Description of the facts
The territory Court of G. received a call to P.L.. 2 separate applications for punishment. Police Commandant in G. has requested punishment P.L. for the fact that on 19.4.2019 in S. store he stole property in the form of 1 part of perfume worth PLN 241,99, i.e. for the act of art. 119 § 1 KW. The case was registered (X W 5254/19) and ordered by the president of the Criminal Division of the territory Court of G. of 12.11.2019, pursuant to Article 59(2) of the NAP, v. P.L. an infringement procedure has been initiated with Article 119(1) KW. In turn, the Commandant of the G. Police Station requested punishment P.L. for the fact that on 14.10.2019 in S. store he stole property in the form of 1 part of perfume worth PLN 475, i.e. for the act of art. 119 § 1 KPW. This case was registered (X W 5255/19) and ordered by the president of the Criminal Division of the territory Court of G. of 12.11.2019, pursuant to Article 59(2) of the NAP, v. P.L. an infringement procedure has been initiated with Article 119(1) KW.
Subsequently, by order of 28.1.2020, X W 5255/19, in view of the subject-matter communications, for the intent of joint examination, acting on the basis of Article 33(1) of the NAP and Article 34(1) of the NAP, in conjunction with Article 11 of the NAP, The Court of First Instance combined the cases with an indication of the further joint proceedings in case X W 5254/19.
By order of 5.3.2020, X W 5254/19, the territory Court of G. recognized P.L. for committing 2 acts pursuant to Article 119(1) of the CCC at short intervals and in a akin manner and on the basis of Article 278(1) of the CCC, in conjunction with Article 12(2) of the CCC, in accordance with Article 37a of the CCC, he fined him 50 regular units, setting 1 rate of PLN 20.
In the absence of any objection by the parties, in the period from 31.3.2020 to 23.5.2020, the provision of Article 15zzs of the COVID-19 Anti-Counterfeiting Act, the judgement in question was finalized on 9.6.2020.
The cassation of that judgement was brought by the lawyer General, who, by appealing the judgement in favour of the defendant, accused of gross and materially affecting the content of the judgement of a breach of a provision of procedural law, namely Article 5(1)(9) of the CCC, by its failure to apply and issue a court order by which he was convicted as having committed a single offence prohibited by Article 278(1) of the CCC in accordance with Article 12(2) of the CCC, while the proceedings initiated by the competent police unit with separate applications for punishment were initiated for 2 offences against Article 119(1) of the CCC. joined subsequently to joint conduct, and thus there was no complaint of the rightful prosecutor within the meaning of Article 45(1) of the NCP in conjunction with Article 14(1) of the NCP.
On the basis of that plea, the applicant requested the annulment of the judgement under appeal and the remission of the infringement procedure pursuant to Article 5(1)(9) of the CCC.
Supreme Court P.L. In accordance with Article 278(1) of the Constitutional Tribunal in accordance with Article 12(2) of the Constitutional Tribunal, after having been heard in the Criminal Chamber at its sitting under Article 535(5) of the Constitutional Tribunal’s cassation by the Prosecutor-General in favour of the sentenced of the judgement of the territory Court of G. of 5.3.2020, X W 5254/19, the judgement under Article 104(1)(7) of the Constitutional Tribunal in accordance with Article 5(1)(9) of the Constitutional Tribunal annulled the proceedings.
Reasons for SN
According to the ultimate Court, the cassation of the lawyer General is, of course, justified within the meaning of Article 535(5) of the NCP in the above-mentioned Article 112 of the NAP and should so be taken into account in full at the sitting, without the participation of the parties.
