Emergency cassation as an institution to challenge the provisions of the preparatory procedure

When considering emergency remedies governed by the law, 6 June 1997 - Code of Criminal Procedure[1] ((hereinafter referred to as ‘k.p.k’) the normal cassation is most often indicated – referred to under Article 518 K.p.k. – and reopening of the procedure, included under Article 540 k.p.k.

However, often in publications on remedies, the subject of the so-called emergency cassation is completely ignored or mentioned, i.e.

regulated institution under Article 521 The subject matter of this study is the analysis and characterisation of the extraordinary cassation institution as a means of appeal to move decisions issued during the preparatory procedure.

1. Introduction

The extraordinary cassation, in its present form, is significantly different from the classic regulated cassation under Article 518 k.p.k. Persons entitled to lodge an erasure on the basis of Article 521 k.p.k. are not individuals, but only special entities, i.e.

Minister of Justice - Attorney General, Ombudsman and Ombudsman in some cases[2]. Furthermore, unlike the classical erasure by the parties, the imposition of an exceptional cassation on the basis of Article 521 k.p.k. is not limited by any term[3].

However, it is not permissible to take into account the conviction to the detriment of the accused, which was lodged one year after the date on which the judgment was finalised.[4].

As regards the scope Article 521 k.p.k., it is much wider than the scope of the proposed under Article 518 K.p.k., because exceptional cassation, according to the editorial order, can be made from any final decision of the court closing the proceedings.

Unlike the deletion of the parties, the cancellation envisaged under Article 521 k.p.k. covers not only the final decisions of the appeal courts terminating the proceedings, but also any final decision that terminates the proceedings, regardless of its form (judgment or order) and on which instance it has passed the final judgment[5].

At this point, it should be pointed out that by virtue of the amendment introduced to the General Court. In 2003 6 , eliminated from content Article 521 k.p.k. the requirement that the judgment should end solely with a ‘court’ procedure.

In the current state of the law, it is important that the judgment under appeal for extraordinary cassation be a decision or a decision terminating the proceedings, whether judicial or preparatory, e.g.

the maintenance by the court, after the complaint has been heard, by the decision to discontinue the investigation or investigation in the ad personam phase[7].

While there is no doubt about the appeal of decisions given by the court in the course of judicial proceedings, it is still an intriguing and controversial matter to challenge the provisions of the court in the course of the investigation. In view of the above, the purpose of this publication is to try to establish the criteria by which it will be possible to determine the admissibility of appeal against a particular decision given in the preparatory procedure by imposing an exceptional cassation on it.[8].

In the author's opinion, the previous case law in this area is not uniform in relation to the issue in question and the number of judgments appears to be insufficient to adopt clear conclusions.

2. Conditions for the admissibility of an exceptional cassation action

As indicated above, by Article 521 An extraordinary cassation complaint may, in principle, be challenged in the preparation procedure. This concept is supported by case law 9 and most authors of comments to k.p.k.[10].

Thus, for example, in the updated commentary by Jan Grajewski and Sławomir Steinborn to Article 521 It was stressed that by replacing the original wording of the ‘order terminating the judicial procedure’ with the term ‘order of the court terminating the proceedings’ (by virtue of the abovementioned amendment).

2003) – The scope of the emergency cassation in question has been significantly extended, allowing it to be lodged not only from any final decision of the court terminating the proceedings, but also from a final decision of the court terminating the investigation procedure[11].

In comments to K.P.K. by Dariusz Święcki 12 Or Jarosław Matras 13 and in a comment under the editor-in-chief of Prof. UWB Dr.

Andrzej Sakowicz, the admissibility of appeals against provisions issued in the preparatory procedure is assessed by the prism of the provisions on discontinuance of proceedings preparatory in the context of the Supreme Court resolution with 29 November 2016 14 .

The purpose of the examination of the Supreme Court in the above-mentioned resolution was the concept of "valid court proceedings terminating proceedings" in the light of Article 521 The Supreme Court held that it was not a final decision of the court terminating the proceedings within the meaning of Article 521(1) order to refuse to initiate an investigation (investigation) or order of the court to maintain the order of the prosecutor discontinuance of proceedings preparatory phase in rem.

The Supreme Court stressed that since the aforementioned proceedings could be continued without special conditions by the prosecutor, they could only be considered valid in a formal manner.

A contrario, the Supreme Court stated that the order of the court based on Article 306(1a) in conjunction with Article 325a(2) s.a. discontinuance of proceedings ad personam preparatory phase, may be contested by exceptional cassation.

Analysis of the nature of the provision discontinuance of proceedings the preparation by the Supreme Court in the above-mentioned resolution allows for the establishment of a scheme on the basis of which it is necessary to assess whether a given provision (including a provision made in the preparatory procedure) may be contested by an exceptional cassation, under the procedure Article 521 K.p.k.

