ASSOCIATION INTERNATIONALE DES HAUTES JURIDICTIONS ADMINISTRATIVES 

 

 

 

INTERNATIONAL ASSOCIATION OF SUPREME ADMINISTRATIVE JURISDICTIONS 

 

Association internationale des hautes juridictions administratives (A.I.H.J.A.) / International 

Association of Supreme Administrative Jurisdictions (I.A.S.A.J.) 

QUESTIONNAIRE

RAPPORTEURS

Answers to Questionnaire:

Poland

PUBLIC LAW AND DIGITAL TECHNOLOGIES

PRELIMINARY REMARKS

Currently (state of law: March 2019) the electronic access to the administrative courts is limited only to some proceedings concerning access to public information and submitting letters of complaint to public authority in connection with the performance of its prescribed duties (it should be highlighted, that such a complaint is not an ordinary remedy (appeal), is not a legal measure to contest an individual administrative decision and the citizen does not have to have a legal interest to submit such a complaint). The electronic documents can be submitted to the Supreme Administrative Court via:

1) the electronic document carrier (DVD, CD, USB) 2) using electronic incoming correspondence box located on ePUAP - the

Polish electronic platform for public administration services.

The relevant legal provisions allowing electronic access to the administrative courts were introduced by the Act of 10 January 2014 amending the Act on the Informatization of Activities of Entities performing Public Tasks as well as certain other acts (Journal of Laws of 2014, item 183). This Act amended also

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the Act of 30th August 2002 Law on proceedings before administrative courts (hereinafter as LPAC).

The relevant provisions regulating electronic access to the Polish administrative courts will enter into force on 31 May 2019. In consequence there is no practical experience in discussed matter.

In many provisions of the LPAC concerning filing letters in form of electronic documents, the ePUAP system / e PUAP profile is quoted.

The ePUAP, the Polish Electronic Platform of Public Administration Services, is a nationwide IT platform set up to allow citizens to communicate with public administrative bodies in a uniform, standard way.

The EPUAP offers:

- e-services for public administration;

- the ability for citizens to handle their own administrative matters without leaving home;

- the ability for public authorities to communicate electronically with both citizens and other authorities.

Implementation of government services requires an efficient and user-friendly mechanism for identification and authentication. ePUAP provides one such mechanism in the form of the ePUAP trusted profile. Citizens can get an ePUAP trusted profile free of charge, and use it to identify and authenticate themselves on other ICT systems run by public entities, as well as on ePUAP itself. With a trusted profile, users can send legally valid electronic mail without the need for qualified signatures. The trusted profiles are based on SAML (single sign-on), which allows the same account to log on to multiple service providers.

As Appendix to Polish answers to Questionnaire you will find extract from the Act of 30th August 2002 – Law on proceedings before administrative courts (LPAC) – Provisions concerning filing letters to a court in the form of an electronic document (entry into force on 31 May 2019) and extracts from the Act of 17 February 2005 on the Informatization of Activities of Entities Performing Public Tasks, including the selection of legal definitions of the notions, to which the LPAC refers.

It should also be noted that currently legislative works (in Polish parliament) on some additional amendments to the LPAC and the Act on the Informatization of Activities of Entities Performing Public Tasks, regarding some legal solutions facilitating the implementation of the digitisation of administrative court proceedings, are underway.

THEME 1: IMPACT OF DIGITAL TECHNOLOGIES ON ADMINISTRATIVE JURISDICTIONS

SUBJECT 1. Digital environment in administrative matters

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Question n° 1. Digital Identification. Does an accessible register of civil servants and attorneys exist? If so, how is it regulated? What is the extent of its regulation?

Currently, there are electronic registers of advocates, attorneys-at-law and notaries in place. However, there is no register of civil servants and other officials of public administration bodies and local government officials, with the exception of the list (register) of election officials. Election officials are appointed by the Head of the National Electoral Office [Krajowe Biuro Wyborcze] for each municipality for a six-year term of office and their scope of duties consists of preparing and holding elections in a given municipality. The list of appointed election officials in the area of jurisdiction of the National Electoral Office delegations is published on the websites of said delegations.

The register (list) of advocates, trainee advocates or foreign lawyers available to the public is regulated in Article 58a(2) of the Act of 26 May 1982 — Law on the Advocates’ Profession. Pursuant to the aforesaid provision, the Polish Bar Council [Naczelna Rada Adwokacka] provides on its website information on advocates, trainee advocates and foreign lawyers, including the name of the advocate, trainee advocate or foreign lawyer, along with the entry number on the list. The Polish Bar Council informs on its website that the National Register of Advocates and Trainee Advocates is a nationwide, official database of advocates and trainee advocates. The Register (http://www.rejestradwokatow.pl/adwokat/ewidencja) renders it possible to easily search an advocate by their surname, a city where they run their law practice or a field of law in which they specialise. Furthermore, the register allows for confirmation whether the person in question really is an advocate or actively practices the profession. The publicly available register of attorneys-at-law, in turn, is regulated in Article 601 (2) of the Act of 6 July 1982 on Attorneys-at-law which stipulates that the National Bar Council of Attorneys-at-law [Krajowa Rada Radców Prawnych] on its website provides information on attorneys-at-law, trainee attorneys-at-law and foreign lawyers including the name of the attorney-at-law, trainee attorney-at-law or a foreign lawyers and the entry number on the list.

The register available on the website of the National Bar Council of Attorneys-at-law – (https://rejestrradcow.pl/Home/Index) — includes the list of attorneys-at-law (surname, name, entry number, district), the list of trainee attorneys-at-law (surname, name, entry number, district), as well as the list of persons applying for entry (surname, name, basis for entry, district).

