The illegal abstraction of electricity; the admissibility of both criminal liability and civil liability that implies a sanction (the payment of a charge) to be applied for the same act committed by a given individual P 50/13
In the context of a prohibited act consisting in the illegal abstraction of electricity committed by a given individual, it is consistent with the Constitution to simultaneously hold the said person criminally liable for the offence of electricity theft specified in Article 278(5) of the Penal Code as well as and impose on him/her the payment of a charge provided for in Article 57(1)(1) of the Energy Law.
On 21 October 2014 at 9.00, the Constitutional Tribunal considered a question of law submitted by the District Court for the District of Warszawa Śródmieście, 5th Criminal Division, with regard to the illegal abstraction of electricity as well as the admissibility of both criminal liability and civil liability that implies a sanction (the payment of a charge) to be applied for the same act committed by a given individual.
The Constitutional Tribunal adjudicated that Article 278(5) of the Act of 6 June 1997 – the Penal Code as well as Article 57(1)(1) of the Act of 10 April 1997 ‑ the Energy Law ‑ insofar as they permitted that, in the context of a prohibited act consisting in the illegal abstraction of electricity committed by a given individual, the said person could be simultaneously held criminally liable for the offence of electricity theft specified in Article 278(5) of the Penal Code as well as ordered to pay a charge provided for in Article 57(1)(1) of the Energy Law ‑ were consistent with Article 2 of the Constitution.
In the case under discussion, the constitutional issue raised in the question of law by the court referring the question amounted to answering the question whether, in the case of a prohibited act that simultaneously constituted the illegal abstraction of electricity and the theft of electricity, the application of criminal liability for an offence specified in Article 278(5) of the Penal Code as well as the imposition of a charge to be paid on the basis of Article 57(1)(1) of the Energy Law constituted an infringement of the ne bis in idem principle, due to the breach of a prohibition against double penalty for the same act.
The Constitutional Tribunal stated that the charge referred to in Article 57(1)(1) of the Energy Law was a legal means under civil law. It is treated by the legislator as an alternative method when juxtaposed with general rules for claiming compensation for the illegal abstraction of electricity, it contains a special way of determining the amount of the said compensation. The said amount is to guarantee that an electricity company will be fully compensated for any damage. It is imposed by an electricity company, i.e. a private entity, and then collected in the course of civil proceedings.
The Constitutional Tribunal drew attention to the fact that civil liability might, apart from mainly playing a compensatory role, also play other roles, including a preventive and repressive one. The Tribunal deemed that the charge specified in Article 57(1)(1) of the Energy Law, in addition to its compensatory role, fulfilled a preventive role, and – in respect of the amount of that charge – a repressive one, which did not entail that the said charge had lost its character as a legal means under civil law.
The Constitutional Tribunal pointed out that the prohibition against double penalisation, derived from Article 2 of the Constitution, also comprised the necessity to maintain a proper proportion between legal means which played repressive roles.
Thus, when carrying out the criminal-law assessment of the perpetrator’s conduct, at the stage of selecting a legal means and a criminal-law reaction to the commission of the offence within the scope of rules and requirements related to the penalty, the court should – within the relevant scope – consider the fact that a different type of liability than criminal liability has already been assigned for the same act, which additionally fulfils the said repressive role.
Indeed, the court is not solely bound by rules and requirements related to a given penalty that are set out expressis verbis in criminal-law provisions, but it is also obliged to apply rules and requirements related to a given penalty that have not been expressed explicitly in the Penal Code, but which arise from the Constitution.
The Constitutional Tribunal deemed that the application of both the charge specified in Article 57(1)(1) of the Energy Law and criminal liability for the offence of electricity theft set out in Article 278(5) of the Penal Code did not lead to an infringement of the ne bis in idem principle, arising from Article 2 of the Constitution. Indeed, the charge specified in Article 57(1)(1) of the Energy Law is a legal means under civil law, as opposed to criminal liability for the offence specified in Article 278(5) of the Penal Code.
At the same time, at the stage of selecting a legal means for a criminal-law reaction to the commission of the offence specified in Article 278(5) of the Penal Code, the court has the possibility of considering, within the relevant scope, the fact that the perpetrator has been required to pay the charge referred to in Article 57(1)(1) of the Energy Law, if the said charge was also intended to fulfil the above-mentioned repressive role.
The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was Judge Mirosław Granat.