Description of the facts
District Court of R, judgement of 28.3.2023, II K 67/23, found the suspect A.O. for the fact that, in Z., he directed a bicycle against the current ban on cycling issued by the territory Court of R. of 19.10.2022, namely the act under Article 244 KK and, on the basis of Article 244 KK, pursuant to Article 37a § 1 KK, sentenced him to a four-month regulation on freedom, namely the exercise of unpaid controlled work for social purposes of 30 hours a month.
This judgement passed on 5.4.2023 without appeal.
The lawyer General filed a motion against that sentence. He challenged him in the part concerning a judgement on a criminal measure, in the absence of a mandatory decision on a cash payment, as provided for in Article 43a(2) of the KK, against the defendant.
He accused a gross and having a crucial influence on the content of the judgement of a violation of substantive criminal law, namely Article 43a(2) of the Constitutional Code, as in force since 1.1.2023, of failing to regulation against the accused A.O. – in connection with the conviction for the act committed on 9.2.2023 prohibited by Article 244 of the KK – the cash benefit to the Fund for the injured and Postpenitentiary Assistance in the amount of at least PLN 5000, whereas, in accordance with the above-mentioned provision, in the event of a conviction, inter alia, for the offence referred to in Article 244 of the KK, the decision to supply the cash benefit is compulsory, where at the same time due to the intent of the measurement A.O., pursuant to Article 37a(1) of the KC, as it has been in force since 24.6.2020, the penalties applicable to restrictions of freedom alternatively of imprisonment, applying the provisions of that provision, The Court of First Instance was obliged to have simultaneous decisions laid down in Article 37a(1) of the Constitutional Tribunal: a criminal measure, a compensatory measurement or a forfeiture.
In referring to the above, he requested that the judgement be set aside in the contested part and that the case be referred to the territory Court of R. for review.
The ultimate Court, after having found the cassation brought by the lawyer General to the detriment, annulled the contested judgement in part in which it does not contain a decision on the punishment measurement of the cash benefit and referred the case to the territory Court of R. for re-examination.
Reasons for SN
According to the ultimate Court, the cassation is, of course, justified, hence its designation and inclusion in the gathering under Article 535(5) of the NCP.
At the outset, it should be noted that, in accordance with Article 425(2) of the NCP, the subject substance of appeal may besides be the absence of a circumstantial decision. Since that provision applies mutatis mutandis to cassation proceedings (Article 518 of the NCP), it is besides permissible in this case to appeal the deficiency of a circumstantial decision of the court in the closing decision of the case (see the Resolution of the Full Composition of the Criminal Chamber of the ultimate Court of 28.10.2015, I KZP 21/14, Legalis). In the light of the above, it had to be considered that the applicant, in the cassation brought against him before the end of the year from the date of the judgement (Article 524(3) of the NCP), correctly marked the scope of the appeal.
The failure to comply with substantive law by failing to give a ruling on a criminal measurement pursuant to Article 43a(2) of the CCC is confirmed in the content of the judgement under appeal, which has not been ruled against the suspect in the case.
Article 43a(2) of the KK, as amended by the Law of 5.8.2022 on the amendment of the Act, the Criminal Code and certain another laws (Journal of Laws of 2022 item 1855) and in force since 1.1.2023, states that ‘In the event of conviction of the offender for the offence referred to in Article 164(1), Article 165(1), Article 165a(1) or (2), Article 165a(1) or (2), Article 171(1), (2) or (3), Article 174(1) or (2), Article 178a(1), Article 178b, Article 179, Article 180, Article 200a(1) or (2), Article 200b, Article 202 §4b or 4c, Article 244, Article 255a(1) or (2), Article 258(1) and Article 263(2) of the KKKK, the court shall regulation on the cash transportation referred to in Article 39(7) of the KK to the Entitled Aid Fund and the Postpenition Fund in the amount of at least PLN 5000 to the amount specified in paragraph 1’.
According to the provision laid down, in its wording in force both at the time of the act attributed to the accused, i.e. 9.2.2023 and at the time of the judgement in the case, i.e. 28.3.2023, convicting A. O. for the offence referred to in Article 244 of the KK — or listed in the catalogue at the disposal of Article 43a(2) of the KK — Court of First Instance meriti he was obliged to a cash benefit decision.
Moreover, it requires that Article 37a(1) of the KC (as from 24.6.2020) requires that it is only possible for the court to exercise its powers to conviction a regulation of liberty or a fine alternatively of a conviction of imprisonment if the 3 conditions are fulfilled, i.e. erstwhile the offence is punishable by a punishment of not more than 8 years' imprisonment (as in the present case, since the conduct of Article 244 of the KC is punishable by imprisonment of up to 5 years), the envisaged imprisonment punishment would not exceed 1 year and at the same time the court would regulation on a criminal measure, compensatory measurement or forfeiture. Failure to comply with any of the above conditions makes it impossible to give a judgement on penalties pursuant to Article 37a(1) of the KK (cf. judgement of the NS of 12.5.2022, I KK 115/22, Legalis).
Although the suspect has been punished with a regulation of freedom in the dimension of that provision (for a maximum of 4 months), the territory Court has failed to fulfil the condition essential for the application of the institution under Article 37a(1) KK, for he has failed to give a simultaneous ruling with the chosen liberty conviction indicated in that provision of the penal measure: criminal measure, compensatory measurement or forfeiture
In the circumstances of the case, given the nature of the alleged offence, which has the statutory character of Article 244 KK, it would be impossible to decide both the compensatory measurement and the forfeiture. Only on the margin should it be pointed out that a criminal measurement in the form of a ban on cycling, by virtue of the judgement of the territory Court of R. of 19.10.2022, was ruled for a period of 8 months and was in force from 5.11.2022 to 5.7.2023.
It should be noted that the provision of Article 37a(1) of the KK, as in force since 1.10.2023, no longer provides for a compulsory judgement of the criminal measure, compensatory measurement or forfeiture. In view of the different rules of the will of the legislator, by expanding the lower limits of the freedom penalties, which can be decided by application of that standard, the application of Article 37a(1) of the KK, as in force from 24.6.2020 to 30.9.2023, as being more comparative to the accused under the provisions of Article 4(1) of the KK, should be applied in the context of the re-examination of the case. It is besides essential to agree with the applicant's position that, due to the explicit wording of Article 43a(2) of the KK in force since 1.1.2023, the absolute respect of which the Court of First Instance meriti is obliged, Article 37a(1) of the KK as it stands will not apply in this case.
In conclusion, it must have been concluded that the judgement in the contested part was given with a gross violation of Article 43a(2) of the KK, which had a crucial impact on its content, as it resulted in the absence of a judgement of a compulsory punishment measurement in the form of a cash benefit. Therefore, the ultimate Court, in line with the plea and the motion for annulment, annulled the judgement under appeal in so far as it did not contain a ruling on the criminal measurement in question and referred the case to the territory Court in R. for review.
In the re-trial proceedings, that court will take into account the above comments and regulation on A.O. a compulsory criminal measurement within the limits provided for in Article 43a(2) KK.