Both in the case of the self-government of advocates and the one of attorneys-at-law, their chief councils (the Polish Bar Council and the National Council of Attorneys-at-law) are obliged (by law) to provide the courts, the Minister of Justice, the Prosecutor General, prosecutors of common organisational units of the prosecution service and prosecutors of the Institute of National Remembrance — Commission for the Prosecution of Crimes against the Polish

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Nation with access to the lists of, respectively, advocates and trainee advocates, and attorneys-at-law and trainee attorneys-at-law via the IT system with regard to the name and surname of the advocate, trainee advocate or a foreign lawyer, PESEL number, if the advocate, trainee advocate or a foreign lawyer has it, date of the resolution on entry on the list and the number of entry on the list, date of the resolution on removal from the list, information on suspension in professional activities, in case of advocates, attorneys-at-law and foreign lawyers — the form of professional activity and address of the professional seat (address for service), and in the case of trainee advocates — information on the right to substitute an advocate and, in case of trainee attorneys-at-law, information on the suspension of the rights of a trainee attorney-at-law and information on the right to substitute an attorney-at-law before courts, law enforcement authorities, state bodies, local government bodies and other institutions, with the exception of the Supreme Court, Supreme Administrative Court, Constitutional Tribunal and the State Tribunal. As regards notaries, under Article 41a(1) of the Act of 14 February 1991 – Law on Notaries, the National Chamber of Notaries on the basis of information provided by the councils of notary chambers, keeps a list of notaries and assistant notaries in the ICT system, which includes the name and surname, the competent notary chamber, the date and number of the decision on the appointment or dismissal of a notary, the date of entry on the list of assistant notaries or removal from there, as well as information on suspension in professional activities. The National Chamber of Notaries provides the courts keeping the land and mortgage registers with access to the above mentioned list of notaries and assistant notaries. On the website of the National Chamber of Notaries the list is available at: http://www.krn.org.pl/1197/Znajdz_notariusza

Moreover, each Notary Chamber on its website maintains a database of notaries running notary’s offices in its territory.

Question n° 2. Transparency and access to information. What are the jurisdictions’ obligations regarding the dissemination of its data and judgments (Open data)?

Administrative courts, as public authorities, are entities obliged by law to make public information available (Article 4(1)(1) of the Act of 6 September 2001 on Access to Public Information, i.e. Journal of Laws 2018.1330).

One of the ways of making this type of information available is to publish it in an official ICT publication — the Public Information Bulletin [Biuletyn Informacji Publicznej], (hereinafter referred to as BIP). The Bulletin is a unified system of websites in the ICT network and is aimed at ensuring universal access to public information. The aforesaid Act specifies a catalogue of information that the court is obliged to publish. This includes in particular information on the organisational structure, legal status, objects and competences, assets, manner of accepting and handling cases or recruitment of candidates for vacant positions. The court may also make other public information available in BIP, and is also obliged to

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indicate the manner of access to public information being in its possession and not made available in BIP (Article 8(3) and (4) of the Act on Access to Public Information).

The entities providing public information in the Public Information Bulletin are obliged to: - designate the entity providing access to the information in the content of said information; - in the content of said information — provide data establishing the identity of the person who created the information or is responsible for the content thereof; - link the information with the data identifying a person, who introduced the information into the Public Information Bulletin; - mark the time of producing information and the time of publishing it; - ensure the possibility of identification of the real time of making the information available (Article 8(6) of the Act on access to Public Information).

It should be mentioned that the obligation to include certain information in the BIP may derive from other acts. This concerns e.g. asset declarations of judges made available pursuant to the provisions of the Act of 27 July 2001 on the System of Common Courts or the Act of 21 August 1997 on Restrictions on Conduct of Business Activities by Persons Performing Public Functions. In case of administrative jurisdictions’ obligations regarding the dissemination of its judgments there is a case-law database created by the Order of the President of the Supreme Administrative Court (SAC) No. 9 of 11th July 2007 on creating the Central Database of Case-law and Information on cases heard by administrative courts (Centralna Baza Orzeczeń i Informacji o Sprawach – hereinafter as CBOiS) and on publication of the decisions in Internet.

It must be highlighted that there are 2 levels of access determined according to the user – the internal database CBOiS accessible for judges, legal staff and other court employees covers all the case-law of the SAC and regional voivodship administrative courts whereas the The anonymized versions of the court decisions are available on the website via the Central Database of the Jurisprudence of Administrative Courts (http://orzeczenia.nsa.gov.pl/ - Centralna Baza Orzeczeń Sądów Administracyjnych, hereinafter as CBOSA).

Pursuant to § 6 (2) of the said Order of the President of the SAC No. 9 of 11th July 2007 the following information shall be made available on-line: 1) name of the adjudicating court; 2) case file number; 3) case symbol; 4) date of the ruling; 5) type of hearing; 6) surnames and names of judges (assistant judges, legal secretaries) — with indication of the rapporteur and the author of the statement of reasons; 7) authority concerned; 8) operative part and statement of reasons; 9) theses of the ruling; 10) dissenting opinions; 11) subject matter index; 12) regulations cited in the ruling; 13) information on publication in the official file and on glosses; 14) information if the ruling is legally binding.

Question n° 3. Digital Democracy. Does your country use electronic

tools to allow the expression of popular will (elections, public consultations…)? If so, how is the use of such tools supervised and

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controlled by administrative judges? How is electronic consultations’ security ensured?

