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Terms of suspending the limitation period for prosecuting lesser offences subject to private prosecution SK 3/16

Terms of suspending the limitation period for prosecuting lesser offences subject to private prosecution

‘Provided in Article 101(2) of the Penal Code, a one-year limitation period for the criminality of offences subject to private prosecution falls within the scope of the legislator’s discretion. This is a reasonable time-limit adjusted to the particular nature of offences subject to private prosecution, including the offence of insult,’ stated the Constitutional Tribunal.

On 20 April 2017 at 10 a.m., the Constitutional Tribunal publicly delivered its ruling, issued at a sitting in camera, with regard to Mr J.B.’s constitutional complaint pertaining to the terms of suspending the limitation period for prosecuting lesser offences subject to private prosecution.

The Constitutional Tribunal adjudicated that Article 101(2) of the Act of 6 June 1997 – the Penal Code, insofar as it stipulates that the criminality of the offence of insult subject to private prosecution shall cease after the lapse of 12 months from the moment when an aggrieved party becomes aware of a perpetrator, is consistent with Article 47 in conjunction with Article 45(1) and Article 77(2) of the Constitution of the Republic of Poland.

Moreover, the Constitutional Tribunal decided to discontinue the proceedings as to the remainder.

The ruling was unanimous.

 

It was argued in the constitutional complaint that Article 101(2) of the Penal Code – insofar as it does not provide for the suspension of the limitation period for prosecuting lesser offences subject to private prosecution, due to the lack of the possibility of prosecuting a perpetrator by an aggrieved party – is inconsistent with Article 47 in conjunction with Article 45(1) or in conjunction with Article 2 of the Constitution of the Republic of Poland as well as in conjunction with Article 6(1) and/or Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950 (hereinafter: the European Convention on Human Rights) or Article 13 of the Convention on the Rights of Persons with Disabilities, done at New York on 13 December 2006 (Journal of Laws – Dz. U. of 2012 item 1169), as well as inconsistent with Article 77(2) in conjunction with Article 47 or in conjunction with Article 2 or in conjunction with Article 45(1) of the Constitution of the Republic of Poland as well as in conjunction with Article 6(1) and/or Article 14 of the European Convention on Human Rights or in conjunction with Article 13 of the Convention on the Rights of Persons with Disabilities.

The circumstances of the filing of the constitutional complaint in the present case were straightforward. The complainant lodged a private indictment with a competent district court, accusing another person of committing the lesser offence specified in Article 216(1) of the Penal Code, i.e. the offence of insulting someone in public. However, the court proceedings were discontinued in a legally effective way, due to the lapse of a one-year limitation period for the criminality of the alleged prohibited act, although the complainant had justified the delay by his long-term illness. In the complainant’s opinion, such an objective circumstance should have been taken into account in the assessment of the lapse of the limitation period.

The participants in the Tribunal’s review proceedings (the Sejm of the Republic of Poland and the Public Prosecutor-General) requested the Tribunal to determine the constitutionality of the challenged provision and to discontinue its proceedings within the scope of the review in the light of higher-level norms indicated in the Conventions.

While analysing the constitutionality of Article 101(2) of the Penal Code, the Constitutional Tribunal made reference to its jurisprudence concerning the limitation period for the criminality of prohibited acts. According to the well-established view of the Tribunal, due to the lack of constitutional standards in that respect, the legislator has considerable discretion as regards introducing a limitation period into the legal system and determining its aspects (inter alia the determination of the beginning of the limitation period, circumstances determining the suspension of the said period). The legal institution of limitation periods is regarded as an element of the penal policy of the state. Provided in Article 101(2) of the Penal Code, the one-year limitation period for the criminality of offences subject to private prosecution falls within the scope of the legislator’s discretion. The Tribunal held that this was a reasonable time-limit adjusted to the particular nature of offences subject to private prosecution, including the offence of insult.

The Tribunal disagreed with the complainant as to whether the latter had been deprived of an actual possibility of exercising the right to legal protection of his honour and good reputation. Indeed, the commencement of criminal proceedings by private prosecution does not exhaust legal measures meant for compensating any harm caused to an aggrieved party as a result of the aforementioned insult. The complainant may resort to financial and non-financial measures for protecting personal interests provided for in the Act of 23 April 1964 – the Civil Code (hereinafter: the Civil Code). The Tribunal emphasised that the possibility of asserting one’s right to non-financial compensation (e.g. an apology or a disclaimer) is not at all restricted by a time-limit, and financial claims related to an infringement of personal interests are not, in principle, subject to limitation after the lapse of 10-year period. Considering the multitude of possible reactions to an insult which are provided for in the Civil Code as well as a definitely more advantageous regulation of time-limits for making civil claims, the Tribunal stated that the constitutional right to (legal) protection of one’s honour and good reputation had been infringed.

The Tribunal’s proceedings within the scope of reviewing the conformity of Article 101(2) of the Penal Code to Article 6(1) and Article 14 of the European Convention on Human Rights as well as Article 13 of the Convention on the Rights of Persons with Disabilities were subject to discontinuance due to the inadmissibility of issuing a ruling. Pursuant to Article 79(1) of the Constitution, in proceedings initiated by a constitutional complaint, there is no possibility of examining the conformity of a given challenged provision to higher-level norms for the review indicated in the Conventions. The discontinuance of the proceedings also concerned the review of the conformity of the challenged provisions to Article 2 of the Constitution, since no justification had been provided in support of that allegation.

The hearing was presided over by Judge Stanisław Rymar, and the Judge Rapporteur was Judge Małgorzata Pyziak-Szafnicka.