The defendants in the weld were 3 doctors. The basis for the conduct of the court case was a subsidiary indictment brought by an accessory prosecutor.
In the light of each of the defendants, there has been a charge that between August 2005 and August 2012 at the clinic, they have exposed the patient to a direct hazard of life failure through misdiagnosis of breast signs and besides late diagnosis of cancer resulting in the victim dying, i.e. for an action under Article 160(2) of the KK in conjunction with Article 155 of the KK in conjunction with Article 11(2) of the KK.
According to the cassation charges, the victim was active in an early cancer detection program conducted in a clinic. However, she reported to the survey late, and besides diminished the perceived changes in the breast, which affected the success of the therapeutic process.
The court of First Instance has acquitted the defendants of the alleged acts.
An appeal from the verdict was made by the typical of the subsidiary prosecutor. He accused, among others, of an insult to the provision of Article 167 of the NCP, Article 201 of the NCP, Article 7 of the NCP in conjunction with Article 410 of the NCP and Article 193(1) of the NCP.
The Court of First Instance maintained the judgement under appeal. The doctors were acquitted.
The prosecutor's lawyer brought the cassation to the ultimate Court. In the cassation, he said:
- an absolute appeal pursuant to Article 439(1)(2) of the NCP, by issuing a judgement by a court composed of a justice appointed as justice of the territory Court by the order of the president of the Republic of Poland of 2024 at the request of the National Judicial Council of 2022, i.e. in a situation where the National Judicial Council is not a constitutional body, the composition and the way of which is governed by the Constitution of the Republic of Poland, resulting in an inadequate cast of the court issuing the contested judgment;
- gross breach of procedural law, i.e. Article 7 of the NCP in the aforementioned Article 193(1) of the NCP in the above-mentioned Article 458 of the NCP by misapplying and carrying out an incorrect assessment of evidence from judicial experts' opinions on the specialization of radiology, surgical oncology, genetics and pathomorphology by any message that the explanation of ultrasound studies aimed at detecting the cancer victim did not require the accused to have cognition of oncology, Whereas this message is not based on the content of the opinion and is not supported in the another evidence of the case;
- gross infringement of procedural law having a crucial impact on the content of the judgement in the form of Article 167 of the NCP, by the absence of an initiative to clarify all the circumstances of the case, in peculiar the failure to get full medical records of the victim and to base the opinion on incomplete, indiscriminately reflecting the full diagnostic process of the injured documentation;
- a serious breach of procedural law, having a crucial influence on the content of the judgment, i.e. the provision of Article 7 of the NCP in conjunction with Article 201 of the NCP, by recognising the opinions of forensic experts in the field of radiology, surgical oncology, genetics and pathomorphology as complete in a situation where it was based on incomplete evidence of the case (the shortcomings of the opinion raised are e.g. incomplete evidence on the basis of which the opinion was drawn up, no indication of the equipment on which the ultrasound was carried out and whether it was compliant equipment);
- gross breach of procedural law, having a crucial impact on the content of the judgment, i.e. Article 7 of the NCP by accepting by the Court of First Instance the misassessment by the Court of First Instance of the evidence made by the Court of First Instance, i.e. witnesses who testified that, at the time of detection of the cancer victim, it was “a fewer years old”, indicating diagnostic negligence;
- gross infringement of procedural law, having a crucial impact on the content of the judgment, i.e. the provision of Article 410 of the NCPs in conjunction with Article 458 of the NCPs by failing to apply and failing to take account of the evidence of 1 of the witnesses, which indicated that the victim had been active in an early cancer-detection program at the clinic, hoping for early diagnosis of cancer and, contrary to that, the Court of First Instance found that the victim herself had delayed the diagnostic process due to the fact that it was subject to delayed investigation despite already noticeable changes;
- a serious breach of procedural law, having a crucial impact on the content of the judgment, i.e. Article 7 of the NCP and Article 201 of the NCP in conjunction with Article 433(2) of the NCP by accepting in its entirety the assessment of the evidence made by the Court of First Instance, although it was incorrect.
The applicant requested the annulment of the judgement and the referral of the case for review in the appeal proceedings.
The prosecutor in consequence to the appeal demanded dismissal as manifestly unfounded.
Supreme Court Settlement
The ultimate Court dismissed the erasure as manifestly unfounded.
It was pointed out that the cassation proceedings did not check the correctness of the assessment of individual evidence, did not verify the validity of the facts and did not examine the proportionality of the penalty.
The grounds for erasure are only the deficiencies referred to in Article 439 of the NCP (absolute grounds for appeal) or another gross infringements where it could have a crucial impact on the content of the judgment.
Regarding the plea of absolute appeal under Article 439(1)(2) of the NCP, i.e. the deficiency of a court of jurisdiction, The ultimate Court stated that, at present, any doubts as to the impartiality and independency of a general court judge, of a systemic or individual nature, can only be verified under the procedure laid down in the Law of 27.7.2001. Law on the strategy of common courts (Journal of Laws of 2024 item 334; hereinafter: PRUSP), which can only be initiated by the parties (Article 42a §3 of the PRUSP in Article 42a §6 of the PRUSP).
The procedure shall aim at the judicial review of the independency and impartiality of the justice who is to take part in the examination of a peculiar case and shall specifically regulate the examination of the independency and impartiality of the justice in the context of the circumstances accompanying his appointment and of his proceedings after his appointment. As a consequence of specified a procedure, according to the ultimate Court, the examination of the independency of the justice in view of the existence of an undue cast of the court, pursuant to Article 439(1)(2) of the NCP, introduces an unknown inquisition procedure and constitutes a manifest and gross violation of Article 42a(3) – § 14 of the PRUSP and Article 7 in conjunction with Article 87 of the Constitution of Poland.
Consequently, the first of the charges concerning the absolute condition of appeal was not taken into account.
Regarding the another charges, the ultimate Court stated that:
- the erasure is simply a duplication of appeals charges and an effort to call for re-institution control;
- at the erasure stage, the Court of First Instance shall not re-examine the correctness of the assessment of the individual evidence and shall not verify the veracity of the facts to which the applicant refers in the appeal lodged;
- Whereas the Court of First Instance did not itself make fresh factual findings but divided the findings of the Court of First Instance, which was possible;
- Whereas, as regards the alleged infringement of Article 167 of the NCP (the Evidence Initiative — evidence is carried out at the request of the parties or of its own motion), it was found that the infringement of that provision could only take place if it was essential for the court to carry out evidence of its own motion to clarify all the applicable circumstances of the case and thus essential for appropriate judgment;
- Whereas the offence of this provision can only happen if the evidence in the case is incomplete, raises doubts and needs to be supplemented, specified a situation has not been in the present case;
- as regards the plea in law under Article 201 of the NCP, it is only possible to accept evidence from the supplementary opinion in the cases described in that law; if the expert’s opinion is convincing and complete to the court, then it is not applicable to make a different assessment of the parties to the proceedings – dissatisfaction with the content of the opinion is not the reason for the additional opinion or another expert;
- The another charges of cassation were not due to be taken into account – the Court of First Instance did not carry out its own evidence, so it could not infringe the rules on the assessment of evidence since it did not measure them itself.
Consequently, the ultimate Court held that the cassation was limited to a dispute with the facts of the Court of First Instance which the Court of First Instance maintained.
Order of the ultimate Court – Criminal Chamber of 24.10.2025, III KK 512/25, Legalis
