Description of the facts
M.K. has been charged with an offence pursuant to Article 216(1) and (2) of the KK in the aforementioned Article 12(1) of the KK and Article 212(1) and (2) of the KK in the second Article 12(1) of the KK.
By judgement of 18.11.2022, XVI K 1117/20, territory Court of C. pursuant to Article 17(1)(3) of the NCP in conjunction with Article 1(2) of the CCC, criminal proceedings against the accused M.K. As to his alleged actions, he gave up.
An appeal from this judgement was made by a private prosecutor's attorney.
Following the appeal, the territory Court of C. in its judgement of 10.3.2023, VII Ka 89/23, annulled the contested judgement and sent the case to the Court of First Instance for re-examination.
An action under Article 539a(1) of the NCP has been brought against the judgement of the Court of Appeal by the defendant’s defence, who has alleged a gross violation of the law having a material effect on the content of the judgment, namely Article 437 of the NCP, by the repeal of the judgement under appeal and by the transfer of the case to be re-examined in the event of failure to consider all the defendant’s applications and evidence M.K. and omitting his explanations, i.e. the deficiency of a comprehensive and comprehensive mention to all facts and circumstances applicable in the case, namely the fact that no evidence confirms that alleged verbal insults or in the form of a drawing were created or spoken by the accused, as well as the fact that the Facebook group was not an open group, as the territory court tries to indicate, and only certain individuals could be members of it.
In its conclusions, the suspect requested that the judgement under appeal be set aside and that the case be referred to the appeal court for review.
The ultimate Court, after examining the defendant's complaint, decided to dismiss the complaint.
Reasons for SN
According to the ultimate Court, the defendant’s complaint proved unfounded and had to be dismissed.
The examination of the content of the grounds for the action shows that its author calls for the ultimate Court to examine, in fact, the merits of the assessment of the evidence made by the appeal court. Both in pettitum the actions, as well as in its recitals, the defender makes a direct assessment of the evidence and of his own factual findings to be examined by the ultimate Court in the context of the complaint proceedings. Indeed, the content of the action is akin in its form to the appeal and does not explicitly rise the circumstances which may form the basis for the action against the judgement of the appeal court. It should be clearly stressed that the appeal proceedings against the judgement of the appeal court are not intended to duplicate the review already carried out. The subject substance of the review in that proceedings is simply to establish whether, by repealing the judgement of the court of first instance with the transfer of the case for retrial, the appeal court was guided by the grounds for issuing the cassatory judgement referred to in Article 539a(3) of the NCP and whether specified a decision was essential in a peculiar case.
When examining the appeal of a private prosecutor’s attorney, the appeal court critically assessed the position of the court of First Instance and carried out the applicable deliberations in this regard, having respect to the substantive law infringement of that court, namely Article 115(2) KK. Among another things, he argued: “The territory Court has not in any way shown that the actions alleged by the accused individual are of a negligible degree of social harmfulness, since it did not mention to the circumstances determining the existence in the facts of the present case of specified social harmfulness of the actions alleged by the accused individual adequately in accordance with Article 115(2) of the KK... The territory Court has not taken adequate account of the circumstances which may indicate that the social harm of the acts is not negligible. (...) The territory Court, on the basis of its ruling, has set out circumstances which are not related to the anticipation of the proceedings being dismissed due to the negligible degree of social harm to the alleged acts.’ In its critical assessment of the Court of First Instance’s position, the Court of Appeal concluded: ‘Consequently, the territory Court should re-examine and measure the evidence collected in the case, taking into account the considerations set out above’.
It must so be concluded that, in the procedural arrangement which it had concluded in the course of the present proceedings, the appeal court was not in a position to issue a judgement another than that which had yet been given, since the categorical prohibition resulting from Article 454(1) of the NCP was an obstacle to specified a ruling. ne peius). This provision introduces a circumstantial order for the appeal court to act, namely that court may not convict the suspect who was acquitted in the first instance or for which the proceedings have been dismissed in the first instance. In this situation, he must revoke the judgement of the court of first instance and mention the case to him for retrial. Thus, in accordance with Article 437(2) of the NCP, the annulment of the judgement and the referral of the case for review by the appeal court may only take place in the cases referred to in Article 439(1) of the NCP and in Article 454 of the NCP, or where it is essential to carry out the full cable again. Where there are conditions under Article 454 of the NCP, their effect must be to repeal the judgement and to mention the case to a retrial, as the appeal court cannot first convict the second instance. In another words, the court of appeal cannot convict the suspect of whose court of first instance the proceedings have been dismissed, regardless of the legal basis on which specified dismissal occurred (or acquitted the defendant).
In the present case, the appeal court, having found that the appeal had been brought against the defendant, concluded that the dismissal of proceedings on the grounds of the adoption of a negligible degree of social harm to the actions alleged by the court of first instance was unfounded. nevertheless the court of the second instance did not trust straight on the regulation ne peius in Article 454(1) of the NCP, this analysis of its arguments clearly shows that the basis for the decision to revoke the judgement under appeal and to mention the case to a re-examination was for the sake of the standardization of that provision, linked to the constitutional rule of duality. This provision is 1 of the grounds for issuing the cassatory decision referred to in Article 437(2) of the NCP. Although the territory court concluded enigmatically that in the case of the court of first instance it should carry out ‘new wires in their entirety’, there is no uncertainty that in the current procedural arrangement the court must re-evaluate all the evidence collected in the case. Thus, the uncovering that the appeal court is correct in applying Article 454(1) of the NCP is adequate to accept the judgement of that court and thus dismiss the defendant’s defence.
In developing the thesis presented in the heading, it should be pointed out that it is unacceptable for the ultimate Court under Article 539a of the NCP to re-assess whether the conduct of the accused exhausts the marks of the prohibited act, and, following different conclusions, for this reason only, to revoke the contested judgement (cf. ultimate Court order of 10.2.2017, IV KS 6/16, Legalis). The ultimate Court may not, in proceedings resulting from the bringing of an action against a judgement of the appeal court, measure whether the substantive grounds laid down in Article 454 of the NCP for the adoption of an amending judgement exist, in fact it is not competent under Article 539a(1) of the NCP to measure the evidence presented in the case. It is by nature for the courts to identify matters in this regard, whereas the interference of the ultimate Court in this area of ruling would be a breach of statutory competence. In addition to the dispute, there is the fact that the consideration of whether the appeal court is correct is challenging the assessment by the court of first instance of the degree of social harm alleged M.K. the facts or the appropriateness of the discharge on that basis of the proceedings are outside the scope of the ultimate Court’s review of the action. Therefore, the appropriateness of the decision to dismiss, pursuant to Article 539e(2) of the NCP, of the complaint in question is not questionable.
