Author(s): Radosław Koper / Language(s): Polish
Issue: 3/2004
Pursuant to Article 335 (1) of the Code of Criminal Procedure (CCP), a prosecutor may request that practically any form of punishment be imposed on an offender, which means that the punishment is not necessarily and not always in a mitigated form. The forms of lenient treatment of an offender provided for in Article 343 (1) of the CCP are used by courts on an optional basis. Since a court is not obliged to adjudicate these decisions in every case of application of the institution under consideration, it would be difficult to conclude that the content of Article 343 (1) of the CCP limits the scope of the only possible forms of punishment in this situation.Article 335 (1) of the CCP authorizes the prosecutor or the plaintiff mentioned in Article 325 (3) of the CCP to request the imposition of any penalty. This general rule is limited by some exceptions. Pursuant to Article 335 (1) of the CCP, it is not possible to request the imposition of a sentence with an extraordinary mitigation or a conditional suspension of its execution. It is rather Article 343 (1) of the CCP that should be considered as the procedural basis for the application of both decisions, as this very provision stipulates them explicitly. Therefore, the scope of arrangements possible pursuant to Article 335 (1) of the CCP can be broad, but it cannot be unlimited. The requested punishment must take into account all the premises and conditions arising from substantive criminal law and must not contradict it. Article 335 (1) of the CCP also provides a basis for including a proposal for the imposition of any penal measure, including forfeiture, in a motion for a conviction without a trial. The only limitation in this case is the need to comply with the substantive-law prerequisites for the admissibility of the application and the rules for the adjudication of the penal measure in question.Article 343 (1) of the CCP is a lex specialis in relation to Article 335 (1) of the CCP in the part in which the former modifies the content of the latter and allows the imposition of an extraordinarily mitigated or conditionally suspended sentence in accordance with the rules set forth in the Criminal Code (CC). In the remaining scope, the provisions of Article 335 (1) of the CCP and Article 343 (1) of the CCP should be considered as mutually independent legal norms, since the subject matter of regulation in both cases is different.Extraordinary mitigation of a penalty under Article 343 (2) (1) of the CCP is possible with complete disregard for the substantive-law prerequisites for its application. This provision serves as an independent substantive-law basis for an extraordinary mitigation of a penalty. Whether the defendant uses the benefit in question does not depend on the existence of prerequisites of a substantive nature, but is based on the occurrence of procedural circumstances. Appropriate arrangements made by the defendant and the prosecutor as expressed in the request for conviction without trial, and the subsequent granting of that request by the court, are sufficient conditions in the situation under consideration to impose an extraordinarily mitigated penalty on the defendant. No other conditions need to be fulfilled.However, when applying Article 343 (2) (1) of the CCP, a court must not ignore the rules for adjudication of a mitigated penalty.Article 343 (2) (1) of the CCP makes it possible to impose an extraordinarily mitigated penalty based on the mere fact that the defendant is convicted without a trial. Therefore, the basis for the application of an extraordinary mitigation of a penalty in this situation is legal circumstances related to an agreement reached between the defendant and the prosecutor and its approval by the court. Although recourse to the institution of conviction without a trial may be combined with the occurrence of certain factual circumstances that justify lenient treatment of the offender (e.g., reparation of damages, expression of remorse, or accurate recounting by the defendant of the course of the crime), such circumstances do not play a major role when Article 343 (2) (1) of the CCP is applied, as is the case with regard to the accidents indicated, for example, in Article 60 (2) of the CC. In conclusion, Article 343 (2) (1) of the CCP has its own separate object of regulation that is independent of Article 60 (1-4) of the CC.When applying Article 343 (2) (2) of the CCP, a court is also authorized to impose a fine with conditional suspension of its execution, even if it would be a cumulative fine, i.e. one imposed alongside a prison sentence. The modification of the wording of Article 69 (1-3) of the CC also means that there is no need to take into account the circumstances that determine the possibility of imposing a sentence with conditional suspension of its execution, which are listed in Article 69 (1) in fine and Article 69 (2) of the CC. In addition, the formal prohibition, specified in Article 69 (3) of the CC, to apply a suspension of the execution of a sentence for the multiple repeat offenders referred to in Article 64 (2) of the CC does not apply. The court does not need to demonstrate that the case is exceptional and justified by special circumstances within the meaning of Article 69 (3) of the CC in order for it to suspend the execution of the sentence of an offender classified as a multiple repeat offender.It should be noted that in the case of a conditional suspension of the execution of a prison sentence in proceedings with a conviction without a trial, the lower limit of the probation period has not changed, as Article 343 (2)(2) of the CCP contains no references to this issue. Therefore, according to the wording of Article 70 (1) (1) of the CC, the minimum length of the probation period cannot be less than 2 years. Article 343 (2) (2) of the CCP also does not allow for any deviation in the determination of the probation period in the other cases covered by the norms of Article 70 of the CC. This means that Article 70 of the CC then remains the legal basis for determining the length of the probation period, both minimum and maximum. This applies to the case of a conditional suspension of the execution of a fine or a restriction of liberty, as well as the application of this probationary measure to a juvenile offender or a multiple repeat offender.Article 343 (2) (3) of the CCP excludes the application of Article 59 of the CC in the part in which it specifies the requirement that the act be punishable by a prison sentence not exceeding 3 years or, as an alternative, by a fine, a restriction of liberty, or a prison sentence. In the case of the crimes subject to the above penalties, a conviction without a trial is also permissible, but in such a case the procedural basis for the decision to waive a penalty and apply a penal measure is Article 335 (1) of the CCP. Article 343 (1 and 2) of the CCP do not make any other changes to a court’s ability to limit its rulings to a penal measure. Thus, they do not cause the exclusion of the application of Article 59 of the CC in its entirety, as is the case with Article 60 (1-4) or Article 69 of the CC. Article 59 of the CC is applicable in the relevant scope. This means that in any case where a penalty is waived and a penal measure is imposed at the same time, it must be demonstrated that the social harm of the act is not significant and the objectives of the penalty will be met by that measure.The author asks whether Article 343 (2)(3) of the CCP constitutes an independent substantive-law basis for the adjudication of a penal measure in lieu of a penalty. His answer is affirmative, with the caveat that the aforementioned provision can certainly be considered a substantive-law basis for the adjudication of a penal measure combined with a waiver of the penalty, but only to the extent that it modifies the content of the general provision on this matter, namely Article 59 of the CC. The procedural law provision in question is an independent basis for the application of the ruling in question in general. However, this provision must not be treated as a substantive-law prerequisite for the adjudication of each penal measure separately. This is because Article 343 (2) (3) of the CCP does not exclude the application of the provisions of the CC that specify the prerequisites for the imposition of individual penal measures. A sentence may be limited to a penal measure only if the prerequisites for its admissibility are met. Reference should be made in this regard to the relevant provisions of the Criminal code (Articles 40-42, 44-47a, and 49-50).Since, in terms of the prerequisites for the adjudication of penal measures, Article 343 (2)(3) of the CCP does not have a substantive-law nature, priority in this case should be given to Article 40 (2) of the CC as a substantive-law norm. Adoption of such a position, of course, prevents the court from imposing only the penalty of deprivation of public rights in the procedural setting under consideration, despite the fact that this measure is listed in Article 343 (1) in fine of the CCP.
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