The Polish Sejm has adopted extraordinary administrative provisions for the judiciary
The Ministry of Justice prepared many comprehensive solutions in response to the ongoing pandemic of coronavirus and the operating restriction of the judiciary. The solutions are included in the special law entitled “tarcza antykryzysowa” (in English: “anti-crisis shield”) adopted by the Polish Sejm on 28 March 2020. They include, among others, a possibility to transfer the most important tasks between courts, facilitated delegation of judges to the places where staff is needed, suspending and postponing court proceedings in many cases.
The objective of the activities of the Ministry is to ensure the continuity of functioning of common, military and administrative courts in special conditions connected with the fight against the epidemic. These should include, inter alia, guaranteeing the review of urgent cases, which absolutely need to be examined. It also has to be possible in cases when a court in a given town is closed for a certain period of time, for example when judges, assessors or court employees must be subject to quarantine. The most significant rights that need to be protected is health and life of the citizens.
Support for courts
The Ministry of Justice has proposed solutions integrating the possibility of entrusting urgent tasks to another court. The mode of delegating judges to another court has been simplified. The procedures of delegating a judge and appointing another court will be performed by judicial authorities, in accordance with the principle of independence of judges and for the period of time defined in advance. Such action will enable the support of courts, which operate with insufficient number of judges and examine both their own and external cases. The amendment specifies types of cases to be considered as urgent. These include, among others, cases concerning minors, provisional arrest or EAW (the European Arrest Warrant).
During the period of epidemic it will not be possible to perform evictions from apartments. The act provides, among others, a suspension of a not yet started and postponing of a commenced:
• limitation period of a prosecution of an act and limitation period of an enforcement of a sentence in cases of: offences, fiscal offences and minor offences;
• proceeding and court’s deadlines in legal proceedings, including administrative court proceedings, enforcement proceedings, criminal proceedings, penal crime proceedings, cases of delinquency, administrative, execution in administration, in proceedings and controls carried out on the grounds of the Tax Order Act and duties and taxes controls, as well as deadlines in proceedings carried out on the grounds of an act.
Enrolment for judicial training
A legal basis has been created to determine a new date for organising an exam aiming at an enrolment for the judicial training, in case it will not be possible to maintain it in the initially scheduled date of 2 April 2020. It has been specified that if organising the exam will not be possible until 15 July 2020, it will be tantamount to a cancellation of enrolment for the training and to the fact that the training will not be organized in 2020 at all. In such a case, enrolment fees will be returned to the candidates.
Additional sabbatical leaves
Another provision has been introduced to grant additional leave entitlements to employees who study for judicial and legal counsel trainings. The dates were initially set for 24–27 March 2020, but were cancelled due to the state of epidemic threat.
Aid for commercial companies, cooperatives and housing communities
Subsequent changes aim to enable the functioning of cooperative bodies, including housing cooperatives, housing communities and commercial companies, whose members may be subject to quarantine. They introduce the possibility to vote in writing or through means of distance communication.
Facilitation for lawyer associations
In order to guarantee their functioning during the state of epidemic and to care for health and life of the representatives of legal professions, a distance voting for local authorities has been envisaged.
The act is also intended to avoid the emergence and spread of the epidemic in prisons, which due to their specificity of functioning are extremely exposed to any epidemic threats. Notwithstanding the legislative works, the Ministry of Justice and the Prison Service will take necessary protective measures to avoid the spread of coronavirus. As of 19 March 2020 a total restriction of visits is being introduced in all custodial facilities. An order of the Prison Service released in agreement with the State Sanitary Inspectorate imposed the above mentioned restriction on all detention centres, penal institutions and their external departments. The external work of prisoners has also been significantly limited, excluding, among others, persons producing protection masks and protection suits as well as these working in food industry.
The act adopted by the Polish Sejm provides a possibility of granting a prison leave by a penitentiary court. The provision is to be applied only in exceptional cases, where it is necessary in order to limit the risk of epidemic in penal institutions. A possibility to request a prison leave would be held only by the director of the penal institution, accepted by the Central Board of Prison Service. Such a request could not concern:
• a person convicted for intentional crimes punishable with a heavier penalty than 3 years of imprisonment;
• a person convicted for unintentional crimes punishable with more than 3 years of imprisonment;
• a person convicted for crimes committed as a repeat offence, organized criminality or crimes constituting a source of income.
An objection to the prison leave may be filed by the prosecutor. Moreover, a verdict of the penitentiary court, in relation to the request of the director of the penal institution, would have to be preceded by an agreement, that an assumption is justified, that the convicted addressed in the request, will during the prison leave respect the legal system and will comply with all recommendations and obligations imposed by sanitary authorities in connection with counteracting the epidemic.
The period of an exceptional prison leave will be limited until the termination of the state of epidemic threat or the state of epidemic announced due to coronavirus.
This solution is therefore of an exceptional character and could be introduced with regard to a very limited number of prisoners. The penitentiary court hearings could be held on distance with the use of devices used in penal institutions for video transmission.
The new act will also allow to donate money earned by the prisoners and gathered by the Professional Activation Fund for the Convicted (in Polish: Fundusz Aktywizacji Zawodowej Skazanych) and the Development of Prison Industrial Workplaces (in Polish: Rozwój Przywięziennych Zakładów Pracy) for the purchase of protection equipment and products being necessary in prison to fight against the state of epidemic threat.
Increase of penalties in electronic surveillance
The draft provides changes in the executive penal code, which extend the existing application of the System of Electronic Supervision (SES). It is proposed to increase the maximum imposed penalties or the sums of custodial sentences, determining the possibility of serving a custodial sentence in the System of Electronic Supervision, up to 18 months. The SES is currently being used for penalties of up to 1 year imprisonment.
The custodial sentences in SES is currently being served by almost 5 thousand people while additional 9 thousand is eligible for it. After the introduced changes, the number of people eligible for SES, but not yet included in this way of serving the penalty, could theoretically increase to 12 thousand people. In any case the decision is at the penitentiary court’s discretion. A prisoner should submit a relevant application and the court gives its potential consent for serving the penalty in SES, if number of conditions included in provisions has been met.
Reinforcement of provisions of the Criminal Code
The provisions concerning those, who are being aware of coronavirus infection, have been strengthened. So far this kind of deed is liable to a fine, partial restriction of freedom or prison sentence of up to one year. Now it will be liable to prison sentence from 3 months to 5 years, and in case of exposing many people, of even 10 years.
Changes to criminal procedure
In the state of epidemic threat or in the state of epidemic, levied property being important for public health or safety could be transferred free of charge to healthcare institutions, State Fire Brigade, Police, Border Guards and state and local government institutions.
Communication and Promotion Bureau
Ministry of Justice