The government is creating space for state authorities to evade accountability and is tightening enforcement procedures against independent media publishers.
On 27 September 2022, the Council of Ministers referred a draft amendment to the Code of Civil Procedure and certain other acts to the Sejm, and the Minister of Justice was appointed to present the government’s position during parliamentary work.
The explanatory memorandum to the bill states that the amendment is aimed at simplifying existing procedures, which, according to the proponent, is expected to reduce the burden on courts and the length of proceedings. The amendments also aim to make it easier for parties and attorneys to contact the court, to facilitate consumers’ assertion of their rights in court and to fill gaps in existing law.
During our review of the amendment, we came across a regulation that may certainly represent a breakthrough in the assertion of rights by creditors in favour of whom publication of a statement has been validly ordered pursuant to Article 24 of the Civil Code. However, one has to wonder whether, considering the existing strict enforcement regime against publishers, this is either another attempt to exert influence on the independent media, or the use of coercive measures by the state to top up the budget with publishers’ money.
An apology in the Court and Commercial Gazette (MSiG) at the debtor’s expense
The newly proposed regulations include an amendment to the enforcement procedure, introducing an obligatory method of satisfying a creditor to whose benefit an apology has been validly ordered, which may be interesting for practitioners handling cases of infringement of personal interests
The novelty lies in the fact that the apology is to be published, at the debtor’s expense, in the Court and Commercial Gazette (Monitor Sądowy i Gospodarczy, MSiG), with the wording corresponding to that specified in the judgment, with the aim of concluding the enforcement proceedings.
We believe that the said new procedure is likely to be triggered automatically. Once the deadline set for the debtor has expired, the court will, ex officio, impose a fine on the debtor and order the publication in the MSiG, at the debtor’s expense, of an announcement corresponding to the required statement, in the form of either an apology or a rectification, with the wording as established in the relevant final and non-appealable judgment.
In addition to concluding enforcement proceedings, the intention of the bill is also to allow the statement to be reproduced in the mass media, with reference to an official publication such as the MSiG – the national official journal.
Reasons for the amendment
It is worth noting that the amendment to the Code was proposed 16 years after the Supreme Court, in its resolution of 28 June 2006, III CZP 23/06, reversed the line of jurisprudence, suggesting that the publication of a statement may be a replaceable act – given that it is published not for the creditor’s moral satisfaction but in order to reach the widest possible audience.
This concept has not taken hold, as it is inevitable that the creditor, according to the mirror principle (i.e. publishing statements in the same place where the infringement of personal interests occurred), will be most interested in having an apology published in the same place, as only in this way can the statement actually reach the same group of recipients as the original source of the infringement.
In view of the above, we assume that, over 16 years, people dealing with personal interests cases have managed to learn how to break the debtor’s resistance by causing the debtor to make an appropriate statement and how to effectively defend the debtor against defectively formulated motions to initiate enforcement proceedings or erroneous court orders.
From a practical point of view, there is no major problem, but for some reason the above-mentioned resolution of the Supreme Court and Professor K. Knoppek’s Glossa were revisited to introduce into Polish civil procedural law a measure analogous to that existing in criminal law, i.e. making a sentence public (Article 39(8) of the Criminal Code).
Such an amendment is puzzling, to say the least, as the measure of making a sentence public has been successfully employed in judicial practice for years without unnecessary interference from the legislator.
What are the major concerns of practitioners?
Will this allow for more effective enforcement? Yes, enforcement proceedings can definitely be sped up, but this brings additional concerns about the concept of justice and fair play.
First, is the speed of enforcement proceedings correlated with the waiting time for acceptance of or refusal to accept cassation appeals for examination where the execution of a second instance court judgment was not suspended, and when enforcement ends successfully for the creditor and an apology is published in the MSiG, and the Supreme Court decides in favour of the debtor on the cassation appeal?
Contrary to appearances, the above assumption is of colossal practical importance in the case of lawsuits bearing the hallmarks of SLAPP (Strategic Lawsuit Against Public Participation). There is an assumption that, under the notion of speed of enforcement proceedings, a muzzle is imposed on the independent media. Such “conveniences” being introduced without giving them any consideration create the risk of the state media and the MSiG becoming a well-functioning propaganda machine for the dissemination of fake news.
This is also important when it comes to filed lawsuits and, in fact, formulated claims for multi-page apologies with non-standard parameters and duration, the voluntary publication of which will result in the creditor’s rights being exceeded.
Second, who will pay for all of this?
The answer seems fairly obvious: the publishers will pay.
Under the Civil Court Costs Act, the State Treasury is not obliged to pay court fees, which potentially seems logical, as it does in terms of entities applying the exemption from paying the fees. But there is more: the compulsory publication of an apology or a rectification at the debtor’s expense in the MSiG (which, let us recall, is the national official gazette).
Conclusions as to what the proposed amendment to the enforcement provisions may be about are even more obvious. Excessive fines imposed on publishers will constitute alternative sources of income for the State Treasury.
Third, it is difficult to see any analogy between the proposed regulation and the proposed institution of making a sentence public – after all, the announcement to be published in the MSiG will not be a judgment, but in fact, in accordance with the proposed amendment, the content of the statement pasted into the field intended for announcements in the MSiG. Thus, the publication of an apology in such a form will be strictly limited to a statement, without information on the judgment itself or its content. The publication will simply become a replaceable act. The only difference is that the entity publishing and distributing the MSiG, i.e. the Minister of Justice, will be authorised to place it, instead of the creditor.
Fourth, leaving aside the above doubts, what about the existing judicial practice and the well-established views of legal commentators on the mirror principle? This principle is a compromise developed in case law between infringers and those whose personal interests are infringed. Interfering with the principle with a half-baked amendment may result in damage that cannot be reversed in the future.
Fifth, it is completely incomprehensible to see another fine of up to PLN 15,000 imposed on the debtor, and it is difficult to see any ratio legis in the emergence of another sanction of the same nature. Pursuant to the current Article 1050 § 3 of the Code of Civil Procedure, the court, at the creditor’s request, after ineffective expiry of the time limit set for the debtor to perform an act, will fine the debtor, setting a new time limit to perform the act and warning the same that a more severe fine will be imposed if they fail to comply.
Last but not least, what if a state authority, in particular the Minister of Justice, is obliged to publish an apology or a rectification? Bearing in mind that the publication of the MSiG is the responsibility of the Minister of Justice, according to Article 2 of the MSiG Publication Act, it is difficult to resist the impression that this creates very significant doubts as to the enforceability of judgments against the above entities. Indeed, if the Minister of Justice does not consent to the publication of an apology, the enforcement procedure will be exhausted and the judgment will become unenforceable against the state authorities.
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