The Uneasy Accommodation of Efficiency and Immediacy Under Article 271¹ CPC

Introduction

Among the procedural innovations introduced by the 2019 amendment to the Polish Code of Civil Procedure (Kodeks postępowania cywilnego, hereinafter “CPC”), few have generated as much doctrinal controversy as the provision permitting witnesses to submit testimony in writing rather than viva voce before the adjudicating court. Codified in Article 271¹ CPC, the mechanism was designed to accelerate proceedings and alleviate the chronic congestion of Polish court dockets. Yet the provision sits in profound tension with the principle of immediacy (zasada bezpośredniości) – a foundational tenet of Continental civil procedure that demands the adjudicating tribunal engage directly and personally with the evidentiary material upon which its judgment rests. This tension raises questions that are at once doctrinal, practical, and strategic: Under what circumstances should courts resort to written testimony? What safeguards, if any, constrain judicial discretion in ordering it? And how should competent counsel respond when a court elects to receive written depositions from a witness whose credibility is central to the disposition of the case?

This article examines these questions against the backdrop of the principle of immediacy, tracing its historical evolution from Roman law through the ius commune period and into modern Polish codification, before assessing the doctrinal critique of Article 271¹ CPC and its practical implications for litigation strategy.

I. Historical Foundations: The Principle of Immediacy in Civil Procedure

A. Roman Origins and the Medieval Departure

The principle of immediacy – the requirement that the court personally and directly encounter the parties, witnesses, and other evidentiary sources underlying its decision – operated across all three Roman procedural regimes: the legis actiones, the formulary process, and the cognitionary system. In each, proceedings were conducted orally before the judges charged with adjudicating the dispute. While later developments under the dominatus introduced limited exceptions, such as the delegation of certain evidentiary functions to subordinate officials by way of judicial assistance, immediacy remained the governing norm throughout the evolution of Roman civil procedure.

The medieval ius commune effected a fundamental reversal. Under the principle of Mittelbarkeit (mediacy), judges no longer conducted evidentiary proceedings directly. The examination of witnesses was delegated to court officials, who transcribed the testimony, translated it into Latin, and presented the written record to the judge for decision. Immediacy thus gave way to a regime characterized by secrecy, formalism, and the legal theory of proof (legale Beweistheorie), in which the adjudicator was effectively insulated from any direct contact with the parties or with testimonial evidence.

B. The Nineteenth-Century Restoration and Polish Codification

The return to immediacy in the nineteenth century was driven by the Austrian Code of Civil Procedure – widely regarded as the most progressive European procedural codification of its era – as well as by the French Code de procédure civile of 1806 and the English common law tradition of oral testimony. The principle was subsequently incorporated into the procedural laws of the partitioning powers that governed Polish territories – Russian, Austrian, and Prussian alike – and was thus already operative on Polish soil well before the restoration of independence.

The framers of Poland’s first unified Code of Civil Procedure regarded immediacy as the cornerstone of a modern trial. The principles of orality, concentration of proceedings, and unity of the hearing were understood as derivative consequences flowing from this master principle. This doctrinal commitment has persisted through successive codifications and remains embedded in the current CPC, principally in Articles 210, 216, 235, and 323, which collectively require that proceedings be conducted before the adjudicating court, that evidence be taken directly by the panel that will render the judgment, and that the verdict be issued only by judges who participated in the hearing immediately preceding its pronouncement.

II. The Statutory Framework of Article 271¹ CPC

A. Operative Mechanism

Article 271¹ CPC, introduced by the 2019 amendment (ZmKPC19), provides that a witness shall submit testimony in writing if the court so orders. In such cases, the witness executes the oath by signing the prescribed text of the affirmation – a departure from the oral recitation ordinarily required under Articles 266–268 CPC. The witness is then obligated to file the written testimony with the court within the time limit fixed by judicial order, either through the court’s filing office or by dispatch through a designated postal operator, with the date of mailing treated as the date of filing pursuant to the mutatis mutandis application of Article 165 § 2 CPC.

The procedure contemplates a structured exchange: the court solicits interrogatories from the parties, reviews them for proper formulation, eliminates suggestive or improperly sequenced questions, and transmits the curated set to the witness. The prevailing doctrinal view holds that questions directed to a witness in written form should be framed in the broadest possible terms to elicit substantive narrative responses rather than monosyllabic or evasive answers.

B. Applicable Sanctions

The statute incorporates, by way of cross-reference, the coercive mechanisms otherwise applicable to recalcitrant witnesses. Under Article 274 § 1 CPC, applied mutatis mutandis, a witness who fails without justification to submit written testimony within the prescribed period is subject to a fine and a renewed summons. Persistent non-compliance may trigger a second fine, compulsory production of the witness, and – in extreme cases – judicial arrest for a period not exceeding one week, pursuant to Article 276 CPC.

Notably, while the statute does not expressly require the court to instruct the witness regarding criminal liability for perjury under Article 233 §§ 1–1a of the Criminal Code, or the right to refuse testimony under Article 261 CPC, the prevailing scholarly consensus holds that such advisements are mandated by the general principles of procedural fairness and must be communicated to the witness alongside the order for written testimony.

