A new extraordinary means of appeal in the Polish criminal procedure: the basic principles of a fair trial and a complaint against a cassatory judgment

Abstract

Background: The main purpose of this study is to present and evaluate a new, extraordinary means of appeal in Polish criminal procedure – a complaint against cassatory judgment of the appellate court from the point of view of principles of criminal proceedings. This includes hearing the case within a reasonable time, the right of defence, two-instance proceedings, and equality of arms in complaint proceedings. Methods: This study draws on comprehensive analyses of the provisions of the Polish Code of Criminal Procedure, partly based on case research, and comparing effects of these analyses with both the Polish constitutional standard and the jurisprudence of the European Court of Human Rights (ECHR). Results: Complaint proceedings comply with the main requirements of a fair trial. Conclusions: Certain limitations on the right of the accused in the discussed proceedings are fully justified by their special features and are proportionate. This conclusion applies to the time-limit for submitting the complaint, the requirement to bring it only through the assistance of a defence counsel, and also to the way of examination of the complaint by the Supreme Court in writing at the closed session. All these solutions constitute only permissible, proportionate restrictions of the indicated principles. This proportionality results primarily from weighing the benefits of the complaint proceedings: limitations of cassatory adjudication in genere, respect for the appeal model of appellate proceedings, and maintaining uniformity of interpretation of narrowly defined grounds for cassatory adjudication.