Description of the facts
Judgment of the territory Court of K. of 22.11.2021, IV K 758/21, M.K. was found guilty of an act pursuant to Article 178a(1) and (4) of the KK for which he was sentenced to a year of imprisonment, the execution of which was suspended conditionally for a trial period of 4 years.
An appeal against the judgement was made by the prosecutor, in full appeal against the suspect and alleging an mistake in the factual arrangements adopted as the basis for a judgement on a punishment which may affect its content, which is to say that, M.B. there is simply a affirmative criminological forecast and there are peculiar circumstances in favour of a conditional suspension of the conviction of imprisonment referred to in Article 69(4) of the CCC, while a appropriate assessment of the circumstances of the case, the defendant's attitude and his relation to the legal standards, the degree of guilt and the social harm of the act do not let it to be regarded as adequate to accomplish the objectives of the conviction under appeal.
The territory Court of K. in its judgement of 1.3.2022, XXIII Ka 64/22, maintained the judgement under appeal.
The Tribunal was dismissed by the Prosecutor-General, alleging gross and having a crucial influence on the content of the judgment, in particular: Article 433(2) of the NCP and Article 457(3) of the NCP; Article 433(1) and (2) of the NCP, in conjunction with Article 434(2) of the NCP, in conjunction with Article 440 of the NCP, by performing a defective review.
The Advocate General has requested the annulment of the judgement of the territory Court in K. in the contested part and the referral to that court for review in the appeal proceedings.
The ultimate Court, after having found that the lawyer General had been displeased, annulled the contested judgement and referred the case to the territory Court of K. for review in appeal proceedings.
Reasons for SN
In the view of the ultimate Court, the cassation proved to be justified, of course, which allowed it to be examined at the sitting under Article 535(5) of the NCP. Both counts of cassation deserve to be taken into account and both are clearly justified.
With respect to the first of the pleas, it should be pointed out that, in accordance with Article 69(4) of the Constitutional Tribunal, the court may, in accordance with Article 69(4) of the Constitutional Tribunal, suspend the execution of the punishment only in peculiarly justified cases. This requires this provision to be established in the legal basis of the punishment (cf. ultimate Court judgement of 10 January 2019, III KK 531/17, Legalis).
On M.B. The appeal court indicated that the Court of First Instance ‘missed’ Article 69(4) KK on the basis of the penalty. Despite this observation, the territory court did not supplement the grounds for the penalty. Recognising, in substance, the allegation of mistake in the factual findings regarding the affirmative cymminological-social forecast of the defendant, the appeal court referred to the typical circumstances affecting that forecast: prior criminality, the defendant's message of regret for his actions, the confession of guilt, the anticipation of achieving the rehabilitation objectives under conditions of liberty. However, the territory court did not mention to any condition which would indicate that the defendant’s situation is called ‘special’, justifying the conditional suspension of the execution of the punishment for the offender of an offence under Article 178a(4) KK. The failure of review of the application of conditional suspension of enforcement to the offender of the offence under Article 178a(4) of the KK was so twofold: first, it consisted of ‘stopping’ simply indicating that the court of First Instance had omitted Article 69(4) of the KK on the basis of the penalty, and failing to take any action to correct that ground, secondly, it became apparent that, in relation to M.B. there is simply a peculiarly justified accident as referred to in Article 69(4) of the CCC where, in an appeal, the prosecutor explicitly raised a deficiency of determination on this matter.
In the opinion of the ultimate Court, the appeal court incorrectly interpreted an unfortunate appeal made by the prosecutor. The content of the appeal and its justification lead to the conclusion that the prosecutor sought to destruct the decision on conditional suspension of the conviction and to conviction the suspect to six months imprisonment without conditional suspension of its execution. It must not be forgotten that the appeal does not bind the appeal court. Consequently, the position in the message of reasons for the judgement under appeal cannot be divided into that it was essential to rise a plea of gross disproportionateness in order to correct the judgment. Without doubt, the Court of Appeal's message that there is no affirmative crimminological/social prognosis on the suspect entitles that court to amend its judgement by waiving the application of the institution of conditional suspension of enforcement.
In conclusion, the designation of the merits of the first plea of cassation of the lawyer General does not prejudge the decision on the punishment to be taken by the territory court following the re-examination of the case at the appeal court. The appeal court should decently recognise the pleas of appeal of the prosecutor, while noting that the application of the suspension of the conviction of imprisonment in respect of the offender of Article 178(4) of the KK is only admissible ‘in peculiarly justified cases’. This court will so not only be required to reasonably recognise the alleged mistake in the factual findings indicating a deficiency of a affirmative criminological forecast for M.B., but besides examine whether there is indeed a peculiar case in the case justifying the application of conditional suspension of the conviction of imprisonment. If that court finds that specified an accident occurs and decides to apply the investigating institution with Article 69 KK, it shall besides set up Article 69 §4 KK in the legal basis for the application of that test measure. Of course, there is besides a second charge of erasure. M.B. the conviction of the year of imprisonment has been suspended on probation for a period of 4 years. In the meantime, in accordance with Article 70(1) of the CCC, the suspension of enforcement shall take place for a trial period of 1 to 3 years and shall run from the finality of the judgment. From M.B. it was not possible to decide the longer period of the example referred to in Article 70(2) of the KK or Article 60(5) of the KK. Pursuant to Article 70(2) of the KK, in the event of a suspension of the conviction against a juvenile offender and a perpetrator who committed a crime of force against a individual residing together, the trial period shall be between 2 and 5 years. By contrast, the provision of Article 60(5) of the CCC provides for an exceptional relaxation of the penalties in the cases referred to in Article 60(3) and (4) of the CCC and provides for the anticipation of a conditional suspension of imprisonment of up to 5 years for a period of up to 10 years if the court considers that, despite the failure of the penalty, the offender will not commit the offence again. no of these situations happen in this case. As the ultimate Court pointed out in its judgement of 9.8.2017, II KK 199/17, Legalis, insulting Article 70(1) KK by its nature is simply a gross violation of the law. The effect of this misconduct on the content of the judgement is evident, as it results in a conditional suspension of the execution of the conviction against the accused for a period of trial exceeding the advanced limit set out in the Act.
Recognising the case at the appeal court regarding the punishment ruling, The territory Court of K. will reliably recognise the prosecutor's appeal against the suspect and will decently apply the material criminal law institutions, taking into account the comments made in this justification.
Comment
Against the background of the case in question, it is worth pointing out that in the appeal, the prosecutor did not rise a charge concerning an excessively long period of trial. However, the appeal court had the anticipation to correct the judgement to a certain extent, which may have occurred under Article 433(1) of the NCPs in conjunction with Article 434(2) of the NCPs, in conjunction with Article 440 of the NCPs. It is clear that, in accordance with Article 434(2) of the NCP, an appeal against the suspect may besides consequence in a judgement in favour of the accused, provided that the conditions laid down in Article 440 of the NCP are met. It is clear that a decision longer than that provided for in the Act of the trial period makes the judgement grossly unfair, and the correction of that period – its shortening, so as to comply with the conditions set out in Article 70(1) of the CCC – would by nature be an action in favour of the accused. The Board of Appeal should therefore, in accordance with Article 433(1) of the NCP, recognise the case in a broader scope than the content of the plea.
