Description of the facts
The territory Court of W. on 19.10.2023, in Case II K 1278/20, sentenced the O.R. for an offence under Article 190a §1 of the KK in conjunction with Article 4(1) of the KK to the punishment of a year of restrictions on freedom, consisting in carrying out unpaid, controlled work for social purposes 20 hours a period and criminal measures in the form of a prohibition against approaching the victim.
In the light of the passage of a justice who has examined a single-member case, in his resting state and of his declaration of unwillingness to supply reasons for the judgment, the written reasons for that ruling have not been drawn up.
The territory Court of G. in its judgement of 6.6.2024, V Ka 665/24, issued by appeal of the defendant, repealed the judgement of the Court of First Instance and referred the case to the territory Court of W. for retrial.
A complaint against a cassatory conviction against the suspect was brought. The complainant alleged a gross breach of procedural law, namely Article 437(2) second conviction of the NCP.
In view of the above plea, the applicant requested that the judgement under appeal be set aside in its entirety and that the case be referred to the G. territory Court for review in the appeal proceedings.
In his written replies to the complaint, the defender requested that the complaint be dismissed, and the auxiliary prosecutor's proxy for its consideration.
The ultimate Court, after examining the prosecutor’s complaint against the defendant, annulled the contested judgement and referred the case to the G. territory Court for review in appeal proceedings.
Reasons for SN
According to the ultimate Court, the prosecutor's complaint proved justified.
The ultimate Court has repeatedly pointed out that the current provisions of the criminal procedure (Articles 437(1) and (2) of the NCP) lay down the regulation that the appeal court shall, after the examination of the case, issue a substantive decision (remaining the contested judgement or amending the contested judgment) alternatively than a cassatory decision (repealing the contested decision and referring the substance to the Court of First Instance for review). The anticipation of an appeal court to issue a cassatory judgement constitutes an exception justified either by procedural restrictions on the freedom to regulation on the appeal court or by the existence of specified gross deficiencies in the proceedings of the Court of First Instance which even disqualify proceedings before the court a quo as a basis for resolving the defendant's criminal liability (see Resolution SN(7) of 22.5.2019, I KZP 3/19, Legalis).
Such formation of the position and tasks of the appeal court, linked to the granting of extended powers in the field of evidence, was justified by the request to limit the number of cassatory judgments to those situations in which the referral of the case to the court for retrial meriti was essential for the purposes of criminal proceedings (cf. besides order of the SN of 26.1.2021, IV KS 1/21, Legalis).
It follows from the written recitals of the judgement of the territory Court that the court held that ‘the case was multi-threaded, the evidence gathered was extended and so hard to measure without justification. The deficiency of justification makes it hard on the part of the appellant to make allegations. The appeal is so very laconic. The defender was incapable to trace the reasoning of the Court of First Instance without a message of reasons. In the case of the Court of Appeal, the situation leads to the inability to carry out a fair review of the judgment. In addition, he stated that the suspect O.R. did not plead guilty to the acts attributed to him, and that the suspect had challenged the conviction in its entirety. In the present case, there were no uncontested circumstances that would let the judgement to be maintained in force in respect of at least part of the decisions. These factors let for the conclusion that, as a consequence of the failure to supply a message of reasons for the judgement of the Court of First Instance, there was a breach of the right of defence of the accused O.R., which could not be annulled at the phase of the appeal procedure, which, in the opinion of the territory Court, justified the annulment of the judgement under appeal and the referral of the case to the Court of First Instance. In this situation, it would be premature to mention to the another charges raised in the defendant's appeal." This view is incorrect.
It is actual that the reasons for the judgement constitute a mention point for the parties wishing to challenge the judgement and the deficiency of justification makes it hard for the organization to state the pleas. However, it cannot be overlooked that this does not always make it impossible. specified cases show how important, but frequently underestimated by the parties to the proceedings and their procedural representatives, the oral motives of the ruling, which are the starting point for knowing what the court issuing them was doing. In the circumstances at issue, the burden of the defence on the defender (of course, if the suspect has his or her help) is besides greater, which, by making an appeal, should be guided by the most widely understood procedural caution and the client's interest and should not be deterred from the charges which could, in having a written justification for the judgment, be assessed as being raised solely Just in case.. In turn, if the suspect does not have the aid of a defender, he updates this – for warrant reasons – the request to carry out the alleged full review of the judgement under appeal.
In the application of the judgement in its entirety, the suspect raised not only legitimate pleas relating to the failure to supply a written message of reasons for the judgment, indicating that the Court of First Instance could have been in breach of the meriti Article 423(1) of the NCP, but it cannot be overlooked that, like any plea of character, the comparative origin of appeal – for its effectiveness, it required the anticipation to influence the content of the ruling (Article 438(2) of the NCP). In addition to this, he besides made a plea alleging that there was no dispute over the guilt, i.e. both the factual and evidence grounds of the judgement and the legal assessment of the alleged conduct and the determination of criminal sanctions. Regardless of this, the defender exposed contradictions between the underlying facts of the evidence, i.e. explanations of the accused and evidence of the victim.
All of the above circumstances attest to the fact that the procedural guarantees applicable to the safeguarding of the rights of defence have been preserved in the present case, and the absence of a written justification for the judgement did not prevent the territory Court from carrying out a comprehensive analysis of those and of the another serious circumstances of the case in the context of the charge of the indictment, reconstructing the reasons for the judgement under appeal, and then, in the context of on-the-spot checks, to measure their appropriateness.
The uncovering that the infringement of Article 437(2), second conviction of Article 437(2) of the CCC had been brought in the case had to be taken into account, which had to consequence in the annulment of the judgement under appeal and the transfer of the case to the territory Court for review in the appeal proceedings. erstwhile again, this court will have respect to the above views of the ultimate Court.
Comment
A thorough examination of the proceedings in question by the ultimate Court led to the right to conclude that, despite the deficiency of written justification of the judgement of the territory Court in W. W., the proceedings in the defendant's case were conducted fairly, without prejudice to procedural guarantees, including the rights of defence. In particular, the degree to which this case is complicated speaks. It concerns 1 suspect and 1 crime. Both in terms of the dimension of the evidence and in relation to the criminal evaluation, this is not a substance which requires much more than an intellectual effort. This, in turn, clearly indicates that the examination of the reasoning of the First Instance did not origin any peculiar difficulties. In this case, the suspect had a professional defence attorney. Both the suspect and the defender had the chance to actively participate in the trial in the conditions of active participation in the conduct of evidence. They besides had the chance to consult the case files and the evidence gathered at each phase of the proceedings. Finally, they were given the right to submit the evidence applications they used. They could besides have come to the publication of the judgement in order to hear its oral motives, to note them carefully and to remember them, alternatively than to wait to facilitate the justification of the judgment.
Judgment of the ultimate Court of 4 December 2024, V KS 23/24, Legalis
