals the applicants failed to attach additional copies of those appeals to be delivered to the appellee, which is a requirement set by the Code of Civil Procedure. Furthermore, both men had serious problems with rectifying this formal defect at the court’s request, as they did not have access to any copy of their already posted appeals. Therefore, they submitted handwritten letters, in which they reproduced the wording of their appeals from memory. However, the Courts held that those letters were not identical to the original appeals and as such could not be regarded as their copies within the meaning of the Code of Civil Procedure. The appeals were therefore rejected on formal grounds.

In both cases, the ECtHR found a violation of Article 6(1) ECHR, considering that the action of Polish courts was excessively formalistic. The Court took account of the fact that the applicants were deprived of their liberty and acted in civil proceedings without professional counsel. In this situation, they could only rely in the proceedings on their own knowledge and instructions from the court on the procedural rules. The ECtHR noted that both men had not been properly instructed about the formal requirements for lodging an appeal: the applicant in Parol v. Poland had not been informed at any stage of the proceedings about the necessity of lodging pleadings together with their copies, while the applicant in Adamkowski v. Poland had been instructed by the court about the general obligation to attach copies to submissions of pleadings, but did not receive such information specifically with respect to the principles of lodging an appeal.  In finding a violation of Article 6(1) ECHR, the Court also took account of the fact that both applicants sought to comply with the formal requirements following the courts’ requests to do so and demonstrated the due diligence that could be expected of a party to civil proceedings.

A Strasbourg judgment is not the end

Following the delivery of a judgment by the European Court of Human Rights, the Council of Europe’s Committee of Ministers takes on the supervision of the judgement’s execution. Non-governmental organisations are in a position to submit their communications to the Council. The HFHR does this on a regular basis. NGOs prepare their communications to notify the Committee of Ministers of any actions taken on the national level after the judgment has been issued and to provide directions and recommendations for the domestic authorities.

Government’s plan to execute the judgment

On 21 August 2019, the Government provided the Committee of Ministers with information on the measures taken to comply with the judgment. It stated that the judgment had already been executed at an individual level (payment of just compensation to the applicants as awarded by the ECtHR) and that no general measures were needed. The opinion noted that both cases concerned individual cases of misapplication of the law by national courts and could not be considered a systemic problem in Poland. In the Government’s opinion, the applicable laws specifically give courts the power to instruct such participants in proceedings who have no professional representation.

HFHR’s communication

The HFHR submitted a communication to the Committee of Ministers of the Council of Europe, in which it presented its own view on the measures necessary for the proper execution of the judgment. It indicated that while it is not necessary to make any changes in the scope of the obligation provided for in the Civil Procedure Code to attach copies to submissions of pleadings, it may be necessary to improve the rules for the court to instruct the parties on their procedural obligations. Although the Code of Civil Procedure contains provisions obliging the court to instruct parties with no professional representation (such as Article 327 CCP governing the manner and time limits for lodging an appeal), Polish law does not prescribe uniform templates of such instruction. This leads to a situation, as pointed out in the past by e.g. the Ombudsman, where instructions given by different courts vary considerably, both in terms of clarity and information contained. This problem may be solved in the near future, as the amendment to the CCP adopted in July 2019 obliged the Minister of Justice to ensure uniform templates of instructions by August 2020. However, the Foundation called on to the Committee of Ministers to oblige the government to regularly inform about the legislative work in this area so as to ensure that the scope of the instructions and the manner in which they are formulated correspond to the requirements laid down in Art. 6(1) of the ECHR.

 

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