Gloss on the supreme Court judgement of 9 February 2021, III KK 175/20

Abstract

The author of the gloss approves of the Supreme Court’s stance that, provided that in the
course of cassation supervision the Supreme Court recognises that the appeal of the party
that lodged the cassation had not been upheld and the justification of the appellate court’s
judgement flagrantly violates the provision of Article 457 § 3 CPC, and in the cassation, based
on the ‘quality’ of this justification, there is a charge of flagrant violation of Article 433 § 2 CPC
directly (in the content of the charge) nor in the justification of the cassation (Article 526
§ 1 CPC in conjunction with Article 118 § 1 CPC), such a breach requires that the sentence of
an appellate court should be overruled because it is required by Article 45 par. 1 Constitution
in conjunction with Article 176 § 1 Constitution of the Republic of Poland and the conventional
(Article 6 ECHR) standard of a fair appeal trial, which cannot be limited or excluded under
Article 537a CPC. This point of view is justified by the fact that the concept of a fair trial
as a model of a criminal proceeding means ensuring the minimum level of guarantees for
the implementation of the legal state (parties’ rights) and the standard of a fair proceeding is

an element of the model of a fair trial. If an appeal proceeding is to be in extenso fair, a court
ad quem is obliged to solidly fulfil duties laid down in Article 457 § 3 CPC, i.e. reliably develop
a sentence justification, which cannot just include indefinite, general and matching each case
statements concerning appropriate establishment of facts and right assessment of evidence,
because the above-mentioned phrases that are not connected with the answer to arguments
included in an appeal do not provide the appealing party with an actual answer to the issues
constituting the basis for formulating charges. Thus, the norm laid down in Article 537a CPC
cannot limit or exclude the standard of a fair appeal trial.