The Ombudsman has filed extraordinary complaints in cases concerning Swiss franc borrowers.

There is a light at the end of the tunnel for consumers who have lost final court cases brought by banks concerning Swiss franc loans and who now face enforcement proceedings. This light is the possibility of filing an extraordinary complaint (skarga nadzwyczajna) by the Commissioner for Human Rights (Rzecznik Praw Obywatelskich, RPO) to the Supreme Court. The fact that this is a realistic prospect is demonstrated by two such extraordinary complaints submitted in March 2022.

The first case concerns a consumer who entered into a loan agreement indexed to the CHF exchange rate. Due to non-repayment of the loan, the court issued a final payment order in favour of the bank. The court dismissed the consumer’s objection on the grounds that it was filed after the statutory deadline.

The second case concerns consumers who also took out Swiss franc loans but failed to repay them regularly. Accordingly, in this case as well, the court issued a final payment order in favour of the bank because the consumers did not appeal the order.

In both complaints submitted in these cases, the Commissioner for Human Rights alleged that the courts failed to examine ex officio the abusiveness of the clauses contained in the loan agreement. According to the Commissioner, the courts did not fulfil their constitutional duty to ensure adequate protection of consumers, as the weaker party in the legal relationship, because they should have examined, ex officio and not only upon the consumers’ request, whether the loan agreement contained abusive contractual provisions.

Moreover, in the second case, due to the advanced stage of enforcement proceedings, the Commissioner requested a stay of execution of the payment order until the proceedings initiated by the extraordinary complaint are concluded.

In both complaints, the Commissioner sought the annulment of the payment orders and the referral of the cases back to the district court for reconsideration.

An extraordinary complaint may be filed when necessary to ensure compliance with the principle of a democratic state governed by the rule of law implementing the principles of social justice, against a final judgment of a common court which, among other things, violates the principles or freedoms and rights of a person and citizen set out in the Constitution. In these cases, this concerns the failure to provide consumer protection arising from Article 76 of the Constitution.

Importantly, an extraordinary complaint may be filed within five years from the date the challenged decision becomes final, or if a cassation complaint or cassation appeal has been filed against the decision, within one year from the date of its consideration. It may only be filed by a closed group of public entities, including the Commissioner for Human Rights and the Financial Ombudsman. If the challenged decision has caused, for example, irreversible legal effects, the Supreme Court limits itself to declaring that the challenged decision was issued in violation of the law and indicating the circumstances that led to such a ruling.

It is also worth remembering that an extraordinary complaint may be filed only once in the interest of the same party against the same decision. Furthermore, an extraordinary complaint cannot be based on objections that were already the subject of cassation complaints or cassation appeals accepted for consideration by the Supreme Court.