Description of the facts
P.W. he was accused of having committed a seizure in the period from 16.11. to 22.11.2021 in a more unestablished place on a section of the road in order to misuse 27440 kilograms of rape seed resulting in losses of PLN 92 198, to the detriment of N., i.e. to act with Article 278 § 1 KK.
District Court of P. – considering that on the basis of the evidence collected, the facts of the action and the defendant's guilt are not in uncertainty (Articles 500(1) and (3) of the NCP) – the case initiated by the above-mentioned act of prosecution was examined in the order procedure. By judgement of 23.5.2022, II K 567/22, the suspect P.W.. found him guilty of committing the alleged act and fined 100 regular units of fines, setting each rate at PLN 25.
This decision was not contested by either organization and was finalised on 25.6.2022.
The judgement appealed the cassation against the lawyer General, who accused of gross and materially affecting the content of the conviction of a violation of the criminal law of procedural law, namely Article 500(1) and (3) of the NCP, and requested the repeal of the injunction and the referral of the case to the territory Court of P. for review.
The ultimate Court, having examined the cassation, annulled the judgement under appeal and referred the case to the territory Court of P. for re-examination.
Reasons for SN
According to the ultimate Court, the cassation of the lawyer General against the convicted P.W.. . . . . . . . . . . . . . . . . . . . . . . . . .
The complainant is right to say that the court meriti first of all, he committed a gross infringement of Article 500(1) and (3) of the NCP, which clearly affected the content of the contested annulment of the order judgment.
It should have been started by the fact that a court, having the evidence collected in the preparatory proceedings, may have the anticipation to regulation on the defendant's actions and guilt (Article 500(1) and (3) of the NCP). The case-law explicitly states that this condition covers, at the same time, the uncovering of action, as well as any circumstances affecting its appropriate legal assessment (see the ultimate Court judgement of 25.4.2022, II KK 158/22, Legalis). Prescriptive proceedings are so reserved for the most apparent cases in which the evidence collected is so unequivocal that it does not rise any crucial objections to the related elements from the point of view of a legal criminal assessment of the conduct which, according to the prosecutor, should consequence in a certain criminal liability.
However, the analysis of the material of the investigation clearly shows that the condition is not met. In fact, the message of the judgement under appeal with the indictment raised raises serious doubts as to the amount of the harm caused by the offence which was attributed to the defendant. The territory court in the composition of the court order has indicated that P.W. his criminal behaviour caused losses in the amount of PLN 921,98, while in the indictment this value was estimated at PLN 92,198 and this was recorded in the announced amount P.W. the message of objections and the decision to initiate an investigation. The analysis of the case file shows that the amount of harm caused was straight anticipated from the study of the offence in which the typical of the injured company calculated and reported the full value of the stolen rape seed.
It follows from the above that the court meriti it has adopted different factual arrangements, although the court cannot modify the description of the act or its qualifications in the order procedure, since the act attributed to the suspect in the order judgement should correspond full to the action taken by the prosecutor in the action, for the court cannot conduct its own evidence (see the ultimate Court judgement of 28.2.2023, I KK 437/22, Legalis). In the present case, the territory Court amended the description of the action as regards the value of the harm caused by the offence, establishing de facto, that the suspect has done a 100 times little harm to the injured company than that which the public prosecutor accepted in the indictment, and the value of the harm indicated by the court is not based on the evidence collected.
The judgement under appeal was not based on a message of reasons, so there is no way to know the reasons behind the judgement meriti in making findings different in the substance at issue, which, moreover, should already consequence in the examination of the case in general proceedings, which would enable the main evidence procedure to be conducted at the hearing, on specified issues. It can, of course, be presumed that the failure of the judgement to comply with the findings of the investigation procedure (the act of prosecution) is simply a consequence of a method mistake in the edition of the judgement under appeal (the appropriate location of the comma in the digital evidence of the value of the harm in the absence of a verbal record), but the failure to do so, since it concerns the substantive sphere of the judgement (the factual arrangements), cannot be removed by correcting a manifest clerical mistake under Article 105 of the NCP.
Notwithstanding the above analysis, the complainant rightly pointed to the doubts as to the value of the harm which was stated in the indictment, which in this respect duplicates the content of the study on the crime. However, the value of the stolen property of PLN 92,198 indicated in these papers is not the consequence of multiplying the amount of stolen rape seed, i.e. 27,440 kilograms, by its unit price of PLN 3,200 per tonne, due to the fact that the product of these 2 figures amounts to PLN 87,808 (27,440 kg x 3.2 PLN per kg = PLN 87,808). The amount indicated by the typical of the injured company may include a value of 5% of the VAT rate charged in the sale of rape seed, although this position, in the absence of appropriate evidence in this respect, remains solely in the sphere of conjecture, which cannot form the basis for the facts in the conviction. The above gives emergence to further doubts as to the actual value of the harm caused by the alleged theft offence, thereby multiplying the arguments in favour of the inadmissibility of the investigation of the case in question by order.
The cassation check carried out must so have resulted in the annulment of the judgement under appeal and the transfer of the case to the territory Court of P. for re-examination, during which that authority should take account of the foregoing considerations. Furthermore, in the context of the explanations submitted by P.W. in the preparatory procedure, the analysis will besides require the applicant to callback the circumstances of failure of the property described in the indictment, in relation to the defendant's actions and guilt, which explained that the rape seed indicated in the allegation was to be stolen by an worker of his company to whom the suspect entrusted further shipment of cargo. besides relations P.W. relating to the declaration of failure of the burden to the insurer and the payment of compensation for this, in the event of the defendant's conviction, should be examined by the court erstwhile issuing a decision on the work to make good the damage
Comment
Against the background of the case in question, there is simply a clear claim that the territory Court of P. has committed a gross and materially affecting the content of the judgement in breach of the criminal law, namely Article 500(1) and (3) of the NCP, which involves the issue to the P.W. the judgement in order, although the circumstances of the act described in the indictment referred to in Article 278(1) of the KK, in the light of the full evidence collected, raised doubts as to the actual value of the harm caused by the offence. Analysis of the evidence collected in the preparatory procedure leads to the conclusion that the court meriti He incorrectly indicated in his description of the act that the accused had caused harm to the value of PLN 921,98, which does not correspond to the data presented in the indictment, in which it was stated that the injured company had suffered a failure of PLN 92,198. It cannot be disregarded that the value of the harm indicated in the order judgement has straight translated into a decision concerning the work to remedy it by the sentenced individual pursuant to Article 46(1) KK.