The local self-government – municipalities use electronic tools to allow the expression of popular will during the public consultation process via specialized communal on-line communication systems, linked with ePUAP or portals (designed by non-governmental entities) for conducting social consultations (in different forms – i.e. user panel, on-line surveys, discussion forums on the website of the Office, comments and complaints from users posted on the local government website, on-line consultations via dedicated websites, on-line brainstorming to solve specific problems). The voice of the society is collected by local municipalities also by use of channels of communication with the public through social media (i.e. facebook) A special form of public consultation — a form of expression of will by residents, which is the essence of digital democracy, is voting by electronic means within the so-called participatory budget, i.e. the process of public consultation aimed at involving residents in the decision-making process on the spending of a specific part of the budget of a local government unit (the civic budget amounts to at least 0.5% of the municipality's expenditure recorded in the last submitted report on the implementation of the budget). In 2018, regulations on the civic budget were added to the Acts on local self-governments: municipality, poviat (county) and voivodship (region) (Article 1(1)(b), Article 2(1)(b) and Article 3(1)(b), Article 15) of the Act of 11 January 2018 amending certain acts in order to increase the participation of citizens in the process of electing, functioning and controlling certain public bodies), which have been applied in respect of the 2018-2023 term of office of local government bodies. Details of the draft civic budget are laid down in a resolution of the body constituting the competent local self-government unit (municipality, poviat, voivodship) and comprise the rules of conducting voting, determining the results and making them public, taking into account that the rules of conducting voting must ensure equality and direct manner of voting. In municipalities not recognised as cities with poviat (county) status implementation of the civic budget is not mandatory. Acts on local self-governments: municipality, poviat and voivodship do not impose the obligation to ensure electronic voting within the participatory budget procedure on local government units . To illustrate, in the case of the participatory budget of the capital city of Warsaw it is possible to vote on-line on a dedicated website — through an electronic system developed for the purpose of carrying out the participatory budget procedure in the capital city of Warsaw available on a dedicated website app.twojbudzet.um.warszawa.pl or to vote in person in a paper form in a selected district office or in one of the voting points, by throwing a completed ballot paper into the ballot box. Voting by electronic means is possible by opening the link in the message sent by the City Council of the capital city of Warsaw to the e-mail address

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previously indicated by the voter in the electronic system developed for the purpose of carrying out the participatory budget procedure.

SUBJECT 2. Electronic tools and judges work

Question n°1. Teleworking. Do administrative judges have the possibility of working remotely? If so, what are the digital and computer tools available to them (specific application, online portal, VPN ...) to process files remotely?

Judges and judges' assistants may work remotely and use dedicated court applications (such as, for instance, CBOiS, CBOSA, which constitute a source of information on procedural activities and rulings issued).

As of 31 May 2019, remote access to court files and electronic documents submitted by the parties to the proceedings will be possible. All court files and documents will be available as PDF files subject to the OCR process. Access to the case files will be possible via VPN from judges' secure work laptops.

Question n°2. Professional use of digital tools. What types of digital tools are available to administrative judges to help them in their work (case law research tools, databases, judgment writing softwares, etc.)?

The electronic tools available to judges include: dedicated programmes for recording court orders and rulings issued in particular cases (the so-called OSO database - the System of Service for Adjudicated Cases), case-law and information on cases available on-line (database CBOSA), a programme for creating proceedings-related correspondence via electronic means and case file image storing software (the so-called: EZD [electronic management of documents], PASSA [Portal of court files of administrative courts]), available on-line. In addition, there are (commercial) programmes for collecting and browsing current and archive legal acts (e.g. private case-law databases: Lex - Wolters Kluwer, Legalis – C.H. Beck).

Question n°3. Professional use of digital tools. How is the security of computer tools for research and remote working ensured?

Access to the image of the case file and court systems is provided from the judges’ work laptops, where the courts’ IT services hold the administrator's rights. This access is provided through a VPN network.

Question n° 4. Professional use of computer tools. What are the possible disciplinary consequences of inappropriate use of digital work tools provided by the court?

There is no specific disciplinary sanctions for judges for inappropriate use of digital work tools provided by the court. If inappropriate use of digital work tools

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will be classified as a disciplinary offence, the judge will be subject to general disciplinary responsibility on general principle.

It must be noted that the disciplinary responsibility (liability) of administrative judges is not regulated in details in the Law of 25 July 2002 on the System of Administrative Courts (hereinafter ACS). It is not autonomous, but has framework character and sets forth only the competent disciplinary court, its composition, the way of creation and the institution of the Disciplinary Commissioner and the way of his/her appointment. By virtue of said Law any matters not regulated by this Law related i.a. to court assessors and judges of voivodship administrative courts shall be governed by appropriate provisions concerning the common courts organization and related to judges if Supreme Administrative Court shall be governed by appropriate provisions relating to the Supreme Court. In consequence provisions concerning disciplinary liability of common courts judges shall be accordingly applied to the disciplinary responsibility of administrative judges (Articles 107-133a of the Law on Common Courts Organization) and provisions of Article 72-76 of the Act of 8 December 2017 on Supreme Court shall be accordingly applied to judges of the SAC.

When it comes to the catalogue of penalties according to Article 109 para. 1 of the Law on Common Courts Organization disciplinary penalties for administrative judges of (voivodship administrative courts) include:1) an admonition; 2) a reprimand; 3) reduction of the basic salary of a judge by 5-50 percent for the period from six months to two years; 4) dismissal from the function held; 5) transfer to another place of service; 6) dismissal from the office of a judge. According to article 72 of the Act on Supreme Court in conjunction with Article 49 of the Law on the System of Administrative Courts, disciplinary penalties for SAC judges include the same catalogue as indicated above except for the transfer to another place of service.

Till now there was no disciplinary case regarding inappropriate use of digital work tools provided by the court. However there was a case comparable regarding unauthorised correction of the operative part of the judgment.

