After specialists on sky jumping and Formula 1, Poland has recently seen the rise of proceduralists, i.e. specialists on each and every proceedings, including, in particular, proceedings on front of tribunals. O tempora, o mores, in the media, the press, in restaurants, at bus stops and in parks almost everyone discusses procedure. Particular popularity has been granted to the concept of the so-called “non-existing judgment” (Lat. sententia non existens), i.e. a rather sophisticated concept of the doctrine of procedural law, revolving around, in particular, the issue of what makes a judgment a judgment. Specialists of various kinds and species have entered a fierce battle for arguments on how potential procedural flaws (including, in particular, flaws in the composition of the court) may influence the (non)existence of a judgment. Politically sensitive readers are kindly informed in advance that any similarity to real persons and events is almost entirely unintended.
The advocates of the application of sententia non existens should be applauded for telling the fundamental truth in this regard. Only the non-existence of a judgment would give basis for the cessation of all these activities, which public authorities are obligated to undertake in order to comply with the procedure of introducing a judgment into the legal reality. Only in case a judgment is not a judgment, can it be treated not as a judgment. I have started from the end, though. One has to begin with considering when sententia – according to the Classic – non est.
Does the issuance of a judgment by an improper composition of the court constitute a flaw resulting in its non-existence? Such a flaw is of a definitely procedural character. It is a rule (albeit exceptions exist) of the Polish procedural legal writing that a judgment might be challenged if such procedural flaws occurred which might have had an influence on its content. The legislature is of the opinion, however, that flaws in the constitution of adjudicating panels are of special importance, therefore they constitute, respectively: in civil procedure: a basis for annulment, while in criminal procedure: an absolute appeal basis. It is of no relevance, therefore, whether the missing judge could convince or “over-vote” the remaining ones. Regardless of whether the flaw’s influence on the content of the judgment could be revoked, the judgment remains flawed.
Let us have a look at the first of the abovementioned procedures, then.
The code of civil procedure stipulates nothing more, nothing less than that proceedings are invalid if the judgment was rendered by an adjudicating panel whose composition was contrary to the provisions of the law or if a judge disqualified ex lege participated in issuing the judgment. In the older jurisprudence of the Supreme Court it was pointed to the fact that procedural provisions should be interpreted strictly and a flaw exists even if the composition was wider than foreseen by the statute.1 The proceedings are invalid, so the judgment does not exist. Roma locuta, causa finita.
But is it really so?
What is this creature, this invalidity? Does invalidity of proceedings result in the non-existence of a judgment? In the writings of commercial law (at least since the adoption of the Code of Commercial Companies and the new procedure for appeal of resolutions) there has been a debate between the advocated and opponents of non-existing resolutions. After the recent resolution of the Supreme Court, adjudicating in its 7-judge composition, the Gordian knot has got even more tangled2, and the already silenced debate erupted anew. In the course of this debate, Prof. Gutowski used an eristic argument, according to which the concept of non-existence (as a result of the conduct of a conventional act with a breach of the law) contains an ontological paradox. There is such an X which is a resolution, and this X does not exist3. True it is, albeit only partially. A flawed act or, to be more specific, its so-called substrate, exists (or at least existed) at the moment this act was conducted. Flaws such act is tainted with may lead to this act being irrelevant, i.e. non-existent in the legal reality. What makes a resolution not be a resolution and a judgment not be a judgment? Answering this question would definitely require an analysis exceeding the scope of this text. I will, therefore, attempt to limit my answer to the initially posed question of whether a flaw in the composition of the adjudicating panel, consisting in the issuance of a judgment by a lower than statutorily predicted number of judges, leads to the non-existence of the judgment.
Flaws are not equal among one another. It is, however, easier to solve the problem if the judgment was not issued with the participation of a person unauthorized or a judge disqualified ex lege, though even in such case this would only constitute basis for filing a motion for reconsideration. Both, based on procedural law and commercial law, the concept of non-existing acts had as its reason the prevention of introduction into the legal transactions of such resolutions and rulings which are tainted with the most severe flaws. Flaws which disqualify the possibility of their functioning in the legal reality, even if only until the moment when their invalidity is determined.
In civil procedure, invalidity was regulated in the part on appeals mechanisms. The appeals court considers it ex officio, though only within the appeals limits. This means, in particular, that the sanction of invalidity can be considered only in case in which the ruling has been subject to instance control and only when the invalidity pertains to this element of proceedings which was included within the scope of appeal. Invalidity does not, therefore, have an ex lege effect, as already underlined by the Supreme Court4 and representatives of legal writing of procedural law5. Translating it from legal English into regular English, the proceedings are not invalid, but they can be invalidated.
Why would one adopt such a legislative model? It seems that the legislature intended to provide stability of legal dealings by eliminating the possibility of questioning the existence of a ruling by entities which were not created to do so. A court bailiff who executes a court ruling cannot deny to undertake his activities in a situation when they identify a flaw in the composition of the court whose ruling is executed.
What happens, however, with rulings of courts and tribunals whose rulings have a final character and to whom provisions of the Code on civil procedure are applied mutatis mutandis. There is no procedural authority which could determine such invalidity. A question arises, therefore, whether in such situations this competence belongs to everyone or to no one. If we assume that the legislature acts reasonably and teleologically (with the aim of securing legal stability), the latter solution seems safer.
One could pose the thesis that the respective application of the provisions of the Code of civil procedure means that, in this case, they should not be applied at all. Such interpretation deprives the analysed flaw of any normative basis, which would enable the understanding of its nature and effects. Not to mention that the existence of such a flaw can sometimes be disputed. However, maybe such vital issues require one to reach that far. If there is no one to invalidate a judgment, the executive should take the matters into its hands.
Leaving the question without an answer, as a summary, I will evoke another category close to the heart of proceduralists, i.e. the ability for settlement. Regardless of how one would solve the above described dispute, procedural law leaves very little space for compromise. To paraphrase Cicero, servitude to the law – even if unfavourable – is the guarantee of freedom. Undisputedly, relativity is inherently connected to legal professions, though its extreme forms may lead not only to the loss of credibility, but also to the loss of sense of the analysed norm. Who should decide on that if not a proper court?
Is there a judgment or is there not? That is the question.
1. Resolution of the Supreme Court – Civil Chamber, of 18 December 1968, court case no. III CZP 119/68
2. Resolution of the Supreme Court – Civil Chamber, of 18 September 2013, court case no. III CZP 13/13, published: http://www.sn.pl/orzecznictwo/SitePages/Najnowsze_orzeczenia.aspx?ItemID=426&ListName=Zagadnienia_prawne&Rok=2013
3. M. Gutowski, Nieważność czynności prawnej, 2012, issue no. 3, p. 60.
4. See: Decision of the Supreme Court – Civil Chamber, of 3 June 2011, court case no. III CSK 291/10.
5. Code of civil procedure does not, therefore, know the effects of invalidity of proceedings or ruling ex lege. The invalidity of proceedings does not deprive the ruling of its effects ex lege, but only justifies an appeal against such a ruling due to this fact. Ereciński, Tadeusz. Art. 379. In: Kodeks postępowania cywilnego. Komentarz. Tom II. Postępowanie rozpoznawcze, issue: IV. Wydawnictwo Prawnicze LexisNexis, 2012.