A number of groups, including the government of the opinionator, such as the Legislative Council, acting in front of the Prime Minister, have been critical about the proposed law, as well as us in the article “Laws on the liability of collective entities incompatible with the fundamental principles of law. ” The Ombudsman joined this group.
Deputy Ombudsman Stanisław Trociuk spoke to the Minister of Justice Zbigniew Ziobry with critical remarks on the draft new law on collective liability for criminal offences. Given that the speech contains comments on the original wording of the draft, only issues which are relevant to the current wording of the proposed provisions will be included in this Article.
Transfer of responsibility
First, Stanisław Trociuk pointed out that the bill breaks the concept of criminal liability based on the principle of guilt. The new rules provide for the possibility of attributing criminal liability to a collective entity without the need to determine fault on the part of a particular individual as a perpetrator of the so-called "baseline act".
The law must be established in such a way that "(...) it does not become a trap for the citizen and that he can arrange his affairs in confidence that he does not expose himself to legal effects which he could not foresee at the time of decisions and actions
In the Ombudsman's view, this treatment of criminal liability constitutes a legislative trap for those acting within a collective entity, because even if their conduct is not considered criminal, the responsibility will be ‘transfer’ to the collective entity.
The Ombudsman therefore stressed that, in accordance with the Constitutional Court ruling, dated 7 February 2001, reference no.
k 27/00, the law must be established in such a way that "(...) it does not become a trap for the citizen and that he can arrange his affairs in confidence that he does not expose himself to legal effects which he could not foresee at the time of decisions and actions and that his actions under the applicable law will also be recognised in the future by the legal order".
Restriction and lack of precision in determining the penalty dimension
The government draft law also provides for a new penalty in the form of a collective entity's dissolution.
This penalty may be ordered if the collective entity has, in whole or in large part, served to commit a criminal offence punishable by imprisonment of no less than 5 years, and its continued operation threatens the safety of trade or when a penalty has previously been imposed on it and another penalty is not sufficient to achieve its objectives, in particular does not ensure that the collective entity complies with the principles of due diligence.
With regard to the above proposal, the Ombudsman stated that the penalty was extremely severe and that the grounds for its application were very vague.
Provision Article 18 The draft law indicates that the ‘baseline’ offence must be punishable by imprisonment for up to years 5 However, according to Stanislaw Trociuk, such a statement of the grounds for criminality is not sufficient, especially since offences at risk of punishment 5 years of imprisonment or higher are not uncommon.
The Ombudsman also pointed out that, apart from the above-mentioned condition, a far-reaching discretion is envisaged when such a penalty can be imposed.
In addition, the new legislation tightens the monetary penalty, marking its limits from 30,000 to 30,000,000 PLN. Compared to the current state of the law, this means six times the upper limit of this penalty. Moreover, the bill does not provide for a limitation of the upper limit of the fine to 3% the income of the collective entity in a given financial year, as is the case under the current rules.
The RPO also raised its doubts about the new criminal measure unknown to the current law, namely the prohibition of certain economic activities.
According to the Ombudsman, the imposition of this criminal measure may have a similar effect on the liquidation of the company if its scope concerns all fields of activity of the entity concerned.
It should be noted that according to the planned Article 57(3) This ban will be given the title of a preventive measure, so before the final attribution of criminal liability to a collective entity.
The above comments led the Ombudsman to conclude that the proposed solutions could result in a disproportionality of the penalty imposed in relation to the weight of the prohibited act.
To undermine the principle of legalism
The RPO also pointed out that, according to the wording of the draft new rules, the grounds for initiating proceedings against a collective entity would be of social interest, and the only authority entitled to verify the case in question would be the prosecutor.
According to the content Article 35(1) in conjunction with Article 42(5) the initiation of proceedings under the project was entirely dependent on the will of the prosecutor, who will be able to refrain from initiating proceedings, citing a lack of public interest, second and to initiate proceedings and to bankrupt the entity before its conviction, by applying, inter alia, a new preventive measure in the form of a ban on business activity.
According to the Ombudsman, the above state of affairs is a breach of the criminal law principle of legalism and will result in collective responsibility being applied selectively and instrumentally.
The Ombudsman’s attention also caught Article 8 draft law, according to which ‘to the extent not governed by this law, the rules of liability of a collective entity for an prohibited act shall apply to the general part Act dated 6 June 1997 – Criminal Code (...)’.
The procedure applied under this provision has been found unfortunate by the Ombudsman because most of the rules contained in the Criminal Code are not adapted to the specificity of collective entities, making it impossible to apply most of the institutions resulting from this part of the Code.
In this context, it is necessary to amend the proposed law, including exhaustive indicating the provisions of the Criminal Code that could be applied to collective entities.
Given the above arguments, it can be concluded that the draft law requires changes that would ensure its compliance with constitutional standards of lawmaking.