In judgment of 10 July 2017, Case No. D 3/16 the SAC decided on the case of the entire panel – three judges of the voivodship administrative court. The panel decided to correct the operative part of the judgement using the legal institution of correction from Article 156 of the LPAC. The adjudicating panel came to the conclusion that the operative part of the judgement has been wrongly worded. The judges concerned decided to correct the wording of the operative part of the judgment replacing the words „dismisses the complaint…” by words „sets aside the challenger decision and previous decision of the Voivodship Police Commander from 19 December 2012 No. 6”.

The SAC as disciplinary court alleged all three judges gross and obvious violation of Article 156 para. 1 of the LPAC and violating of Article 107 para. 1

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of CCO - impairment of the authority of the office of the judge in conjunction with Article 29 of ACS. According to the Article 156 para. 1 of the LPAC „The court may, on its own authority, correct in a judgment any inaccuracies, mistakes in writing, calculation or other manifest errors.” The SAC as a disciplinary court ruled that the judges concerned violated above mentioned legal provision because they used institution of correction to change substantial outcome of the case on merits. The SAC imposed an admonition. In the reasons of the disciplinary judgment the SAC pointed out that the legal institution of the correction stipulated by Article 156 para. 1 of the LPAC can be used only for the correction of non-substantial obvious formal errors but not to correct the outcome of the case on merits.

THEME 2 : ELECTRONIC JURISDICTION SUBJECT 3. Electronic jurisdiction (Online administrative litigation)

Question n°1. Does your jurisdiction have the possibility to deal with cases electronically? If so, what are the acts likely to be carried out digitally (referral of the jurisdiction, exchange of statements and written evidence, judgment, notification of the decision ...)?

At present, there is no such procedural possibility. As of 31 May 2019, electronic communication with the Court and the access to an electronic image of a case file will be possible. The scope of electronic communication corresponds to the scope of paper-based communication. See Appendix – Article 12 a § 1-2, 4-5 and Article 12 b of the LPAC.

Question n° 2. Electronic evidence. What is their legal value?

As a preliminary remark, it should be noted that administrative courts generally do not conduct evidentiary proceedings. The purpose of administrative court proceedings is not to determine the facts of the case, but only to assess whether the public administration bodies have established this state by adhering to the rules applicable in the administrative/tax procedure. The basis for the control of legality carried out by the administrative court is therefore the evidence gathered in the proceedings which ended with the issuance of the contested act.

The possibility of taking evidence before an administrative court is permitted only exceptionally (on an ancillary basis) and applies only to documentary evidence.

According to Article 106 (3)(5) of the LPAC “The court may, on its own motion or at the request of the parties, request additional documentary proof, if this is necessary to resolve substantial doubts and will not extend excessively the

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proceedings on the case. The provisions of the Code of Civil Procedure shall apply as appropriate to the evidentiary proceedings referred to in § 3”

Given the absence of a legal definition of a document, including objections as to the medium or form of such a document, it is possible to take evidence from an electronic document. This finding is unequivocally confirmed by the wording of the provisions of the Code of Civil Procedure (CCP) applicable in the case of the taking of evidence by an administrative court. There is a straightforward reference to an electronic document.

According to Article 245 of the CCP „A private document drawn up in a written or electronic form constitutes a proof that its signatory has made the statement contained therein. In the light of Article 254 § 2¹ of the CCP “If needed, the court may summon the issuer of a document drawn up in an electronic form to provide an electronic data carrier on which the document has been recorded..“

The admissibility of this type of evidence will be assessed in the light of the aforesaid elements justifying supplementary evidence proceedings before an administrative court. SUBJECT 4. Dematerialized court proceedings security

Question n° 1. Digital jurisdictional record. Does your domestic legal system have a system designed to confer the same effects on electronic signatures as on handwritten signatures? If so, in which cases?

At present, it is not possible to draw up orders and judgements by electronic means or to affix a qualified digital signature thereto. As of 31 May 2019, it will be possible to serve pleadings from the court, copies of pleadings and appendices bearing a qualified signature. See Appendix – Articles: 64 and 74 a of the LPAC.

Question n° 2. Digital jurisdictional record’s security. In the case of

dematerialized jurisdictional procedures, what measures are implemented in the handling of digital jurisdictional files to guarantee their security?

As regards the way in which the files are secured, once remote access to court files and electronic documents submitted by the parties to the proceedings will be introduced on 31 May 2019, the files will bear a qualified signature or a trusted signature. Also, access to the existing databases and to the system, which will be operational as of 31 May 2019, is limited to defined users and secured by the introduction of individual logins and passwords.

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Question n° 3. Electronic transmission of procedural documents. Is electronic transmission a reliable tool for the transmission of procedural acts to interested parties?

Yes, the procedures and the tools for delivering judicial documentation are reliable. The service of the electronic versions of pleadings to the parties to proceedings by means of the system introduced as of 31 May 2019 will be as effective as the current service of pleadings by traditional means (by post). SUBJECT 5. Criminal liability and digital tools

Question n° 1. Computer Crimes. Is there in your internal legal system a tort of liability for computer damage to the public administration?

See answer to question n° 3 (subject 5)

Question n° 2. Illegal access to systems. How are the accesses to the systems used by the administrative jurisdiction regulated?

Access to the court systems (currently existing and the ones operational as of 31 May 2019) is possible only through authorised accounts with individual login and password.

Question n° 3. Criminal penalty of a computer crime. In the event of

illegal access to court files with a breach of data confidentiality or an intentional or unintentional data modification, what are the criminal penalties provided for? Is there a specific sentence for public servants convicted of such offense?

