Justyna Zandberg-Malec

Evidentiary privileges for banks?

On 1 March 2011 the Polish Constitutional Tribunal examined the constitutionality of Art. 95(1) of the Banking Law, which gives bank statements the evidentiary weight of official documents.

The matter came to the court under a certified question from a district court hearing a dispute between a bank and a customer who had a line of credit tied to a debit account. The bank went to court seeking repayment of the amount due under the debit account, plus interest.

The customer moved to deny the claim, denying the existence of the debt and arguing that the bank had failed to prove the existence of the debt. The bank argued that it had filed a bank statement with the petition, drawn from its accounting records, which has the weight of an official document, meaning under Civil Procedure Code Art. 244 that it constitutes evidence of what was officially certified therein. In that case, under Art. 252, a party who disputes the authenticity of the document or the truth of the statements certified therein must prove that the document is inauthentic or inaccurate. Thus in this case the defendant would have to introduce evidence disproving the existence or amount of the debt. This effectively reversed the burden of proof in the case, because normally the plaintiff must prove that its claim is justified.

The district court had doubts about the constitutionality of this rule from Art. 95(1) of the Banking Law, specifically whether it is consistent with Art. 2 of the Polish Constitution (under which Poland is “a democratic state ruled by law and implementing the principles of social justice”), Art. 20 (recognising a “social market economy” as the basic economic system in Poland), Art. 32(1) (equality before the law) and Art. 76 (protection of consumers against dishonest market practices). As the court pointed out, in addition to reversing a fundamental evidentiary principle, the rule under the Banking Law also effectively privileges a business in a civil proceeding, at the cost of the consumer, by giving special weight to a document generated by the bank internally.

The attorneys for the Parliament and for the Prosecutor General moved for a finding that the rule is constitutional, arguing that it is justified to treat banks differently in this respect, and also by authorising them to issue bank writs of enforcement, because banks are deemed to be institutions of public trust.

Banks are not the only non-state institutions regarded as institutions of public trust. Others holding similar rank and privileges include bailiffs and notaries—and, indeed, the Polish Post, whose certificates of service of process have the evidentiary weight of official documents. An official document enjoys a presumption of correctness, but the presumption may be rebutted using any available form of evidence, and thus the other party is not denied a defence.

Art. 95(1) of the Banking Law is of great practical significance for the Polish legal, banking and economic systems. If it were held to be unconstitutional, extensive new legislation would be required. It would be more difficult for banks to enforce claims, which would translate into reduced access to credit and increased costs for borrowers. The land and mortgage register procedure would also have to change, because par. 3 of the same article provides that a statement drawn from the bank’s accounting records may serve as the basis for entry of a property into the land and mortgage register. In a certain sense it would also work against the procedural posture of consumers, for example in a case where an individual guarantor presents a bank statement as an official document to prove that the debt was paid.

The Constitutional Tribunal closed the proceeding but postponed announcement of its ruling until 15 March 2011.