Interrogation of a foreigner as a witness before the Polish civil court
A summons from a Polish civil court to testify at a hearing identifies the parties to the dispute, what is at stake in the dispute, and the court before which the case is pending. At the end of the summons there is a notice of the penalties for failing to comply with the summons. How to react to such summons and what it means in practice for a person who received it?
A witness is a person unrelated to the parties. It means that the dispute does not concern the witness’s rights or obligations. In this respect, if a company is a party to a dispute and the court hears the testimony of the company’s management board members, they will testify not as “witnesses” but as a “party,” as the board members in some sense “embody” the company. Witnesses are identified by the parties: by the claimant in the statement of claim, and by the defendant in the statement of defence.
As a rule, testifying is mandatory. A person called as a witness in a case between two companies – the most common situation in commercial disputes – has no right to refuse to testify. A witness, unlike a party, has an obligation to testify. However, there is an exception when one of the parties is an individual and the person called to testify as a witness is the spouse, parent or child of the party. Such a person has a right to refuse to testify, and before the hearing the court must instruct the witness of this right. In addition, during the course of the hearing, any witness – even one unrelated to either of the parties – can refuse to answer specific questions if the answer could expose the witness to criminal liability, or a serious and immediate financial loss, or if the testimony would violate professional confidentiality.
An anticipated failure to appear, for example due to illness or a previously planned foreign holiday, should be justified. However, a failure to appear due to illness must be justified by presenting a doctor’s certificate. And not just from any doctor. The certificate must be issued by a special court-appointed doctor. This is intended to protect the judicial system against the abuse of certificates issued by friendly doctors, which used to be a common problem in Polish court hearings. If a witness fails to appear, with no justification, the court can impose a fine on the witness. The current amount is PLN 3,000 (about EUR 650). Then the court will once again summon the witness to appear. If the witness again fails to appear, the court can again impose a fine on the witness, but it can also order the police to bring in the witness by force, from their home or workplace.
When it comes to the form of the testimony, in principle the witness testifies orally. However, the court may order the witness to testify in writing. In that case, the court will issue a written summons to the witness specifying the factual issues on which the witness will testify, presenting the questions to be answered by the witness (these are formulated by the lawyers for the parties), and setting the deadline by which the witness must send answers to the court by post. The court will also instruct the witness on the penalty for perjury.
Before the COVID-19 pandemic the rule was that witnesses testified orally during a hearing in the courtroom. However, at the start of the pandemic testifying during remote hearings became the rule. A party calling a witness provides the witness’s mobile phone number and email address to the court. The witness receives an email from the court with a link to the online connection. On the day of the hearing, at the request of the court made by telephone, the connection is switched on or off via internet. The court can decide to hold a hearing in person, rather than remotely, when conducting such a hearing is necessary for the case, and conducting the hearing in the courthouse will not pose an excessive risk to the health of the participants.
When it comes to the traditional hearings, after arriving at the courthouse, the witness must firstly pass through security, much as when entering the departure gate at the airport. After finding the room indicated in the summons the witness can check the docket which is an electronic or paper list posted next to the entrance to the courtroom. It includes the names of the witness and interpreters along with the time for which they were summoned. If for some reason the hearing has been moved to a different courtroom, this will be noted on the docket.
As for the layout of the courtroom, it is always arranged as follows: the judge sits at a bench under the Polish state emblem; immediately in front of the judge’s bench is the lectern, at which witnesses (or parties) testify, standing; the claimant and the claimant’s lawyers sit to the judge’s right (i.e. to the left from the perspective of the witness, who testifies standing in front of the judge); the defendant and the defendant’s lawyers sit to the judge’s left. A witness who is present to testify, but is not testifying at the moment, should sit in the seats for the public, usually found at the back of the room, directly facing the judge’s bench.
When it comest to the audience, it may be present if the hearing is held in the courthouse (not remotely). It might include for example journalists or former employees of a corporate party. In the case of remote hearings, in practice, the public have no access to the hearing, because typically the link to the remote session is received from the court only by the participants in the particular session, i.e. the parties, counsels, witnesses, and court-appointed experts.
