Extraordinary Appeal

(Summary and some thoughts for consideration) .Author Dr. Karol Świtaj.

A new legal remedy, in the form of an extraordinary appeal,  was introduced by the Polish legislator within the Supreme Court Act of December 2017 (“SCA”)  to address demands for extraordinary reviews of cases. While justifying those demands, the need was to set final court decisions aside that are mainly unjust, based on misinterpreted regulations or on findings contrary to the content of the evidence presented. The regulation was contemplated  not only to fit into the existing system of legal remedies but also to close a gap within this system.  However, only two new provisions were enacted regulating directly the nature of the extraordinary appeal and  according to the SCA, provisions of the appeal to the Polish Supreme Court should apply according to the extraordinary appeal.

The extraordinary appeal shall be brought to the Supreme Court for review through  court that issued the contested judgment. The case subject to the appeal will be  heard by two judges of the Supreme Court, sitting in the Extraordinary Audit and Public Affairs Chamber, and one lay judge of the Supreme Court. However, if the appeal concerns a  case previously decided by the Supreme Court itself, the extraordinary appeal will be heard by five judges of the  Supreme Court sitting in the Extraordinary Audit and Public Affairs Chamber. All other decisions made within extraordinary complaint proceedings (e.g. decisions whether to hear a case and agreeing to its review or to deny the appeal) will be taken by one judge only. The extraordinary appeal can be based on issues and objections regarding findings by the previous court being in conflict with evidence collected in the matter. Another novelty is that the case subject to the extraordinary appeal will be deliberated behind closed doors and this regulation shall be deemed a derogation from the principle of the transparency within procedural law. Furthermore, an extraordinary  appeal in civil cases may be filed within 5 (five) years from the day on which the  controversial judgment of a lower court became final and  if the judgment was already appealed within 1 (one) year from the day of its examination. It should also be stressed that the request by the appellant to provide a delivery of a statement of grounds for the issued judgement subject to the extraordinary appeal does not affect the beginning of the time limit for launching the extraordinary appeal to the Supreme Court.

To sum up, the introduction of the regulation of the legal remedy of the extraordinary appeal within the Polish legal system is surely a step in the right direction. However,  its regulation may raise reasonable doubts as to the marginal codification in the SAC and the rather vague reference to the application of the corresponding rules on appeal. The latter does not  seem sufficient in any respect.

The extraordinary complaint regulation may also lead to further problems and interpretations as  the extraordinary procedure, due to the purpose and nature of this legal remedy, cannot be simply  “embodied” within the framework of the appeal procedure. Thus, although it is conducted on the basis and in part on the principles inherent within civil law, it does not actually fall within any of the procedural types regulated by the Polish Code of Civil Procedure. Thus, the question arises about the accuracy of the solution adopted by the Polish legislator, which should not remain unanswered. Time will tell how  the regulation of extraordinary appeals will be handled in the judicial praxis.

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