• Marek Gola

    Senior Associate, Duraj Reck & Partners Law Firm

14 March 2024

Electronic service in criminal proceedings – amendment (14 March 2024)

March 14, 2024 an amendment to the Code of Criminal Procedure with respect to service came into force by placing the content of the letter on an electronic information portal. Regulations on e-delivery introduced by the amendment of 7 July 2023 (Journal of Laws, item 1860) are the aftermath of the continuation of changes in procedural regulations related to the computerization of the judiciary.

The new regulations on electronic delivery apply only to professional entities – i.e. prosecutors, attorneys-at-law, attorneys-at-law and counsellors of the General Counsel’s Office of the Republic of Poland. This means that, for example, an aggrieved party or a defendant appearing in a case without a professional attorney will not be forced to receive pleadings through an information portal. In this case, correspondence from the courts will be delivered in the traditional way, in particular by post.

For attorneys and prosecutors, the change in the method of service will be very noticeable. The laws on the legal professions have introduced the obligation for an advocate (Art. 37d of the Law on Advocates) and a legal advisor (Art. 2211 of the Law on Attorneys-at-Law).

Electronic service will be made only by the court. The only and at the same time important condition for placing documents on the portal will be that they are at the disposal of the court in electronic form, but this does not apply to documents that are to be served together with copies of the parties’ pleadings or other documents not originating from the court (Art. 133a §2 of the Code of Criminal Procedure).

However, the added provision provides for the possibility of withdrawing from electronic service if such service is not possible due to the specific nature of the letter. For example, the provision states that such a situation will arise when there is a need to issue a certified copy of the ruling to a party (Art. 133a §4 of the Code of Criminal Procedure).

In order to prevent long-term non-receipt of documents, the amendment also introduces the fiction of electronic service. The letter will be deemed to have been served at the time indicated in the document confirming delivery, i.e. information about the date on which the document was read by the addressee. If, however, the recipient does not read the letter within 14 days from the date of publication of the letter on the information portal, the letter will be deemed to have been served (Art. 133a §3 of the Code of Criminal Procedure).

Detailed issues regarding the mode and manner of electronic service will be included in the regulation of the Minister of Justice issued in consultation with the minister responsible for information technology.

The introduced regulations are dictated by the need to improve contacts between courts and participants in proceedings, and what is more, in criminal cases, the list of persons who may be served with documents in this mode has been extended.

However, it is impossible not to notice that the legislator delayed the introduction of service in this mode in criminal proceedings, compared to similar solutions in civil proceedings, which had no rational justification and, as it seems, was not in opposition to the so-called “service of the law”. defence secrecy.

However, the changes should be assessed positively, as they are a step towards streamlining and accelerating communication between the court and attorneys, and thus to the benefit of the clients themselves. However, there are right voices in the legal and legal counsel community that the introduced changes improve the work of only one party. It is not clear why the legislator expressly gives preference to procedural authorities, because, as in civil proceedings, the provisions on service are applied only unilaterally – between the court and the parties to the proceedings, and therefore apply only to correspondence sent by procedural authorities.

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