Polish criminal law penalizes various forms of computer crimes. Provisions regarding this matter, however, do not constitute one, comprehensive regulation, but have been arranged in individual chapters of the Criminal Code of 1997 and other statutes. There are also no specific, uniformed rules on criminal liability in the sphere of public administration, including public servants. Examples of provisions that may be the basis for criminal liability are: 1. in case of computer damage - Article 288 of the Criminal Code (Chapter XXXV Crimes against property) Article 288 § 1. Whoever destroys, damages or renders useless someone else's item, is subject to the penalty of deprivation of liberty for between 3 months and 5 years. § 2. In a case of lesser gravity, the perpetrator is subject to a fine, the penalty of limitation of liberty or the penalty of deprivation of liberty for up to one year. 2. in case of computer crimes (e.g. illegal access to court files with a breach of data confidentiality or intentional or unintentional data modification) - Article

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267, 268, 268a, 269, 269a, 269b (Chapter XXXIII Crimes against the protection of information), 287 (Chapter XXXV Crimes against property) Article 267 § 1. Whoever without authorisation gains access to information not intended for him by opening a sealed letter, plugging into a telecommunications network, or by breaching or bypassing an electronic, magnetic, computer or other special protection of such information, is subject to a fine, the penalty of limitation of liberty or the penalty of deprivation of liberty for up to 2 years. § 2. Whoever without authorisation gains access to a whole computer system or a part of it, is subject to the same penalty. § 3. Whoever, with the purpose of gaining unauthorised access to information, installs or employs a wire-tapping or visual device, or other device or software, is subject to the same penalty. § 4. Whoever discloses to another person information obtained in the manner referred to in § 1-3, is subject to the same penalty. § 5. The crimes provided for in § 1-4 are prosecuted upon the harmed party's motion. Article 268 § 1. Whoever without authorisation destroys, damages, deletes or alters a record of substantive information, or in any other manner frustrates or substantially obstructs learning it by an authorised person, is subject to a fine, the penalty of limitation of liberty or the penalty of deprivation of liberty for up to 2 years. § 2. If the act referred to in § 1 involves a record on a computer data carrier, the perpetrator is subject to the penalty of deprivation of liberty for up to 3 years. § 3. Whoever inflicts substantial material damage by committing the act referred to in § 1 or 2, is subject to the penalty of deprivation of liberty for between 3 months and 5 years. § 4. The crimes provided for in § 1-3 are prosecuted upon the harmed party's motion. Article 268a. § 1. Whoever without authorisation destroys, damages, deletes, alters or obstructs access to computer data, or substantially disrupts or prevents automatic processing, collecting or transmitting of such data, is subject to the penalty of deprivation of liberty for up to 3 years. § 2. Whoever inflicts substantial material damage by committing the act referred to in § 1, is subject to the penalty of deprivation of liberty for between 3 months and 5 years. § 3. The crimes provided for in § 1 and 2 are prosecuted upon the harmed party's motion. Article 269 § 1. Whoever destroys, damages, deletes or alters computer data of special importance to the country's defence capability, safety of traffic, functioning of government administration, another state authority or institution, or local government, or disrupts or prevents automatic processing, collecting or

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transmitting of such data, is subject to the penalty of deprivation of liberty for between 6 months and 8 years. § 2. Whoever commits the act referred to in § 1 by destroying or replacing a computer data carrier, or by destroying or damaging a device used for automatic processing, collecting or transmitting of computer data, is subject to the same penalty. Article 269a Whoever without authorisation substantially disrupts operation of a computer system, telecomputer system or telecomputer network by transmitting, destroying, deleting, damaging or obstructing access to computer data, is subject to the penalty of deprivation of liberty for between 3 months and 5 years. Article 269b § 1. Whoever produces, obtains, sells or makes available to other persons devices or computer software adapted to perpetrating crimes provided for in art. 165 § 1 section 4, art. 267 § 3, art. 268a § 1 or § 2 in concurrence with § 1, art. 269 § 1 or 2 or art. 269a, as well as computer passwords, access codes or other data enabling unauthorised access to information stored in a computer system, telecomputer system or telecomputer network, is subject to the penalty of deprivation of liberty for between 3 months and 5 years. § 1a. Whoever acts only with the purpose of securing a computer system, telecomputer system or telecomputer network against the commission of the crime referred to in § 1 or developing such security method, does not commit the crime provided for in § 1. § 2. While sentencing for the crime provided for in § 1, the court imposes the forfeiture of the items referred therein or may impose their forfeiture if they are not the property of the perpetrator. Art. 287. § 1. Whoever, with the purpose of gaining a material benefit or inflicting damage upon another person, without authorisation affects automatic processing, collecting or transmitting of computer data, alters or deletes a computer data record, or enters a new computer data record, is subject to the penalty of deprivation of liberty for between 3 months and 5 years. § 2. In a case of lesser gravity, the perpetrator is subject to a fine, the penalty of limitation of liberty or the penalty of deprivation of liberty for up to one year. § 3. If the fraud has been committed against an immediate family member, it is prosecuted upon the harmed party's motion

THEME 3 : ETHICS AND PROTECTION OF RIGHTS

Question n° 1. Anonymization of court decisions. What measures are taken to ensure the confidentiality of personal data contained in court decisions? To what extent are court decisions anonymized (name of the judges, names of the clerks, name of the parties, other data likely to reveal the identity of the parties ...)?

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The rulings that are made available to the public are anonymized. According to the Order of the President of the SAC No. 9 of 11th July 2007 on creating the Central Database of Case-law and Information on cases heard by administrative courts (Centralna Baza Orzeczeń i Informacji o Sprawach – hereinafter as CBOiS) and on publication of the decisions in Internet, there are determined categories of data, that shall be anonymized: personal data, address data, PESEL identification number, statistical identification number REGON, the tax identification number (NIP), number of the entity in Central Courts Register (KRS), name of the entity, names of parties, participants, their representatives and witnesses. Other date that shall be anonymized are: data covered by tax secrecy (if mentioned in the reasoning of the decision), data covered by specific secrecy clause „secret”, business secrets, data covered by other secrecy specified by law (i.e. medical secret), all data making possible the identification of the party, participants, their representatives and witnesses (description of the person, place of residence, manner of behaviour, sex); data concerning the issued and contested decisions or other administrative acts (file numbers, date of issuing, numbers of SAD documents in customs cases, the seat of the administrative authority, whose act or decision has been contested). The decision on exclusion of the publication of courts decision in Internet is taken by the President of the Division of the Chamber of the SAC. There are also specific categories of cases, in which the judgments are not published very often because of the sensitivity of the case (i.e. asylum law cases).

