Description of the facts
T.W. he was accused of distributing pornographic content with the participation of minors from 8.1.2023 to 6.3.2023 in T. acting in advance with the intention of distributing pornographic content with the participation of minors, i.e. for an act under Article 202(3) of the KK, Article 202 §4a of the KK, in conjunction with Article 11(2) of the KK, in conjunction with Article 12(1) of the KK.
By judgement of 30.10.2023, II K 1330/23, the territory Court of T., having respect to the prosecutor’s request made under Article 335(1) of the NCP, found the suspect T.W. We give the Children the Force during the word of the sentence.
The judgement was not contested and was finalized on 7.11.2023.
The Court of Justice of the European Union, acting on behalf of the Court of Justice of the European Union and of the Court of Justice of the European Union and of the Court of Justice of the European Union, has consistently held that the Court of Justice of the European Union is not a associate State of the European Union. T.W. conviction without a trial.
The lawyer General has requested that the judgement under appeal be abrogated and that the case be re-examined.
The ultimate Court, after examining the cassation brought by the lawyer General against the defendant, annulled the contested judgement and referred the case to the territory Court of T for re-examination.
Reasons for SN
According to the ultimate Court, the cassation of the lawyer General is, of course, justified, which allowed it to be taken into account at the sitting under Article 535(5) of the NCP.
It is clear that the court to which the public prosecutor directs the application pursuant to Article 335(1) of the NCP, in view of the content of Article 343(7) of the NCP, is obliged to carry out a detailed review, i.e. both formal and substantive, of specified a procedural document. It is essential to verify that the proposals submitted by the prosecutor stay in line with the parties’ erstwhile findings and that they do not conflict with material law. In the absence of a affirmative result of this verification, the court may not take into account the application, which gives emergence to the request to act in accordance with Article 343(7) of the NCP, unless, at the sitting, with the consent of the accused (Article 343(3) of the NCP), a modification of the convalescent failure to comply with the criteria of Article 335(1) of the NCP will occur. The Court of First Instance, in examining the prosecutor's request agreed with the suspect and made on the basis of the provision laid down, is bound by the content of the application, which does not mean that it must be taken into account in relation to the content of the provisions of the law (cf. ultimate Court judgments of 17.6.2015, V KK 177/15, Legalis; 10.6.2015, V KK 96/15, Legalis; 9.4.2015, IV KK 79/15, Legalis; 30.3.2015, II KK 75/15, Legalis; 5.12.2013, V KK 342/13, Legalis; 25.3.2009, III KK 33/09, Legalis; 8.9.2009, IV KK 287/09, Legalis).
Taking into account the prosecutor's request, the territory Court of T. did not apply the standard resulting from Article 57b KK despite its mandatory nature. This led to an unreasonable conclusion on the anticipation of applying to T.W. the benefits of Article 37b KK. Against this background, it should have been noted that the issue of the anticipation of the combined application of Articles 57b KK and 37b KK became a field of consideration for the ultimate Court, where it was found that the existence of a basis for an exceptional tightening of the punishment on the basis of the content of Article 57b KK in connection with the conviction under the conditions laid down in Article 12(1) KK does not prevent the court ruling the institution referred to in Article 37b KK from applying at all. However, this may be the case where, in a peculiar case, taking into account the level of the lower limit of the statutory threat of imprisonment, it can be ruled in specified a way that its mandatory regulation (above the lower limit of the statutory threat) causes that the conviction thus imposed does not exceed 3 months of imprisonment, and if the advanced limit of the statutory threat is at least 10 years, 6 months of imprisonment, that is, only under conditions where it is possible to respect the compulsory nature of Article 57b of the KK and the content of Article 37b of the KK in respect of the maximum conviction of imprisonment as a sequential punishment for a given offence. In practice, this will be possible only in respect of offences where the lower limit of the statutory threat does not exceed 5 months of imprisonment (cf. judgement of 22.2.2023, V KK 331/22, Legalis). However, the criminal offence attributed to the sentenced individual under Article 202(3) of the CCC has been punishable by a punishment for 2 years, which has explicitly excluded the anticipation of applying the benefit of Article 37b of the CCC. Thus, the territory Court of T., having respect to the defective request of the Prosecutor, has committed a gross infringement of Article 57b of the KK by its failure to apply it, which has consequently led to an unreasonable basis for the ruling on the punishment to be imposed on Article 37b of the KK, which could not be applied in the circumstances of this case.
Notwithstanding the above, the lawyer General has besides decently demonstrated that the territory Court of T. has led to a request from the Prosecutor and to a judgement without a mandatory judgement of a criminal measurement in the form of a prohibition against any or circumstantial positions, the pursuit of any or circumstantial professions or activities related to the education, treatment or care of minors. Pursuant to Article 41(1a) second edition of the KK (as applicable until 30.9.2023 and after that date, pursuant to Article 41(1)(a)(2) of the KK) ‘the court shall prohibit the seizure of any or circumstantial posts, the pursuit of any or circumstantial professions or activities related to the upbringing, education, treatment or care of minors for a limited period of time, or for life in the event of a conviction for an offence against sexual liberty or morality to the detriment of the minor.’ Assigned act T.W., qualified under Article 202 §3 of the KK and Article 202 §4a of the KK in conjunction with Article 11(2) of the KK, in conjunction with Article 12(1) of the KK, belongs to the category of offences covered by the above regulation. Therefore, the judgement against the suspect referred to in Article 41(1a) of the CCC was compulsory in the present case. The Court’s consideration of the prosecution’s application for conviction without a trial in the event that the sanction proposal submitted by him infringed the content of Article 41(1a) of the KK was a gross error, having a crucial influence on the content of the judgement under appeal.
The same reasons were besides justified by the argument made by the lawyer General regarding the inadequate control of the prosecutor's application, and thus the failure of the territory Court in T. to give a compulsory cash benefit of at least PLN 10,000 to the Fund for Harmful Aid and Postpenitentiary Assistance. The work of that judgement was clearly attributable to the wording of Article 43a(3) KK.
Comment
Background to the case in question is the uncontested claim that the territory Court of T. failed to fulfil its obligations in relation to proceedings under Article 335(1) of the NCP. The point is that he did not show due diligence during the review of a conviction application without a trial. This has led to the application and to the judgement of a gross breach of substantive law. First of all, it had to be seen that the territory court was convicting T.W. for the act under Article 202(3) of the KK and Article 202 § 4a of the KK in conjunction with Article 11(2) of the KK, in conjunction with Article 12(1) of the KK in the course of the sentence, he was not entitled to benefit from the conditions laid down in Article 37b of the KK, as this was in conflict with the disposition of Article 57b of the KK. There is no uncertainty that the ultimate Court has made the right decision to revoke the judgement and mention the case to re-trial.
