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Currently, Polish law does not define the term “consortium”. However, according to the view dominant in case-law, a consortium agreement is a private partnership agreement. Legal doctrine emphasises that a consortium agreement is an “atypical private partnership agreement.” The differences between a normal private partnership agreement and a consortium agreement include, among others, the fact that consortium members do not have to provide contribution, which is a rule in private partnership agreements. Additionally, consortium members participate in profit and losses on different terms than private partnership members.

As legal advisor Artur Sidor and Anna Matysiak point out in their article, a consortium agreement consists of three elements: clauses which are common to all consortium agreements, clauses which are dependent on the consortium type and additional clauses. “Contractors have freedom in shaping the content of consortium agreements. The ordering party cannot interfere in the content of the agreement; in particular, they cannot demand that specific clauses be included. What is more, some aspects of the internal functioning of a consortium, for example mutual financial settlements, can be specified in a separate agreement whose content will only be known to consortium members, and will not be disclosed to the ordering party,” the authors note.

According to the provisions of the Public Procurement Law, each consortium member has the status of a contractor. This means that each of them is jointly and severally liable towards the ordering party for the obligations set forth in the contract. “Internal arrangements between consortium members, concerning their performance of particular obligations adding up to the consortium’s entire obligation set forth in the contract, do not influence the liability of consortium members,” the authors emphasise. Joint and several liability of contractors serves to protect the interests of the ordering party as a creditor and to secure the performance of the contract.

Norbert Rembak was arrested in 2005. The proceedings in his case lasted 8 years and all this time the applicant remained in detention on remand. What is more, for over 3 years the applicant was classified as a dangerous detainee which had a number of consequences, such as for example his placement in a single cell and the use of other measures within the special security regime.

In his application to ECHR, Norbert Rembak claimed that his excessive pre-trial detention and prolonged classification as a dangerous detainee violated the provisions of the Convention.

“When justifying its decision to accept the government’s unilateral declaration, ECHR relied on its previous case-law concerning the use of a dangerous detainee status. In 2012, in the case Piechowicz against Poland, ECHR ruled that the dangerous detainee status should be used exceptionally and only for a period when it is necessary,” says advocate Paweł Osik who, together with advocate Mikołaj Pietrzak, represented Norbert Rembak before ECHR.

It has been the second case of this type considered by ECHR recently. At the beginning of November, ECHR accepted the government’s unilateral declaration in the case Hernandez against Poland. The government acknowledged a violation of the Convention in that case with regard to the excessive length of the applicant’s pre-trial detention and criminal proceedings (more information available here).

This press information was prepared with consent of the applicant who was represented by the lawyers from the Pietrzak Sidor & Partners Law Firm.

The applicants’ son was arrested by the police in February 2010 while he was going home with his friends. The police officers transported him to the police station. He did not hear any charges, and the police officers allegedly released him in the morning. Ms Olszewska  called her son that morning. The conversation was short and she received only partial answers to her questions. She later admitted that she thought it had not been her son on the phone. It soon turned out that the applicants’ son disappeared. When the applicants inquired about their son at the police station where he had been held, they were informed that their son had not been there the previous night. Only after a couple of days were the applicants informed that their son in fact had been in the police station that unfortunate night.

The search for the applicants’ son lasted for almost three weeks. At the beginning of March, the body was found outside the city, and the police officers who had arrested the applicants’ son in February were the first ones at the scene.

“The investigation into the disappearance and death of the applicants’ son lasted for almost three years and, from the start, was full of mistakes – improperly secured evidence, unquestioned witnesses and finally unchecked traces,” says advocate Mikołaj Pietrzak who together with advocate Urszula Podhalańska represented the applicants in the proceedings before ECHR.

The investigation was discontinued in January 2011, but the court order the case to be reexamined. For the second time, the investigation was discontinued in 2013. In the rationale for discontinuation, the prosecution stated that there was not enough evidence to unambiguously confirm the course of actions the night when the applicants’ son was arrested. Four months later, in May 2013 the court upheld this decision.

When considering the application, ECHR stated that the lack of an effective investigation into the death of the applicants’ son violated art. 2 of the European Convention on Human Rights in its procedural aspect. ECHR emphasized that effectiveness of proceedings does not rely on their results, but on the efforts that are undertaken. “The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy […] Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard [of effective investigation – editor’s note]”, wrote the judges in the judgement’s rationale.

