Description of the facts
A.B. was blamed for the fact that on 19.10.2022, he was driving a vehicle B by public road without the right to drive vehicles, namely the offence referred to at the disposal of Article 94(1) KW in conjunction with Article 4(1)(1)(a) and Article 102(2) of the Law of 5.1.2011 on driving vehicles (Journal of Laws of 2023 item 622; hereinafter: DirectPojU).
By order of 13.2.2023, issued in Case V W 2580/22, the territory Court of W. found the suspect guilty of the alleged act, and accepted that the suspect was driving a motor vehicle on a public road, having no authority to do so, and for this he sentenced him, and on the basis of Article 94 § 1 KW he was fined PLN 2,000. The Court of First Instance besides ruled, pursuant to Article 94(3) KW, a criminal measurement in the form of a ban on the driving of motor vehicles for a period of 6 months and ruled on the costs of the proceedings.
This judgement was finalized on 14.3.2023, without being complained by either organization to the proceedings.
At present, the Ombudsman has filed the cassation for the defendant. By bringing an action against the judgement in its entirety, he made a plea of gross and material law infringement, namely the disposition of Article 94(1) KW, to presume that the fact of driving a motor vehicle on a public road without the prior receipt of a driving licence paper after the reason for its detention and without the payment of an registration fee, is the same as driving a motor vehicle on a public road without having the power to do so, whereas specified conduct does not constitute the performance of the characteristics of the offence set out in that provision.
In making the plea thus described, the author of the cassation requested the annulment of the judgement under appeal in its entirety and the acquittal of the offence attributed to him.
Supreme Court A.B. Blameable for misconduct under Article 94(1) of the Code of Conduct in conjunction with Article 4(1)(a) and Article 102(2) of the Rules of Procedure, after being heard in the Criminal Chamber on 18.6.2024 in a sitting under Article 535(5) of the CCC of the cassation brought in favour of the Ombudsman against the judgement of the territory Court of 13.2.2023, in Case V W 2580/22, annulled the judgement under appeal and acquittalated the judgement under appeal. A.B. from what he was accused of doing.
Reasons for SN
According to the ultimate Court, the cassation of the Ombudsman is, of course, justified to the degree required by Article 535(5) of the NCP, which allowed it to be identified at a single-member gathering (Article 15(4) of the NAP).
The judgement under appeal has been grossly insulted by Article 94(1) KW, namely a provision penalising the conduct of driving a motor vehicle, on a public road, in a region of residence or a traffic area without the power to do so.
Considerations on the infringement should be started by making any preliminary comments.
And so, first, an administrative decision to detain A.B. driving licences for a period of 3 months were issued 1.10.2020 and the retention of the driving licence itself covered the period from 10.9.2020 to 10.12.2020. This decision was taken personally by A.B. 9.10.2020. Despite the expiry of the retention period of the driving licence, the physical removal of the licence took place only on 20.10.2022.
Second, in view of the above circumstances of the assessment of behaviour, A.B. Without doubt, it was essential not only by the prism of the rules in force on the date of the wrongful offence, but besides by the actual meaning (in the sense of the legal effects in the area of driving rights) of the retention of the driving licence and the physical meaning of not receiving the paper after the period of its detention, with the regulations in force at the time. The remark requires that during the time between stopping A.B. the driving licences and the event which is the subject of this infringement have changed, inter alia, the provisions of the Driver's Office, which may affect the discrimination between the period of actual deprivation of the driving licence and the time in which the individual in fact remains (physically) without a driving licence (video of Article 104a of the Driver's Office).
Thirdly, and most importantly, in the present proceedings, it was essential to separate between the fact that the driver of a motor vehicle did not have the power to drive it from the situation of temporary retention of a driving licence pursuant to Article 135(1)(a) of the Law of 20.6.1997. – Road traffic law (Journal of Laws of 2024 item 1251; hereinafter: PrDrog), namely in case of disclosure of an act involving driving a vehicle at a velocity exceeding the limit of 50 km/h in the built-up area. Although this issue remains marginal, in the earlier versions of the PrDrog text, from 18.5.2015 to 4.12.2020, the editorial unit equivalent to this Article was Article 135(1)(a)(a) of the PrDrog, and it was on the basis of which the detention took place. A.B. driving licences.
Moving to meritum, in accordance with the position expressed by the ultimate Court in its judgement of 19.3.2019 in Case IV KK 59/19, Legalis ‘by deficiency of the required rights within the meaning of Article 94(1) of the Law, it is essential to realize both the situation where the individual afraid has not obtained the right to drive a circumstantial category in the manner indicated in the Act Road traffic law has lost it as a consequence of the withdrawal and must search or have specified rights again de facto specified powers cannot at any time be exercised and utilized for example on time suspension, however, which does not consequence in a definitive loss.’
Under the provisions in force in September 2020, erstwhile physical detention occurred A.B. the driving licence paper (retention and reimbursement of the licence by electronic means only since the entry into force of the Act of 14.8.2020 on the amendment of the Act – Traffic Law and certain another acts (Journal of Laws of 2020 item 1517), that is, from 5.12.2020, on the basis of Article 135b Prdrog added to it), in the case law of the administrative courts, it was consistently accepted that only the period of actual deprivation of the licence resulting straight from certain legal titles specified as a judgment, a decision or an administrative decision preliminary of the word of deprivation of the driving licence, and not the time in which in fact the individual remained without a driving licence (video: judgement of the NSA of 24.10.2012, I OSK 24/12, Legalis and of 17.11.2008, I OSK 1457/2007, Legalis or a WSA judgement of 21.11.2013, II SA/Bd 1009/23 and of 6.9.2022, II SA/Bd 659/22, Legalis).
In fact, only from 10.9.2020 to 10.12.2020 (i.e. from an administrative decision) A.B. ‘unqualified’ to drive mechanical vehicles. On the another hand, after that period, he recovered it, whether or not he had received the driving licence from and physically had it.
It is so reasonable to presume that 19.10.2022, contrary to the position of the territory Court, A.B. it has the appropriate powers, but that it did not have a supporting paper on it, which is not adequate to accept the fulfilment of the criteria of Article 94(1) of the Code.
In view of the above considerations, it must be stated that the cassation of the Ombudsman had to be assessed as legitimate, of course.
Assigned act A.B. did not exhaust the marks of the offence under Article 94(1) of the Code of Conduct in Article 4(1)(a) and Article 102(2) of the Rules of Procedure, so that the judgement under appeal had to be annulled and the suspect had to be acquitted of the plea.
Comment
Against the background of the case in question, there is an uncontested assertion which, contrary to the law, the court has grossly infringed the law by attributing to a guilty non-existent individual a factual offence involving driving a car by public road without the required powers. Only the Ombudsman's vigilance expressed by the cassation and insight of the ultimate Court resulted in the release A.B. to bear the incorrect consequences.
