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The limits of criminal liability P 27/11

Criminal liability for carrying out construction work without a required permit or without required notification is consistent with the Constitution.

At the hearing on 9 October 2012 at 9.00 a.m., the Constitutional Tribunal considered joined questions of law, referred by the District Court in Janów Lubelski (the 2nd Criminal Division), concerning the limits of criminal liability.

The Constitutional Tribunal adjudicated that Article 90 of the Act of 7 July 1994 - the Polish Construction Law, insofar as it provided for criminal liability for carrying out construction work without a required permit or without required notification:
- is consistent with the principle of proportionality, expressed in Article 2 of the Constitution,
- is consistent with the principle of appropriate legislation, expressed in Article 42(1) in conjunction with Article 2 of the Constitution.

As to the remainder, the Tribunal discontinued the proceedings.

Pursuant to Article 2 in conjunction with Article 42(1) of the Constitution, a provision penalising certain conduct must be sufficiently precise so that, in given specific circumstances, there would be no doubt whether criminal liability would apply. The lack of sufficient precision is enough to rule the provision to be unconstitutional if it is impossible to determine its content by interpretation - including an interpretation provided in the practice of courts. In the case of challenged Article 90 of the Construction Law, there is a possibility of providing an interpretation which unambiguously specifies the sanctioned legal norm.

The legislator enjoys considerable freedom as regards enacting provisions that prohibit certain types of conduct under penalty. He is particularly authorised to enact law which corresponds to set criminal-law and political objectives.

The substantiation for the questions of law under examination contained no criminal-law and political arguments that would weigh in favour of modifying the penalisation of construction work carried out without a permit by narrowing down such penalisation.

Pursuant to Article 1(2) of the Polish Penal Code, criminal liability shall be incurred only by a person who commits an act prohibited under penalty where the extent to which the act brings about detrimental social consequences (defined in Article 115(2) of the Penal Code) is larger than insignificant. An act displaying the characteristics of the prohibited act specified in Article 90 of the Construction Law may be regarded, in a given situation, as an act which brings about only insignificant detrimental social consequences. Such a conclusion would be tantamount to the statement that such an act does not constitute an offence (Article 1(2) of the Penal Code). Thus, the substantive element of the offence provides for the different treatment of various acts displaying the characteristics of construction work carried out without a permit, taking into account the extent to which such an act brings about detrimental social consequences, and in particular “the minimum threshold” which is set out by Article 1(2) of the Penal Code. Also, the statement that the extent to which an act brings about detrimental social consequences is larger than insignificant in a given situation does not imply the same treatment of any acts involving construction work without a permit, regardless of the extent to which they bring about detrimental social consequences. With regard to introducing differentiation into a criminal-law reaction, the provisions included in the general part of the Penal Code shall apply.

It may not be stated that the burden related to the application of instruments which - in the case of construction work carried out without a permit - are set out in administrative-law provisions entails that the criminal-law reaction provided here is excessive. The degree of the burden related to the application of administrative-law instruments may be compared to a situation where the occurrence of characteristics of a prohibited act implies damage which is to be rectified - in accordance with the will of the injured party - either by paying compensation or by restoring the previous state of affairs.

The hearing was presided over by Judge Stanisław Rymar, and the Judge Rapporteur was Judge Wojciech Hermeliński.

The judgment is final and its operative part shall be published in the Journal of Laws.