1. Legal decision terminating the proceedings and final decision terminating the proceedings

By adopting an assessment of the nature of the judgment, First, it must be verified whether it has been issued by the court. And contrario can't be prosecuted by an extraordinary cassation of the prosecutor's order. On the other hand, an extraordinary cassation may in principle be challenged by the order of the court maintaining the order of the prosecutor.

Supreme Court in the above-mentioned resolution of 29 November 2016 indicated that, as a result of this amendment, Article 521 K.P.K. 2003 the term ‘final judgment ending the judicial procedure’ is replaced by the term ‘final judgment terminating the proceedings’, there is no doubt that the decision of the court maintaining the order discontinuance of proceedings the preparation, whether the proceedings have been dismissed during the in-rem phase or against the person, constitutes the ‘judgment of the court’ referred to in the said provision.

4. Legality within the meaning of Article 521 Code of Criminal Procedure

It must then be decided whether the judgment of the court meets the requirement to have the validity of the judgment. Legality, on the other hand, is understood as a legal situation characterised by the indisputability of a procedural decision[15].

It stands out two aspects of validity, i.e.: Indisputability in the sense of prohibiting the challenge of a procedural decision through the continuation of the previous proceedings — formal validity and non-substantiation of that decision in the sense of prohibiting the conduct of new proceedings on the same subject — ne bis in idem — material validity[16].

In a formal sense, the decision which has become final ends the process unless it is moved by exceptional remedies. So a case that has been finalized creates a state of judgment[17].

On the other hand, what is known as material validity is a situation in which “it is not permissible to initiate and reopen proceedings already final (formally) completed.

This is not only a retrial before that authority which has already concluded the proceedings, but also any other authority." The Supreme Court, in the aforementioned resolution, rightly pointed out that the validity of the provisions with regard to their ability to challenge an emergency action should have the feature of irrevocability, since the validity is to fulfil certain functions in the process, including, in particular, the guarantee function, i.e.

the validity of the judgment is intended to provide for legal stability and sustainability of the situation shaped by that decision. A legitimate judgment in the context of the possibility of challenging it should therefore also have material validity.

The Supreme Court indicated that the decision of the court to maintain the order of the court to discontinuance of proceedings has only a formal validity feature, i.e. the decision of the court is formally unappealable and, at the same time, does not really constitute an obstacle to the continuation of the preparatory procedure, which can be taken in the same case without restriction and at any time. This is indicated by expressis verbis content Article 327(1) K.p.k.

5. The criterion of the ‘end of proceedings’ ruling

third of the elements limiting the entitlement of the special entities listed under Article 521(1) K.p.k. to bring this extraordinary remedy, there is a condition for the decision to end the proceedings. The assessment of whether a specific decision is a final decision depends on whether, after its adoption, a normal (ordinary) course of proceedings is possible[18].

The grounds for the right to erasure are, therefore, the inadmissibility of the ordinary course of proceedings in a particular case.[19]. Therefore, as regards the concept of a “endorsement decision”, there is no doubt that such a ruling is based on provisions relating to the fundamental trend of the process – as regards criminal liability at the mainstream stage of proceedings (such rulings are: the order for discontinuance of proceedings, convictions, acquittals).

6. Problems with the provisions of the incident

The problem is the possibility to challenge in the mode Article 521 k.p.k. the so-called "accidental decisions" in the light of the concept of "end-of-trial judgment".

The view is that “Article 521 k.p.k. covers only those by-law proceedings which remain in connection with the admissibility of the essential proceedings and those concerning the modification of the decision as to the substance, as well as the manner in which that decision is implemented or the consequences of that decision." 20 .

According to the most recent case law, the group of ‘end-of-trial decisions’ also includes the so-called ‘accidental provisions’ (those outside the main course of the process — as regards criminal liability) which do not require a link between an incident ruling and ‘the question of the admissibility of the essential proceedings’. 21 .

In particular, most of the provisions issued during the investigation will be included in the scope of the incident provisions.

In order to attempt to qualify a given incident ruling issued in the preparatory procedure, attention should be paid to the arguments of the Supreme Court, contained in the case law relating to the incident provisions issued in general.

Incidental provisions which have been considered by the case-law to be ‘final’ include:

• • order to reproduce the file, in so far as the file has been reproduced 22 ,
• • order of the court to declare legal admissibility or admissibility of extradition 23 ,
• • the decision on the forfeiture of the asset 24 ,
• • decision on the legal admissibility or inadmissibility of taking over or transferring a decision for the purpose of enforcement 25 ,
• • order for reimbursement of the costs of the proceedings 26 ,
• • order dismissing a claim for compensation for wrongful temporary arrest[27].

In all the above-mentioned decisions of the Supreme Court, the main argument for recognising the order as terminating the proceedings was the indication that the order was to end the stage of judicial proceedings.