The examination of the case file of the territory Court of G., X W 5254/19 leaves no uncertainty that the contested judgement was given with a flagrant insult to the provision of the law of the proceedings referred to in the charge of erasure. Having 2 applications for punishment (XW 5254/19 and XW 5255/19) which have been separately accused of criminal offences, having examined the evidence collected in the joint proceedings (XW 5255/19) and having considered the alleged P.L. individual infringements of Article 119(1) of the CCC justify criminal liability for 1 act qualified under Article 278(1) of the CCC in accordance with Article 12(2) of the CCC. meriti should refrain from further infringement proceedings. In the absence of a complaint by a legitimate prosecutor in a case of misconduct and the absence of an indictment brought by a prosecutor, he should discontinue the proceedings pursuant to Article 5(1)(9) of the NAP, at the same time handing the case to the prosecutor, in order to consider bringing the indictment to the court for 1 act, which consists of the conduct of the full nature of the offences.
As the lawyer General rightly pointed out, the ultimate Court in its resolution of 24.5.2005, I KZP 14/05, Legalis stated that 2 procedures, i.e. criminal and criminal, cannot be applied in 1 proceeding. It is actual that the said resolution was taken in relation to a situation which was different from the facts considered, i.e. the situation where 1 of the respective alleged offences constituted an offence (which gives emergence to the request to consider, on the basis of which procedural provisions – including in the appeal procedure – to consider this offence, as 1 of the charges imposed on the accused), nevertheless it is crucial to consider, meritum This judycat. The ultimate Court held that the ruling on an offence, issued in criminal proceedings without the provisions of the Code of Conduct on infringements, was protected by Article 439a of the NCP, hence in a case where the question of criminal liability for the offence and offence is besides recognised, cannot be applied in parallel with 2 procedures and consequently the Code of Criminal Procedure will be applied.
In the event of initiating an infringement procedure and uncovering in the course of a judicial procedure that an offence is simply a criminal offence, it is not permissible to examine a criminal offence in an offence procedure. There is then a negative procedural condition in the absence of a complaint by a legitimate prosecutor, as an act of prosecution (or its surogat) by a prosecutor or another legitimate public prosecutor is required to analyse a criminal offence (Article 5 §1(9) of the Code).
The territory Court in Gdańsk, at no phase of the proceedings, did not apply the criminal procedure, but, by issuing a conviction as for an act under Article 278 § 1 KK in conjunction with Article 12 § 2 KK, could not regulation on the basis of the provisions of the Code of Conduct in cases of misconduct, and he lacked the rightful prosecutor's complaint to analyse the case under the criminal procedure, which implied the dismissal of the infringement proceedings.
The proceedings in the present case were initiated by police applications for punishment, cases were brought by the Court of First Instance, pursuant to Article 59(2) of the CCC, initiated for infringements of Article 119(1) of the CCC, the contested injunction was issued on the basis of the provisions of the Code of Procedure in respect of infringements and the parties to the infringement proceedings were instructed in this procedure (XW 5254/19). In the present case, we are dealing with a "abuse case" within the meaning of Article 110(1) of the CCC, understood as a case from the outset in the proceedings governed by the Code of Procedure in criminal matters (see the ultimate Court order: 4.8.2011, III KK 23/11, Legalis; 15.4.2010, III KZ 29/10, Legalis; 23.10.2003, IV KK 94/03, Legalis; 24.1.2022, III KK 269/20, Legalis and the ultimate Court judgement of 3.10.2023, V KK 280/23, Legalis).
The above-mentioned failure of the Court of First Instance had an apparent impact on the content of the judgment, and in peculiar on the degree of the identifiable legal liability P.L. For his actions.
The consequence of the legal argument put forward was to repeal the contested judgement and to give a follow-up ruling in the form of a resumption of the proceedings on account of the fulfilment of the stated negative procedural condition.
By sharing the merits of the charge and its conclusion, The ultimate Court ruled as in the operative part, besides deciding on the costs of judicial cassation proceedings.
Comment
Against the background of the case in question, there is simply a clear claim that the issuing of a judgement and conviction for an act qualified by the Court of First Instance as an exhaustive statutory condition of Article 278 § 1 KK in conjunction with Article 12 § 2 KK forced proceedings based on the provisions of the Code of Criminal Procedure. Applications for punishment for offences, even in view of their larger number, could not effectively replace the indictment.
