Description of the facts
By judgement of 2.8.2023, XII K 552/22, territory Court of the suspect M.R. found him guilty of committing an alleged act of exhaustive disposition of Article 291(1) of the KK and for that act pursuant to Article 291(1) of the KK, pursuant to Article 4(1) of the KK and Article 37a of the KK, to have fined him 150 regular units of PLN 20 each.
That judgement in its entirety challenged the defendant’s defence, alleging an insult to the provisions of the proceedings affecting the content of the judgement and an insult to the provision of substantive law, namely Articles 167 and 410 of the NCP by failure by the court to supply evidence from papers submitted by the suspect in the course of First instance, concerning the calculation of the collection, employment contract, confirmation of the check-in, letter of the registrant to the taxation at the time erstwhile the offence was committed, together with the translation of the jury from German into Polish, and the evidence indicated is essential for the resolution of the case in question; Article 7 of the NCP by making any, not free assessment of the explanations. He besides alleged an mistake in the factual arrangements adopted on the basis of the judgment.
By raising these allegations, the suspect requested that the judgement under appeal be amended and that the suspect be acquitted from committing the alleged act.
By judgement of 28.2.2024, the territory Court in Case IV Ka 1335/23, Legalis, annulled the contested judgement and the defendant’s case transferred to the territory Court in W. for re-examination. In its message of reasons for the judgment, the appeal court indicated that the reason for repealing the judgement of the first instance was the request to re-establish the cable in its entirety.
The Court of First Instance brought an action against the judgment, which, by appealing the judgement in its entirety to the detriment of the accused, accused him of violating the provisions of the proceedings affecting the content of the judgment, namely Article 437(2) of the CRS, by repealing the judgement of the territory Court of W. of 2.8.2023, XII K 552/22 and referring the case to that court of re-examination, in view of the request to carry out the full procedure. It was a deficiency of a decision on the evidence application made at the trial on 31.1.2023 by the defendant's defence attorney, a deficiency of explanation of the discrepancy in the witness's evidence L.P. and the failure to get the first of the pawnshop agreement of 29.10.2015, whereas the deficiencies noted by the Court of First Instance in the evidence do not justify the request to carry out the legal proceedings in full and consequently repeal the case for review.
In its conclusions, the applicant requested that the judgement under appeal be set aside and that the case be referred back to the appeal court.
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 is clearly legitimate.
Pursuant to Article 539a(3) of the NCP, an action against a cassatory judgement may be brought only on the ground of a breach of Article 437 of the NCP (in fact it concerns paragraph 2 of that provision) or on the grounds of a failure referred to in Article 439(1) of the NCP. In the case-law of the ultimate Court, it is pointed out that the provision of Article 539a(3) of the NCP contains 2 grounds for appeal against the judgement of the appeal court. The first ground concerns an infringement by the appeal court of Article 437(2) of the NCP and the second infringement referred to in Article 439(1) of the NCP. There is no uncertainty that the second ground of appeal covers only the appeal procedure, and thus the existence at the phase of the infringement referred to in Article 439(1) of the NCP (order of 26.5.2020, I KZP 14/19, Legalis). First of all, the ultimate Court, in examining the appeal against the cassatory judgment, must examine whether the failure to comply with Article 439(1) of the NCP occurred at the phase of the appeal procedure, since its uncovering requires the annulment of specified judgement and makes unnecessary examination of the complaint based on the infringement of Article 437(2) of the NCP. In that procedure, the ultimate Court did not find that there was a breach of Article 439(1) of the NCP at the phase of the appeal procedure. This, in turn, makes mention to the complaint.
It should have been stressed that, as far as this is concerned, the infringement of Article 437(2) of the NCP, The ultimate Court may, of course, examine, only in the context of the plea, whether the appeal court repealing the judgement of the first instance has reasonably held that there is an absolute appeal in the case (a failure in this respect may be raised in an appeal or found ex officio by an appeal court), or whether the appeal court has ruled that there is simply a breach of the judgement pursuant to Article 454(1) of the NCP, whether, in fact, in the procedural arrangement in force in the case of that provision, it could have been the basis for a cassatory judgement (the acquittal, alternatively of a conviction which should have been given in the case), and if the appeal court has pointed out that the annulment of the judgement was justified by the request to reintroduce the whole, whether it was indeed demonstrated that there was a request to carry out a wire in its entirety (cf. resolution of the 7 ultimate Court judges of 25.1.2018, IKP 13/17, Legalis).
It follows from the message of reasons for the judgement under appeal that the reason for the annulment of the judgement meriti and to mention the case to that court for re-examination was the request to re-establish the full line. The point, however, is that it is not at all clear from the justification of the judgement that there is simply a request to re-establish the court. After all, as part of the deliberations concerning the assessment of the merits of the defendant's application to acquit the suspect from the act alleged by the appeal court, the court of appeal stated that the evidence needed to be supplemented alternatively than re-examined in full as part of a repeated court line. It follows from the message of reasons for the judgement that the request to supplement the evidence was recognised by the Court of Appeal as regards the circumstances relating to the defendant’s stay in Germany on the date of the act, as well as whether Lombard had an agreement with Lombard. Both of these issues could have been clarified in the course of the evidence investigation, as the prosecutor rightly pointed out in the message of reasons for the complaint (referring correctly the standard resulting from Article 452(2) of the NCP), and the degree to which the evidence is supplemented does not fall within the expression of re-conducting the judicial line. In turn, drawing attention to the contradiction in witness evidence L.P. and the deficiency of a position of the court of first instance as to which version of the evidence gives emergence to faith, besides did not prevent the evidence of that witness from being assessed by the court of appeal itself, or, if deemed appropriate, called for a supplementary proceeding at the appeal hearing.
It was so recalled that, in the context of the second instance, the reason for the annulment of the judgment, namely the request to re-examine the whole, in the resolution of the 7 judges of 22.5.2019, I KZP 3/19, Legalis, the ultimate Court found that it occurred erstwhile the ruling court of the first instance violated the provisions of the procedural law, which resulted, in the facts of the case, in the failure of the court proceedings, justifying the request for a repetition (re-) of all procedural acts involving the judicial process in the first instance. It follows from the message of reasons for this resolution that the request to re-exist all the evidence usually arises when: the court of first instance has not disclosed any evidence at all, although it has based its judgement on them, or the evidence has been incorrectly carried out (infringement of Article 410 of the NCP), there has been a breach of procedural provisions relating to the appropriate conduct of the case, and the nature of specified a failure requires a repetition of the legal line.
In view of the above, it was essential to repeal the judgement of the second instance and to mention the case back to the appeal proceedings.
Comment
An uncontested claim to which the Complainant pointed out that the evidence referred to by the appeal court was limited to the request to partially supplement the evidence and could so not be regarded as a justification for the request to re-establish the cable in its entirety. The Court of Appeal, recognizing the request to carry out evidence, according to its duties, was not only entitled but even obliged to conduct proceedings independently on the basis of the evidence collected. The prescribed work of the court is straight attributable to the disposal of the current Article 452 of the NCP.