III. The Doctrinal Critique: Immediacy Under Siege

A. The Lacuna of Statutory Prerequisites

Perhaps the most frequently noted deficiency of Article 271¹ CPC is its failure to articulate the conditions under which a court may properly order written testimony. The provision grants unrestricted discretion to the adjudicating panel without specifying the factors that should inform the exercise of that discretion – a lacuna that has drawn widespread censure in the scholarly literature.

There is, nonetheless, a measure of doctrinal consensus regarding the considerations that ought to guide judicial decision-making in this regard. Commentators agree that the court should evaluate the nature and subject matter of the dispute, the scope of the facts to which the witness is expected to testify, and the state of the remaining evidentiary record. Written testimony should be employed exceptionally, not as a matter of course – for instance, where the court must examine a large number of witnesses whose actual knowledge of the case is uncertain, effectively deploying the written procedure as a preliminary screening mechanism to identify those whose oral examination may prove worthwhile.

B. The Impairment of Credibility Assessment

The assessment of witness credibility ranks among the most demanding tasks confronting any trier of fact, and the difficulties are substantially compounded when the court is denied direct sensory contact with the deponent. In oral examination, the tribunal evaluates not merely the content of testimony but its manner of delivery: vocal inflection, facial expression, hesitation, the witness’s response to follow-up and control questions, and the internal consistency of narrative under adversarial pressure. Written testimony eliminates every one of these verification instruments. The court is confined to analyzing the text itself, screening for internal contradictions, and comparing the written account with the balance of the evidentiary record – a residual methodology that scholars have justly characterized as fundamentally insufficient.

The concern is not merely theoretical. As the literature observes, there exists no reliable means of ascertaining whether a witness who testifies in writing has formulated the responses independently – a risk that becomes acute where the witness maintains personal, familial, or economic ties to one of the parties. The persistent problem of terse, uninformative answers compounds the difficulty.

C. The Problem of Competency Evaluation

A further structural deficiency inheres in the court’s inability, absent direct observation, to assess the witness’s capacity for perception and communication of perceptions under Article 259(1) CPC. Individuals with cognitive impairments, intellectual disabilities, or perceptual deficits ought to be examined exclusively in oral proceedings, where the court can form its own assessment of testimonial competence. Yet when written testimony is ordered without any antecedent evaluation of these factors, the risk of factual determinations at variance with reality becomes non-trivial.

IV. Remedies Available to the Parties

A. The Absence of a Formal Objection Mechanism

Article 271¹ CPC does not provide a party with the right to object to a court order directing written testimony, nor is such an order subject to interlocutory appeal (żażalenie). This does not, however, render the aggrieved party wholly without recourse.

The critical first step is the entry of a reservation to the record pursuant to Article 162 CPC, specifying that the order for written testimony constitutes a violation of the principle of immediacy. This procedural act is indispensable: failure to preserve the objection at the trial level forecloses its assertion on appeal, effectively waiving the argument for purposes of appellate review.

B. The Right to Supplementary Oral Examination

Although Article 271¹ CPC does not expressly address the question, the general provisions of the CPC do not preclude the court from ordering a subsequent oral examination of a witness who has previously submitted written testimony. A party confronted with written depositions that are laconic, internally contradictory, or otherwise unsatisfactory should affirmatively move for supplementary viva voce examination – whether in open court or, where circumstances warrant, by videoconference pursuant to Article 235 § 2 CPC.

The Szczecin Court of Appeals articulated a particularly instructive standard in its judgment of November 23, 2021 (Case No. I ACa 469/21), holding that, given the availability of remote evidentiary procedures under Article 235 § 2 CPC, resort to written testimony under Article 271¹ CPC is appropriate only where the identity of the witness and the nature of the information sought do not give rise to concerns regarding distortion or manipulation. Where such assurance is lacking – owing, for example, to the passage of time, the nature of the facts at issue, the existence of personal or professional connections between the witness and a party, or the risk of emotional bias – the court should conduct oral examination, if necessary utilizing remote communication technology.

V. Videoconference as the Preferred Alternative

A. The 2023 Amendment and Remote Hearings

The 2023 amendment to the CPC, effective March 14, 2024, integrated the conduct of remote evidence-taking with the newly formalized institution of the remote hearing (posiedzenie zdalne). Article 235 § 2 CPC, as amended, provides that the adjudicating court may order evidence to be taken remotely within the framework of a remote hearing, provided the nature of the evidence does not preclude such treatment.

Simultaneously, the newly enacted Article 263¹ CPC confers upon the parties a right of objection to the remote examination of a witness outside the courtroom, exercisable within seven days of receiving notice of the court’s intention to conduct the examination in this manner. Upon the filing of a timely objection, the court is required to summon the witness for in-person testimony.

B. Doctrinal Superiority over Written Testimony

Videoconference examination preserves the essence of immediacy in a manner that written testimony categorically cannot. The adjudicating court conducts the examination directly; it observes verbal and non-verbal cues in real time; it retains the capacity to pose follow-up, clarifying, and control questions on an ad hoc basis; and the parties participate directly in the evidentiary proceeding. The scholarly literature aptly characterizes this modality as an “electronic alternative” to traditional courtroom examination – one that endows the principle of immediacy with a contemporary dimension appropriate to twenty-first-century practice, without sacrificing the substantive safeguards that the principle was designed to secure.

