Pursuant to Art. 519 of the Code of Criminal Procedure (hereinafter referred to as the Code of Criminal Procedure), a party to the proceedings is entitled to a cassation against the final judgment of the appellate court terminating the proceedings and against the final decision of the appellate court to discontinue the proceedings and to apply the precautionary measure specified in Art. 93a of the Criminal Code.
Article 523 (2) of the Code of Criminal Procedure stipulates that a cassation appeal in favor of the accused may be brought only in the event of a conviction for a crime or tax offense to imprisonment without a conditional suspension of its execution. This position was once again supported by the Supreme Court in its decision of May 13, 2021 (file reference number II KK 26/21).
The District Court in Warsaw, in its judgment of May 23, 2019 (file reference number XVIII K 218/14), sentenced D.R. for the committed crime, a penalty of one year’s imprisonment and a fine. By applying Art. 69 § 1 and 2 of the CC and Art. 70 § 1 point 1 of the Penal Code, the execution of the sentence of imprisonment was conditionally suspended for a period of 3 years by way of a probation. The appeal was lodged in favor of the accused by her counsel – the Court of Appeal in Warsaw changed the judgment under appeal. A cassation appeal against this judgment, pursuant to Art. 427 § 2 of the Code of Criminal Procedure was brought by the defender of the convicted person, alleging a gross violation of Art. 433 § 2 of the Code of Criminal Procedure in connection with joke. 457 § 3 of the Code of Criminal Procedure, in connection with joke. 17 § 1 point 9 of the Code of Criminal Procedure, while the Prosecutor appealed for its dismissal.
In the present case, the appellate court changed the judgment under appeal by correcting the specifically indicated invoices incorrectly described in the charge of the indictment and in the judgment of the Court of first instance. Despite this change, the Court of Appeal still remained within the limits of the alleged act – since it was the same act (as a historical event) and concerned the same invoices (which resulted from the evidence), the data of which had only been incorrectly rewritten by the procedural authority.
After the analysis, the Supreme Court stated that it was obvious that the allegations raised in the case did not concern the deficiencies referred to in Art. 439 § 1 of the Code of Criminal Procedure, it is not possible to consider the arguments presented for their justification, as it would mean that the content of Art. 523 § 2 of the Code of Criminal Procedure in connection with joke. 523 § 4 point 1 of the Code of Criminal Procedure, which oblige the court of cassation to hear the appeal only within the limits of the objection under Art. 439 § 1 of the CCP. These absolute grounds of appeal did not occur.
In the present case, the cassation appeal of the convicted defense counsel was incorrectly accepted, despite the fact that it was inadmissible under the law. Therefore, it was necessary to decide not to examine it.
Prepared on the basis of the decision of the Supreme Court of May 13, 2021, II KK 26/21
