Problematyka względnej dewolutywności zażalenia w procesie karnym
The matter of relative devolution of a complaint in a criminal trial

Summary/Abstract: It follows from Article 463 § 1 of the Code of Criminal Procedure that a complaint may be upheld with regard to both incidental and final orders.It appears that adjudication under Article 463 § 1 of the Code of Criminal Procedure is pointless when at least two complaints against the decision have been filed from opposing parties, unless, in addition to the complaint of the accused and their defence counsel, the prosecutor has also filed a complaint in favour of the accused. Opposing complaints in respect of the same decision do not allow them to be upheld at the same time. On the other hand, if one complaint is upheld, the other complaint is disregarded, and the possibility of disregarding a complaint is not provided for in the cited provision. The possibility of upholding complaints (more than one) could take place in a trial that is, for example, complex in terms of subject matter (subjective commonality), when the ruling relates to the two acts charged against the accused. For example, within one ruling, the court discontinued the proceedings unconditionally as regards one act and suspended the proceedings as regards the other alleged act. It could be expected that the ruling will be challenged by the prosecutor against the first decision and by the accused in respect of the suspension of proceedings.Article 463(1) of the Code of Criminal Procedure. does not specify a procedural path to realise the provision contained therein. Consequently, interpreting this provision functionally, we can assume that a sufficient condition for its application is that it should be decided by the president of the court, the president of the division or the judge concerned, as the case may be, depending on the existence of circumstances in the case which indicate the need to uphold the complaint lodged. If such circumstances arise, the president of the court is obliged to refer the complaint to a hearing of the ad quo court to consider whether to uphold the complaint. The President of the court or, as the case may be, other authorised entity, after verifying the admissibility of the complaint and its formal requirements, shall either refer the case with the complaint to the ad quo court if there are grounds for upholding the complaint or send the complaint to the court of appeal.Since the complaint cannot be upheld in the absence of the same formation of the ad quo court, it must be assumed as a general rule that in such a situation it is pointless to refer the complaint to the ad quo court. Obviously, it should be considered nonsensical to refer a complaint to an ad quo court in situations where it would preclude the same court from ruling on the basis of a previous defect committed in the order challenged by the complaint. I am referring here to situations where the court was inadequately staffed (Article 439 § 1(2) of the Code of Criminal Procedure) or where a person not authorised to adjudicate or a judge excluded by law took part in the decision (Article 439 § 1(1) of the Code of Criminal Procedure).In pre-trial proceedings before the ad quo authority, only the prosecutor who issued the order under appeal may uphold the complaint. Exceptional adjudication under Article 463 § 1 of the Code of Criminal Procedure requires the naming sameness of the adjudicating authority. This is an immanent condition for the application of Article 463 § 1 of the Code of Criminal Procedure in both judicial and pre-trial proceedings, and in this respect the law does not provide for any differentiation. Consequently, in relation to the public prosecutor who issued the complained order, it must be assumed that the prosecutor has the option of either upholding the complaint or, failing that, referring it to the body of second instance, without the need for a formal order.The grounds for upholding the complaint [pursuant to Article 463 § 1 of the Code of Criminal Procedure] shall be factual or legal defects, causing the appealed order to be annulled or amended, supported by the circumstances of the case.The ad quo court can rule both within the scope of the appeal and the pleas raised and the applicant's claim, as well as within the scope of the absolute grounds of appeal, as it is entitled to exercise the powers vested in the court of appeal, but only to the extent that the complaint can be upheld. It may also rule outside the limits of the appeal if this is in the interests of the applicant. The ad quo court may even rule in a manner more favourable to the applicant than the request made in the appeal.Absolute grounds for setting aside a decision (Article 439 of the Code of Criminal Procedure) may be taken into account both at the request of the applicant in the complaint and ex officio by the ad quo court. Also gross injustice of the decision may result in the decision being amended in favour of the accused or in the decision being set aside. Under Article 463 § 1 of the Code of Criminal Procedure it is not possible to rule against the direction of the appeal (Article 434 § 2 of the Code of Criminal Procedure) or against an accused who has not lodged a complaint, when the same considerations speak in favour of allowing the complaint as regards this accused, as this would go beyond allowing the complaint.The upholding of the complaint [pursuant to Article 463 § 1 of the Code of Criminal Procedure] will certainly be dealt with when there is a need for a decision in accordance with the applicant's request. The ad quo court, taking into account the complaint, should apply an appropriate ruling, which would reflect the upholding of the complaint lodged. It seems that Article 437 of the Code of Criminal Procedure can be referred to in this respect. Although this provision is addressed to the court of appeal, it can be assumed that the ad quo court has the powers of the court of appeal, but only to the extent that it follows from the content of the provision of Article 463 § 1 of the Code of Criminal Procedure as an exceptional regulation. Resolution by upholding the contested decision can be eliminated in advance, as this would be a denial of the “upholding of the complaint”. The other two rulings provided for in this provision, namely the revocation or amendment of the order under appeal, may apply in the event of an adjudication under Article 463 § 1 of the Code of Criminal Procedure, with some differences in a number of cases.Within the framework of Article 463 § 1 of the Code of Criminal Procedure, it is only possible to uphold the complaint in its entirety. Therefore, the partial upholding of the complaint by the ad quo court must be regarded as inadmissible.If there are no grounds for the ad quo court to uphold the complaint [pursuant to Article 463 § 1 of the Code of Criminal Procedure], it shall not issue a substantive decision responding to the complaint. On the other hand, it is an excessive formalism, not provided for by the law, to say that, if there are no grounds for upholding the complaint, the ad quo court will issue a formal order referring the complaint to the court of appeal for examination. [...] Accordingly, the presiding judge should either order that the complaint be forwarded to the president of the court or make a note of the forwarding of the complaint to the president of the court. The activities indicated do not require justification.An order issued pursuant to Article 463 § 1 of the Code of Criminal Procedure is not a decision of the court of appeal. This means that the limitations of Article 426 of the Code of Criminal Procedure do not apply to this order. Therefore, it has to be assumed that a decision allowing a complaint issued pursuant to Article 463 § 1 of the Code of Criminal Procedure is a decision of a first instance authority which may be appealed under the general rule enshrined in Article 459 of the Code of Criminal Procedure, i.e. if it is a decision closing the way to judgment (unless otherwise provided by law), is a decision on a protective measure or if the law expressly provides that the decision may be appealed against. The admissibility of a complaint against an order made pursuant to Article 463 § 1 of the Code of Criminal Procedure must be determined in a specific case in relation to a specific order. The basis for allowing a complaint to be lodged is the regulation under which a complaint is lodged causing the lodged complaint to be upheld pursuant to Article 463 § 1 of the Code of Criminal Procedure. The entitlement to lodge a complaint against an order which has been made under the provision of Article 463 § 1 of the Code of Criminal Procedure is a complaint against the original order which, as a result of the complaint, has been set aside or amended. When, in a particular situation, such a basis cannot be established, the complaint must be assumed to be inadmissible.Judges who have issued an order pursuant to Article 463 § 1 of the Code of Criminal Procedure may not rule on a complaint against that order. This means that if a complaint is lodged against a decision made pursuant to Article 463 § 1 of the Code of Criminal Procedure, the president of the court shall forward it to the court of appeal for examination.

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