Judges in their own case?
It has been a year since I wrote about the practical consequences of the constitutional crisis in Poland. Then I discussed the Constitutional Tribunal judgment of 8 May 2024 (case no. SK 59/21), which held that the inability to challenge an order denying relief from paying court costs (fee on appeal) issued for the first time by the appellate court is unconstitutional. To this day, that judgment has yet to be published, and it appears that the holding is not being respected—likewise for the judgment of 4 June 2024 (case no. SK 140/20) on the calculation of pensions for some 200,000 people who elected to take early retirement.
This has inspired me to reflect on another rule that strikes me as constitutionally dubious, namely how applications for a stay of enforcement of the judgment of the appellate court are considered and the inability to challenge an order denying an application for a stay.
Preventing “irreparable harm”
Under Art. 388 §1 of the Civil Procedure Code, “If as a result of enforcement of a ruling a party may suffer irreparable harm, the court of second instance may, at the request of the party, stay enforcement of its ruling through completion of the cassation proceeding. If the appeal is denied, the court of second instance may also stay enforcement of the ruling of the court of first instance.”
This wording derives from the 2019 amendment of the Civil Procedure Code. As a result of the change, an application to stay enforcement of the ruling may be filed as soon as the court of second instance issues its judgment, and not (as was the case before the amendment) only at the time the party files a cassation appeal (i.e. seeking extraordinary review by the Supreme Court of Poland). This change protects the party from execution when there is a risk that it will suffer injury during the period between issuance of the ruling (which is when it becomes legally final) and filing of a cassation appeal (the deadline for filing which is two months after service of the judgment along with the justification—in practice, a period that may last up to several months).
The party files an application…
Thus, when the appellate court issues its ruling, if a party is not satisfied with the ruling and plans to file a cassation appeal, the party should draft the relevant application (exempt from fees) and submit the application to the court that issued the ruling. The application should make a showing of the possibility of “irreparable harm,” which (according to commentator Prof. Tadeusz Ereciński) should be understood to mean any loss of a property or non-property nature which cannot be made up later by reimbursement or enforcement or by restoring the status quo ante, because that is no longer possible.
It is also stated in the legal literature that even the threat of irreparable harm itself constitutes irreparable harm. In other words, this concerns a fear that even if the cassation appeal is ultimately upheld, restitution will be unrealistic or exceptionally difficult. Meanwhile, in the view of Prof. Tadeusz Wiśniewski, Civil Procedure Code Art. 388 §1 does not require the party to quantify the harm, because it does not have to do with an existing injury but a future and therefore contingent injury. Thus it is sufficient for the party to show the probability of occurrence of harm if the ruling were enforced.
And as pointed out by other commentators (e.g. Dr Aneta Łazarska), in the application for a stay filed prior to filing of a cassation appeal, the party should demonstrate at least the existence of circumstances meeting the grounds for a cassation appeal and a connection between the grounds and the consequences that would follow from enforcement of the ruling before the cassation appeal is heard.
…and the court does whatever it wants
After considering the application for a stay, the court may grant the application (including on condition of providing adequate security) or deny the application. This order is issued in closed session, ex parte, without notifying the other party of filing of the application. This order is not subject to interlocutory appeal and does not require any justification, and thus is not reviewable.
This is a highly controversial practice, particularly in light of the current wording of Civil Procedure Code Art. 388 and the earlier recognition that an application filed after announcement of the judgment should at least show the existence of circumstances justifying a cassation appeal. Additionally, under the rule that the judicial panel is unchanged (e.g. in Art. 47b §1 of the Law on the System of Common Courts), the application to stay enforcement of the ruling will be issued by the same judge who issued the ruling.
This arrangement may violate the principle known from Roman times nemo iudex in causa sua (one cannot be a judge in his own case), because the judge is ruling on an application indirectly seeking to show that in the future, that ruling may be set aside by the Supreme Court and the relevant grounds for a cassation appeal in this regard exist, and consequently that the judge’s ruling is erroneous.
Even greater doubts are raised by the lack of a duty to justify this decision and the inability to challenge the decision by interlocutory appeal, which may violate the principle of procedural due process and undermine the parties’ trust in the justice system as a whole.
Solution—the possibility of appealing the decision
For these reasons, it appears that it would be warranted to make such an order appealable, or to carve out a relevant exception from Art. 47b §1 of the Law on the System of Common Courts and require that a ruling on the stay be issued by a judge who is not already involved in the case. This solution would also be systemically consistent, as under Civil Procedure Code Art. 3941a §1(4) it is possible to challenge by interlocutory appeal an order on a stay of enforcement of a legally final ruling in the event of filing of a petition to reopen the matter. The rule is similar in the administrative courts, where Art. 194 §1(2) of the Law on Procedure before the Administrative Courts permits an interlocutory appeal to the Supreme Administrative Court against an order by the province administrative court on stay of enforcement of a decision.
It should be stressed that from the party’s perspective, the irreversible effects of enforcement of the appellate ruling may de facto render the cassation proceeding illusory. For example, the injury caused by enforcement of an order to publish an apology, or to pay damages to thousands of persons due to enforcement of a regulatory decision, will be irreversible. Thus it is warranted to recognise that a decision on a stay of enforcement can have a direct and far-reaching impact on the financial and personal rights of the parties. All of this is a consequence of a decision made without a justification, and unreviewable, issued by the same judicial panel that issued the earlier ruling.
This issue is already the subject of a constitutional complaint filed with the Constitutional Tribunal, assigned case no. SK 25/23. However, because rulings by the Constitutional Tribunal do not currently appear to exert any practical consequences, the question remains whether this problem can be resolved in some other way, e.g. through an appropriate amendment of the regulations. Regardless, the mechanism described above, in the current wording, may conflict with fundamental principles of procedural fairness. Introducing the possibility of challenging such an order, or at least having a different judge consider the application for a stay of enforcement, appears not only reasonable but indeed necessary to ensure real protection of the parties’ rights. Without such changes, the current rule strips citizens of effective procedural protections.
Tomasz Kisiel, Wardyński & Partners
This article originally appeared in the “Prawnik” supplement to Dziennik Gazeta Prawna.
