Published: 2021-12-26

A Court’s Defective Composition as an Absolute Ground for Appeal

Jan Kil
Zeszyty Prawnicze
Section: Artykuły
https://doi.org/10.21697/zp.2021.21.4.10

Abstract

This article considers defectively composed benches hearing criminal cases in the context of absolute grounds for appeal. I analyse the provisions of Art. 439 § 1 items (1) and (2) of the Polish Code of Criminal Procedure and discuss the interpretative doubts arising from these provisions. I put forward postulates for amendments relating to absolute grounds for appeal due to defective court composition. I suggest that the terms in Art. 439 § 1 items (1) and (2) of the Code of Criminal Procedure should be given legal definitions and that the current regime of criminal procedure should be supplemented with a presumption based on the formal presumption model, whereby in the event of doubt whether a procedural defect identified by the appellate court in respect of court composition qualifies as a relative or absolute ground for appeal, it shall be presumed that the defect is of the type described in Art. 439 § 1 of the Polish Code of Criminal Procedure.

Keywords:

criminal procedure; court composition; absolute grounds for appeal; relative grounds of appeal; legal defnitions; formal presumption.

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Citation rules

Kil, J. (2021). A Court’s Defective Composition as an Absolute Ground for Appeal. Zeszyty Prawnicze, 21(4), 237–264. https://doi.org/10.21697/zp.2021.21.4.10

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