Reasons for the failure of objects

Description of the facts

Z.L. was found guilty by the territory Court of L., judgement of 28.3.2018, IV K 453/10, in the period from 12.2005 to 1.3.2008, as part of a joint management with F.T. an global organised crime group, not little than 120 cigaret smuggling of different brands, that is, a taxation offence with Article 86(1) and (2) of the KKS in conjunction with Article 54(1) of the KKS in conjunction with Article 63(2) of the KKS and others, and for that reason sentenced to the punishment of 1 year and 1 period of imprisonment and a fine, with a decision of forfeiture of the equivalent of the property benefit gained from the offence.

By the same judgment, the L. territory Court attributed Z.L. committing offences pursuant to Article 258(3) of the KK, Article 299(1), (5) and (6) of the KK and Article 163(2) of the KK, ruling on a full punishment of 1 year and 7 months of imprisonment and 550 regular units of fine, each of PLN 500.

The suspect died 2.9.2018, in the course of an appeal procedure initiated by appeals of the prosecutor and the defendant's defense, even before examining the remedies already adopted. The Court of Appeal in L., by decision of 13.2.2019, left the above appeals without examination, which resulted in the judgement of the territory Court in L.

The Court of Appeal in L., by judgement of 25.9.2019, II AKo 66/19, Legalis, resumed proceedings in part concerning Z.L., in connection with the case of an absolute reason for appeal, which was signalled by the suspect and in that respect annulled the judgement of the territory Court of L. of 28.3.2018 and, pursuant to Article 17(1)(5) of the NCP, dismissed the criminal proceedings.

The case was yet to be examined, and as a result, the ultimate Court, after proceeding the appeals made by the prosecutor and the defence attorney, amended the contested judgement in specified a way that it additionally ruled the failure to the State Treasury of the asset benefit achieved by Z.L. from a real property crime revealed in the land registry and the passenger car, and in the remainder kept in force.

Reasons for SN

According to the ultimate Court, the appeal brought by the defender Z.L...is unfounded.

The applicant, under the appearance of a breach of substantive law, i.e. Article 43a of the CCC, challenged the Court of Appeals in L. as the basis for the criminal measures against which the property benefit is forfeited and the monetary equivalent of the failure of the property benefit, the uncovering that the evidence gathered in the case shows that, in the event of conviction, Z.L. A crime of cigaret smuggling would have been ruled a forfeiture. In questioning the above, the applicants in their appeal limited themselves to contesting the explanations of the co-defendant F.T. that this evidence – as incomplete as it is in principle, after all, from slander – was not adequate to this extent. another evidence of guilt Z.L. In his opinion, it wasn't.

That position cannot be accepted. The Court of Appeal, having examined the case erstwhile again, has full carried out the ultimate Court’s rulings of 14.9.2022, III KA 1/21, Legalis and has made findings in the light of which there is no uncertainty that this — contested by the applicant — condition of Article 43a of the Constitutional Code has been fulfilled. The Court of Appeal has not only made these findings on the basis of the explanations of the co-custodian F.T., of which he had no uncertainty that they were credible, due to the fact that this defendant, pleading guilty, not only consistently presented a share in the smuggling Z.L. and another people, but besides their own function in this crime. The Court of First Instance besides made specified findings on the basis of another evidence, and thus of explanations S.C. and papers related to container clearance or companies active in smuggling.

It must so be held that the applicant failed to effectively competition the judgement adopted by the Court of Appeal on the basis of the uncovering that, in the event of the conviction of the suspect for the alleged offence, due to its size and spectacular nature, the engagement in its execution of many perpetrators, including customs officers, the amount of the depletion caused and the amount of the material benefit obtained, there would have been a decision on the forfeiture of the property benefit obtained from the offence and the monetary equivalentity of the failure of the property benefit.

The ultimate Court besides did not share the position of the defender presented at the appeal hearing, who, citing Article 440 of the NCP, argued that there were no grounds for ruling those criminal measures, as first, it was prevented by Article 2(2) of the CCC (equivalent to Article 4(1) of the CCC), and secondly, due to the fact that there was a limitation of criminality before the death of the accused.

As regards the first issue, the applicant had to be referred back to the ultimate Court judgement of 14.9.2022, III KA 1/21, Legalis, where it was decided unequivocally, in no doubt, that Article 2(2) of the KCS did not apply in the proceedings presently pending in this case. First of all, due to the fact that this is not a proceeding to resolve the defendant's criminal liability. The ultimate Court in its current composition full shares this position and considers the argument there to be its own.

The D.A. requested a decision to forfeit the property benefit of the crime, in the form of 2 properties and a car owned by Z.L., pursuant to point (4) of Article 22(2) of the KKS. These assets were covered by a safety under the order of the territory Attorney's Prosecutor's Office in L. of 9.1.2009 in connection with the threatening theft of the subject matter, the benefits of the crime and the equivalent of the benefit obtained as a consequence of the crime. This safety shall stay in force on the basis of Article 132(2) of the KCS, which allows for the provision of secured forfeiture property.

The full value of the goods covered by the forfeiture (i.e. including 2 properties and a car), calculated – just as the harm caused – i.e. the date of the alleged crime, would not exceed PLN 8.893.643.23.

In any event, it is essential to agree with the prosecutor that there was no obstacle to the Court of First Instance's assessment of the value of the property and the car in question, on the basis of expert opinion or, in the case of the property, on the basis of the content of the acquisition contracts, erstwhile the Court of Appeal called into question the actual value of those goods. Therefore, there were no irrefutable doubts which would justify the Court of First Instance’s waiving from the decision of the forfeiture, given the impossibility of valuing the defendant’s assets.

The key uncovering made by the Court of Appeal in L. in the judgement under appeal is that Z.L. he or she would be convicted of the alleged act (Articles 86(1) and 2 of the KKS in Article 54(1) of the KKS in Article 63(2) of the KKS, Article 62(2) of the KKS, Article 7 (1) and (6) of the KKS), from which he or she received a property benefit of not little than PLN 9 492 662, 50.

From information obtained from the UKS taxation Intelligence Department in L. of 17.8.2009 it appears that between 2005 and 2007 Z.L. he did not receive any legal income (he showed a loss) and in 2008 his income amounted to PLN 6,806. During the same period, the suspect acquired 2 properties (both 10.11.2006), paying for them a full of PLN 5 and a half million (2.500.000 and 3,000,000) and a car whose estimated value at the time of the seizure was PLN 100,000. This makes it reasonable to presume that the funds for the acquisition of the above goods had to be obtained by the accused from a large-scale criminal activity.

In the light of the above, it was essential to take into account the appellant’s appeal and, in addition to the decisions contained in the contested judgment, to regulation on the forfeiture of the proceeds of the offence.

Comment