The Way to Delete
9.4.2008 The territory Court issued a judgement in which it found the suspect guilty of committing 2 alleged acts under Article 286(1) of the CCC consisting in:
1. 4.9.2006, acting in order to accomplish the property benefit, led the victim to an unfavourable regulation with a property of PLN 1704, misleading him about his intention to comply with the laptop sale contract concluded via an online auction, so that, despite paying the acquisition price of PLN 1704, he did not transfer the laptop purchased at the auction to the victim;
(2) On 15.9.2006, acting in order to get a property benefit, he led to an unfavourable regulation of the property of the victim in specified a way that he auctioned the laptop for sale and, despite receiving a transfer to the given money account number of PLN 2,500, did not transfer the object of the transaction to the victim.
The Court of First Instance held that the actions of the suspect were committed in the course of the offences and, for this, under Article 286(1) of the CCC in conjunction with Article 91(1) of the CCC, imposed a punishment of 1 year and 3 months of imprisonment (paragraph I of the judgment), on the basis of Article 415(4) of the CCC ruled against the accused against 1 of the victims the amount of PLN 2,500 with statutory interest from 15.9.2006 (paragraph II of the judgment) and dismissed the civilian action proceedings against the another of the injured (paragraph III of the judgment).
The defendant's defence appealed the full sentence. By judgement of 26.9.2008, the Court of First Instance maintained the contested judgment.
Cassation of the Ombudsman
A cassation complaint to the ultimate Court was lodged by the Ombudsman (hereinafter: RPO). It raised a plea of gross infringement of Article 433(1) of the NCPs in conjunction with Article 440 of the NCPs. The RPO noted that the alleged infringements had a flagrant effect on the content of the judgement in the form of a defective review of the appeal initiated by the defendant's appeal and the maintenance in force, despite the fact that it was subject to gross and material law infringement (Article 286(1) of the CCC). The RPO indicated that the suspect was assigned to commit a marked act where the description of the act in paragraph 2 of the preliminary part of the judgement of the Court of First Instance did not contain all the characteristics of the offence of fraud. The CPO further argued that the judgement was grossly unfair and that the judgement under appeal was modified by acquittal and repeal of point II of the territory Court.
Decision and position of the ultimate Court
18.3.2026 The ultimate Court Criminal Chamber issued a judgement in the case (Case I KK 491/25, Legalis). The ultimate Court dismissed the ruling of the Court of First and Second Instance in part in which the suspect was found guilty of committing the alleged act as regards point II. At the same time, the SN acquitted the suspect of this allegation. In turn, in part – concerning the conviction of punishment for the alleged act from point I of the case was referred to the court of II.
The SN considered the cancellation of the RPO to be justified, of course, and considered the erasure. The SN has argued that the fraud offence referred to in Article 286(1) of the KK consists of an act of which the substance is to mislead another individual or to exploit his mistake or inability to decently comprehend the perpetrator's actions. In turn, specified an action did not reflect the description of the action in paragraph 2 of the preliminary part of the Court of First Instance which was attributed to the suspect in Part I of the operative part of the judgment. The NS considered that the description of the act in question, in addition to the characteristics of the action in order to get an asset benefit and to bring into the unfavourable regulation property, did not indicate the way the suspect acted and so did not contain all the statutory characteristics of the fraud offence.
The SN took the view that the description of the act – the unfavourable regulation by means of the sale of the laptop at an online auction and despite receiving a transfer of PLN 2,500 for it, the non-transfer of the object of the transaction – corresponds to the sign “bringinging into the unfavourable regulation of the property”. However, this description does not fall within the mark of confusion, usage of mistake or inability to decently realize the action taken.
In the further part of the message of reasons, the NS argued that, pursuant to Article 413 §2(1) of the NCP, the conviction should contain a precise definition of the assigned act and its legal qualification. It is so essential to make specified a rebuttal of the defendant's conduct so that, in a clear manner, it corresponds to the content of the peculiar characteristics of the crime attributed or is based on a clear, logical conclusion that the mark is exhausted.
The conclusion of the SN has led to the fact that, since there is no clear description of the act attributed to the accused in terms of the mark of misleading, exploiting a mistake or inability to decently realize the action taken, no work for that act can be attributed. The ultimate Court besides held that if the mark of the offence was omitted in the judgment, which would render the conviction unfair, that judgement should be challenged by the prosecutor against the defendant. In turn, the absence of an appeal to the detriment causes the suspect to be acquitted or convicted under a softer provision.
Comment
In accordance with Article 286(1) of the CCC, it is assumed that he or she commits a prohibited act, who, in order to get a property benefit, leads another individual to an adverse regulation with his or her own property or another property by misleading him or by exploiting an mistake or inability to decently realize the action taken. It is only the effect of 1 of 3 ways of acting, i.e. misleading, exploiting a mistake and exploiting inability to decently realize the action taken (cf. judgement of the ultimate Court of 2 December 2002, IV KKN 135/00, Legalis). Misleading can be different. The perpetrator's intended intent may be achieved by word, paper or another objects or by the perpetrator's conduct. It does not substance whether the victim could have verified the truthfulness of the perpetrator's claims, whether he could have detected an mistake erstwhile adding small care (cf. judgement of 18.6.2019, V KK 246/18, Legalis). The provision of Article 413 of the NCP contains the components of the judgment. Pursuant to Article 413 §2(1) of the NCP as 1 of the elements, the precise definition of the alleged act and its legal qualification shall be indicated.
The importance that SN attaches to the correct marking of the act is not only due to the wording of the above mentioned provision, but besides to the practice of judicial judicature. It is considered that the operative part of the judgement is essential and that the judgement is subsequently justified (cf. judgement of 29.10.1998, III KKN 199/97, Legalis). The judicature besides stresses that, while the description of the act can be done in the general language, it is necessary, however, to correspond to the full set of characteristics provided for in the provision specifying the kind of prohibited act concerned. The vague description of the act in the judgement is grossly unfair if its content gives emergence to fundamental doubts (cf. the order of the ultimate Court of 5.12.2013, II KK 212/13, Legalis).
If, therefore, an appeal has been lodged only in favour of the suspect and no appeal has been lodged against him, the conviction should be abrogated. The limits of the appeals are irrelevant, since specified a judgement is grossly unfair to the interests of the judiciary. This interest, in turn, is that the individual whose conduct and guilt has been demonstrated should be liable for criminal liability. This is in turn impossible in the absence of any determination of all the factors of the action (cf. order of the SN of 6.6.2013, IV KK 402/12, Legalis). The ruling given by the ultimate Court in the present case does not depart from the established line of caselaw requiring a appropriate and precise description of the terms of the prohibited act in the judgment.
Judgment of the ultimate Court of 18.3.2026, I KK 491/25, Legalis
