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Witnesses in civil proceedings - when cannot they testify in writing?

On November 7, 2019, a new provision was added to the Code of Civil Procedure, under which witnesses may be heard in writing. The article will show what was driving the legislator when introducing this solution to the procedure, taking into account the fact that so far it has only functioned in the European Small Claims Procedure. It will tell you how the witness is giving his testimony in writing and the risks involved. Information will also be given as to when witnesses in civil proceedings cannot testify in writing.

Amendment to the Code of Civil Procedure

Pursuant to Art. 2711 of the Code of Civil Procedure, a witness testifies in writing if the court so decides. Thus, by way of a decision, the court decides whether the testimony will be given in writing or orally before the court. Pursuant to the provision, a witness submits an oath by signing the text of the promise, and then submits the letter to the court within the time limit specified in the court's decision. In the draft amendment, it was considered obvious that the submission of testimony in writing may significantly speed up the issuance of a decision in the case and save the parties costs, and the labor court. Often, due to the absence of witnesses, civil proceedings can extend by many months or even years. Witnesses change their place of residence, work, live far away from the court, get sick or cannot appear in court for random reasons. This makes the processes considerably longer.

One of the possibilities so far has been to hear the witness by way of legal aid - thus before the court competent for his place of residence. If the case was pending in Warsaw and the witness lived in Zakopane, he could be questioned in Zakopane, and after the hearing, the report was sent to the court where the case was pending. However, this required additional time related to the appointment of a hearing date for questioning in another court, and then waiting for a court response as to whether the hearing had taken place and the receipt of the hearing report.

It was also a time-consuming procedure, often due to the slowness of the court, which was supposed to question the witness by means of assistance, the length of the civil proceedings. The written hearing is intended to eliminate this waiting for action to be taken by another court.

Example 1.

Proceedings for payment of remuneration for one stage of construction of a residential building are pending in the District Court in Przemyśl. The defendant indicated that he had not paid the contractor because it was delaying and the performance of the works was defective. For this purpose, 10 witnesses were submitted for questioning - employees who currently live in various places throughout the country. As many of them requested that they be heard in the district court competent for their place of residence, the District Court in Przemyśl decided that it would be faster to hear them in writing and issued a relevant decision for this purpose.

One of the concerns about a written hearing is whether the person summoned as a witness will actually give evidence and sign it. They concern the independence of the witness's actions, as well as how to verify the identity of the person who signed the declaration and whether it is a witness and not, for example, the party itself. These comments were not taken into account in the draft amendment. It has been indicated that the receipt of written testimony from a witness is not intended to eliminate the questioning of a witness, but merely to function as an alternative way of obtaining such evidence. If there are any doubts as to, for example, the identity of the witness, the independence of making testimony, the court will have the opportunity to summon a witness to appear in person and to testify verbally before the court, and to explain the discrepancies in the testimonies. He will be able to request oral evidence in the event of any doubt.

How to hear a witness in writing?

In order to hear a witness in writing, the court should:

send the witness a list of questions, which will be a collection of questions from the court, as well as the claimant and the defendant (after allowing the parties to prepare questions);
send the witness a card with the promise rotate;
send the witness a card with instructions;
send the witness a card with a space to enter the witness's personal data, determine kinship with any of the parties;
inform the witness about the deadline for submitting answers to questions to the court.

The court should establish the appropriate criteria it will follow when deciding whether or not to testify in writing. It should be pointed out that these should be witnesses who are not related to the parties (not related), about whom there is no doubt as to their objectivity, as well as witnesses whose testimony is not of key importance in the case. Witnesses who are most knowledgeable about the case should be questioned directly, if only because additional questions not indicated in the letter may arise during their testimony.

In the case of a written hearing, the court sets a deadline by which the answers must be submitted to the court. It should be pointed out that this is not the date by which the letter must appear in court, and the handing over of the pleading at the Polish post office of the designated operator within the meaning of the Postal Law Act or at the post office of the operator providing universal postal services in another Member State of the European Union is tantamount to with bringing it to court.

Example 2.

Marian Pop received a letter from the court summoning him to testify in writing. He was sent the promise, a questionnaire and a list of questions with the information that he should reply within 14 days from the date of delivery of the list of questions. He received the letter from the court on July 1, 2021, so the last day on which he can post the letter at a Polish Post office is July 15, 2021.

It should be pointed out that unjustified failure to answer the questions will result in the court ordering the witness to a fine, and then re-calling the witness to submit written answers to the questions. If the latter fails to reply, he will be sentenced to another fine, and the court may order him to be brought to the hearing.

A fine may also be applied for an unjustified refusal to testify or take an oath. Regardless of it, it is possible to order the arrest of a witness for a period not exceeding one week. The court shall set aside the arrest if the witness testifies or promises, or if the case was completed in the instance in which the evidence from that witness's testimony was admitted.

When are witnesses in civil proceedings not allowed to give evidence in writing?

Pursuant to the provisions amending the Code of Civil Procedure, i.e. Art. 11 of the Act of 4 July 2019 amending the Act - Code of Civil Procedure and certain other acts, the case of a witness cannot be heard in writing in the following cases:

in which, before the date of entry into force of this Act, an order for payment was issued in the writ proceedings,

Example 3.

On August 10, 2019, an order for payment was issued in a case for payment. There was an objection to the payment order, 5 witnesses were reported. However, all of them will have to be heard directly orally before the court of first instance.

initiated before the date of entry into force of this Act, and considered in the writ of payment proceedings,
initiated before the date of entry into force of this Act and considered in electronic writ proceedings

- until the end of the proceedings in a given instance, they are subject to examination in accordance with the current wording.

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This is a prohibition arising directly from the act. If, in the course of the trial, the court, contrary to the provision, hears a witness in writing or issues an order in this regard, it is justified to submit objections to the record of the hearing, in which the violation of Art. 11 of the Act amending the Code of Civil Procedure.

Moreover, the court itself may decide which witnesses to hear in writing. Certainly, relatives should not be interviewed in this way in matters related to family law and insurance.

Also witnesses who are of key importance in the case should be questioned directly - in such interrogations additional questions arise, and a written questioning poses a risk of an in-depth explanation of the case, also due to the fact that the right questions were not asked and the witness did not he was asked about some important circumstances.

Nevertheless, this amendment should be assessed positively, especially during a pandemic. It is even more worth emphasizing that it was introduced in November 2019. Its aim is to speed up the proceedings, which is desirable in the civil judiciary. However, whether it is actually effective will only be possible in the future, after the courts have collected relevant data and statistics.