Application of Article 440 of the NCP

Description of the facts

The territory Court of P., in a combined judgement of 2.3.2023, II K 28/23, pursuant to Article 568a §1 of the NCP and Article 85 §1 of the NCP, Article 86 §1 of the NCC and Article 87(1) of the NCC in conjunction with Article 569(1) of the NCP, has merged the judgments against the sentenced W. G. in the judgments of the territory Court of P. in cases II K 178/21 and II K 165/21 of the sentence: 3 months of restrictions on freedom and of the year of imprisonment and a full conviction of the year of imprisonment.

An appeal from this judgement was brought against the defendant. He accused material law, namely Article 86(1) KK by ruling against the accused as a cumulative punishment of the highest of the penalties to be combined — the year of imprisonment, while the court should impose a full punishment above the highest of the penalties imposed for individual offences to their sum. As a result, the plea of appeal thus stated, he requested that the judgement be amended by a judgement against the accused against a cumulative punishment of the year and period of imprisonment.

The territory Court of O. by judgement of 29.5.2022, VII Ka 312/23, the contested judgement annulled and the proceedings concerning the issuing of the combined judgement were dismissed. On the grounds of its ruling, the Court of First Instance argued that the combination of the conviction of the year of imprisonment and the conviction of 3 months of imprisonment, in the light of the judgement of the Constitutional Court of 11.6.2019, P 20/17, Legalis, would be unfavorable for the defendant, and therefore, on the basis of the content of Article 440 of the NCP, considered that the amendment of the judgement would be grossly unfair. However, in the further part of the message of reasons, the Court of First Instance acknowledged that it was incorrect not to take into account the appeal and to dismiss the joint judgment, since the sentenced person, by virtue of the judgement of the territory Court in Case II K 165/21, had to service the conviction of 1 year of imprisonment, while taking into account the appeal, would have had to service the conviction of 11 months and 15 days of imprisonment, making it fair.

In favour of the defendant, the Court of Prosecutors of the territory Attorney's Office in O brought a cassation on that judgment. It alleged a gross and material infringement of Article 433(1) of the NCPs in Article 440 of the NCPs, consisting of a judgement outside the limits of the appeal and raised to the detriment of the accused, in the absence of conditions allowing the application of Article 440 of the NCPs and consequently repealing the judgement and waiving the joint judgment, despite the existence of substantive grounds for issuing it. In addition, he alleged a gross and material infringement of Article 433(2) of the NCP in Article 457(3) of the NCP by incorrect consideration by the Court of First Instance of the plea of appeal of images of substantive law in the form of Article 86(1) of the CCC and an incorrect justification of the reasons for not taking into account the plea of appeal and, consequently, an inadequate review of the appeal. He was the last to rise a flagrant and having a crucial influence on the content of the judgement in breach of Article 85(1) KK by waiving the procedure for issuing the combined judgment, despite the fact that the acts covered by the judgments of the territory Court of P. in cases II K 178/21 and II K 165/21 were in a real confluence and the penalties to be joined for them were imposed.

In its conclusions, he requested that the judgement under appeal be set aside and that the case be referred to the territory Court of O. for review.

Supreme Court W. G. on the cumulative judgment, after having been examined in the Criminal Chamber at its sitting on 25.10.2023 pursuant to Article 535(5) of the NCP of the cassation of the Prosecutor for the benefit of the suspect against the judgement of the territory Court of O. of 29.5.2022, VII Ka 312/23, repealing the cumulative judgement of the territory Court of P. of 2.3.2023, II K 28/23 and the appellant, annulled the judgement and referred the case to the territory Court of O. for review in the appeal proceedings.

Reasons for SN

In the view of the ultimate Court, the cassation is, of course, justified, which allowed it to be examined and taken into account at its sitting under Article 535(5) of the NCP.

It was rightly pointed out in the cassation that, with the substantive argument given by the Court of Appeal for the annulment of the full judgment, it was not possible to agree, since the judgement was given with gross and affecting its content in violation of the procedural and substantive law laid down in the cassation. In accordance with Article 433(1) of the NCP, the appeal court shall examine the case within the limits of the appeal and, if the appeal measurement indicates the pleas in law, besides within the limits of the pleas raised, taking into account the content of Article 447 § 1-3 of the NCP, and to a greater degree in the cases referred to in Article 435 of the NCP, Article 439 §1 of the NCP, Article 440 of the NCP. It should besides be stated that provision 440 of the NCPs was applicable if the contested judgement or the ruling contained in it was grossly unfair and, therefore, erstwhile it was affected by deficiencies not raised in the average means of redress contained in the catalogue of comparative appeals, provided that their weight and nature are specified that the judgement becomes unjust and to a degree gross. Without doubt, the decision of the Court of First Instance was affected by a full punishment failure, but this failure was raised in the appeal of the prosecutor and this decision, in accordance with the appeal, should be corrected in order to take account of the plea of appeal, without the request to examine appeals outside its borders. Furthermore, as was rightly pointed out in the cassation, disposition 440 of the NCP refers to a situation where, without ruling beyond the limits of the appeal, the court had to keep the judgement under appeal and that was not the case.

In this way, the Court of Appeal has in fact led to a deterioration in the situation of the convicted person, who presently has 15 days longer to service than would consequence from the consideration of the plea and the plea of appeal of the prosecutor. It is actual that the Court of First Instance itself has seen its mistake and demonstrated in its justification the disadvantage of the sentenced judgement waiving the full judgement procedure, but that uncovering does not destruct the defective judgement given by that court following the failure to take into account the rules of review of the appeal judgement of the First Instance. The Court of First Instance has, as is apparent from the content of the message of reasons, failed to carry out a proper, substantive assessment of the plea of appeal and has not taken a fair view of the plea of appeal and has not, in principle, ruled that, in this case, in the light of the judgement of the Constitutional Court of 11.6.2019, it would be unfair for the convicted individual to have given a combined judgement and a full penalty, with a combination of imprisonment and a regulation of liberty.

However, as has already been pointed out, in the light of substantive law (Article 85 of the CCC), the issue of a judgement was procedurally admissible (the offences remained in real confluence and the penalties for them were subject to merger) and its amount should be determined in accordance with Article 86 of the CCC’s discretion, which was decently requested in the appeal.

The deficiencies committed by the Court of Appeal were of a gross nature and had a material effect on the content of the judgment, since the proceedings on the issuing of the cumulative judgement had been terminated where the conditions for specified a judgement were met.

For this reason, it was essential to revoke the judgement under appeal and to mention the case to the territory Court of Olsztyn again in the appeal proceedings, in which it should take into account the arguments put forward with respect to the anticipation of issuing a combined judgement and the correct formation of the cumulative penalty. It should besides be pointed out that the re-examination will have more far-reaching legal consequences for the suspect than those requested by the appellant, as the suspect is presently serving the conviction of 1 year of imprisonment under judgement II K 165/21, while taking into account the appeal would have reduced that period by 15 days and would have corrected the flaw of the contested judgment.

Comment