Kategoria: News

The ability of addressing the Ombudsman with a motion to file a cassation appeal.

Despite the fact that it?s impossible to appeal against final and binding  judgement of the appellate court (the criminal procedure in Poland is two-instance proceeding), there?s the eventuality of filing an extraordinary measure of appeal (such as a cassation) to the Supreme Court.

A cassation may be filed on the grounds of the violations listed in article 439 of the Polish code of the criminal procedure (for example judgment has not been signed by any of the persons participating in its issue or when the prescribed statute of limitations has expired) or other egregious infringement of law, if this might have had a material impact on the contents of a judgment.

However the legislator provided a significant limitation in filing a cassation in favour of the accused. It may be filed only when penalty of imprisonment without the conditional suspension of it?s execution was imposed.

What?s extremely important, this restriction does not apply to the cassation filed by the Ombudsman.

In one of the cases handled by Duraj Reck Law Firm our client was finally sentenced to pay a fine for the offence specified in article 270 § 1 of the Polish Criminal Code. Our lawyers disagreed with the verdict of the appellate court and turned to the Ombudsman with a motion to file a cassation appeal in favour of the accused. The Ombudsman fully shared our position and filed a cassation based on our legal analysis.

Polish Supreme Court in its judgement of April 5th 2016 (IV KK 405/15) reversed the appellate court verdict and acquitted the accused. Furthermore, Supreme Court ruled that the cassation was evidently justified, thus confirming that our legal arguments presented by Ombudsman were correct.