The Ombudsman’s view of the injunction procedure is in 2020, when it was used on a large scale on issues relating to freedom of public assembly. The RPO reiterates the issue of irregularities in its use. This time it's about... sheep.
The order procedure shall be governed by the provisions of the procedure Article 4841-497 Code of Civil Procedure. The case is dealt with in this procedure at the written request of the claimant in the application and this procedure is therefore optional. Recognition shall take place at a secret meeting. A lawsuit may be brought before a court of general jurisdiction or a court of place of enforcement. The court shall issue a judgment in full subject to the following conditions:
- the circumstances of the act and the defendant's guilt are no doubt in the light of the evidence collected,
- The case is a public prosecution,
The defendant has completed 17 years, is not deaf, mute or blind, nor is there reasonable doubt about his sanity.
This case
The RPO intervened against one of warrants that depict a faulty way of using a warrant
The RPO intervened against one of warrants which depict a faulty way of using the warrant procedure.
The citizen was blamed for raising sheep on his property (located on the outskirts of the capital). He was accused of wrongdoing with Article 10(2a) with regard to Article 4(1)(7) Act on the maintenance of cleanliness and order in municipalities – in connection with the resolution of the Council of Warsaw on the adoption of the Rules of Procedure for maintaining cleanliness and order.
District Court by order of 16 October 2019 He found him guilty. Without summoning blame and trial, he felt on the basis of the evidence gathered that the circumstances of the act and of the wine were not questionable. He measured it. 100 PLN fines; he also charged him costs.
No one objected, so the sentence was final.
The RPO is accusing this judgment of gross and materially affecting its content of the infringement of procedural law , i.e. Article 93(2) Code of Conduct on Offence Cases. According to him, it is possible to rule in order proceedings if the circumstances of the act and of the blame are not in doubt.
According to the RPO, the decision was given in gross violation of the law. In the light of the evidence attached to the application for punishment, the wine and the circumstances of the action raised considerable doubts. The court should have referred the case to the hearing to clarify all relevant circumstances.
Arguments of the RPO
According to the case law of the NS, the order procedure was reserved for the most obvious cases where the evidence is so unequivocal that it does not raise any significant doubts. Such a ruling requires the court to achieve a sufficient degree of certainty.
This requirement is met, in particular, when the perpetrator has admitted what does not raise objections or where there is clear evidence of action. A court judgment should not be given where the defendant is not guilty and presents the circumstances of the event differently.
According to Article 10(2a) the law on the maintenance of cleanliness and order in municipalities, the penalty laid down in section 2 ((i.e. fines) are also subject to those who do not fulfil the obligations laid down in the Rules of Procedure.
However, according to section 29 point 1 Resolution No LXI/1631/2018 Warsaw Council from 8 February 2018, on the adoption of the Rules of Procedure for the maintenance of cleanliness and order in the city of Warsaw – "horses, cattle, cervids, pigs and sheep may not be kept in areas excluded from agricultural production if the distance from the boundaries of residential settlements is less than 1000 m.
This condition shall not apply to horses for recreational and service purposes.’
The offence is therefore committed only by those who do not fulfil the obligations laid down in the Rules of Procedure and not by those who do not comply with the prohibitions laid down therein.
The act assigned to the guilty person does not also contain all the offences. It does not indicate that the sheep are kept on ‘a land excluded from agricultural production if the distance from the boundaries of residential settlements is less than 1000 m’. The evidence of the case does not even indicate that any actions are being carried out to determine the distance of the property blamed on the boundaries of the housing estates.
And the only evidence to blame is the photos two The sheep on his property and the testimony of the city guard, who stated that sheep were flocking there. And it was his. second intervention at this point (first concerning the incineration of plant waste). In testimony after first The witness did not say that there were sheep on the property.
This raises doubts as to whether the guilty person actually raised these animals, since the witness - twice during intervention in this place - was not for second together he saw the fit two sheep. Furthermore, no hearing was held second a fire officer who conducted an intervention.
Inquiring as a criminal suspect, the citizen disagreed with the charge. He explained that the sheep were not reared, but only kept by him. To determine whether the guilty person actually had sheep on his property, it would be wise to question his neighbors.
The delivery of the order judgment was therefore grossly infringed Article 93(2)) This may have had a significant impact on the judgment. "It cannot be ruled out that, after carrying out the evidence procedure, a different decision would be taken at the hearing," wrote deputy RPO Stanisław Trociuk.