Justyna Zandberg-Malec

Too-short deadline for appealing against justification issued at a hearing?

The current regulations practically prevent filing an interlocutory appeal against the justification for an order issued by a Polish court during a criminal trial. The Ombudsman has requested the Minister of Justice to look into this issue.

In order to file an interlocutory appeal against the justification for an order issued at a hearing (which, under the Polish Criminal Procedure Code, is not served on the parties), a party has 7 days, counted from the date of announcement of the order with the justification. The Ombudsman has questioned whether this rule violates the right to notice on the part of the accused, and thus the right to a fair trial, as well as the right to appeal.

In the complaint on this issue filed with the Ombudsman’s office, there was a criminal hearing in which, in the defendant’s presence, the court issued an order concerning discontinuance of the proceeding because the acts alleged did not constitute a criminal offence. The court provided a brief oral justification for the ruling. Three days after issuance of the ruling, the defendant moved for issuance of the order together with a written justification, which he received about three weeks later. The defendant then filed an interlocutory appeal against the order, arguing that the oral justification was diametrically different from the justification later served in writing.

The district court issued an order under Criminal Procedure Code Art. 429 §1 dismissing the interlocutory appeal as having been filed too late. According to the court, the deadline is 7 days from the announcement of the order with the justification, or if service of the order is required by statute, then 7 days from service. In this case, the order was issued at a hearing, which means, under Criminal Procedure Code Art. 100, that it was not served on the parties, and thus the period for filing an appeal ran from the announcement in court. In practice this means that the accused only had an opportunity to appeal against the oral justification of the order issued at the hearing. However, according to legal theory, the justification is an integral part of the order. Thus the question arose whether this rule is consistent with Art. 78 and Art. 176(1) of the Polish Constitution or violates the right of the accused to receive notice and thus the right to a fair trial (Constitution Art. 45(1)) and to the right to appeal.

“The question raised by the Ombudsman concerns one of the key issues in criminal procedure,” said Janusz Tomczak from the Criminal Practice team at Wardyński & Partners. “A criminal trial, which involves the quest for truth through a confrontation of opposing positions in the courtroom, is a dynamic process. One of the overarching principles of a trial is that it should be speedy and direct, meaning that the court should personally verify the evidence presented by the prosecutor’s office as soon as possible after the occurrence of the crime.”

Orders issued at trial typically concern incidental issues, but even an interlocutory appeal from such decisions should not prolong the proceeding excessively (as the case file is forwarded to the higher court, and so on).

“In the issue raised by the Ombudsman, I perceive primarily a technical problem,” Tomczak explained. “An order announced together with the justification at the hearing does not constitute a separate document, but is included in the trial record. If an appeal lies from the order, the party must review the record immediately if it wants to dispute the reasoning presented in the justification.

“Perhaps service of a copy of the order on the party immediately after issuance should be considered in order to streamline the appeal procedure. On the other hand, the provision in question has functioned for many years without generating significant difficulties for practitioners.”