Holding a person accountable – in the context of the same criminal act – for both an offence and a misdemeanour K 45/14
Holding a person accountable – in the context of the same criminal act – for both an offence and a misdemeanour
‘Challenged Article 10(1) of the Code of Misdemeanours does not lead in the practice of courts to an infringement of the principle of ne bis in idem (the prohibition of double jeopardy), if courts apply the provision only in the case of an indictment or conviction for an offence or a misdemeanour, with regard to which a legally effective ruling has already been issued, but where the offence or the misdemeanour is not related to identical or considerably the same facts,’ stated the Constitutional Tribunal.
On 1 December 2016 at 9.00, the Constitutional Tribunal considered an application filed by the Ombudsman as regards holding a person accountable – in the context of the same criminal act – for both an offence and a misdemeanour.
The Constitutional Tribunal adjudicated that Article 10(1) of the Act of 20 May 1971 – the Code of Misdemeanours is consistent with Article 2 as well as Article 45(1) of the Constitution, as well as with Article 4(1) of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Strasbourg on 22 November 1984, as well as with Article 14(7) of the International Covenant on Civil and Political Rights (ICCPR), opened for signature in New York on 19 December 1966.
The ruling was unanimous.
The provision under review governs the concurrence of provisions of the following two statutes: the Code of Misdemeanours and the Penal Code, i.e. a situation where a criminal act committed by a particular person meets the characteristics of both an offence and a misdemeanour.
Challenged Article 10(1) of the Code of Misdemeanours does not lead in the practice of courts to an infringement of the principle of ne bis in idem (the prohibition of double jeopardy), if courts apply the provision only in the case of an indictment or conviction for an offence or a misdemeanour, with regard to which a legally effective ruling has already been issued, but where the offence or the misdemeanour is not related to identical or considerably the same facts.
A characteristic feature of the ideal concurrence of an offence with a misdemeanour is that one criminal act may be divided into an offence and a misdemeanour. The principle of ne bis in idem prohibits conducting a trial and administering a penalty for the same act with regard to the same person twice. The said prohibition is breached neither by filing a separate indictment for an offence and a separate application to administer a penalty for a misdemeanour, nor by trying and punishing for different components of a criminal act, as is the case in the context of the ideal concurrence of an offence with a misdemeanour. A good example of the above may be an act consisting in causing disorder in a public place by shouting (a misdemeanour) and, at the same time, inciting others to commit a crime (an offence).
The Constitutional Tribunal stated that the applicant and the participants in the proceedings in the present case did not pay sufficient attention to the rules of the vertical systemic interpretation, which require that legal provisions should be interpreted in conformity with the norms of legal acts that are higher up in the hierarchy.
What follows from the jurisprudence of the European Court of Human Rights is that in certain situations reconviction or repetition of criminal proceedings for a certain criminal act does not lead to an infringement of the principle of ne bis in idem, expressed in Article 4(1) of Protocol No. 7 to the Convention.
The hearing was presided over by the Vice-President of the Constitutional Tribunal, Judge Stanisław Biernat, and the Judge Rapporteur was the President of the Tribunal, Judge Andrzej Rzepliński.