Field indicating the request for reconducting the tube

Description of the facts

The territory Court of P., in its judgement of 6.112.2022, II Ka 281/22, after the appeal of the prosecutor, annulled the judgement of the territory Court of P. of 6.9.2022, II K 2739/21, acquittal of the suspect W. L. from the act against Art. 297 §1 KK and Art. 286 §1 KK in conjunction with Art. 11 §2 KK and referred the case to the court meriti for re-recognition.

An action against a cassatory judgement was brought by a defence lawyer alleging infringement of Article 437(2) of the NCP. By raising the above plea, the defenceman requested that the judgement under appeal be abrogated and that the case be referred to the Industrial territory Court for review.

In consequence to the complaint, the prosecutor requested her dismissed.

The ultimate Court, after having examined the action brought by the defendant, annulled the contested judgement and referred the case to the territory Court of P. for review in the appeal proceedings.

Reasons for SN

According to the ultimate Court, the defendant’s complaint proved to be legitimate and resulted in the repeal of the judgement of the territory Court of P. and the transfer of the case for re-examination.

Pursuant to Article 539a(1) of the NCP, an exceptional remedy in the form of an action against a judgement of the appeal court may be brought where the issue of an appeal judgement of cassatory nature infringes the content of Article 437 of the NCP, or where there is an absolute reason for appeal of Article 439(1) of the NCP erstwhile that decision is given. The explicit wording of Article 437(2) of the NCP leaves no uncertainty that the Court of Appeal may revoke the judgement of the court And only if he shows that there are 3 accidents in the case:

1. the erstwhile settlement is affected by 1 of the defects referred to in Article 439(1) of the NCP;
2. the directive resulting from Article 454 of the NCP, which requires an analysis of existing material and evidence of faults in the reasoning of the court, meriti;
3. the request for a full re-use of the judicial cord.

The Board of Appeal shall indicate which of the circumstances referred to in Article 437(2) of the NCP constituted in creto the basis for the repeal of the judgement of the Court of First Instance and the arguments which led it to specified a conclusion (see ultimate Court judgement of 6.2.2019, IV KS 3/19, Legalis).

In the light of the above, it must be noted that reading the reasoning of the judgement of the appeal court indicates that the reason for the annulment of the judgement given by the court meriti there was a sharing of arguments contained in the prosecutor's appeal. The appeal court found the evidence of the court of first instance to be defective and found it essential to re-examine it. In its view of the further proceedings, the territory court held that the court of first instance should re-examine and measure the evidence and then make a legal assessment of the defendant's actions and guilt.

In the present case, it was appropriate to consider the defendant’s actions to challenge the abrogation of the judgement of the Court of First Instance and to mention the case to review. In the context of the argument put forward by the territory court, it should be borne in head that the current provisions of the criminal procedure (Articles 437(1) and (2) of the NCP) lay down the regulation that the Court of Appeal shall, after examining the case, issue a substantive decision (repeating the contested judgement or amending the contested judgment) alternatively than a casatory decision (repealing the contested decision and referring the substance to the court of first instance for re-examination). The anticipation of the Court of Appeal to issue a cassatory judgement constitutes an exception, justified or procedural regulation on the freedom to regulation on the appeal court, or the existence of specified gross deficiencies in the proceedings of the first instance which even disqualify proceedings before the court a quo, as a basis for resolving the defendant's criminal liability (see the resolution of the composition of the 7 ultimate Court judges of 22.5.2019, I KZP 3/19, Legalis). specified formation of the position and tasks of the Court of Appeal linked to the granting of extended powers in the field of evidence proceedings was justified by the request to limit the number of cassatory judgments to those situations where the case was referred to the court for retrial meriti was essential for the purposes of criminal proceedings (cf. besides order of the SN of 26.1.2021, IV KS 1/21, Legalis).

In view of the above, it must be concluded that the request to re-examine the collected material does not fall within the statutory grounds for repealing the contested appeal. The uncovering of deficiencies in the examination of the part of the individual evidence required the court of the second instance to bring those deficiencies to its own attention, by carrying out certain evidence acts in its own right, since, as was pointed out in the outset, the applicable rules of the appeal procedure, including those resulting from the disposal of Article 452 of the NCP, confer extended jurisdiction on the Court of Appeal, peculiarly on the basis of evidence carried out only at that phase of the procedure. specified an action shall not be taken only if a full judicial proceeding is required. However, this condition is only updated if, in the first instance, there has been specified a breach of procedural law which, in the circumstances of a peculiar case, undermines the reliability of the full procedure, which is in favour of repeating (re-introducing) all procedural acts constituting a judicial line in the court of first instance (see the ultimate Court resolution of 22.5.2019, I KZP 3/19, Legalis; ultimate Court judgement of 9.2.2021, V KS 221, Legalis). It should besides be stressed that the "necessity to re-conduct the cable in its entirety" is an exception to the rule of "pure appeal model", and should so be interpreted narrowly. As a consequence, it describes cases where the court of First Instance does not disclose any evidence on which the judgement is based or all specified evidence is carried out incorrectly (see ultimate Court judgement of 26.11.2020, act No. IV KS 32/20, Legalis).

Finally, it must be pointed out that, while the reasoning of the appeal court indicated that Article 454(1) of the NAP was considered as a reason for repealing the case for re-examination. However, this fact has not been verified in any way at this phase of the procedure and remains only in the field of supposition. chance to revoke the acquittal judgement and to mention the case back to the regulation ne peius as defined in Article 454(1) of the NCP (Article 437(2) of the NCP) only occurs erstwhile the Court of Appeal, following the removal of the established deficiencies as 1 of the grounds for appeal referred to in Article 438(1) to (3) of the NCP (i.e. after completion of the evidence procedure, the correct assessment of the evidence, the correct determination of the facts), states that there are grounds for a conviction, which precludes the prohibition laid down in Article 454(1) of the NCP.

The above ordered the suspect to bring an action against the judgement of the Court of Appeal to be considered legitimate. It was so essential to repeal the judgement under appeal of the Court of First Instance and mention the case to the territory Court of P. for review.

Comment