The judgments in question also indicate that it does not matter that the provisions in question are of a by-product nature and do not end the jurisdictional (main) stage of the procedure.

Continuing with this reasoning and following the argument set out in the resolution seven Supreme Court judges from 29 November 2016, an emergency decision may be considered to be an end to the proceedings if it ends the stage of judicial proceedings and there is no possibility for it to continue or take place.

The case law of the Supreme Court as a step-by-step decision which cannot be contested by cassation, since it has not been considered to be a ‘final procedure’, mentions, inter alia, the following decisions: - a decision determining doubts as to the enforcement of decisions on the application of preventive measures, issued in a procedure Article 13(1) Act on 6 June 1997

- Implementing criminal code (i.e. Journal of Laws of 2018, item 652) 28 ,

- order to dismiss the application for rectification 29

• a decision to place the item in a judicial deposit or to surrender it to a trustworthy person – Article 231(1) K.p.k. 30 ,
• order to postpone enforcement 31 ,
• decision to grant a break in the performance of the fine[32].

In the reasons for the above-mentioned Supreme Court rulings, in which he refused the rulings in question for the ‘endorsing procedure’ as an argument in favour of such a view, the Court of First Instance indicated the incidental (‘accidental’) and the ‘impermanent’ nature of the judgments.

According to the Supreme Court, such a ruling does not create a lasting legal situation because it is temporary. The argument of the Supreme Court in the part in which it refuses some of the rulings of the “end-of-the-court” character, due to their incidental nature, is contrary to the rulings of the Supreme Court (i.e. e.g.

the provision of the SN, reference no. II KKN 325/98, LEX No. 51375, according to which the provisions of the event may be considered as terminating the proceedings and the resolution 7 SN judges, reference no. I KZP 27/96, OSNKW 1997, No.

1-2, item 1, according to which in order to be regarded as a ‘end-to-end’ order, it does not have to be a final decision ending the criminal proceedings but ending the judicial data of the stage of that procedure.

On the other hand, as regards the allegation of the ‘impermanent’ nature of certain decisions, this view corresponds to the definition of the concept of ‘end-of-trial’ presented in the resolution seven Supreme Court judges from 29 November 2016 33 (the assessment of whether a specific decision is a decision terminating the proceedings depends on whether the normal course of the proceedings is still possible after its issue.

It should be pointed out that all the provisions mentioned above (the provision that settles doubts about the enforcement of decisions on the application of preventive measures, etc.) are not of a lasting nature, i.e. they may be moved or amended as a result of further proceedings or further provisions.

7. Summary

In view of the above considerations, the question of the admissibility of the cancellation procedure Article 521 k.p.k. on the provisions of the preparatory procedure should be assessed in the light of the following:

• 1) whether the decision was given by the court,
• 2) whether the order is materially valid,
• 3) whether the order can be regarded as terminating the proceedings.

With regard to the provisions relating to the mainstream, the key issue is around second of the above-mentioned issues – assessment of whether a given provision is characterised by material validity, i.e. it must be examined whether it is permissible to initiate and reopen proceedings already final (formally) completed. If this is possible in the case in question, it cannot therefore be concluded that the order has the character of substantive validity, and that it cannot be contested by an exceptional cassation.

It seems more problematic to assess the nature of the incident decisions, especially those issued in the preparatory procedure. In order to determine whether such a judgment can be contested by a cassation procedure Article 521 k.p.k., focus on third of the above-mentioned lines.

Unfortunately, as far as this issue is concerned, it is faced with different approaches in existing case law and doctrine. As indicated above, there is a view in doctrine that “Article 521 k.p.k.

covers only those by-law proceedings which remain in connection with the admissibility of the essential proceedings and those concerning the modification of the decision as to the substance, as well as the manner in which that decision is implemented or the consequences of that decision." 34 .

Current case law 35 However, in this respect, it appears to be moving towards the recognition of a decision of an incident as a "end-to-end" if it can demonstrate a lasting nature, ending the stage of the judicial proceedings concerned (not requiring the existence of a link between the decision of an incident and the admissibility of the essential proceedings).

It therefore appears that, each time assessing the nature of a given provision in the preparatory procedure, based on the provisions of the General Court, it is necessary to assess whether the provision in question creates a ‘permanent legal state’ which can only be affected by an exceptional remedy.

In this way, according to current case law, an attempt may be made to assess whether the provision in question can be regarded as ‘end-to-end’ within the meaning of Article 521 k.p.k.

Nevertheless, due to differences in both the case-law and the doctrine, to the extent that the question of whether the measure in question could be contested by the bringing of the cassation procedure Article 521 k.p.k., is only explained at the stage of the formal examination of the cassation already brought to the Supreme Court.

______________________________________________________________________________