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Aggregated penalties; the Polish Penal Code K 14/17

On 18 April 2019 at 9 a.m., the Constitutional Tribunal considered the Polish Ombudsman’s application concerning aggregated penalties (the Penal Code).

The Constitutional Tribunal adjudicated that Article 86(4) of the Penal Code of 6 June 1997 – insofar as it differentiates between the situations of persons on whom an aggregated penalty has been imposed before and persons on whom an aggregated penalty has not yet been imposed, in the way that, with regard to the first group of persons, it permits raising the minimum level of an aggregated penalty as well as imposing a more severe type of penalty, i.e. the deprivation of liberty for 25 years – is inconsistent with Article 32(1) of the Constitution of the Republic of Poland.

The ruling was unanimous.

The Tribunal agreed with the view presented by the applicant and the Sejm that the challenged provision may lead to differentiation in the legal situation of persons on whom an aggregated penalty is being imposed. The Tribunal noted that, pursuant to previously binding provisions, when another aggregated penalty was to be administered, as regards the basis of determining the severity of the “new” aggregated penalty, a competent court took account of individual penalties imposed on a given perpetrator for particular offences, since “the legal knot” created by the previous ruling on an aggregated penalty had unravelled. The amended Penal Code under review has eliminated that effect. This entails that, at present, when determining the severity of another (subsequent) aggregated penalty, a competent court takes account of the previously imposed aggregated penalty, which is – in principle – higher than individual penalties. This may accidentally aggravate criminal liability for reasons that are completely beyond perpetrators’ control, who have no influence as to when a consolidated judgment is issued in their case. According to the Tribunal, this entails that the application of Article 86(4) of the Penal Code may lead to arbitrary punishment, in breach of Article 32(1) of the Constitution. The realisation of the principle of equal treatment with regard to perpetrators convicted of several offences and subject to identical penalties in terms of their type and severity does not require that those perpetrators be given the same aggregated penalties; on the contrary, pursuant to Article 85a of the Penal Code, a penalty should be individualised. By contrast, Article 32(1) of the Constitution requires ensuring that the statutory limits of an aggregated penalty imposed on each of the perpetrators who are in the same legal situation would be the same.

The Presiding Judge of the adjudicating bench was Judge Stanisław Rymar, and the Judge Rapporteur was Judge Małgorzata Pyziak-Szafnicka.