Question n° 2. Use of social networks by judges. Can judges use social networks and under which conditions? What are the rules overseeing it (law, code of ethics ...)?

In Poland, there is no legal ban on the use of social networks by judges. However, the rules on the use of this form of communication are a subject of debate in the context of certain publicised instances of statements/publications posted by judges on social networks which may reflect adversely on the dignity and authority of the office of a judge. Until 2017, it was assumed that the lack of specific legal solutions relating to this form of judicial activity means that the general rules laid down in the Collection of the Principles of Judges’ Professional Ethics, adopted in accordance with Resolution 16/2003 of the National Council of the Judiciary of 19 February 2003 (the National Council of the Judiciary is the constitutional body safeguarding the independence of judges and the independence of the judiciary) shall be respected. By Resolution of the National Council of the Judiciary No. 15/17 of 11 January 2017, the contents of the Collection of the Principles of Judges’ Professional Ethics were amended to provide for an obligation of restrained use of social media (see: § 23 of the Principles of Judges’ Professional Ethics “The Judge should use social media in a restrained manner”).

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Question n° 3. Are digital tools used to control inappropriate actions of the judges or to complain about those inappropriate actions? How?

The digital tools like social networks can be used by private users to follow or monitor inappropriate actions of judges outside the courtroom (in case judges have their own profiles within social networks).

Both actions of judges taken in the courtroom (during the trial) or within non-judicial activities of the court can be complained by individuals by the way of complaints (letters of dissatisfaction) and proposals submitted to Supreme Administrative Court or voivodship administrative courts inter alia via e-mail at the address of the court (where the concerned judge serves) or via ePUAP.

To receipt and disposal of complaints (letters of dissatisfaction) and proposals submitted to voivodship administrative courts shall apply, as appropriate, the provisions of Section 5a of the Act of 27th July 2001 - Law on Common Courts Organisation and regulation of the Minister of Justice of 9th May 2012 on complaints (letters of dissatisfaction) and proposals concerning the activities of common courts in conjunction with Article 49 of the Law of 25 July 2002 on the System of Administrative Courts - and to the extent not provided for in said provisions, the provisions of Division VIII of the Act of 14th June 1960 - Code of Administrative Proceedings.

The competent authority for examination of complaints concerning activities of SAC, voivodship administrative courts (and their judges) and presidents of the voivodship administrative courts is the President of the SAC.

A complaint about the functioning of a court, including the conduct of a judge, may not concern the activity of courts which constitutes the essence of their independence and which is subject only to statutes (e.g. they may not concern the content, legitimacy or legality of decisions issued — decisions are subject to appeals provided for to this end). The court unit to which such a complaint has been addressed shall notify the complainant of the reasons for the refusal to examine the complaint.

Such a complaint, in so far as it contains a request to hold judges or trainee judges liable to disciplinary action, shall be immediately submitted to the competent Disciplinary Commissioner of the SAC or his/her Deputy. After a preliminary explanation of the circumstances raised in the complaint, the Disciplinary Commissioner may take disciplinary action on its own initiative. Furthermore, the Disciplinary Commissioner shall notify the complainant and the authority which forwarded the complaint of the manner in which it was handled.

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APPENDIX

I. Extract from the Act of 30th August 2002 – Law on proceedings before administrative courts – Provisions concerning filing letters to a court in the form of an electronic document (entry into force on 31st May 2019).

PART I

PRELIMINARY PROVISIONS

Chapter 1

General Provisions

(…)

Art. 12a. § 1. For each case falling within the scope referred to in art. 1 files shall be created. Files shall be created in electronic or paper form.

§ 2. Electronic files shall be processed with the use of an electronic document management system, as defined in the provisions on national archive resources and archives.

(…)

§ 4. Case files shall be made accessible to the parties to a proceeding. Parties shall have the right to examine case files as well as to receive transcripts, copies or excerpts from the files.

§ 5. The court shall, with respect to electronic files, enable a party to carry out the activities referred to in § 4 in its computer system, following the identification of the party in the manner set out in the provisions of the Act on the informatization of entities performing public tasks of February 17th 2005 (Journal of Laws Dz. U. of 2013 item 235 and of 2014 item 183).

(…)

§ 8. The President of the Republic of Poland shall specify, by means of a regulation:

1) the way in which the files referred to in § 1 shall be created and processed;

2) the conditions and procedures for storing and transferring the files of voivodship administrative courts and the Supreme Administrative Court;

3) the conditions and procedures for destroying the files referred to in § 1 and in subparagraph 2 after the period of their storage.

§ 9. When issuing the regulation referred to in § 8, the President of the Republic of Poland shall take into consideration, in particular, the conditions of electronic document management, as defined in the provisions referred to in § 2 and 3, types of cases as well as adequate protection of files against unauthorized access,loss or damage.

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Art. 12b. § 1. The written form requirement provided for in the statute shall be deemed as being complied with if an electronic document has been signed in the manner referred to in art. 46 § 2a.

§ 2. In the course of proceedings, electronic documents shall be lodged with an administrative court through an electronic incoming correspondence box, and the court shall serve such documents on parties using electronic means of communication under the conditions set out in art. 74a.