The doctrinal consensus is unambiguous: where the physical presence of a witness in the courtroom is impracticable, videoconference should be the preferred recourse, and written testimony should constitute the measure of last resort.

VI. Strategic Considerations for Litigation Counsel

A. Responding to an Order for Written Testimony

Where the court orders written testimony from a witness whose evidence bears materially upon the outcome of the proceeding, competent counsel should pursue a graduated response:

First, an immediate reservation to the record under Article 162 CPC, identifying the specific prejudice to the party’s procedural rights – namely, the impairment of credibility assessment and the violation of the principle of immediacy.

Second, a motion to amend the evidentiary order, requesting oral examination either in open court or by videoconference under Article 235 § 2 CPC.

Third, upon receipt of the written testimony, a motion for supplementary oral examination, particularly where the responses are terse, internally inconsistent, or raise questions regarding independent authorship.

Fourth, meticulous drafting of the interrogatories to be submitted to the witness. Questions should be open-ended and broadly framed to maximize the probability of eliciting substantive, narrative responses.

B. The Cost of Passivity

Inaction in the face of an order for written testimony – whether through failure to preserve an objection, neglect in seeking oral examination, or carelessness in the formulation of interrogatories – may prove irrecoverable on appeal. As the Supreme Court has emphasized, the establishment of findings of fact on the basis of evidence that was not formally admitted and examined at a hearing constitutes a violation of the general rules governing evidentiary proceedings with respect to immediacy, openness, equality of arms, and the adversarial principle.

VII. Scope of Application and Boundaries

It bears noting that Article 271¹ CPC is confined in its application to witness testimony and does not extend, on its terms, to the examination of parties. The latter form of written deposition remains available only within the European Small Claims Procedure under Article 505²⁵ § 2 CPC. This boundary, however, has not gone unchallenged: the Courts of Appeals in Szczecin and Poznań have, in recent decisions, admitted the analogous application of Article 271¹ CPC to party examination – a position that has drawn critical commentary in the scholarly literature as an unwarranted extension of an already controversial exception to the principle of immediacy.

Conclusion

Article 271¹ CPC represents a pragmatic legislative response to the systemic challenge of procedural delay in the Polish civil courts. Its structural simplicity, however, belies the doctrinal and practical complexities that attend its application. The provision operates as an exception to the principle of immediacy – a principle whose pedigree extends from Roman law through the ius commune period, the great nineteenth-century codifications, and into the present architecture of the Polish CPC. That pedigree commands respect; exceptions to it demand correspondingly rigorous justification.

For the party that seeks reliable fact-finding, the written examination of a material witness may entail the loss of every meaningful tool for assessing credibility. For the party that regards a witness as adverse, the written format offers no durable refuge – the court retains plenary authority to order supplementary oral examination at any stage. In either posture, the decisive variable is the skill and vigilance of counsel. The procedural lawyer who understands the doctrinal architecture of immediacy, who appreciates the comparative advantages of videoconference over written deposition, and who preserves the client’s appellate options through timely procedural action will be best positioned to navigate the tension between efficiency and fairness that Article 271¹ CPC has introduced into Polish civil litigation.

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This article is provided for informational purposes and does not constitute legal advice. Matters requiring an individualized assessment of procedural circumstances should be referred to qualified counsel.

Robert Nogacki

Robert Nogacki – licensed legal counsel (radca prawny, WA-9026), Founder of Kancelaria Prawna Skarbiec.

There are lawyers who practice law. And there are those who deal with problems for which the law has no ready answer. For over twenty years, Kancelaria Skarbiec has worked at the intersection of tax law, corporate structures, and the deeply human reluctance to give the state more than the state is owed. We advise entrepreneurs from over a dozen countries – from those on the Forbes list to those whose bank account was just seized by the tax authority and who do not know what to do tomorrow morning.

One of the most frequently cited experts on tax law in Polish media – he writes for Rzeczpospolita, Dziennik Gazeta Prawna, and Parkiet not because it looks good on a résumé, but because certain things cannot be explained in a court filing and someone needs to say them out loud. Author of AI Decoding Satoshi Nakamoto: Artificial Intelligence on the Trail of Bitcoin’s Creator. Co-author of the award-winning book Bezpieczeństwo współczesnej firmy (Security of a Modern Company).

Kancelaria Skarbiec holds top positions in the tax law firm rankings of Dziennik Gazeta Prawna. Four-time winner of the European Medal, recipient of the title International Tax Planning Law Firm of the Year in Poland.

He specializes in tax disputes with fiscal authorities, international tax planning, crypto-asset regulation, and asset protection. Since 2006, he has led the WGI case – one of the longest-running criminal proceedings in the history of the Polish financial market – because there are things you do not leave half-done, even if they take two decades. He believes the law is too serious to be treated only seriously – and that the best legal advice is the kind that ensures the client never has to stand before a court.