Unknown defendant’s address: limitation of right to court?
The HFHR has submitted to the ECtHR an amicus curiae opinion in the case Orłowski v. Poland (application no. 5547/15). The case involves a situation where a statement of claims is returned because it does not include the defendant’s address. The European Court of Human Rights will consider whether such a situation violates the right to a court under Article 6 (1) of the ECHR.
The opinion was prepared in collaboration with lawyers of Wardyński i Wspólnicy, working pro bono.
The amicus discussed the practical problems relating to the claimants accessing information about the address of a natural person. Such information may be obtained through submitting a relevant application to the Centre of Document Personalisation of the Ministry of the Interior and Administration. This seemingly simple solution may involve a number of problems. For example, the administrative body applies unclear criteria in reviewing whether an applicant requesting address information has a legal interest in obtaining it. The Centre will not perform search of information if an applicant does not have sufficient data that enable identification of a defendant. Providing sufficiently detailed information of this type may often be impossible or significantly difficult. “In the overwhelming majority of cases, a defendant has the name that is carried by at least several other people in Poland. Despite appearances, this problem pertains not only to persons bearing the most popular names such as Nowak or Kowalski/Kowalska. If this is the case, the Centre will not disclose address of a defendant unless it receives additional data individualising the specific person. “If a claimant does not have this information, commencing court proceedings may prove materially difficult”, says Łukasz Lasek, an attorney of Wardyński i Wspólnicy.
A refusal of disclosing address information takes form of a decision of the Minister of Interior and Administration. Such a decision is ultimately reviewed by administrative courts, but the procedure may take a very long time. In the meantime, a civil claim may become time-barred.
In its opinion, the HFHR also described selected practices from other countries, which pertain to the duty to disclose a defendant’s address in a pleading that initiates a civil lawsuit. Such a requirement does not appear in Spanish law – in Spain, a claimant must provide the court with as much information about the opponent in litigation as possible. In Ireland, a claimant who is unable to give a detailed address of the opposing party must show what measures they have taken in order to obtain this information. However, Irish law waives the strict requirement regarding the disclosure of a defendant’s address in cases involving personal injury (for example, detriment to health). Also the rules of civil procedure of England and Wales include the requirement to disclose the address of the opposing party. “However, a convenient practical solution is available in these two countries of the United Kingdom. There, addresses of natural persons are, as a rule, recorded in the electoral register”, reminds Michał Kopczyński, member of the HFHR legal team.