Zaistnienie podstawy wznowienia postępowania przy wyroku merytorycznie korzystnym dla oskarżyciela niepublicznego jako przesłanka posiadania przez niego gravamen w postępowaniu odwoławczym
Emergence of a basis for reopening proceedings in the event of a judgment substantively favourable to the non-public prosecutor as a premise for his having gravamen in the appeal proceedings

Summary/Abstract: Pursuant to Article 425(3) of the Code of Criminal Procedure, the appellant may only appeal against decisions or findings that violate his rights or harm his interests. This provision yields the institution of gravamen, which obliges the party to the proceedings, excluding the public prosecutor, to appeal only against such decisions that will be in some way unfair to him. Therefore, it seems prima facie that an appeal against a judgment that fully takes into account the request of a non-public prosecutor should not be admissible due to the lack of gravamen, and the president of the court of first instance should, pursuant to Article 429(1) of the Code of Criminal Procedure, refuse to accept such a measure for consideration, regardless of the scope of the allegations contained therein. The problem arises when in given proceedings there are grounds for reopening them, in particular absolute grounds for appeal under Article 439(1) of the Code of Criminal Procedure. In such a situation, it is justified to claim that gravamen will occur here on the side of the non-public prosecutor, even if the judgment fully satisfies their interests in terms of its merits. This results from the need to protect the party to the proceedings against potential future elimination of the final judgment from legal circulation, along with all its consequences. Due to the wide possibilities of reopening the proceedings solely for the benefit of the accused, gravamen will not always occur in such a situation – it will only appear if the proceedings to the disadvantage of the accused in the future may be reopened.

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