On 3 April 2018, the Act on the Supreme Court of 8 December 2017 went into effect, incorporating into the Polish legal system an additional way to challenge non-appealable court rulings by lodging an extraordinary appeal with the Supreme Court.
In principle, the extraordinary appeal may be filed against any non-appealable rulings of a common court of law or a military court ending proceedings in the case, other than rulings in minor offence or tax offence cases. It needs pointing out that the extraordinary appeal can be used to challenge all court rulings and not only judgements. Further, the Act does not make the ability to lodge an extraordinary appeal conditional upon having appealed against the ruling in question earlier, neither does it even require the party to have previously requested a justification of the ruling – if no justification of the ruling being appealed against has been provided, the Supreme Court can instruct the relevant court to draw up the justification. Finally, as a rule, the extraordinary appeal can also be lodged if the party has already sought to challenge a non-appealable ruling otherwise, providing that the extraordinary appeal cannot rely on the grounds that have already been ruled upon as part of a previous cassation appeal to the Supreme Court, as the case may be.
At the same time, the legislators have imposed certain restrictions on the ability to lodge extraordinary appeals. Above all, the extraordinary appeal is filed with the Supreme Court and that is the only court with jurisdiction to hear it. Further, the extraordinary appeal can be lodged solely by the parties listed under the Act, in particular the Prosecutor General, Ombudsmen, and the Small and Medium Enterprises Representative. Moreover, the ability to lodge the extraordinary appeal is time-bound; it can be filed up to 5 years from the day on which the ruling being appealed against becomes non-appealable and, in the case of a ruling that was previously challenged under a cassation appeal, within 1 year after they are ruled on. At the same time, within 3 years from the effective date of the Act referred to above, it is possible to lodge extraordinary appeals against rulings that became non-appealable after 17 October 1997; however, in this case, the extraordinary appeal can be lodged only by the Prosecutor General or the Ombudsman.
The extraordinary appeal may be lodged if it is necessary to do so to ensure the rule of law and social justice and: (i) the ruling infringes on the rules or freedoms and human and citizens’ rights laid down under the Constitution; or (ii) the ruling flagrantly abuses a right by its erroneous interpretation or incorrect application; or (iii) the court’s material findings and the evidence on the record are clearly contradictory. Moreover, according to the amendment to this Act coming into force on June 16, 2018, in spite of the abovementioned conditions, the extraordinary appeal can be lodged only if it is necessary to ensure compliance with the principle of a democratic state that implements the principles of social justice. Importantly, the extraordinary appeal may be lodged only if the ruling in question cannot be reversed or varied by filing any other extraordinary measures of appeal. If the extraordinary appeal is successful, the Supreme Court sets aside the ruling appealed against and, should a need arise, also the ruling of the court of first instance and depending on the circumstances of a case may rule on the merits or remand the case to the relevant court. If no valid grounds are found to reverse the ruling being appealed against, the Supreme Court dismisses the extraordinary appeal, and the authorised parties cannot file it again in the interests of the same appellant.
The institution of the extraordinary appeal procedure outlined above into Polish law will have the effect of reducing the security of business dealings as it enables having non-appealable court rulings changed based on very general premises. The actual significance of the new procedure will depend primarily upon the practical approach of the nine parties authorised to lodge the extraordinary appeal and the scope of the possible future legislative amendments. Without any doubt, however, there is clearly an interest in the possible application of the new procedure, as within not even a full month since the Act became effective over 600 motions for having the extraordinary appeal lodged have been filed.