Responsibilities of the appeal court in relation to appeals

Description of the facts

Private indictment SW. Accused M.Z. that on 14.11.2017, in S.A., he asked him to counterfeit the financial statements of the company for 2015 and to mislead its shareholders, which put the private prosecutor at hazard of losing the trust needed for the position and kind of activity, i.e. to act under Article 212(1) KK.

The territory Court of S. by judgement of 21.7.2022, II K 474/18, acquitted M.Z. from doing what he was accused of doing.

An appeal against this judgment, bringing a full appeal against the defendant, brought a private prosecutor's attorney. He alleged an insult to the provisions of the procedure, which was, in fact, capable of affecting the content of the judgment, an mistake in the factual arrangements adopted as the basis of the judgement affecting its content and the insult to substantive law (Article 212(1) of the KK).

By making the above allegations, the suspect requested that the judgement under appeal be set aside and that the case be referred back to the Court of First Instance.

The territory Court of K. in judgement of 27.12.2022, XXIII Ka 848/22, upheld the judgement under appeal and ruled from a private prosecutor SW. reimbursement of the costs of the defence in proceedings before the Court of First Instance, and expenses to the State Treasury and charges for appeals.

The cassation from the final judgement of the territory Court in K. brought a private prosecutor's attorney. He challenged the judgement in its entirety and alleged a gross breach of procedural law, i.e. Article 433 §2 of the NCP and Article 457 §3 of the NCP affecting its content, by incorrectly considering the allegation of the image of the provisions of material law imposed by the private prosecutor in the appeal, i.e. of the infringement of Article 212 §1 of the NCP, based on Article 438(1)(a) of the NCP.

Consequently, he demanded that the judgement under appeal be ‘repeated and the case re-examined’.

In a written answer to the annulment of the acquitted defender M.Z. He pointed out that, by examining the content of the cassation plea and its justification, it must be stated that the actions of the private prosecutor in fact duplicate the substantive errors made in the course of the appeal procedure, and again aim solely at the applicant’s own explanation of the facts on which the judgement under appeal was based, adjusted solely to the needs of the cassation proceedings. Therefore, he requested that the deletion be dismissed as manifestly unfounded and that a private prosecutor be judged in favour of M.Z. reimbursement of the costs of proceedings in cassation proceedings, including the establishment of a defender.

The ultimate Court, after examining the cassation brought by a private prosecutor's attorney, annulled the contested judgement and referred the case to the territory Court of K for review in appeal proceedings.

Reasons for SN

In the opinion of the ultimate Court, the suspect of the acquittal should have been found guilty. M.Z.that the cassation is justified and to a clear extent, which has resulted in it being taken into account in the gathering under Article 535(5) of the NCP.

The settled case-law of the ultimate Court has repeatedly pointed out that the appropriate implementation of the obligations referred to in Article 433(2) of the NCP and Article 457(3) of the NCP requires not only the failure to disregard any plea raised in the appeal measure, but besides the fair treatment of each of them and the demonstration of circumstantial arguments which are supported in the circumstances disclosed, as to why the individual pleas of appeal were considered correct or unfounded (see, for example, judgement of the NS of 6.6.2006, V KK 413/05, Legalis; 24.4.2018, V KK 384/17. Legalis; 11.1.2021, V KK 100/20, Legalis). In this case, the Court of First Instance adquem failed to meet the standards indicated in relation to the allegation of images of material law (Article 212(1) of the KK), which was rightly raised in the cassation. In interpreting this assessment, it must be noted that the Court of First Instance meriti He stressed the request to "precisely apply Article 212 of the KC" that, if the plea in law were accepted in the present case, this would be tantamount to prohibiting the president of the supervisory board from criticising the president for financial matters and that, as an crucial point in favour of acquittal, he stated that "the defendant M.Z., which can be said with certainty, as the recording of his statements has been preserved, he clearly stressed the hypotheticalness of the charges against the victim. The accused spoke orally, as part of a spontaneous, free speech, so even utilizing words specified as false is cheating, read in the context of his statements, which clearly indicated that only the most possible negative assessments of the activities of the victim, which will only be verified, are concerned, do not point to the unlawfulness of his statements."

In its conclusions, the territory Court stated that ‘it accepts specified a ground for acquittal of the accused, besides a convincing argument put forward to justify that view. The appeal does not contain arguments that could undermine the validity of the contested decision, including the designation of the hypothetical nature of the defendant’s allegations. It shall be brought only to negate the assessment of the evidence made by the Court of First Instance to depreciate the request made, but that it does not decently identify the applicant, in which it failed to measure the evidence presented, in the application of criteria of logical reasoning and sound reasoning.’ He besides noted the Court of First Instance adquemthat ‘it does not agree with the plea that it is to be made in the judgement under appeal to deal with an insult to substantive law by not attributing responsibility to the accused individual in the alleged offence’, and that the expert expresses ‘strange’ that he is making a plea against the judgement of the General Court of First Instance to the image of material law, where he besides accuses of an mistake in the factual findings adopted on the basis of the judgement under appeal. It should have been pointed out at this point that, in the cassation of its author, referring to legal literature, he showed that, at times, in a peculiar procedural situation in the present case, specified action is admissible. This was not the case, however, that the Court of First Instance ruled that the pleas raised by the accused against a private prosecutor (falsifying the financial statements, misleading the shareholders of the company as to the financial consequence it obtained) were hypothetical, which was the chief reason (which was the basis) for the defendant’s acquittal, in practically no way referred to the specifically substantiated argument that this condition did not prejudge the conduct of Article 212(1) KK.

The Court of First Instance’s claim was not admissible adquemthat the appeal is based solely on the negation of the assessment of the evidence made by the Court of First Instance and that the appellants have seen in the failure to declare the suspect guilty “in the alleged misconduct”. In fact, the author of the appeal considered that the hypotheticality of the alleged charge precludes him from being attributed to the act of defamation of a private prosecutor. In this situation, it is clear that the author of the cassation is right erstwhile he claims that the Court of Appeal failed to fulfil its work to examine the appeal fairly, thereby grossly violating Article 433(2) of the NCP in conjunction with Article 457(3) of the NCP. This, in turn, may have had a crucial impact on the content of the judgment, since, by agreeing with the lawyer who, in consequence to the cassation, pointed out that the hypotheticalness of the charge made by the individual afraid ‘does not prejudge the guilt and requires confrontation with all the evidence in a concrete factual arrangement’, it cannot be excluded that, with due consideration of the plea of violation of substantive law, the judgement of the Court of First Instance would not have been retained in force.

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