The Supreme Court, sitting in a bench of 7 judges of the Extraordinary Review and Public Affairs Chamber, adopted a resolution concluding that in proceedings initiated by protests against the validity of elections: to the Sejm of the Republic of Poland and to the Senate of the Republic of Poland, to the President of the Republic of Poland, as well as to the European Parliament in the Republic of Poland, as referred to in the Act of 5 January 2011- Electoral Code (EC), and also in proceedings initiated by a protest against the validity of a referendum, as referred to in the Act of 14 March 2003 on a nationwide referendum (NRA), the provisions of Article 130(1-2) and Article 1301a(1-3) of the Act of 17 November 1964 - Code of Civil Procedure (CCP) shall not apply.
The resolution was adopted following a request submitted by President of the Supreme Court heading the Extraordinary Review and Public Affairs Chamber, pursuant to Article 83(1) of the Act of 8 December 2017 on the Supreme Court, in order to ensure uniformity of jurisprudence with regard to the adjudication of cases concerning election protests and protests against the validity of the nationwide referendum.
The Supreme Court, reasoning the resolution, pointed out that despite the fact that proceedings in the case of election or referendum protests are conducted in the non-contentious procedure, under the procedure specified in Article 506 et seq. of the CCP, that does not mean that they are cases concerning civil law relations between parties. The electoral law is in fact the public law, thus the proceedings in such cases are not civil proceedings, but are of a special nature. The provisions of the EC and the NRA undoubtedly remain in the lex specialis - lex generalis relation to other regulations, including the CCP, not only with regard to the substantive grounds for lodging protests, but also the procedure for their examination.
Therefore, with regard to qualified formal defects of protests (i.e. concerning obligatory elements of election protests or protests against the validity of a referendum, as specialised legal measures) it is not required to summon the entities lodging protests to supplement them. The legislature, pursuant to Article 243(1) of the EC and Article 322(1) of the EC, established in this case the sanction of leaving the protest without further proceedings. Therefore, the adoption of an opposite position would impose on the relevant chairman of the court division the obligation to summon the entity lodging the protest to correct or supplement the defect. In practice, this could lead to consequences that would be extremely difficult to reconcile with the principle of promptness of proceedings in electoral cases, which is guiding the EC. In extreme cases, it might result in the failure to meet the maximum time limit to rule on the validity of the election or referendum, as provided for in the EC.
In fact, pursuant to Article 130(1) of the CCP, if a pleading cannot be duly processed due to a party's failure to comply with formal requirements, the presiding judge shall order the party to correct or supplement it within one week, failing which the pleading shall be returned to the party. If a pleading has been lodged by a person who resides or is incorporated abroad and who does not have a representative in Poland, the presiding judge shall order the party to correct or supplement the pleading or to pay the fee due within a time limit not shorter than one month, with the stipulation that where the notice is to be served outside the territory of the European Union that time limit shall not be shorter than three months (Article 130(11) of the CCP). Therefore, it should be emphasised that the aforementioned statutory time limit to correct or supplement a pleading is longer than the time limit for deciding on the validity of the elections to the Sejm and the Senate (no later than on the 90th day after the election day - Article 244(2) of the EC) and definitely exceeds the time limit for deciding on the validity of the election of the President of the Republic of Poland (within 30 days from the day the election results were made public by the National Electoral Commission - Article 324(2) of the EC).
With regard to formal defects of election and referendum protests related to failure to meet the general requirements for every pleading (Article 126 of the CCP), it should be assumed that since in the case of formal defects the party lodging the protest is not summoned to correct or supplement them, it is not justified to summon to correct or supplement formal defects of an ordinary nature (e.g. lack of the signature of the party lodging the protest).
The resolution has the virtue of legal principle upon its adoption.
Polish original