Press release after the hearing concerning the obligatory execution of the conditionally suspended penalty of deprivation of liberty for committing a similar offence to the previous one SK 9/10
At the hearing on 17 July 2013 at 9 a.m., the Constitutional Tribunal (full bench) considered a constitutional complaint, submitted by T. B., which concerned the obligatory execution of the conditionally suspended penalty of deprivation of liberty for committing an offence that was similar to the previous one.
The Constitutional Tribunal adjudicated that Article 75(1) of the Act of 6 June 1997 – the Penal Code, insofar as it did not provide for a court to refrain from ordering the execution of a penalty in the context of a convicted person with regard to whom the penalty of deprivation of liberty had once again been ordered was inconsistent with Article 45(1) of the Constitution.
The above provision will cease to have effect after the lapse of eighteen months from the day of the publication of the judgment in the Journal of Laws.
As to the remainder, the Tribunal discontinued the proceedings.
Dissenting opinions were submitted by the following Judges of the Constitutional Tribunal: Mirosław Granat, Wojciech Hermeliński, and Marek Zubik.
1. The subject of the review conducted by the Tribunal was Article 75(1) of the Penal Code, which stipulates that:
“The court shall order the execution of the penalty, if the convicted person during the probation period, committed an intentional offence similar to the previous one, for which s/he has been sentenced for the penalty of deprivation of liberty by a legally effectively ruling”.
The said provision is applicable, within the scope of criminal proceedings aimed at the execution of the penalty, in the case where a judgment ending criminal proceedings in a subsequent case provides for the penalty of the deprivation of liberty to be executed for committing an offence that was similar to the previous one.
Thus, the fact of being sentenced for the second time for an intentional offence similar to the previous one, for which the penalty of deprivation of liberty was adjudicated with the conditional execution thereof (cf. Article 69(1) of the Penal Code), results in a court order to execute the said penalty. The prerequisite of the execution of the penalty is that, during the probation period for which the court suspended the execution of the penalty, the perpetrator committed a similar intentional offence.
In the case of the fulfilment of premisses set out in Article 75(1) of the Penal Code, an order on the execution of the penalty is obligatory. The formulation that “the court shall order the execution of the penalty” is consistently interpreted as an obligation that lies with the court. Also, the execution of the deprivation of liberty is also ordered when a similar intentional offence that was committed once again is punished with the penalty of deprivation of liberty by the court, with the conditional suspension of the execution thereof.
2. The Tribunal conducted a substantive review of the conformity of Article 75(1) of the Penal Code to Article 45(1) of the Constitution. The Tribunal did not adjudicate on the constitutionality of the other of the challenged provisions – Article 178(2) of the Executive Penal Code. Indeed, the said provision had been amended by Article 1(79) of the Act of 16 September 2011 amending the Executive Penal Code as well as certain other acts.
The Tribunal held the view that a change in normative provisions prevented the Tribunal from carrying out the review of the constitutionality of Article 178(2) of the Executive Penal Code – adjudication was not necessary for the protection of constitutional rights and freedoms.
3. The Tribunal concluded that the court ordering the execution of the penalty, by issuing a decision on the basis of Article 75(1) of the Penal Code, adjudicated on the rights and obligations of the convicted person. Thus, the said decision concerned the case within the meaning of Article 45(1) of the Constitution.
As regards the constitutional review of Article 75(1) of the Penal Code, what was of fundamental significance was the fact that a state ruled by law should guarantee security and public order, within the realm of criminal law, by applying such penalties as were necessary. The actual deprivation of liberty was an ultimate measure. This required that the court should have a possibility of considering all the circumstances in a given case which were relevant for issuing a decision.
The Tribunal assumed that the court should be able to consider – when the court stated that criminal proceedings in a subsequent case ended with a conviction for an intentional offence similar to the previous one, the execution of which had been conditionally suspended – whether there were no circumstances that would weigh in favour of refraining from an order to execute the penalty with regard to the convicted person.
