The Supreme Court adopted a resolution ruling on the circumstances of re-establishing the cable in its entirety after the judgment was abrogated. In accordance with the resolution when the ruling court first the court has infringed the provisions of the procedural law, the whole judicial line must be reintroduced in appeal proceedings.
Recently the Supreme Court by adopting a resolution of 22 May 2019 Composition 7 Supreme Court Judges (I KZP) 3/19, LEX No. 2664394, Whereas, hereinafter referred to as ‘the Resolution’), it has settled a substantive question relating to the condition that the appeal court may revoke the judgment under appeal and refer the case to review. In this resolution, the Supreme Court addressed the above-mentioned issue, responding to the question of how to understand the need to re-establish the cable in its entirety referred to in Article 437(2) sentence second in fine laws of 6 June 1997 (Journal of Laws, item 555, i.e. (Journal of Laws of 2018, item 1987, hereinafter referred to as ‘k.p.k.’), as a condition for the annulment of the judgment and the referral to the court first re-identification, in particular:
- 1) whether it means that all the evidence in the case must be repeated, or whether it is sufficient to repeat the most important evidence that settles criminal liability, and
- 2) Is the need to re-assess all the evidence, even without re-examining it, justify taking this condition?"
The Supreme Court has indicated that the need to re-establish the whole line referred to in Article 437(2) sentence second in fine kp.k., as a reason for the appeal court to revoke the judgment under appeal and refer the matter to the court first the instance to be re-examined, where the court ruling first the court violated procedural law
Divergentity in case law
As regards this issue, it should be pointed out that there has been a discrepancy in the rulings of the Supreme Court to date as to the interpretation of the Article 437(2) sentence second in fine k.p.k.
By first from the views presented in the case-law, the need to re-conduct the whole line referred to in Article 437(2) sentence second in fine kp.k., as a reason for the appeal court to revoke the judgment under appeal and refer the matter to the court first the instance to be re-examined, where the court ruling first the court infringes the procedural law, which resulted in the facts of the case that the court proceedings were not reliable, justifying the need to repeat (re-) all procedural actions involving a court hearing first instances.
According to second the position on the grounds that the Court of Appeal has annulled the judgment and that the case has to be re-examined, it may already be necessary to renew the essential (and therefore not necessarily all) evidence in the case.
Reason for divergence in case law
The Supreme Court pointed out in the resolution that the main reason for the differences in the case-law of the Supreme Court in the matter at issue is a different interpretation of the grounds for re-trial, i.e. the question of when it really is necessary for the appeal court to issue a cassatory judgment on the basis of that condition.
The Supreme Court in the Resolution referred in this context to the content Article 452 k.p.k., indicating that this provision does not make the making of new arrangements unconditionally dependent on evidence in appeal proceedings.
On the other hand, However, the parties to that provision also indirectly indicate that the Court of First Instance has the power to grant wide admission and to carry out evidence in appeal proceedings.
The Supreme Court stressed in the resolution that from the content Article 452(2) It follows from the principle that the appeal court carries out the evidence itself, not that, for the purpose of carrying out it, it repeals the contested judgment and refers the matter to the court first re-recognition.
Supreme Court Settlement
On the basis of the above-mentioned arguments, the Supreme Court decided to support this issue first from the above views, indicating that the need to re-conduct the cable in its entirety referred to in Article 437(2) sentence second in fine kp.k., as a reason for the appeal court to revoke the judgment under appeal and refer the matter to the court first the instance to be re-examined, where the court ruling first the court infringes the procedural law, resulting, in the facts of the case, in the failure of the court proceedings, justifying the need to repeat (re-) all procedural proceedings involving a court hearing first instances.
There is no doubt that the adoption of this resolution by the Supreme Court certainly clarified the issue quite relevant to professional representatives, especially as regards the making of appeals.
Written by Hana Żołnierkiewicz
Lawyer in the Legal Department. From 2017 related to Russell Bedford Dmowski and Associates Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He runs the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.