Description of the facts
By judgement of 9.3.2023 in Case II K 1749/21, territory Court of T., after the proceeding of the case N.S.who was accused of committing six acts, acquitted him of 4 acts.
The judgement in this respect (as to acquittal) has brought an action against the defendant's pleading lawyer and the prosecutor.
In his appeal, the prosecutor's typical made the following allegations, namely an insult to the substantive law on the legal qualification of an act under Article 189a(1) KK in conjunction with Article 115 §22(4) and (5) KK, and consequently an insult to the provision of the procedure, i.e. Article 25 §1(1) KPK.
The same applicant raised a number of alternate pleas and, consequently, requested the annulment of the judgement in the contested part and the referral to the court of first instance for re-examination.
In his appeal, the Prosecutor accused an insult to the provisions of proceedings affecting the content of the judgment, namely Article 7 of the NCP and Article 5(2) of the NCP by any, alternatively than a free assessment of the gathered in the substance of evidence made in violation of the principles of correct reasoning, cognition and life experience.
By judgement of 24.11.2023, the territory Court of K. in Case VI Ka 873/23 annulled the judgement in the acquittal part of the suspect and sent the case to the territory Court of T. for review.
This complaint was brought by the defendant. In his full appeal, he accused him of:
(a) in breach of Article 437(2) of the NCPs referred to in Article 454 of the NCPs, in conjunction with Article 452 of the NCPs, by accepting by the Board of Appeal that only the anticipation another than that of the Court of First Instance to measure the evidence of the victim in the retrial proceedings before the first instance is adequate for the adoption of the regulation ne peius as referred to in Article 454(1) of the NCP,
(b) infringement of Article 437(2) of the NCPs, although it was not essential in the case to re-establish the cable in its entirety, which had an effect on the content of the judgment, and consequently an unjustified annulment of the judgement of the territory Court of T., which occurred in the absence of legitimacy and above all of the grounds.
Under those circumstances, the suspect requested that the judgement be set aside in the contested part and that the case be referred back to the appeal court.
In consequence to a complaint, the territory lawyer at T. filed for her dismissal.
The ultimate Court, after examining the defendant’s application, annulled the contested judgement and referred the case to the territory Court of K. for review in the appeal proceedings.
Reasons for SN
According to the ultimate Court, the complaint is well founded.
Pursuant to Article 539a(3) of the NCP, an action against a cassatory judgement may be brought only on the ground of a breach of Article 437 of the NCP (in fact it concerns paragraph 2 of that provision) or on the grounds of a failure referred to in Article 439(1) of the NCP. It is well pointed out in the case-law of the ultimate Court that ‘the provisions of Article 539a(3) of the NCP contain 2 grounds for action against the judgement of the appeal court. The first ground concerns an infringement by the appeal court of Article 437(2) of the NCP and the second infringement referred to in Article 439(1) of the NCP. There is no uncertainty that the second ground of appeal covers only the appeal procedure, and thus the existence of an infringement referred to in Article 439(1) of the NCP at that stage’ (order of 26.5.2020, I KZP 14/19, Legalis). First of all, the ultimate Court must examine whether the failure to comply with Article 439(1) of the CCC occurred at the phase of the appeal procedure, since its uncovering requires the repeal of specified a judgement and makes unnecessary examination of the complaint based on the infringement of Article 437(2) of the CCC. In that procedure, the ultimate Court did not find that there was a breach described in Article 439(1) of the NCP at the phase of the appeal procedure. This, in turn, makes mention to the complaint.
It should have been stressed that, as far as this is concerned, the infringement of Article 437(2) of the NCP, The ultimate Court may, of course, examine – only in the context of the plea – whether the appeal court repealing the judgement of the first instance correctly stated that there was an absolute appeal in the case (a failure in that respect may be raised in an appeal or found to have been of an ex officio), or whether the appeal court annulled the judgement on the basis of Article 454(1) of the NCP, whether, in fact, the procedural arrangement in force in the case could have been the basis for a cassatory judgement (the acquittal judgment, alternatively of a conviction, which should have been given in the case), and if the appeal court indicated that the annulment of the judgement was deliberate in view of the necessity of re-establishing the cable in its entirety, whether it was indeed demonstrated that there was a request to carry out the wire (the resolution of the 7 Judges of the ultimate Court – the Criminal Chamber of 25.1.2018, I KZP 13/17, Legalis).
It is clear that the reasoning of the judgement of the appeal court should clearly indicate which of the conditions laid down in Article 437(2) of the NCP decided to revoke the judgement of the first instance and to mention the case to that court for review. In the case at issue, the appeal court has in fact abandoned specified an indication. The reading of the message of reasons for the judgement of the appeal court leads to the conclusion that the actual reason for the cassatory ruling was the request to re-evaluate the evidence already carried out, this time, as the appeal court noted, in a manner consistent with the requirements of Article 7 of the NCP, the Court considers that it should precede it reopening the full evidence. The Court of Appeal, erstwhile making its recommendations to the first instance, stressed the request to carry out the full procedure of evidence again, but the uncovering did not justify this. It is so impossible to conclude why a full re-opening is necessary. In the message of reasons for the judgement of the appeal court, the remark on the request for the regional court to verify the anticipation of rehearsing the victim simply shows that the appeal court has seen the basis for the additional examination of the victim, but this fact does not justify a repetition of the full judicial line. Furthermore, even assuming that the assessment of evidence from the victim's evidence is flawed, contrary to Article 7 of the NCP, this fact could lead to a cassatory judgment—except, of course, the basis of Article 454 §1 of the NCP—only if, in addition to this deficiency, a full review of the legal line was necessary, and therefore, erstwhile all the evidence was incorrectly carried out, or no evidence was decently carried out in the case, and erstwhile the incorrect conduct of most of the evidence did not let the assessment of the evidence that was carried out correctly (cf. the Resolution of 22.5.2019, I KZP 3/19, Legalis). In conclusion, the request to supplement the evidence procedure, as well as the request to re-assess evidence already carried out correctly, regardless of their rank and importance for the result of the procedure, cannot, in any event, justify the repeal of the judgement of the first instance court (cf. e.g. judgments of the ultimate Court of 9.12.2016, IV KS 5/16, Legalis; 27.6.2017, V KS 4/17, Legalis).
In the light of the above, it should be concluded that the applicant’s plea alleging that the appeal court had infringed Article 437(2) of the NCP is correct, which consequently had to lead to the annulment of that court’s judgement and the transfer of the case to review the appeal proceedings.
Comment
In the circumstances of the case, it becomes clear that the evidence should be taken by the appeal court. If he considers it essential to carry out evidence with the possible engagement of the victim (and according to their result besides another activities), he should carry out it himself in the appeal procedure. The present model of the appeal procedure requires an appeal court to supplement the evidence and, consequently, to measure it and, possibly, to make the applicable factual arrangements (see judgement of the ultimate Court of 14.5.2020, I KS 7/20, Legalis). Consequently, if, as a consequence of the conduct of supplementary evidence at the phase of the appeal procedure and the assessment of specified evidence under Article 7 of the NCP, in correlation with all another evidence collected, the appeal court would conclude that there are grounds for a conviction, then, of course, it would gotta revoke the contested judgement of the first instance in view of the content of Article 454(1) of the NCP.
