Description of the facts
The territory Court of W. 23.5.2023, in Case VIII K 835/22, issued a cumulative judgement against M.B. By issuing the judgement in question, the territory Court of W. analysed six convictions in cases VIII K 270/20, II K 348/21, VIII K 468/21, III K 556/19, IV K 304/19 and III K 472/20, which formed the basis for the judgement in question. Finally, by virtue of the judgement in question, the combined court ruled against the sentenced punishment a full of 2 years and 10 months imprisonment, a full punishment of 2 years of imprisonment and a full punishment of 250 regular units, with a single rate of PLN 10.
Following an appeal against the above cumulative judgment, brought by a suspect convicted of the punishment and questioning only the degree of the combined imprisonment, The territory Court in Warsaw, in its judgement of 5.10.2023 in Case X Ka 771/23, annulled the contested cumulative judgement and referred the case to the territory Court for Warsaw-Mokotów in Warsaw for re-examination.
A complaint against the aforementioned judgement under Article 539a(3) of the NCP was brought by the Prosecutor, alleging infringement of Article 437(2) of the NCP by repealing, in its entirety, the combined judgement of the territory Court of W. of 21.12.2022, IV K 520/22 and referring the substance to that court for re-examination, on the grounds that there is simply a ground for specified a decision.
In its conclusions, the applicant requested that the judgement under appeal be repealed in its entirety and that the case be referred to the territory Court of W. for review.
The ultimate Court, after examining the prosecutor’s action, annulled the contested judgement and referred the case to the territory Court of W. for review in appeal proceedings.
Reasons for SN
According to the ultimate Court, the complaint deserves to be taken into account.
As a preliminary point, it should be recalled that, in accordance with Article 539a(3) of the NCP, the basis for an action against a judgement of the appeal court may be a breach of Article 437 of the NCP or a failure referred to in Article 439(1) of the NCP.
The ultimate Court, in examining the judgement of the appeal court, should so limit itself to examining whether there have been alleged absolute reasons for the appeal, or whether the judgement has been abrogated despite the absence of the formal obstacles set out in Article 454 of the NCP to issue a amending judgement or whether it is essential to carry out the full judicial line (see order of the NS of 10.2.2017, IV KS 6/16, Legalis; Resolution of the NS of 25.1.2018, I KZP 13/17, Legalis). The written grounds for the judgement of the appeal court should not only specify clearly which of the conditions set out in the second conviction of Article 437(2) of the CRS decided to revoke the judgement of the court of first instance and to mention the case to that court for review, but should besides include an argument indicating the merits of specified a request and, consequently, the request for a casatory judgment.
It follows from the message of reasons for the judgement under appeal that the reason for the annulment of the combined judgement in that case and for the re-examination of the case was the request to re-establish the full line. erstwhile examining an appeal court of its own motion (Article 440 of the NCP) having respect to the shortcomings in the actions for which M.B. was convicted by the territory Court of W. of 15.2.2022, in Case VIII K 468/21 and the territory Court of W. of 13.12.2019, IV K 304/19, which, in the current legal state, due to the value of the stolen property, constitute offences and the penalties for offences are not subject to merger.
The Court of Appeal, of course, notes that as a consequence of the entry into force of Article 4(5) of the Act of 7.7.2022 on the amendment of the Code of Kama Act and of certain another acts (Journal of Laws of 2022 item 2600; hereinafter: ZmKK22), which occurred 1.10.2023, the act of the full character of the offence under Article 278(1) of the KK in conjunction with Article 12(2) of the KK covered by the judgement of the territory Court of W. of 15.2.2022, VIII K 468/21, as amended by the judgement of the territory Court of W. of 9.6.2022, X Ka 360/22, for which M.B. he was sentenced to 3 months imprisonment and an act of complete character of the offence pursuant to Article 278(1) of the KK in conjunction with Article 12(2) of the KK covered by the order of the territory Court of W. of 13.12.2019, IV K 304/19, for which M.B. has been sentenced to 2 years of restrictions on freedom, are now offences.
Pursuant to Article 4(5) of the ZmKK22, Article 119(1) KW is replaced by the following: A individual who steals or takes possession of another's moveable thing, if its value does not exceed PLN 800, is subject to detention, regulation of liberty or fine. On the another hand, in the conversion of a criminal offence, the application of Article 2a(1) KW to the content of Article 2a(1) KW, if, according to the fresh law, an act subject to a final conviction for a criminal offence constitutes an offence, the conviction to be enforced shall be replaced by a conviction of imprisonment equal to the advanced limit of the statutory threat for specified an act, and if the law does not supply for a punishment of imprisonment for that act, and if the law does not supply for a punishment of regulation of liberty for that act, a fine shall be imposed, taking 1 day of imprisonment for an equivalent fine of PLN 10 to 250 and not exceeding the advanced limit of that kind of punishment for that act.
Importantly, the value of the harm for the offences alleged by the accused individual under Article 278 §1 of the KK in Article 12(2) of the KK, in case VIII K 468/21 was PLN 569.16, and in case IV K 304/19 was PLN 581.67. In that situation, as the applicant rightly points out, it should be considered that the conviction of imprisonment imposed on the sentenced individual in case VIII K 468/21 is subject to conversion to detention under Article 2a(1) KW. At the same time, in accordance with the first conviction of Article 2a(4) of the General Court, the combined imprisonment of the combined conviction of the territory Court of W. of 23.5.2023, VIII K 835/22, which was based, inter alia, on the punishment imposed in Case VIII K 468/21, has lost its power ex lege. The situation referred to in Article 2a(5) of the Code does not exist, since in this case the application of Articles 2a(1) and (4) of the Code does not have little beneficial effects on the defendant. M.B. Therefore, since there is no more power to regulation on the combined penalty, there is no longer a substrate for the appeal brought by the suspect and the accepted appeal has become inadmissible. The applicant so has the right to require the appeal court to leave the appeal measurement to the contrary, in accordance with Article 430(1) of the NAP. Consequently, there were no grounds for repealing the combined judgement of the territory Court of W. of 23.5.2023, VIII K 835/22 and for referring the substance to the court of first instance for re-examination in respect of the decision which had become obsolete.
It is worth noting that there were no pleas in appeal or objections raised by the appeal court of its own motion in relation to the determination of the combined conviction of the territory Court of 23.5.2023 in Case VIII K 835/22. Therefore, in this respect, the territory Court of W. did not show any grounds for repealing the cumulative judgement in question and for reopening the case. This further confirms the absence of grounds for repealing the judgement of the Court of First Instance due to the request to re-transmit the full court.
In view of the above, the judgement under appeal was abrogated and the case was referred for review in the appeal proceedings. In its course, the appeal court shall take into account the legal considerations expressed above.
Comment
It is outside the dispute that the complainant was right to argue that the appeal court, erstwhile deciding to examine the case with respect to exceeding the limits of the appeal and the pleas raised (Article 440 of the CRS), should find whether a decision amending the conviction in Case IV K 304/19 was given pursuant to Article 2a(2) of the CRS. Where specified a decision is given, the appeal court should issue an appropriate improvement decision. In the facts of the case, there was no need, of course, to repeat the full judicial procedure, since the act in question would, by nature, exclude the jurisdiction of the court of the second instance for substantive ruling. The repeal of the contested appeal and the referral of the case to the Court of First Instance was a gross violation of the disposition of Article 437(2) of the NCP. This fact was well demonstrated in the complaint lodged.