„No judgement can return their son to the applicants,” says advocate Mikołaj Pietrzak. “But today’s ruling is at least a drop of justice which Mr Olszewski and Mrs Olszewska could not receive from Polish courts,” he adds.

This press information was prepared with consent of the applicants who were represented by the Pietrzak Sidor & Partners Law Firm.

The jury of the competition recognized, in particular, advocate Urszula Podhalańska’s experience in conducting cases concerning the application of the European Arrest Warrant (EAW). Advocate Urszula Podhalańska has so far conducted 25 such cases in the majority of which her engagement resulted in the repeal of EAW or discontinuation of proceedings.

Advocate Urszula Podhalańska has been with the Pietrzak Sidor & Partners Law Firm since 2011. In 2013, she became a partner. Apart from criminal cases, she handles cases regarding criminal economic law, crimes against safety in communication and cases connected to medical errors. She cooperates pro bono with Greenpeace Poland and engages in cases which the law firm conducts at the request of the Helsinki Foundation for Human Rights.

“I have been following the development of advocate Urszula Podhalańska’s career with admiration,” says advocate Mikołaj Pietrzak. “Having observed Ula at work, I am jealous of two things – the incredible composure with which she handles cases and acts in court and a gratitude letter from a client who was in danger of going to jail for two years as a result of EAW proceedings. Ula won this case and the client’s life and family were not ruined as a result of unfair charges,” says advocate Mikołaj Pietrzek.

This is the second distinction for a lawyer from the Pietrzak Sidor & Partners Law Firm. Last years, advocate Paweł Osik was honoured with the Rising Star title (more information is available here).

Urszula, our congratulations!

Founded in 1985, the School of International Arbitration at the Queen Mary University of London is one of the most important academic centres which specialise in alternative dispute resolution. The postgraduate course completed by Artur Sidor is taught by professionals who participate in arbitration proceedings and concentrate first and foremost on the practical application of knowledge.

Artur Sidor has been engaged in arbitration for many years. He is a member of the Polish Arbitration Association and is on the list of arbitrators of the Arbitration Court by the Polish Bank Association. Artur Sidor also engages in the promotion of knowledge about international arbitration. This year, together with advocate Katarzyna Dąbkowska, he took part in the 7th Warsaw Pre-moot as an arbitrator (more information is available here).

The draft law introduces a procedure of dealing with material covered by LPP and gathered during operational surveillance. Having acquainted oneself with the material, an officer of an authorised secret service would decide whether it constitutes information covered by professional secrecy. If so, secret services would have to apply to the prosecutor who would – in turn – have to apply to the court for permission to use the material in the course of proceedings. If the court refused consent, the material would have to be destroyed.

“This procedure does not, in any way, guarantee protection of information covered by the legal professional privilege. Even if the court refused consent to use this information, the secret services will have already learnt about it,” says advocate Mikołaj Pietrzak.

The draft law raises numerous controversies. The Polish Bar Council, the Prosecutor General, the Inspector General for the Protection of Personal Data as well as non-governmental organisations have already presented their critical opinions on the draft.

The provisions which were deemed unconstitutional by the Constitutional Tribunal will expire in February 2016.

The amendments extend the catalogue of building objects whose construction does not require a building permit. Among those buildings, there are detached, single-family houses which entirely fit a building lot and detached utility buildings. Construction of those objects only requires a building notification.

The new regulations do not impose on investors a requirement to obtain a final decision on the permission to build in order to initiate construction work. “The term ‘final’ was deleted from the text. This can significantly influence the speed of building investments,” writes legal advisor Artur Sidor.

The new regulations also provide that an appropriate body can, within 30 days, submit an objection if the construction work violates the provisions of the local special development plan or the decision on construction conditions. “It must be noted that in particular cases an appropriate body can impose on the investor a duty to obtain a permit to construct a particular building object or perform construction work,” legal advisor Artur Sidor adds.

The Construction Law has been amended multiple times in recent years. It is unlikely that the current amendments put an end to those changes. A draft Construction Code was submitted for public and interdepartmental consultations in May. It foresees, among others, the extension of the catalogue of building objects encompassed by the simplified notification procedure. “The scope of the draft Code allows one to hope that it will positively influence the development of the building sector,” legal advisor Artur Sidor further notes.