The order in which witnesses testify is based on the hearing plan agreed by the judge and the parties. If there is no plan, the order is determined by the judge. Witnesses who have not yet testified cannot be present when other witnesses are testifying. Instead, they have to wait their turn in the corridor outside the courtroom. The clerk will invite them into the courtroom at the appropriate time.
Foreigners who don’t speak Polish fluently testify with the assistance of a sworn interpreter. The party calling the witness should notify the court of this in advance, because the court will arrange for the attendance of the sworn interpreter.
The court will start the interrogation by asking the witness questions about himself and his relation to the parties. The court will ask the witness for his age, profession, and education, and whether he is affiliated with either of the parties to the dispute. In responding to the judge’s questions, the witness should address the court as “Your Honour” – as an institution – never as “Sir” or “Ma’am.” What is more, the witness must present the court with his or her passport, or Polish identity card.
The judge will warn the witness of the criminal liability for perjury and ask the parties whether to take an oath from the witness that they will testify truthfully. With the parties’ consent, the court will not require the witness to swear an oath. However, if one or more of the parties suspect that the witness may intentionally stray the truth when testifying (or in colloquial terms, “lie”), they will ask the judge to have the witness swear an oath to tell the truth. Then everyone (except the judge) will rise, and the witness will swear that he or she “will tell the honest truth, concealing nothing known to them.” If the witness testifies in writing, he or she will make an oath by signing the words of the oath.
When it comes to the criminal liability for perjury, under the Polish Criminal Code, anyone providing testimony as evidence in a judicial proceeding who testifies falsely or conceals the truth is subject to a penalty of imprisonment of 6 months to 8 years. However, a condition for liability is that the authority admitting the testimony (here, the judge during the hearing) warned the witness of criminal liability for perjury or took an oath from the witness.
As the order of asking questions, at the start of the testimony, the judge will ask the witness what he or she knows about the case and from what source. Then the judge will ask more detailed questions. When the judge has finished, the parties will have an opportunity to ask questions (typically through their lawyers). Firstly the witness will answer questions from the party that called the witness. Then the lawyers from the other side will ask questions. When testifying in the courtroom or remotely (online), the witness should answer “off the top of his head”, i.e. they cannot consult documents or notes. The witness cannot leave the court until allowed to do so by the judge.
It should be noted that the image and sound are recorded during the hearing. The camera is located above the judges’ heads. In addition, when the witness testifies, the judge will usually provide a running dictation to the court clerk of what the clerk should enter in the record documenting the witness’s testimony. A witness who is fluent in Polish will hear what the judge dictates and can correct the dictation on the spot if they notice errors. A foreigner who is not fluent in Polish will not be in a position to do this. However, at the end of the testimony the witness can ask the court to have the sworn interpreter read back the witness’s testimony, and if the witness notices errors he may request the court to supplement or correct the record. Nevertheless, witnesses do not have access to the case file. Thus, they do not have a chance to review the record of their testimony and will not be furnished with a copy of the transcript. Witnesses whose testimony is mutually irreconcilable can be confronted with each other, but this happens very rarely.
The witness has a right to request the court for reimbursement of such expenses (if they are reasonable). The judge may even award the witness an advance against costs of travel and lodging. The witness is also entitled to reimbursement of his or her daily earnings or income lost as a result of appearing in answer to the court’s summons. These amounts cannot exceed a certain maximum established by law. To obtain a refund of travel costs, expenses, and lost earnings or income, the witness must make an application to the court. The application can be made orally for inclusion in the record of the hearing (i.e. immediately after the witness testifies) or in writing, within 3 days after testifying. The refund is made by bank transfer to the witness’s account.
Konrad Grotowski, attorney-at-law, Restructuring & Bankruptcy Practice, Wardyński & Partners
Stanisław Drozd, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners
The content of this article is a part of Episode 13 of the programme News from Poland – Business & Law. You can watch the episode here >>>
