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The admissibility of both criminal liability and an administrative-law sanction for the same individual in the context of the same offence P 124/15

‘A situation where, in the course of the administrative procedure, a person penalised with a fine referred to in Article 92a(1) of the Road Transport Act would then be held accountable for the same offence consisting in certifying false information in “a business activity statement”, on the basis of Article 271(1) of the Penal Code, infringes the ne bis in idem principle as well as the principle of the state’s proportionate reaction to a breach of law,’ stated the Constitutional Tribunal.

On 20 June 2017 at 3 p.m., the Constitutional Tribunal publicly delivered its ruling, issued at a sitting in camera, with reference to a question of law, referred by the District Court in Głubczyce (the 2nd Division – Criminal Matters), pertaining to the admissibility of both criminal liability and an administrative-law sanction for the same individual in the context of the same offence.

The Constitutional Tribunal adjudicated that Article 271(1) of the Penal Code of 6 June 1997 as well as Article 92a(1) of the Road Transport Act – insofar as they permit that both criminal liability and an administrative-law sanction (a fine) are to be applied to the same person in the context of the same offence, consisting in a breach of road transport duties or terms which is set out in point 3.9 of the annex no. 3 to the Road Transport Act – are inconsistent with the ne bis in idem principle as well as the principle of the state’s proportionate reaction to a breach of law, which arise from Article 2 of the Constitution.

Moreover, the Tribunal decided to discontinue the proceedings as to the remainder.

The ruling was unanimous.


The constitutional issue raised by the court referring the question of law concerned the admissibility of holding an individual criminally liable for an offence for which the same individual has already been penalised in the course of the administrative procedure.

The Road Transport Inspectorate, acting on the basis of Article 92a(1) of the Road Transport Act, penalised an entrepreneur with the fine of PLN 8000 for including false information in his business activity statement.

Irrespective of that fact, the prosecution office filed an indictment in the court referring the question, alleging the commission of the offence consisting in certifying false information, as specified in Article 271(1) of the Penal Code.

In such legal and factual context, the Constitutional Tribunal agreed with the reservations of the court referring the question. The Tribunal deemed that, in that case, the application of both an administrative fine as well as criminal liability for which there is a penalty of the deprivation of liberty for a period ranging from 3 months to 5 years constitutes a violation of the prohibition of double jeopardy (the principle of ne bis in idem) and a breach of the principle of the state’s proportionate reaction to a breach of law.

The Constitutional Tribunal noted that the legislator has discretion as regards selecting a penalty for an infringement of law. In particular, when subjecting economic activity (e.g. transport services) to administrative regulation, the legislator may provide for sanctions – including financial ones – imposed on authorities that are obliged to enforce the observance of administrative requirements and prohibitions.

The admissibility of establishing administrative fines as the state’s means of penalising breaches of law has not, in principle, raised any reservations in the Tribunal’s jurisprudence.

However, when shaping mechanisms for public authorities to apply legal sanctions, the legislator must take account of constitutional requirements, which include the prohibition against punishing the same person for the same offence more than once as well as the general principle of the proportionality of punishment.

The said requirements constitute a prerequisite for a democratic state ruled by law, as referred to in Article 2 of the Constitution. In particular, it would be inadmissible to have a situation where the same person would be punished for the same offence by means of a combination of different repressive measures which are meant for the protection of the same legally relevant interests.

In the present case, the repressive character of the criminal-law penalty specified in Article 271(1) of the Penal Code raised no doubts. The Constitutional Tribunal held that the fine referred to in Article 92a(1) of the Road Transport Act also played a primarily repressive function.

It is meant as a certain “charge” for a breach of road transport duties or terms irrespective of the fact whether, or not, any loss has been incurred by the state’s budget. Thus, the fine is not compensatory in nature (although it falls under the category of the income of the state).

Similarly to the penalties provided for in the Penal Code, an administrative fine also plays a preventive role by deterring individuals from breaking the law. Also, both penal measures provided for in Article 92a(1) of the Road Transport Act and Article 271(1) of the Penal Code serve the attainment of the same objective which consists in safeguarding one interest, namely the truthfulness of documents in legal transactions.

For those reasons, applying criminal liability for an offence specified in Article 271(1) of the Penal Code to an individual with regard to whom – with relation to the same offence consisting in certifying false information in “a business activity statement” – an administrative decision has been issued to impose a fine would constitute an example of double jeopardy for the same offence as well as a disproportionate reaction of the state to a breach of law.

The hearing was presided over by Judge Małgorzata Pyziak-Szafnicka, and the Judge Rapporteur was Judge Piotr Pszczółkowski.