The article „A change before a revolution” by legal advisor Artur Sidor and advocate trainee Paweł Murawski is available here.

In the light of the amended law, a judge will not take part in conducting evidence, but – apart from few exceptions – will decide on the basis of evidence and information presented by the parties. Until now, with no engagement on the part of the prosecutor, the court had to find evidence to the benefit of the accusation.

“This is why, from the perspective of the accused, it seemed like the defence counsel was defending, the prosecutor was doing nothing, and the court was looking for evidence to his disadvantage,” says advocate Mikołaj Pietrzak. “I think that after the reform it will be easier to ensure the procedural safeguards which the accused is entitled to on the basis of the Constitution and the European Convention on Human Rights. Whether it is easier to sentence or acquit will depend on the evidence,” he adds.

The amendments to the Code of Criminal Procedure widen access to a lawyer, which will be common and on demand. However, the new provisions do not raise lawyers’ fees. “The fees were left at the same level as 12 years ago. Lawyers conduct court-appointed cases led by their sense of duty and mission. They conduct them thoroughly and reliably, but also with some bitterness,” says advocate Mikołaj Pietrzak.

New provisions also introduce a prohibition on the use of illegally obtained evidence. According to advocate Mikołaj Pietrzak, this is a revolutionary change, but it can cause numerous complications in the future. “The provision is formulated in such a way that evidence advantageous for the accused, but obtained as a result of a crime, can be inadmissible,” he explains.

Finally, the amended legislation also strengthens the position of the victim in the proceedings. “The victim gains a very strong position against the accused. A possibility was introduced of a compensatory discontinuation of proceedings, so a type of discontinuation in not very serious crimes, on condition that the damage was mitigated,” says advocate Mikołaj Pietrzak.

The whole interview „Enough of inquisition” [Piotr Szymaniak, Dziennik Gazeta Prawna, 26 June 2015] is available only in Polish here.

In May 2011, the Regional Examination Commission (REC) voided the results of a chemistry maturity exam of a group of students from schools in Ostrowiec Świętokrzyski, claiming that the student did not write the exam independently. Initially, the students only received general information which did not directly specify the exercises which raised examiners’ doubts.

“For those students, annulling the results of the exam had dire consequences. Without an opportunity to appeal this decision, the students were not able to apply for studies, and their plans for the upcoming years became unrealistic,” says advocate Paweł Osik.

The students appealed the REC’s decision to the administrative court. The court ruled, however, that there is no possibility in law to question the annulment of a maturity exam. The Supreme Administrative Court upheld this ruling. It also emphasized that the sheer fact of having one’s maturity certificate does not determine the “right” to be admitted to any studies.

18 students filed complaints with the Constitutional Tribunal questioning the lack of procedures to appeal decisions annulling a maturity exam. They claimed that this gap in law violates, among others, their right to court and education, as well as the rights to protection of dignity and good name.

During the proceedings before the Constitutional Tribunal, the director of the Central Examination Commission argued that the decision-making process on the annulment of a maturity exam has multiple stages. “The problem is that the whole procedure had an internal character. The students did not know that such proceedings were ongoing. Nor did they have the possibility of presenting their own arguments,” says advocate Paweł Osik.

In the proceedings before the Constitutional Tribunal, representatives of the Prosecutor General claimed that the complaints were illegitimate because the students did not exhaust all available legal measures, for example they did not appeal to a civil court. “In our opinion, a civil court is not proper in this matter. In our constitutional complaints, we indicated a violation of the right to a proper court. And actions of administrative organs are controlled by administrative courts. A common court will not void a decision issued by an administrative body,” says advocate Paweł Osik.

The Constitutional Tribunal postponed the trial until 22nd June 2015.

Information published by Dziennik Gazeta Prawna suggests that cases notified to prosecutors’ offices were too often registered in the Ko register instead of the investigative register. The former contains cases notified anonymously, or those which belong to the competences of another prosecutor’s office. This practice was to cover the actual rate of incoming cases and, thus, produce better statistical outcomes for a given prosecutor’s office.

„This situation proves that the problem of how to maintain statistics is noticed even within the prosecution itself. If the Ko register contains over 50 per cent of cases then this is a disquieting signal,” says advocate Paweł Osik. “Appropriate registration of cases has great importance from the perspective of the right to a fair trial and the right to have one’s case heard without undue delay,” he adds.