Description of the facts
By judgement of 31.1.2022, II K 50/21, the territory Court of M. found that N.H. was guilty of 19.4.2020 driving a passenger car deliberately violating safety rules in road traffic by failing to exercise due care, being intoxicated (alcotest showed 0.85 mg/I alcohol in the breathed air), lost its ability to control the vehicle, causing its reversal, resulting in the failure of the body's injuries affecting the activities of the body for more than 7 days, i.e. an offence with Article 177 § 1 KK in conjunction with Article 178a § 1 KK, in conjunction with Article 11(2) KK, and for that intent he was sentenced to six months imprisonment of liberty conditionally suspending its execution for a trial period of 3 years. He besides ruled a criminal measurement to ban all motor vehicles for a period of 3 years.
This judgement was challenged by an appeal by an lawyer of the auxiliary prosecutor in the field of inadmissibility against the accused compensatory measurement in the form of an attachment.
The applicant accused the judgement of insulting the provisions of material law by not applying Articles 46(1) and (2) of the KK and Article 47(3) of the KK, and requested that the judgement be amended by a judgement on the part of the probation prosecutor of PLN 30,000, and, in the event of not sharing the arguments of the defender, as to the amount of compensation requested, that the judgement be changed by a judgement on the part of the probation prosecutor at the discretion of the appeal court, but not little than PLN 10,000.
Following the appeal procedure, the territory Court of W., in judgement of 28.6.2022, IV Ka 559/22, maintained the contested judgement in force.
The judgement of the Court of Appeal was challenged in its entirety, against the defendant, by a cassation brought by the lawyer General. The complainant alleged gross and materially affecting the content of the judgement a breach of the rules of criminal procedural law, i.e. Article 433(2) of the NCP and Article 457(3) of the NCP.
Consequently, the applicant requested that the judgement under appeal be set aside and that the case be referred back to the appeal proceedings.
The ultimate Court, after examining the cassation brought by the lawyer General to the disadvantage, 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 cassation deserved to be taken into account.
It should be recalled that in the course of the proceedings before the Court of First Instance, the lawyer for the auxiliary prosecutor requested that the attachment of PLN 30,000 be judged. The territory Court did not take this request into account, indicating in its message of reasons that ‘the amount of PLN 35,000 (as indicated by the insurance file), awarded with the title of compensation for harm, is adequate and there are no grounds for judging any further amount, and even more so requested by the auxiliary prosecutor PLN 30,000. Without underestimating the harm suffered by the victim, it should be taken into account that he was working on a construction site shortly after the hospitalisation, although he could not truly have done harder work." Therefore, the refusal to give a decision was linked to the view expressed by the Court of First Instance that the harm did not be after the insurer had granted the benefit. Referring to the allegations made in the appeal, the territory Court of W.: firstly, it considered as the Court of First Instance that the harm at the time of the ruling no longer existed, and secondly, it argued that the anti-cumulative clause referred to in Article 415(1) of the NCP should apply in the present case. According to the Court of First Instance, the victim's claim was the subject of a different procedure, as the insurer issued a decision to find the amount of compensation for PLN 35,000 and the charge was paid to the prosecutor. It follows from the wording of Article 415(1) of the NCP that the attachment to the victim, the work to make good harm or to make good the harm suffered shall not be decided if the claim resulting from the offence is the subject of another proceeding or the claim has been finalised.
The view of the request to mention to the construction of the anti-cumulative clause was decently challenged in an extraordinary appeal, referring to the settled caselaw of the ultimate Court. In the cassation, it has been pointed out that the condition for the application of the anti-cumulative clause of Article 415(1) of the NCP is the subject-matter identity of the claim, which has been duly settled in another proceedings or is the subject of specified proceedings, with a criminal action, e.g. under Article 46 KK. The absence of specified an identity between claims causes the failure to meet the condition of the case to be judged or the state of the case in progress. It is not ‘other proceedings’ within the meaning of Article 415(1) of the NCP that the winding-up procedure by an insurance undertaking is carried out and that the settlement concluded before the insurer, whether the decision issued by the insurer, does not fulfil the criteria for the subsequent application of the anti-cumulative clause, in the form of a ‘final judgment’, and consequently as a decision of an out-of-court authority, does not give emergence to the seriousness of the substance judged (see, inter alia, the order of the ultimate Court of 7.11.2014, IV KK 129/14; the judgement of the ultimate Court of 24.6.2021, IV KK 251/21 and the rulings, jurisprudence and literature).
In the light of the above, it is clear that the anti-accumulative clause could not apply in the present case.
Notwithstanding the above considerations, given the content of the appeals, it had to be concluded that there was besides an image of Article 47(3) KK in the case. This provision provides that, in the event of conviction, inter alia, for an offence under Article 177 §1 KK, if the offender was in a state of intoxicated, the court shall regulation on the victim in the amount of at least PLN 10,000. The drafting of the provision leaves no uncertainty that the decision of this measurement is compulsory.
Although this measurement has been included in the compensatory measures (Chapter Va of the Criminal Code), its nature is clearly different from the compensatory measures contained in Article 46 KK. The mention given in Article 47(3) KK is powerfully repressive, given the determination of the lower limit of its amount, regardless of the amount of the damage. This position is confirmed by Article 47(5) KK, which states that the provision of Article 47(3) KK does not apply if the court has declared the work to remedy the harm caused by the offence or to compensate for the harm suffered in excess of PLN 10,000. This means that the criminal measurement in question is not ruled only if a compensation or redress work has been established pursuant to Article 46(1) KK, which has not occurred in the present case (see the ultimate Court judgement of 5.10.2017, II KK 178/17, Legalis).
Apart from the request for an attachment ruling pursuant to Article 46(2) of the CCC, the case in question undoubtedly had a flagrant image of material law consisting in the inadmissibility of a compulsory attachment based on Article 47(3) of the CCC.
In conclusion, the judgement of the Court of Appeal was affected by a gross insult to procedural and substantive law, which was duly stated in the plea of cassation, and that offence had a crucial impact on the content of that judgment, which entailed the request to repeal the judgement of the territory Court of W. and mention the case to that court for review in the appeal proceedings. In the course of this procedure, the Board of Appeal will be required to take account of the above considerations and to examine the appeal in a fair manner.
Comment
The background of the case in question is the claim that the cassation is correct, in which it is pointed out that the attachment decided pursuant to Article 46(2) of the KK has a compensatory function, so 1 of the conditions for its ruling is the existence of harm or harm (see the ultimate Court judgement of 30.12.2020, II KK 302/20, Legalis). The point is, however, that the Court of First Instance, referring to an appeal alleging that the decision was correct in this respect, limited itself to the uncovering that the harm was compensated by the insurer and that the applicant did not show that it was higher. In fact, the Arbitrary position of the Court of Appeal, accepting the succinct, previously cited message of the Court of First Instance, grossly violated the provisions setting the standard of review, namely Article 433 §2 of the NCP in Article 457 §3 of the NCP, which became the subject of a legitimate plea by the author of the extraordinary casation.
