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The exercise of the right of ownership by convicted persons serving prison sentences SK 27/16

On 24 April 2018 at 10.00 a.m., the Constitutional Tribunal publicly delivered its ruling with regard to Mr D. K.’s constitutional complaint concerning the exercise of the right of ownership by convicted persons serving prison sentences.

The Constitutional Tribunal adjudicated that Article 126(10) of the Act of 6 June 1997 – the Executive Penal Code – insofar as it does not allow a convicted person to use his/her funds referred to in Article 126(1) of the said Act to pay for a fine if the fine was not substituted with a prison sentence or with detention – is consistent with Article 64(1) in conjunction with Article 64(3) of the Constitution of the Republic of Poland.

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

The ruling was unanimous.

The allegations raised in the constitutional complaint did not concern the entire category of “frozen funds”, provided for in Article 126 of the Executive Penal Code, but a certain element thereof. The complainant challenged the solution that Article 126(10) of the Code did not allow a convicted person to use his/her accumulated “frozen funds” to pay a fine that had not be substituted with a prison sentence or with detention. According to the complainant, that restriction was too far-reaching, as the indicated provision should permit the use of a convicted person’s “frozen funds” for the payment of his/her fine, regardless of the fact whether the fine had been replaced with a substitute penalty.

Before the Tribunal assessed the validity of the allegation, it analysed provisions on the keeping and disposal of funds belonging to a convicted person, as well as provisions regulating the replacement of a fine with a substitute penalty of confinement.

Firstly, the Tribunal held that money that is to be kept as “frozen funds”, due to the nature of that legal construct, does not, in principle, comprise all money belonging to a convicted person or all money obtained from the sources mentioned in Article 126(2) of the Executive Penal Code – in every case, it is only a certain percentage of those funds. Every incoming amount of money (except for an amount deposited by a convicted person at the time of being admitted to prison) is subject to a one-off reduction by an amount not higher than 4% of average remuneration of workers. Thus, convicted persons may use the remaining funds to pay for their fines, or this could be done by convicts’ close persons.

Secondly, the Tribunal considered the fact that the mechanism regulated in the provisions of the Executive Penal Code is constructed in such a way that even if a convicted person’s only money is the money accumulated as “frozen funds”, this does not rule out the payment of a fine imposed on that person. Indeed, in the case where the said person has no money for the enforcement of the fine to be carried out, a competent court orders the administration of a substitute penalty of the deprivation of liberty, which the convicted person may object to by filing an application pursuant to Article 126(10) of the Executive Penal Code.

The Tribunal noted that the legislator’s assumption was that a convicted person should pay his/her fine from money that had not been included in “frozen funds”. Such an assumption is linked with the legal construct of “frozen funds” as a certain savings (accumulated money) plan which is to provide convicted persons with financial means to travel home after their release from prison and to support themselves.

When creating the legal construct of “frozen funds”, the legislator also provided for an instrument on the basis of which – and in compliance with certain requirements – convicted persons may pay their fines with money accumulated as “frozen funds”, but only after the enforcement of the fine proves ineffective or if it follows from the circumstances of a case that the said enforcement would be futile.

The Tribunal stressed that the legislator had weighed up various interests here: first of all – the intention to provide convicted persons with basic financial means after their release from prison (by creating the legal construct of “frozen funds”, which serves rehabilitative goals and the protection of the public order); secondly, the avoidance of the further confinement of convicted persons, and hence the introduction of an exception that “frozen funds” may be used for paying a fine if it has been substituted with a prison sentence or with detention (which constitutes a warranty measure with regard to convicted persons).

In the light of the above, the Tribunal stated that the legislator had not exceeded the constitutional limits of admissible interference with the property rights of convicted persons as well as he had balanced out the necessity to protect those rights with the need to protect the public order and with the assumption that the prolonging of the confinement of convicts should be avoided.

The Presiding Judge of the adjudicating bench was Judge Grzegorz Jędrejek, and the Judge Rapporteur was Judge Sławomira Wronkowska-Jaśkiewicz.