Description of the facts
The President he was accused of committing 3 offences involving the demolition of cars, qualified under Article 288(1) of the KK in conjunction with Article 12(1) of the KK and in accordance with Article 57a of the KK.
The territory Court of L. by judgement of 31.5.2023, IV K 149/23 declared The President for the guilty of committing the alleged acts, which he exhausted from the disposition of Article 288(1) of the KK in accordance with Article 12(1) of the KK, in conjunction with Article 57a(1) of the KK, in accordance with Article 91(1) of the KK, and for this he sentenced him to six months in prison, the execution of which, pursuant to Article 69(1) of the KK and Article 70(2) of the KK, was conditionally suspended for a period of 2 years of trial. Furthermore, pursuant to Article 46(1) KK, he ruled against The President work to make good part of the harm by paying certain amounts to the victims, including the victim P.M. "the amount of PLN 1000 (three hundred)".
This decision was not contested by either organization and was finalized on 8.6.2023.
The territory Court of Ł. by order of 18.7.2023, IV K 149/23 corrected an apparent clerical mistake in specified a way that alternatively of the incorrect amount 1000, entered correctly 300.
The cassation of the judgement was brought by the lawyer General, who challenged him to the detriment of the defendant, accusing him of gross and materially affecting the content of the judgement of a breach of procedural and substantive law, namely Article 413(2)(2) of the NCP, Article 72(1) of the KK and Article 73(2) of the KK.
Consequently, the lawyer General requested that the judgement be set aside in the contested part and that the case be referred to the territory Court in L.A. for review.
The ultimate Court, after proceeding the cassation brought by the lawyer General, annulled the contested judgement in the part determining the work to make good the harm to the victim P.M., and in part without a decision on the compulsory surrender of the suspect under the supervision of the probation officer and the deficiency of a decision on the obligations referred to in Article 72(1) of the KK and in this respect shall mention the case to the territory Court of L.A. for re-examination.
Reasons for SN
According to the ultimate Court, the cassation proved to be justified, of course, which allowed it to be examined and included in the gathering under Article 535(5) of the NCP.
Pursuant to Article 413(2), point (2) of the NCP, the conviction should include, inter alia, decisions on penalties and criminal measures, compensatory measures and forfeiture, and, where necessary, on their credit for the periods referred to in Article 63 of the KC. This work should be understood not only as a judgement by a court of a peculiar kind of penalty, punishment measurement or compensatory measure, but besides as a correct determination of the size of the punishment or another measure. In turn, the absolute appeal of Article 439(1)(7) of the NCP occurs where there is simply a contradiction in the content of the ruling preventing its enforcement. This reason for repealing the judgement does not exist, however, if there is simply a contradiction in the content of the judgment, but it does not prevent its enforcement, as well as erstwhile it is not possible to enforce the judgment, but not due to a contradiction in its content, but due to another violation of the law (video judgement of 4.11.2020, III KK 296/20, Legalis).
In referring the above observations to the grounds of the present case, it must be concluded that the territory Court in L.A. has committed a serious breach of the disposition of Article 413(2)(2) of the NCP, which resulted in the existence of the absolute reason for the appeal referred to in Article 439(1)(7) of the NCP. Namely, the court meriti ruled against The President in the judgement under appeal, a compensation measurement in the form of an work to make good part of the harm by paying to the victim ‘P.M. the amount of PLN 1000 (three hundred)’. The said ruling contains a contradiction which must be attributed to the apparent nature, as it gives emergence to fundamental and insoluble doubts as to whether in reality the intent of the court was to measurement a compensation measurement of PLN 1,000 or PLN 300. In particular, both amounts may be considered to be partial compensation for harm caused P.M. a criminal offence committed, which according to the court's findings meriti was PLN 4,000. This contradiction so prevents the contested decision from being enforced. Although the order of 18.7.2023, IV K 149/23 tried to correct this contradiction under Article 105 of the NCP, it is nevertheless unacceptable to mention to that institution in order to make substantive errors in the judgment. The provision to correct, in so far as it relates to errors not having the character of manifest clerical and accounting errors, is an act ex ante ineffective, and specified a provision should have been considered to have been issued (see, inter alia, judgement of the ultimate Court of Justice of 3.6.2015, III KK 79/15, Legalis; judgement of the ultimate Court of 26.2.2021, IV KK 382/20, Legalis; judgement of the ultimate Court of 4.11.2020, III KK 296/20, Legalis). This made it essential to measure the first of the allegations raised as valid.
The position of the lawyer General in relation to the another 2 allegations concerning a gross violation of substantive law in the form of Article 72(1) of the KK and Article 73(2) of the KK should have been divided.
In accordance with Article 72(1) of the CCC, the application of a conditional suspension of the enforcement of a punishment which is not combined with the judgement of a criminal measurement shall require the court to impose on the accused at least 1 of the trial obligations listed in points 1 to 8 of that provision. Court meritiConvicting The President for six months of imprisonment with a conditional suspension of its execution for a period of 2 years of trial and without ruling a criminal measurement against it, he was so obliged to apply orders resulting from the disposition of Article 72(1) of the KK, which he did not do. In the present case, the work to make good the harm was decided on the basis of Article 46(1) KK, but, as the author of the cassation rightly pointed out, this is not a criminal measurement and a compensatory measure. In specified a case, the failure to regulation on 1 of the obligations referred to in Article 72(1) of the CCC constituted a gross and material law infringement of that provision (see judgement of the CSC of 12.5.2021, II KK 88/21, Legalis; judgement of 18.12.2018, III KK 540/17, Legalis).
In turn, in the light of Article 73(2) of the KK, the surrender of the sentenced individual under supervision in the event of conditional suspension of the execution of the punishment is mandatory, among another things, for the juvenile offender of a intentional offence. In the present case, all these conditions were met. According to the case file, The President He was born in 2004, and thus at the time of the crime attributed to him he was not 21 years of age and at the time of his first instance ruling 24 years. He is no uncertainty a juvenile within the meaning of Article 115(10) KK. Moreover, the crimes he committed were intentional. In this state of affairs, there is no decision on devotion The President During the trial, under the supervision of the curator (or another entity referred to in Article 73(1) of the KK), he was a serious violation of Article 73(2) of the KK, which at the same time had a crucial influence on the content of the judgement under appeal (see judgement of 22.6.2023, V KK 560/22, Legalis).
Finally, as the lawyer General rightly pointed out, it should be pointed out that the possible enforcement of the abovementioned infringement in the scope of the supervision of the curator cannot be considered to have been at the same time made available to Article 72(1) KK. The surrender of the sentenced probation officer is not a criminal measure, nor is it a test measure, but it is only an instrument for the control of the sentenced in the trial period, besides in the field of the performance of the duties imposed on him by the sentenced (see judgement of 21.4.2021, IV KK 119/21, Legalis).
Comment
Background of the case in question to the uncontested claim that the reasons for the ultimate Court’s judgement made it essential to repeal the judgement of the territory Court in L., in the part determining the work to make good harm to the victim P.M. and without a decision on the compulsory surrender of the suspect under the supervision of the curator and the absence of a decision on the obligations referred to in Article 72(1) of the KK. Consequently, it is appropriate to mention the case to that court for review. There is no uncertainty that it will be the work of that court to re-apply the judgement without prejudice to its enforcement, to impose on the convicted individual at least 1 of the test obligations referred to in points 1 to 8 of Article 72(1) of the KK and to place it under the supervision of the curator during the trial period, according to Article 73(2) of the KK.
