The Civil Procedure Code SK 3/17
On 11 July 2018 at 11.00 a.m., the Constitutional Tribunal considered Ms K.S.’s constitutional complaint pertaining to the legal effects of a cassation appeal submitted lacking certain core components in the context of civil proceedings.
The Constitutional Tribunal adjudicated that Article 3986(2) and (3) in conjunction with Article 3984(1)(3) in conjunction with Article 13(2) of the Act of 17 November 1964 – the Civil Procedure Code (Journal of Laws – Dz. U. of 2018 item 155, as amended) is consistent with Article 45(1) in conjunction with Article 2 and in conjunction with Article 31(3) of the Constitution of the Republic of Poland.
The ruling was adopted by a majority vote.
There was one dissenting opinion, filed by Judge Mariusz Muszyński.
When juxtaposing the complainant’s allegations concerning Article 3986 in conjunction with Article 3984(1)(3) of the Civil Procedure Code with the indicated higher-level norms for the review, the Constitutional Tribunal stated that the allegations were groundless.
The Tribunal disagreed with the complainant’s assertion that the only constitutional value justifying a restriction of the right to a fair court procedure was the imperative to facilitate and expedite proceedings.
Such a thesis would contradict the wording of Article 3986(1) of the Civil Procedure Code or at least such a purpose should be deemed inconsistent with the principle that the legislator acts in a rational way. Due to the fact that the said provision sets a one-week time-limit for the elimination of formal defects in a cassation appeal, there is also no obstacle for a complainant (his/her attorney) to eliminate any deficiencies as regards the core components of the cassation appeal, if such deficiencies have occurred.
As regards the pace of proceedings at this stage, a call for the elimination of any deficiencies concerning core components of a cassation appeal within the same – one-week – time-limit would not prolong relevant proceedings.
Hence, the pace of proceedings does not justify shaping requirements as to the core components of cassation appeals. Consequently, the said pace does not justify depriving parties of the possibility to supplement the aforementioned deficiencies in the context of proceedings on restructuring a debtor’s liabilities (hereinafter: restructuring proceedings).
What constitutes a protected value that justifies the legislator’s adoption of such a model of a cassation appeal, which also implies the division of defects into those that are barred from being rectified and those that are subject to elimination in restructuring proceedings is the protection of certainty and security of legal transactions. Proceedings before the Supreme Court concerns legally effective rulings.
The possibility of revoking such rulings because of a public interest will always result in a state of uncertainty as to the situation determined by such a ruling. The said possibility will also always interfere with the principle of certainty and security of legal transactions. Proceedings on cassation appeals constitute proceedings on extraordinary means of appeal – and are not third-instance proceedings, where, until the completion of all the stages of those proceedings, parties to the proceedings must take into account the possibility that the rulings delivered by the courts of lower instances in a given case may be revoked.
All subjects of legal rights and obligations whose legal and actual situations were shaped by a legally effective ruling should act in confidence as to the irrevocability of those determinations. In the event a cassation appeal is filed by the adversary party, the subjects of legal rights and obligations should have the possibility of predicting if there are any real chances of revoking such a ruling.
The lack of formal requirements as to the content and form of a cassation appeal together with serious consequences of failing to meet them would constitute far-reaching interference with the principle of the protection of legal transactions. This would enhance the lack of certainty as to a situation shaped by a legally effective ruling.
The necessity to ensure the certainty and security of legal transactions in a democratic state constitutes sufficient justification for introducing limitations to the right to a fair trial within the scope of shaping a procedure together with the serious effects of failure to meet the requirements of a cassation appeal.
The Tribunal stressed that a different way of determining the effects of failure to include core components in a cassation appeal and the categorisation of such deficiencies as formal defects subject to supplementation in restructuring proceedings would actually lead to a complete change of their nature.
However, such considerable interference with the legislator’s decision is not justified in the context of the present case. In the legal doctrine and the jurisprudence of courts, it is stressed that core components constitute mandatory elements that make up an appeal and determine that a given submission by a party is a cassation appeal.
Thus, core components determine the essence of a cassation appeal. The lack of any of the core components entails that a given means of appeal constitute a cassation appeal and hence the said deficiencies (primary deficiencies) are subject to elimination.
The Tribunal emphasised that the high degree of formalisation of cassation appeals is alleviated by the requirement that a cassation appeal be drafted by an advocate or a legal adviser. The requirement that a cassation appeal should comprise all its core components is not impossible to be met by a professional attorney.
The incorrect drafting of a cassation appeal which consists in failing to meet the relevant requirements as to its core components may not be an argument for the change of the character of those elements and for the treatment of every submission as a cassation complaint.
The Presiding Judge of the adjudicating bench was Judge Justyn Piskorski, and the Judge Rapporteur was Judge Leon Kieres.