§ 3. In order to serve letters in a proceeding, an administrative court shall transform the form of letters received from the parties:

1) in the case of a letter in the form of an electronic document, by making a certified printout, as referred to in art. 47 § 3, if a party does not use electronic means of communication to receive letters;

2) in the case of a letter in paper form, by making a certified copy in the form of an electronic document if a party uses electronic means of communication to receive letters.

§ 4. Provisions on the use of electronic means of communication shall apply accordingly to the authorities to which or through which letters in the form of an electronic document are submitted.

(…)

PART II

PARTIES

(…)

Chapter 3 Agents

(…)

Art. 37 (…) § 1a. Where a transcript of a power of attorney or transcripts of other documents proving powers were prepared in the form of an electronic document, they shall be certified, as referred to in § 1, using a qualified electronic signature, signature verified with the use of a trusted ePUAP profile or using other mechanisms referred to in art. 20a(2) of the Act on the informatization of entities performing public tasks of February 17th 2005, provided that such mechanisms were introduced by the administrative court. Transcripts of a power of attorney or transcripts of other documents proving powers which are certified electronically shall be prepared in data formats specified in provisions issued pursuant to art. 18(1) of the Act.

Art. 37a. A power of attorney granted in the form of an electronic document shall be accompanied by a safe electronic qualified signature, signature verified with the use of a trusted ePUAP profile or using other mechanisms referred to in art. 20a(2) of the Act on the informatization of entities performing public tasks of February 17th 2005, provided that such mechanisms were introduced by the administrative court.

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(…)

PART III

PROCEEDINGS BEFORE VOIVODSHIP

ADMINISTRATIVE COURTS

Chapter 1

Documents submitted in court proceedings

(…)

Art. 46 (…) § 2a. Where a letter is lodged by a party in the form of an electronic document, it should also contain an electronic address and be accompanied by a qualified electronic signature of the party, its statutory representative or attorney, signature verified with the use of a trusted ePUAP profile or using other mechanisms referred to in art. 20a(2) of the Act on the informatization of entities per- forming public tasks of February 17th 2005, provided that such mechanisms were introduced by the administrative court.

§ 2b. The rules for signing documents set out in § 2a shall also apply to enclosures lodged in the form of an electronic document.

§ 2c. A letter that is lodged in a form other than the form of an electronic document and that contains a request that court letters be served using electronic means of communication shall contain an electronic address.

§ 2d. If the letter referred to in § 2a does not contain an electronic address, the court shall assume that the electronic address from which the letter lodged in the form of an electronic document was sent is relevant, and if the letter was lodged in a different form and contains the request referred to in § 2c, the court shall serve letters to the address indicated in accordance with § 2, and the first letter from the court shall include information that a request that letters be served using electronic means of communication must contain an electronic address.

Art. 47 (…)

§ 3. In the case of letters and enclosures lodged in the form of an electronic document, transcripts shall not be enclosed. In order to serve documents on parties that do not use electronic means of communication to receive letters, the court shall make copies of electronic documents in the form of certified printouts, in accordance with the requirements set out in provisions issued pursuant to art. 16(3) of the Act on the informatization of entities performing public tasks of February 17th 2005.

§ 4. When serving transcripts of letters and enclosures in a form other than the form of an electronic document, the court shall inform the party about the conditions for the lodging of letters and for the service of letters by the court using electronic means of communication.

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(…)

Art. 48 (…)

§ 3a. If a transcript of a document was prepared in the form of an electronic document, it shall be certified to be in conformity with the original, as referred to in § 3, using a qualified electronic signature, signature verified with the use of a trusted ePUAP profile or using other mechanisms referred to in art. 20a(2) of the Act on the informatization of entities performing public tasks of February 17th 2005, provided that such mechanisms were introduced by the administrative court. Transcripts of documents that are certified electronically shall be prepared in data formats specified in provisions issued pursuant to art. 18(1) of the Act.

(…)

Art. 49a. The court shall confirm the submission of a letter in the form of an electronic document to its electronic incoming correspondence box by sending an official acknowledgment of receipt, as defined in the Act on the informatization of entities performing public tasks of February 17th 2005 to the electronic address indicated by the person lodging the letter. An official acknowledgment of receipt shall include information that letters in the case will be served using electronic means of communication as well as information about the right of the party to request that letters no longer be served using electronic means of communication, as referred to in art. 74a § 2.

(..)

Chapter 2

Complaint

(…)

Art. 54 (…)

§ 1a. A complaint in the form of an electronic document shall be submitted to the electronic incoming correspondence box of the authority. The provision of art. 49a shall apply accordingly.

(…)

§ 2a. If a complaint has been lodged:

1) in the form of an electronic document to the electronic incoming correspondence box of the authority referred to in § 1 – the authority shall transfer the complaint and the response to the complaint to the court, to its electronic incoming correspondence box;

2) in paper form – the authority shall transfer the complaint and the response to the complaint to the court in this form.

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§ 2b. In the event that the files of the case to which a complaint relates are kept by the authority in electronic form, the authority shall:

1) transfer the case files to the court, together with information on documents whose content is not available in its entirety in the case files kept in electronic form as well as on the manner and date of their transfer to the court, to its electronic incoming correspondence box, and if it is not possible for technical reasons – on an electronic data carrier;

2) transfer to the court documents in the case files whose content is not available in its entirety in the case files kept in electronic form, indicating the electronic case files transferred to the court in the manner referred to in subparagraph 1.

§ 2c. If the files of the case to which a given relates are kept by the authority referred to in § 1 in paper form, the authority shall transfer to the court the case files and, where applicable, electronic documentation stored on electronic data carriers whose content is not available in paper form.

