Description of the facts
By judgement of 11.3.2021, II K 104/17 the territory Court of S. held B.S. for the guilty offence of Article 177 §2 of the KK committed on 15.9.2016 and for this he sentenced the accused individual of the year and 8 months imprisonment. By that judgment, the territory Court of S. B.S. for the guilty offence of Article 177(2) of the KK committed on 18.5.2017, for which he sentenced the accused individual to a six-month regulation on freedom to execute unpaid controlled labour for social purposes at 25 hours a month. In addition, for each of these offences, the Court of First Instance has ruled against the suspect a criminal measurement prohibiting the driving of any motor vehicle for a period of 3 years and a cumulative ban on driving any motor vehicle for a period of 5 years. He ruled from the suspect to M.K. the amount of PLN 10,000 as compensation for the injury suffered.
After examining the appeal, the suspect and the prosecutor, the territory Court of P., in judgement of 17.5.2022, V Ka 50/22, amended the contested judgement in specified a way that he increased the conviction of imprisonment given for the first of the acts attributed to him to 3 years, and in the remainder of the contested judgement retained in force.
The cassation was brought by the defendant, bringing an action against the suspect in full in favour of the suspect and accusing him of having a material influence on the content of the judgement under appeal, of insulting the provisions of the proceedings in the form of Articles 6 of the NCP and Articles 117(2) and 2a of the NCP in the above-mentioned Article 458 of the NCP.
By raising the above, the defender requested that the judgement be repealed and that the case be referred to the territory Court of P. for re-examination.
In consequence to the cassation, the territory lawyer in S. filed for her dismissal, as of course unfounded.
The ultimate Court, after examining the cassation brought by the defender, annulled the contested judgement in part and, in this respect, referred the case to the territory Court of P. for re-examination.
Reasons for SN
According to the ultimate Court, the cassation of the defender was, in part, inadmissible and justified, leading to the request to revoke the judgement in relation to the decision of the territory Court of P. in paragraph 1 and to mention the case to review in the appeal proceedings.
The appeal by the defender of the judgement of the territory Court in P. in its entirety and the request to revoke it in the same scope is contrary to Article 523(2) of the NCP. If, therefore, for the second of the offences attributed to the conviction of Article 177 §2 of the KK, committed on 18.5.2017, the conviction of 6 months of regulation of liberty, maintained by the judgement of the territory Court of P., was imposed, the cassation of the defender was inadmissible.
However, the alleged infringement of the defendant's rights of defence under Article 6 of the NCP proved to be reasonable under the circumstances.
The arrangement of the circumstances of the case is crucial for the assessment of the defendants. The order of 1.4.2022 set the date of the appeal proceeding at 17.5.2022. 15.4.2022, the defender applied for a change of the date of the hearing, including a copy of the medical certificate of 13.4.2022 issued by the urological clinic of the Municipal infirmary in T. indicating that the operation of the defender would take place on 20.4.2022, hospitalization would be about 1 week, and rehabilitation due to the nature of the procedure would take 3 months after the procedure. By letter of 22.4.2022, the president of Division V of the territory Court of P. informed the defender that a multi-month inability to participate in the proceedings did not justify a change of the time limit for the appeal hearing. At the end of the infirmary treatment, the defender referred to this position by letter of 9.5.2022, which was received on 13.5.2022, referring to the incorrect explanation of the application and the unsubstantiated position expressed by the Judge-Rapporteur. He besides made a request for exclusion under Article 41(1) of the NCP, and reiterated the application for postponement of the hearing. He pointed out that the case has been pending for 5 years without the responsibility of the defender, that rehabilitation is not multi-monthly, but for a period of 3 months, so there are no “reasonable considerations for the case to be recognised even in September”. By letter of 13.5.2022, the defender was informed that the three-month word of rehabilitation indicated by him was imprecise and there is no basis for a long-term wait for the defender to recover, and the defender has the chance to usage the institution of substitution. Finally, it states that the author of the letter of 22.4.2022 addressed to the defender was not the Judge-Rapporteur, but the president of Division V of the territory Court.
The defender did not appear on the date of the appeal proceeding on 17.5.2022, nor did he establish a substitution. He did not appear on that date either, without establishing another defender. At the hearing, the defendant's letter of 9.5.2022 was recognised, treated as a motion to postpone the hearing. However, it was not taken into account due to the fact that the defender did not submit current papers on his wellness and on the grounds that he did not have a mandatory defence. Following the appeal, the Court of Appeal issued a judgment, dismissing the defence attorney's appeal and taking into account in part the prosecutor's appeal, expanding the conviction of imprisonment given for the first of the sentenced acts to 3 years, and the remainder dismissing that appeal.
The examination of the file of the case in respect of the plea raised in the proceeding indicates the correctness of the Court of Appeal’s findings as to the fact that the suspect did not present an excuse for absence or ‘current wellness documents’ at the time of the hearing. In addition to the medical certificate dated 13.4.2022, certifying that the defender was referred to the planned procedure on 20.4.2022 and the request for rehabilitation of 3 months, the defender did not even present a discharge from the infirmary certifying that the procedure had taken place or the current medical leave. However, there is no uncertainty that there was an nonsubjective obstacle to the individual participation of the suspect in the trial, which was known to the Court, in the light of the papers in the case file confirming the procedural procedure of the defender requiring infirmary stay and 3 months of rehabilitation. Nor was it essential to conduct non-trial correspondence with the defender, for the first of the requests for postponement of the proceeding required a procedural settlement. However, it can be regarded as an effort to implement the work resulting from Article 16 of the NCP to inform the parties of their rights and obligations. Moreover, the specified determination of the dimension of rehabilitation planned for a period of ‘about 3 months’ was not relevant, since it was little than a period from the beginning of rehabilitation to the day of the trial. In fact, it was besides appropriate to indicate to the Court of Appeal that the participation of the suspect and the defender in the appeal proceeding was not compulsory in this case, but was a right which they could exercise freely.
The right course of action of the defender was not so much reopening in the situation, but besides in the form of rude written statements, a request for postponement of the proceeding and indicating that since the proceedings last respective years, there are no obstacles to postpone them for another fewer months, but to present to the Court the current medical release. Doubtless the defender besides had time and opportunity, including in the period during which he formulated a multi-page and emotional motion to postpone the trial, to usage the institution of the substitution, or by the interest of the accused to point out to him the anticipation of utilizing the legal assistance of another defender. At the same time, the case file does not indicate, contrary to the claims of the defender at that time in the rehabilitation of the defender, that their extensiveness and complexity of the case would have prevented them from being known by a substitute defender, or another or more defenders, and the provision of appropriate defence at the appeal hearing.
Comment
The background to the case in question leads to the conclusion that the author of the cassation is right, indicating that the arrangement of circumstances has led to a situation where, in a manner which is independent of the will and conduct of the accused himself, without proceeding the defence's position, there has been an appeal against the conviction, including an appeal against the defendant, and a judgement by which the conviction has been increased. It cannot so be concluded that the accused has given up his right to participate in the appeal proceeding in a conscious manner, but that he has been deprived. The arrangement of the circumstances of the case was so circumstantial and it has just led to the designation of the appropriateness of any of the charges raised in the annulment.
