Grounds for action against the judgement of the appeal court

legalis.pl 1 year ago

Description of the facts

District Court of K. in judgement of 24.1.2022, III K 1006/18 declared the suspect J. M. for the guilty of 2 prohibited acts, being the manager of construction works belonging to the Housing property Community in K.:

  1. between 19.12.1999 and 31.12.2014 he did not keep the accounts of that Community, which he exhausted the marks of an offence under Article 77(1) of the Accounting Act of 29.9.1994 (Journal of Laws of 2023, item 120; hereinafter: the AccountU) and for this he fined him 30 regular units, taking 1 rate per equivalent amount of PLN 20;
  2. between 1.10.2012 and 30.11.2016, by not refurbishing balconies and loggias in buildings, it did not guarantee the safety of the usage of construction sites, which it exhausted the marks of the offence under Article 91a of the Act of 7.7.1994. Construction law (Journal of Laws of 2023 item 682; hereinafter: PrBud) and for this he fined him 100 regular units, assuming 1 rate for an equivalent amount of PLN 20.

Article 85(1) KK and Article 86(1) and (2) KK The court imposed a full fine of 120 regular units on the defendant, at a single rate for an equivalent amount of PLN 20.

Furthermore, the Court found the suspect J. M. for the fact that, from 1.3.2005 to 28.11.2014, as the manager of the construction works belonging to the Property Housing Community in K. acting at short intervals in the performance of the pre-conceived intention, in order to get the property benefit, he led the Community to an unfavourable regulation with a full amount of PLN 11.160,36. which has exhausted the marks of the offence with Article 286(1) of the KK in the above-mentioned Article 12 of the KK and, for this, has been punished for 8 months by the detention of which, by virtue of Article 69(1) and (2) of the KK and Article 70(1) of the KK, has suspended for a period of 1 year the trial.

Appeals against the judgement of the territory Court in K. brought the suspect and his defender, challenging the decision in its entirety.

The territory Court of K. in its judgement of 10.11.2022, XXIII Ka 47922, annulled the contested judgement and referred the case to the territory Court of K for review.

A complaint under Article 539a(1) of the NCP was brought by the prosecutor, in full appeal against the defendant. The complainant alleged infringement of Article 437(2) in fine The NCP requested the annulment of the judgement under appeal and the referral to the appeal court for review.

The ultimate Court, after examining the action, annulled the contested judgement and referred the case to the territory Court of K. for re-examination.

Reasons for SN

According to the ultimate Court, the complaint is legitimate and deserves to be taken into account.

When examining the reasons for the judgement under appeal, it is appropriate to share the view of the applicant prosecutor that in the present case the reason for issuing the cassatory judgement was not any of the conditions mentioned by the legislator in Article 437(2) of the NCP. The appeal court, however, in the written recitals of the judgement in question, argued that it was essential to re-establish the cable in its entirety, but the legal considerations and indications of further proceedings do not justify specified a need. A comprehensive reading of this point shows that the deficiencies which the court considers adquem in first instance proceedings, make de facto the request to supplement the evidence. It is clear from this justification that the appeal court sees only the request to let evidence from the expert opinion of the computer (that is, in order to get the accounting data on the computer belonging to the housing community) and evidence from the complementary expert opinion of the accounting department, which, having the data reproduced from that computer, would gotta comment on the issue of keeping accounts in the housing community between 1999 and 122014.

juxtaposing the Authority’s adquem the conclusions of the cassatory basis adopted by the court, it should be pointed out that it is essential to re-establish the cable in its entirety erstwhile the court of first instance has infringed the rules of procedural law, which resulted, in the facts of the case, in the failure of the pending judicial proceedings, justifying the request to repeat (re-) all procedural proceedings consisting of the wire in the court of first instance (see the ultimate Court resolution of 22.5.2018, I KZP 3/19, Legalis). However, in the present case, the appeal court, in addition to a general appeal to ‘the scale and rank of the deficiencies committed in the judgement under appeal’, did not find specified a breach of the procedural provisions as would justify the request to repeat all the deficiencies already made by the court. a quo actions. The effects of the second instance of review by the court indicate that fresh actions must be carried out but not repeated. Therefore, it cannot be considered that the result of the appeal procedure in the present case determines the request for a re-opening of the judicial procedure. On the contrary, in the reality of the case, nothing prevented the territory Court in K., recognizing the request for circumstantial arrangements and actions, from making and carrying out them on its own, as the current model of appeal procedure required.

Furthermore, which is peculiarly significant, presented by the court adquem the legal views and indications as to the further proceedings afraid only the act which was alleged to the suspect under Article 77(1) of the Account. With respect to the another 2 acts, i.e. the offence with Article 91a PrBud and the offence with Article 286(1) of the KK in conjunction with Article 12 of the KK, the second instance court in that part of the message of reasons did not make any indications and did not at all state that in this respect there were infringements resulting in the request to re-conduct the cable in its entirety. It should be noted that, in cases brought together, the necessity of re-establishing the cable in its entirety must be addressed to individual acts or to individual defendants. The functional explanation of the grounds for repealing the judgement in question shows that it should be read from the position of the subject of the judicial review. This subject is the question of the criminal liability of the accused for the alleged act (the subject of the trial). In this context, it is simply a material, alternatively than a formal, judicial wire. The communication between the cases in question or the individual afraid causes them to be recognised in a single organisational judicial line, although separate cases may besides be the subject of separate proceedings. If, in the present case, the Board of Appeal held that the decision on the action under Article 91a of the PrBud did not take full evidence into account and was based on a defective conclusion, the recovery of specified deficiencies (in the present case, there was no case with Article 454(1) of the NCP) did not require the re-conduct of the cable in its entirety. This condition of a cassatory judgment, undoubtedly restrictive, should not be interpreted as extending. This conclusion besides concerns the settlement of the case as regards the action under Article 286(1) of the KK in conjunction with Article 12 of the KK, which, according to the appeal court, was based on any or conflicting findings. If, therefore, the territory court has observed the shortcomings, it should measure the evidence freely, full and comprehensively, respecting the principles of correct reasoning, indicating knowledge, and surviving experience.

Comment

In addition to the judgment, it is worth pointing out that a peculiar action may besides be brought by a organization who has not challenged the judgement of the first instance (as indicated by the deficiency of mention in Article 539f of the NCP to the restrictions in Article 520(1) of the NCP). The provision of Article 539a(3) of the NCP was linked to the provision of Article 437(2) of the NCP, according to which the annulment of the judgement and the referral of the case for re-examination may only take place in cases referred to in Article 439(1) of the NCP, Article 454 of the NCP, or where it is essential to carry out the full cable again (cf. the ultimate Court judgement of 6.2.2019, IV KS 3/19, Legalis). It is almost apparent that the grounds for the appeal of the cassatory judgement do not let for the designation that the circumstances referred to in Article 437(2) of the NCP, which would justify, in accordance with that provision, the repeal of the First Instance ruling, have occurred in the case at issue. In this state of affairs, the claim of infringement by the territory Court of K. at the disposal of Article 437(2) of the NCP had to be considered correct.

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