(…)

Chapter 4

Service

Art. 65 (…)§ 1. The court shall serve documents using a postal operator, as defined in the Act of November 23rd 2012 – Postal law (Journal of Laws Dz. U. item 1529), through its employees, through other persons or bodies authorized by the court or using electronic means of communication, under the conditions specified in art. 74a.

(…)

Art. 74a. § 1. The court shall serve letters using electronic means of communication if a party has satisfied one of the following conditions:

1) it lodged a letter in the form of an electronic document through the electronic incoming correspondence box of the court or the authority through which the letter is lodged;

2) it requested that the court serve letters in this way and informed the court of its electronic address;

3) it agreed that the service of letters is to be effected using such means and informed the court of its electronic address.

§ 2. If a party requests that letters no longer be served using electronic means of communication, the court shall serve a letter in the manner prescribed for a letter in a form other than the form of an electronic document.

§ 3. In order to serve a letter in the form of an electronic document, the court shall send to the electronic address of the addressee a notice containing:

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1) information that the addressee may retrieve the letter in the form of an electronic document as well as an indication of the electronic address at which the addressee may retrieve the document and at which the addressee should acknowledge the receipt of the document;

2) information as to how the letter can be retrieved, including especially on the manner of identifying the addressee at the indicated electronic address in the computer system of the court as well as information that an official acknowledgement of receipt must be accompanied by a qualified electronic signature, signature verified with the use of a trusted ePUAP profile or using other mechanisms referred to in art. 20a(2) of the Act on the informatization of entities performing public tasks of February 17th 2005, provided that such mechanisms were introduced by the administrative court.

§ 4. The notice referred to in § 3 may be automatically created and sent through the computer system of the court, and the receipt of the notice shall not be acknowledged.

§ 5. The date of the service of a letter shall be the date on which its addressee signs an official acknowledgment of receipt in the manner set out in § 3(2).

§ 6. Should a letter in the form of an electronic document not be retrieved by its addressee, the court shall, after seven days from the date of sending the notice, send a repeat notice that the letter may be retrieved.

§ 7. The provisions of § 3 and 4 shall apply to a repeat notice.

§ 8. Should a letter not be retrieved, the letter shall be deemed to have been served fourteen days after the date on which the first notice was sent.

§ 9. In the event that a letter in the form of an electronic document is deemed to have been served, the court shall provide the addressee of the letter with access to the letter in the form of an electronic document in its computer system as well as with information on the date on which the letter was deemed to have been served and on the dates on which the notices referred to in § 3 and 6 were sent.

§ 10. In the case of letters served on such participants in a proceeding before a court as the public prosecutor, Human Rights Defender and the Ombudsman for Children as well as the authority whose action, failure to act or excessive length of proceedings has been challenged, the court shall send a letter directly to the electronic incoming correspondence box of the public entity, as defined in the Act on the informatization of entities performing public tasks of February 17th 2005, against an official acknowledgement of receipt.

§ 11. The date of service of the letters referred to in § 10 shall be the date indicated in the official acknowledgement of receipt.

§ 12. Court letters, transcripts of letters and enclosures in court proceedings as well as decisions served by a court in the form of an electronic document shall

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be accompanied by a safe electronic signature verified with the use of a valid qualified certificate.

(…)

Art. 77 (…)

§ 1a. The receipt of a letter in the form of an electronic document shall be acknowledged in the manner set out in art. 74a § 5 or 10.

Chapter 5

Time limits

(…)

Art. 83 (…)

§ 5. The date of the lodging of a letter in the form of an electronic document shall be the date on which the letter has been entered into the computer system of a court or a competent authority indicated in the official acknowledgement of receipt.

***

II. Extract from the Act of 17 February 2005 on the Informatization of Activities of Entities Performing Public Tasks

(...)

Art. 3 [legal definitions – selection]:

The terms used in the Act shall mean: 1) IT data carrier — material or device for recording, storing and reading data in a digital form; 2) electronic document — a set of data constituting a distinct conceptual whole ordered within a specified internal structure and recorded on an IT data carrier; 3) ICT system — a set of cooperating IT devices and software ensuring processing, storage, as well as sending and receiving data by telecommunication networks with the use of a terminal device appropriate for a given type of network; 4) means of electronic communication — technical solutions, including ICT devices and cooperating software tools, allowing for individual remote communication with the use of data transmission between ICT systems, in particular the e-mail;

(...)

13) electronic platform of public administration services — an ICT system in which public institutions make services available through a single access point on the Internet; 14) trusted profile — means of electronic identification containing a set of data identifying and describing a natural person, which has been issued in the manner referred to in Article 20c;

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14 a) trusted signature — an electronic signature, the authenticity and integrity of which are ensured by means of an electronic seal of the minister in charge of information technology, containing: a) particulars of a person established on the basis of an electronic identification means issued in the system referred to in Article 20aa(1), including: - first name(s), - surname, - PESEL number, (b) identifier of the electronic identification means by which it was submitted, (c) time of submission; (...) 17) electronic inbox — an electronic communication means available to the public for transmitting an electronic document to a public body with the use of a publicly available ICT system;

(...)

20) official acknowledgement of receipt — electronic data related to an electronic document delivered to or served by a public entity in a manner ensuring recognition of subsequent changes made to these data, specifying: a) full name of the public body to which the electronic document has been delivered or which serves the document, b) date and time of entry or transmission of the electronic document into the public body’s ICT system — with regard to the document delivered to the public body, c) date and time of signing the official acknowledgement of receipt by the addressee with the use of the mechanisms referred to in Article 20a(1) or (2) — with regard to a document served by the public body, d) date and time of production of the official acknowledgement of receipt;

Art. 20a. [Identification of the users of teleinformatic systems]

(...)

2. A public entity which uses the ICT system to perform public tasks may enable user authentication in this system also by means of other technologies.