Consequences of not announcing the judgment

Description of the facts

L. H. has been charged with 3 offences: Article 286(1) KK, Article 286(1) KK, Article 12(1) KK and Article 286(1) KK.

The territory Court of B. found the case of the suspect at the proceeding on 28.1.2021 and 18.5.2021, after which he closed the judicial line and on the basis of Article 411(1) of the NCP deferred the conviction until 25.5.2021. At the proceeding on 25.5.2021, which was not attended by either organization to the trial, the President, having drawn up and signed a conviction, resigned from his announcement due to the deficiency of parties and the public.

At the counsel's request L. H. written justification for the judgement has been drawn up. In a subsequent appeal, the defender L. H. He challenged the judgement in its entirety and raised the allegations of images of the provisions of the procedural law, namely Article 366(1) of the NCP in conjunction with Article 369 of the NCP, in conjunction with Article 170(1)(5) of the NCP, in conjunction with Article 193(1) of the NCP, and the allegations of errors in the facts, requested the amendment of the judgement under appeal and the acquittal L. H. from committing her alleged act.

By order of the president of the III Criminal Division of the territory Court of B. of 1.7.2021, the appeal lodged by the defender was accepted and then sent along with the case files to the territory Court of B.

The territory Court of B., after proceeding the appeal by judgement of 1.2.2022, VIII Ka 658/21, maintained the judgement under appeal.

The Defender's conviction L. H. filed a cassation in which he alleged a breach of Article 7 of the NCP in Article 433(2) of the NCP, in Article 457(3) of the NCP, raising the failure of the review carried out with respect to the examination of the allegations raised in the appeals contesting the rejection of the evidence application and the factual findings made. The applicant requested that the judgement under appeal be set aside in its entirety and that the case be referred back to the appeal proceedings.

By order of 11.1.2023, IV KK 5322, Legalis, dismissed this cassation as manifestly unfounded.

The Court of the territory Court of B. was dismissed in favour of the sentenced individual by the lawyer General. By challenging that judgement in its entirety, he accused of gross and materially affecting the content of the judgement of violating the provisions of procedural law, namely Article 430(1) of the NCPs in conjunction with Article 429(1) of the NCPs.

On that plea, he requested that the judgement under appeal be set aside and that the case be referred to the territory Court of B. for review.

The ultimate Court, after proceeding the cassation brought by the lawyer General in favour of the sentenced person, overturned the contested judgement and referred the case to the territory Court of B. for re-examination.

Reasons for SN

According to the ultimate Court, the cassation is, of course, legitimate.

It is not disputed that the essential condition for the admissibility of an appeal is the existence of a substrate for the appeal to be resolved. In the present case, a judgement of the territory Court in B would have been the subject of a simple appeal. The regulations contained in chapters 11, 12 and 47 of the NCP show that the judgement process consists of respective stages. These include: the gathering to which the court accedes immediately after proceeding the final votes (Article 408 of the NCP), the drawing up of a written judgement and the inclusion in it of circumstantial elements, which follows immediately the completion of the vote held at the time of the gathering (Articles 412 and 413 of the NCP), the signing of the judgement (Article 113 of the NCP) and its announcement after signature (Article 100(1) of the NCP and Article 418 of the NCP). As regards the ruling at the hearing, the oral transportation of the judgement is 1 of the conditions relating to the application of the judgment, i.e. 1 aspect of its functioning in the legal order. It should be stressed that all the above-mentioned stages of the judgement process are equally crucial from the point of view of its content and, consequently, the regulations governing each of them should be equally strict. Each of these elements of the judgement process, as the applicant rightly points out, is independent and plays an crucial and autonomous function in the judgement process. Consequently, no of them should be left out, and the absence of any of them has certain procedural effects. The absence of consultation and voting on the judgement results in a breach of the applicable procedural standards (Articles 408 of the NCP and Articles 109 to 111 of the NCP), and these shortcomings should be considered in the context of the comparative origin of the appeal. The failure to sign the judgement as a failure to comply with Article 113 of the NCP constitutes the existence of the absolute reason for the appeal referred to in Article 439(1)(6) of the NCP.

Undoubtedly, as is apparent from the wording of Article 418(1) of the NCP, the transportation of the judgement consists in the public reading of part of the dispositive judgment. In the present case, the minutes of the notification of the judgement of 25.5.2021 of the Court of First Instance stated that, after the judgement was drawn up and signed due to the deficiency of parties and the public, the judgement was withdrawn from the judgment. The above indicates that the territory Court of B. utilized the institution governed by Article 100(1)(a) of the NCP, thereby committing a gross violation of Article 100(1) of the NCP and Article 418(1) of the NCP, which were subject to absolute application. It is correct to point out to the lawyer General that only the oral form of its publication is provided for the judgement delivered at the hearing, while the designation of the judgement as declared pursuant to Article 100(1)(a) of the NCP is reserved only for a judgement given in open court. In this situation, this means that, drawn up and signed on 25.5.2021, after the case has been examined, L. H., the judgment, in the face of its failure to pronounce it in a legal sense, even if it is included in the case file, has no legal effect, including in peculiar that the parties to proceedings are not entitled to bring an appeal or an exceptional appeal. In the event of specified a measurement being brought, the president of the Court (the head of the department, the authorised judge) should refuse to accept it and, in the absence of a substrate of the appeal, should, in the event of its misacceptance and transmission of the file to the appeal court or the ultimate Court, leave the appeal brought without examination. At the same time, the consequence of the above should be to re-establish the full judicial line (cf. e.g. order of the ultimate Court: 8.12.2020, II KK 148/20, Legalis; 15.2021, II KK 111/21, Legalis; 9.3.2022, I KZP 8/21, Legalis). Consequently, in the present case, it was the work of the B. territory Court acting as an appeal court to leave the appeal brought by the defender L. H. without recognition, pursuant to Article 430(1) of the NCPs in the above-mentioned Article 429(1) of the NCPs, as inadmissible by force.

Without doubt, the failure of the territory Court in B. in the present case had a crucial impact on the content of the ruling. It besides led, in view of the maintenance of the territory Court in B. to a disadvantage for L. H. initiating an enforcement procedure, despite the failure to complete the proceedings before the court of First Instance in the absence of a judgment.

By the way, it should be noted that in the course of the implementing procedure, the territory Court of B. by order of 28.3.2023, III Ko 469/23, on the basis of Article 151(1) KKW deferred L. H. the execution of the punishment of the year and six months of imprisonment for a period of 6 months, i.e. until 28.9.2023.

Comment