| The extraordinary complaint is a novelty among extraordinary means of appeal, which appeared in the Polish legal order at the end of 2017. This institution owes its extraordinary character primarily to the strictly specified types of judgments, that may be appealed against with an extraordinary complaint, and a closed list of entities that are entitled to submit such a complaint. The subject of the allegation by means of extraordinary complaint Polish legislator in art. 89 §1 of the Act on the Supreme Court indicated that an extraordinary complaint may be filed against a final judgment of a common court or a military court ending proceedings in a case where – it is necessary to ensure compliance with the principle of a democratic legal state realizing the principles of social justice and were – the final judgment: 1. infringes the principles or freedoms and rights of a human being and citizen set out in the Constitution, or 2. grossly violates the law through its misinterpretation or misapplication, or 3. there is a clear contradiction between significant findings of the court and the content of evidence collected in the case, and it is not possible to set aside or amend it under other extraordinary means of appeal. In view of the above, it is essential to point out that the discussed institution of an extraordinary complaint may be applied only in relation to a specific type of judgment – final, ending the proceedings in cases issued by a military court or a common court of law. As a consequence, the institution of an extraordinary complaint cannot be applied to non-final judgments, which do not end the proceedings in a case, i.e. which may be reviewed by way of an appeal. The extraordinary complaint is also not applicable to any judgments of administrative courts or decisions issued by the prosecutor, even if these judgments end the proceedings in a given case. Bearing in mind the above-mentioned narrow scope of judgments that may be reviewed by way of an extraordinary complaint, it is necessary to consider the relation of the extraordinary complaint to cases, which were subject to the decision and verdict of the Supreme Court in cassation proceeding. First of all, a judgment of the Supreme Court issued as a result of the cassation proceedings cannot be qualified as a “final decision of a common court or military court, ending the proceedings in the case”. The Supreme Court, in accordance with the provisions of Article 175 in conjunction with Article 183 of the Polish Constitution, is not a common court, nor is it a military court. The Supreme Court was established to exercise supervision over the designated sections of the judiciary and to carry out other activities specified in the regulations of the Polish Constitution and separate acts. Consequently, it is not possible to challenge any decision of the Supreme Court with an extraordinary complaint. The above – despite the seemingly rigorous approach of the legislator to the subject of the complaint – does not mean, however, that it is not possible to bring an extraordinary complaint in a case, which was the subject of examination before the Supreme Court in cassation proceedings. It should be kept in mind that the trial, which led to the initiation and settlement of the cassation proceedings before the Supreme Court, consisted of a number of court decisions, including in particular a final judgment ending the proceedings, against which a cassation appeal was brought to the Supreme Court and the cassation proceedings were initiated. With this in mind, and in accordance with the specific provisions of the Supreme Court Act[1], it should be pointed out that in a case that was heard before the Supreme Court during the cassation proceedings, it is possible to file an extraordinary complaint. However, it should not be filed against the decision of the Supreme Court made as a result of the cassation proceedings, but against a final decision of a common court or military court that concludes the proceedings in the case[2]. To sum up, the possibility to challenge a final judgment of a common court or military court is not excluded, if an appeal in cassation has been filed against such decisions, the cassation proceedings have been conducted, and a judgment has been issued by the Supreme Court. The remarks presented in the above paragraphs find an appropriate translation into a situation in which the Supreme Court accepted a cassation appeal against a final judgment of a common court or military court and at the same time issued a substantive judgment, deciding on the essence of the case. Then, such a judgment remains a judgment issued by the Supreme Court, so it is not possible to bring an extraordinary complaint against such a decision. A special situation occurs also when the Supreme Court accepts the cassation complaint and decides to refer the case for reconsideration. Then, as a result of the referral, a common or military court will rule again on a case that it has already decided. Such “subsequent” final and conclusive judgment of a common or military court following a transfer by the Supreme Court may be appealed by way of an extraordinary complaint. On the other hand, a judgment of the Supreme Court transferring a case for retrial may not be appealed by way of an extraordinary complaint. It is also important to point out that the extraordinary complaint has a subsidiary character, i.e. it may not be raised in a situation where in a given case it is possible to overturn or change a decision as a result of raising other extraordinary means of appeal. Thus, for example, the possibility of bringing a cassation complaint in a given case will exclude the possibility of bringing an extraordinary complaint. It should be noted that an extraordinary complaint may be introduced in a situation when, although it was possible to raise other extraordinary remedies, negligence of a party in the procedural aspect prevented it from being submitted. Entities entitled to bring a cassation appeal The legislator has established the following entities, which are exclusively entitled to file an extraordinary complaint: I. General jurisdiction – as to all cases in which an extraordinary complaint may be filed – has been assigned to: II. Prosecutor General, III. the Commissioner for Civil Rights Protection. I. Specific competence – limited to the scope of competence and scope of cases for which the following authorities are appointed to resolve, and which are specified in the acts establishing the indicated authorities – has been granted to: II. Financial Ombudsman, Ombudsman for Small and Medium Enterprises, III.The Chairman of the Financial Supervision Commission, IV. The President of the Office of Competition and Consumer Protection, V. The President of the General Prosecutor’s Office of the Republic of Poland, VI. The Children’s Rights Ombudsman, VII. The Patient’s Rights Ombudsman. The above-mentioned authorities may launch an extraordinary complaint by taking their own initiative, or by acting on the basis of a request submitted by the party/entity – in whose case an extraordinary complaint is to be made. Such request should present as fully as possible the allegations to be raised in the given case, together with their justification, supporting the legitimacy of the authority in question to bring an extraordinary complaint. A correctly completed request increases the chances that the competent authority will accept the request, and consequently, that an extraordinary complaint will be lodged in the given case. Summary The above-mentioned remarks allow us to explicitly state that the extraordinary complaint, being a novelty in the area of extraordinary remedies and challenging final court decisions, has been limited in terms of the right to file it to a closed catalog of entities and it is not directly applicable in relation to decisions of the Supreme Court. The decisions of the Supreme Court made as a result of cassation proceedings are not subject to appeal by means of an extraordinary complaint, regardless of their type. Such decisions of the Supreme Court, however, do not eliminate the possibility of challenging the final decisions of common courts or military courts ending proceedings in a given case, providing the case was examined in the course of cassation proceedings. In particular, it is possible to appeal against final decisions of common courts or military courts ending proceedings in a given case, which were made as a result of a decision of the Supreme Court issued in the course of cassation proceedings and referring the case for re-examination to the indicated courts. The decision which, in accordance with the foregoing, may be challenged by way of an extraordinary complaint, must be characterized by a specific defect that needs to be demonstrated and must meet the conditions as indicated at the outset and set out in Article 89 §1 of the Supreme Court Act. [1] Article 89 §3 in connection with Article 9 §2 in connection with Article 94 §2 of the Supreme Court Act. [2] against which, in the situation under consideration, a cassation complaint has been submitted to the Supreme Court in cassation proceedings. Trainee Attorney-at-Law Mateusz Konopacki |