Poland - Judgement of the Supreme Court II KK 314/16 from 16 December 2016 quashing the judgement of the district court and referring the case back to the district court for reconsideration

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Country of Decision:
Country of Applicant:
Date of Decision:
16-12-2016
Citation:
II Aka 59/16
Court Name:
Court of Appeal in Warsaw
National / Other Legislative Provisions:
Poland - Article 272 of the Penal Code
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Headnote: 

The Supreme Court granted the cassation complaint lodged by the Polish Ombudsman in the case of a persecuted journalist forced to leave the country together with her son and accused of deception in order to obtain attestation of false information (in a form of a visa issued by a Consul). The Supreme Court agreed that there was a reasonable doubt with regard to the circumstances of the case and the guilt of the defendant. In the view of the Court, even if the defendant acted in a way which could be defined as deception in order to obtain attestation of false information, the circumstances of the case, the statements of the defendant and her clarifications should lead to a question whether the defendant could have acted in a state of necessity (i.e. the sole means by which she could have safeguarded an essential interest from a grave and imminent peril was to sacrifice another interest of lesser importance) while leaving the country.

Facts: 

A woman was accused of deception in order to obtain attestation of false information (tourist visa) from a public official  (Consul). The District Court found her guilty of the offence and punished her with a fine. The Ombudsman submitted a cassation complaint to the Supreme Court. 

Decision & Reasoning: 

The Supreme Court agreed that there was a reasonable doubt with regard to the circumstances of the case and the guilt of the defendant. The court noticed that on 1 December 2011 the defendant clarified, that on the grounds of nationality and her profession (journalist) she was persecuted by the state security agents. She was subject to violence, including sexual violence and her son was threatened. She denied that she had lied to anybody or gave false information. In the course of the proceedings she admitted committing the offence in question, but with regard to the most important component of the offence she only stated that she had signed some applications, in order to leave the country, and she acted by an agent never herself going to the Polish Embassy.

The statements of the defendant are confirmed by the testimony of her son. The defendant decided to leave the country in a complicated personal situation. It has to be assessed by the court whether giving false information about the purpose of the visit to Poland amounted to deception. Even if the defendant acted in a way which could be defined as deception in order to obtain attestation of false information, the circumstances of the case, the statements of the defendant and her clarifications should lead to a question whether the defendant could have acted in a state of necessity while leaving the country.

Outcome: 

The case is to be reconsidered by the District Court.

Case Law Cited: 

Poland - Judgement of the Court of Appeal in Cracow from 8 March 2001, II AKa 33/01

Poland - Judgement of the Supreme Court from 5 April 2011, II KK 267/10