Exception to the rule of a clean appeal model

Description of the facts

The territory Court in Wroclaw, by judgement of 17.10.2023, XII K 342/21, acquitted the suspect M.P. from the charge of committing an act consisting in that between 27.9.2017 and 28.9.2017 in W., acting as Head of E. Branch Service and being head of staff liable for wellness and safety at work, did not fulfil the resulting work and by the inappropriate organisation of the work and supervision of its subordinate employees exposed the worker The President to the immediate hazard of serious wellness damage. Namely, he did not respond to the fact that an unauthorized individual gave the victim The President commanding the replacement of the grapple by the Y- forklift, which infringes the provisions on wellness and safety at work, allowing the victim to execute the work, who did not have the right to keep close transport – carriages with a mechanical lifting device – issued by the method Inspection Office.

As a result, the victim suffered injuries classified as a mean wellness injury in the form of a violation of body organ function and wellness disorder for more than 7 days.

The defendant’s actions have fulfilled the characteristics of the offence referred to in Article 220(1) of the KK and Article 157(1) and (3) of the KK, in conjunction with Article 11(2) of the KK.

Following the appeal of the territory lawyer in W., in which the detailed mistake in the factual findings adopted as the basis of the judgement was alleged, the territory Court of W. in its judgement of 7.5.2024, IV Ka 30/24, annulled the contested judgement and referred the case to the territory Court of W. again.

The appeal against the judgement of the Court of Appeal brought an action against the suspect and, by bringing an action against him, alleges infringement of Article 437(2) of the NCP by repealing the judgement under appeal and mention the case to the Court of First Instance for re-examination, while there are no grounds allowing the Court of First Instance to do so, which besides confirmed the content of the message of reasons for the judgment.

By making the above claim, the applicant requested that the judgement under appeal be set aside in its entirety and that the case be referred to the territory Court of W., as an appeal court, for review.

The ultimate Court, after examining the action brought by the defendant's defence, annulled the contested judgement and referred the case to the territory Court of W. for re-examination in appeal proceedings.

Reasons for SN

According to the ultimate Court, the complaint is well founded.

Pursuant to Article 539a(3) of the NCP, an action against the judgement of the appeal court repealing the judgement of the court of first instance and referring the case to review shall be brought only due to a breach of Article 437 of the NCP or due to the deficiencies referred to in Article 439(1) of the NCP. This means that the merits of the action may arise from the existence of an absolute reason for appeal, the absence of the request to re-establish the full or breach of the regulation by the appeal court ne peius, as referred to in Article 454(1) of the NCP. In the current legal state, it is so a regulation to conduct supplementary evidence before the second instance and to decide on improvement proceedings, and the appeal court’s cassatory decision is admissible in exceptional cases.

As can be seen from the grounds for the judgement of the Court of Appeal, the formal basis for repealing the judgement of the Court of First Instance was the request to re-establish the full line. However, this point was not made in the present case and the cassatory decision of the Court of Appeal was so unfounded. This condition is only updated if, in the first instance, there has been specified a breach of procedural law which, in the circumstances of a peculiar case, undermines the reliability of the full procedure, which is in favour of repeating (re-) all procedural acts constituting a judicial line in the court of First instance (see the resolution of the ultimate Court of 22.5.2019, I KZP 3/19, Legalis; judgement of the ultimate Court of 9.2.2021, V KS 221, Legalis).

In cases where the above circumstances are not the case, the supporting evidence should be carried out by the appeal court (see e.g. judgement of 20.10.2022, III KS 63/22, Legalis).

In the present case, there were no circumstances justifying the request to carry out all the proceedings carried out by the Court of First Instance again. The Court of Appeal, in its message of reasons for the judgement under appeal, stated that: ‘the findings of the territory Court concerning the failure of the suspect to fulfil his duties in the field of wellness and safety did not take into account all the evidence available.’ At the same time, the Court of First Instance referred to circumstantial circumstances which it considered had not been sufficiently examined (the question of the command to replace the grapple by the forklift). However, the uncovering that ‘the court of the first instance took small care of this component of reality (the issue of work for organising a safe place of work) has underestimated its importance by accepting prematurely in this situation that it is not possible to find who recommended the victim's work’ did not justify the request to carry out the wire completely again. Rather, the Court of Appeal pointed out that ‘no full evidence has been collected’ and so the evidence should be supplemented. This is besides confirmed by the Court’s view that it was essential to ‘take into account, face and review each other’ concrete evidence: the evidence of the victim and the witness T.C., and besides from the protocols to find the circumstances and causes of the accident.

However, the Court of Appeal in the case ignored having its own jurisdiction to conduct evidence, stating that: ‘The territory Court did not explain all the applicable facts, and those deficiencies ‘are so crucial that they prevent a substantive assessment of the validity of the decision, and the Court of Appeal is hampered by the anticipation of reopening the case for the intent of correct determination of the facts, since, in principle, this task falls on the Court of First Instance’.

As can be seen, the Court of Appeal did not even effort to show that the case had to be carried out “in its entirety”. The argument boils down in rule to the allegation that the Court of First Instance did not carry out the ‘all’ essential evidence, and to the claim that, in principle, the applicable evidence should be carried out by the Court of First Instance. However, specified a position in the current legal state should be regarded as an explanation contra legem. It is actual that, in the improvement model, even the serious deficiencies in the evidence collected by the Court of First Instance do not imply the request for a cassatory judgment, unless there is simply a request for a ‘new’ and ‘whole’ evidence.

The Court of Appeal, without showing adequate serious deficiencies and shortcomings in the erstwhile proceedings to make it essential to repeat the procedural proceedings carried out in the course of the proceeding before the Court of First Instance, has infringed Article 437(2) of the NCP. In view of the above, it was necessary, pursuant to Article 539e(2) of the NCP, to repeal the contested judgement of the territory Court of W. and to mention the case to that Court for review in the appeal proceedings.

Comment