Indeed, the court that orders the execution of the penalty needs to have a possibility of carrying out procedural examination – in the circumstances of a specific case and by taking account of the presumption of penalties that do not involve the deprivation of liberty (see Article 58(1) of the Penal Code) ‑ whether there are reasons to adjudicate on the previously suspended penalty of deprivation of liberty with regard to persons who were sentenced to the deprivation of liberty once again.
This refers to an instance where, in a subsequent criminal case, the court conditionally suspended the execution of the deprivation of liberty, but there are special circumstances, indicated by the convicted person and determined by the said court, which suggest the likelihood of committing other offences, and which entail that an order to execute the penalty would be a decision falling outside the category of ultima ratio.
The Tribunal concluded that Article 75(1) of the Penal Code led to discrepancies. Indeed, on the one hand, the court – once again ordering the penalty of deprivation of liberty with the conditionally suspended execution – manifested the assumption that with regard to the convicted person there was still low likelihood that s/he would commit other crimes, despite the second sentence; on the other hand, the order to execute the penalty that had previously been imposed proved that such likelihood was not low at all.
Therefore, the Tribunal stressed that a fair court procedure required that court should be able to examine and assess the circumstance whether the said low likelihood of committing other offences ceased to be low, due to another sentence to the deprivation of liberty with the conditionally suspended execution thereof. The necessity to carry out judicial review should concern the case where, in the subsequent case, the court again ordered the conditional suspension of executing the deprivation of liberty, despite the fact that the perpetrator had committed an intentional offence.
Thus, the Tribunal did not share the stance that the commission of a similar offence to the previous one completely changes positive evaluation as to the low likelihood of committing other offences by the perpetrator. The Tribunal stated that the court procedure provided for in the challenged provision had no characteristics of a fair procedure, required when resolving a case within the meaning of Article 45(1) of the Constitution. Personal liberty requires that the court had certain discretion (the minimum jurisdiction of the court) when it comes to the actual deprivation of the liberty. The criminal court which orders the execution of the penalty of deprivation of liberty, which has so far been conditionally suspended, administers justice. Indeed, the court adjudicates in a separate case on the deprivation of one of the most basic freedoms – personal liberty. Such a decision is not technical in character and thus the court ordering the execution of the penalty may not be deprived of the right to substantively review a case pending before it, despite its unusual circumstances. The Tribunal also noted that, from the point of view of the legal status of the convicted person, a decision issued by the court on the basis of Article 75(1) of the Penal Code determined that a penalty that was imposed was different in respect of its quality and type as well as was much more constitutionally burdensome that the penalty ordered previously. On the basis of such a decision, the convicted person is placed in a penitentiary institution.
4. Thus, the Tribunal ruled that Article 75(1) of the Penal Code was inconsistent with Article 45(1) of the Constitution.
The judgment of the Tribunal does not change the rule that it is obligatory to execute a penalty where, where, during the probation period, the sentenced person committed an intentional offence similar to the previous one, for which s/he has been sentenced in a legally effective way for a penalty of deprivation of liberty to be executed unconditionally (without conditional suspension of the penalty).
This concerns only the situations where the sentenced person is punished by the penalty of deprivation of liberty, where the execution of the penalty is conditional.
5. The Tribunal deferred the moment when Article 75(1) of the Penal Code would cease to have effect by 18 months. During that period the legislator is obliged to introduce amendments that will specify the rules for a court to order the execution of a penalty in situations where, during the probation period, the sentenced person committed an intentional offence similar to the previous one, for which s/he has been sentenced in a legally effective way for a penalty of deprivation of liberty, the execution of which was conditionally suspended.
The hearing was presided over by the Vice-President of the Constitutional Tribunal, Judge Stanislaw Biernat, and the Judge Rapporteur was the President of the Constitutional Tribunal, Judge Andrzej Rzepliński.
The judgment is final and its operative part shall be published in the Journal of Laws.