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The Penal Code – differentiation with regard to the right to impose an aggregated penalty, depending on the moment when individual penalties or aggregated penalties become legally enforceable K 16/16

On 4 July 2018 at 10.00 a.m., the Constitutional Tribunal (full bench) considered the Ombudsman’s application concerning differentiation with regard to rules for administering an aggregated penalty on the basis of a consolidated judgment, depending on the date when penalties subject to aggregation become legally enforceable. The Constitutional Tribunal continued the hearing that had been adjourned on 27 June 2018.

The Constitutional Tribunal adjudicated that Article 19(1) of the Act of 20 February 2015 amending the Penal Code and certain other acts (Journal of Laws – Dz. U. item 396) is consistent with Article 32(1) of the Constitution of the Republic of Poland.

The ruling was unanimous.

The Constitutional Tribunal deemed that the perpetrators of offences committed simultaneously constitute similar parties from the point of view of the challenged provision. This is justified in the light of Article 42(1) of the Constitution, which explicitly requires that adjudication should be conducted on the basis of provisions that were binding at the time of the commission of a given prohibited act, as well as in the context of Article 2 of the Constitution, which guarantees that all parties should have the possibility of predicting possible legal effects of their actions already at the moment of taking action.

There is no doubt that the aforementioned parties are treated differently in Article 19(1) of the Amending Act, since the challenged provision, within a certain scope, permits different rules for administering an aggregated penalty with regard to the perpetrators of offences committed simultaneously. A consolidated judgment issued on the basis of penalties that became legally enforceable prior to the entry into force of the Amending Act may only be based on the previous provisions. If at least one of the penalties became legally enforceable after the entry into force of the Amending Act, either the new provisions or the previous ones are to be applied, depending on which of the provisions are more beneficial for the offender in question. Therefore, the criterion for the aforementioned differentiation is the date when judgments subject to consolidation become legally effective.

The Constitutional Tribunal stated that such a criterion is neither accidental nor arbitrary. On the contrary, it matches the legislator’s assumptions and contributes to the fulfilment thereof. In particular, the criterion follows from the principle that, after the adoption of the Amending Act, an aggregated penalty may only comprise penalties that are “subject to enforcement”, i.e. legally enforceable penalties.

According to the Tribunal, the differentiation introduced on the basis of the said criterion also meets the requirement of proportionality. The competing values that had to be weighed up by the legislator in the light of Article 19(1) of the Amending Act are as follows: the effectiveness of penal policy (a protected interest) as well as the convicted person’s right to a fair consolidated judgment (a violated interest). Both of those values arise from the Constitution. The effectiveness of penal policy is justified by the constitutional obligation on the part of the state to ensure the protection of the individual’s rights and freedoms as well as to guarantee the security of the individual (cf. Art. 5 of the Constitution); at a more general level, the effectiveness of penal policy is also justified by the principle of diligence and efficiency in the work of public authorities (cf. the Preamble to the Constitution). The right to a fair consolidated judgment should be derived from Article 45(1) of the Constitution in conjunction with Article 2 and Article 42(1) of the Constitution. The Ombudsman argued that, in the light of Article 32(1) of the Constitution, an element of the said right is the principle stating that rules for determining the severity of a penalty for offences committed simultaneously should provide for a possibility of taking account of subsequent legal amendments which are beneficial to the convicted person, regardless of the date when a relevant judgment becomes legally effective.

The Constitutional Tribunal disagreed with that view. In Article 19(1) of the Amending Act, the legislator did not exceed the scope of his discretion, limiting the remit of the application of the principle of lex mitior only to the instances where already legally enforceable penalties are aggregated with those that have not yet become legally enforceable, imposed for offences committed prior to the entry into force of the Amending Act. In such instances, adjudication on the basis of the provisions in force on the date of the commission of an offence directly arises from aforementioned Article 42(1) of the Constitution. The application of the new provisions (not yet in force on the date of the commission of offences) goes beyond the indicated minimal standard and falls within the discretion of the legislator, who needs to consider arguments for and against such a solution.

The Constitutional Tribunal held that, in the context under analysis, the legislator had the right to give precedence to considerations in favour of limiting the application of the principle of lex mitior only to instances where there is a clear transitional element, i.e. when some of aggregated penalties become legally enforceable prior to the date of entry into force of amending provisions whereas with the other penalties this happens after the said date.

The Constitutional Tribunal took account of the following additional arguments:

- the presumption of the constitutionality of both the old and new models of an aggregated penalty;

- the lack of the possibility of abstract evaluation (i.e. in isolation from the circumstances of the case) as to which of the above models is more beneficial to the offender;

- adherence to the principle of lex mitior in the course of issuing judgments that determine liability for particular offences, on the basis of which an aggregated penalty is subsequently administered; it needs to be stressed here that these are legally effective judgments;

- the unique character of an aggregated penalty which is, in practice, almost always more beneficial to the offender than individual penalties administered consecutively or concurrently (this follows from rules for administering an aggregated penalty);

- the role of an aggregated penalty which is used to “sum up” the offender’s liability, and it may not undermine any previous determinations as to the guilt and punishment for particular offences;

- the existence of a mechanism improving the situation of convicted persons on the basis of the previous provisions – i.e. Article 19(2) of the Amending Act (the said provision mentions a mechanism for correcting penalties administered on the basis of the previous provisions if those penalties were higher than the upper limits of penalties applicable after the adoption of the Amending Act);

- the fact that the constitutional reservations concern a closed and very limited set of circumstances which are gradually disappearing.

For the above reasons, the Constitutional Tribunal deemed that Article 19(1) of the Amending Act is consistent with Article 32(1) of the Constitution. Indeed, in the course of the proceedings, there were no arguments that would be sufficient to overrule the presumption of constitutionality.

The Presiding Judge of the adjudicating bench was the President of the Constitutional Tribunal, Judge Julia Przyłębska, and the Judge Rapporteur was Judge Leon Kieres.