A significant and at the same time quite controversial issue is the limitation period for a cumulative crime. The case-law of the general courts on this issue may differ.
According to Article 11(2) Act dated 6 June 1997 Criminal Code (i.e. dated 20 July 2018, Journal of Laws of 2018, item 1600, hereafter as ‘k.k.’ if the action exhaustive the characteristics specified in two Or more of the criminal law, the court sentences one a crime based on all overlapping laws.
However, according to section 3 the above-mentioned provision in the case specified in 11 section 2 k.k.
the court administers the penalty on the basis of a provision providing for the strictest penalty, which does not prevent the decision of other measures provided for in the Act from being decided on on the basis of all the converging provisions.
There is no doubt that the application of the institution in question from the point of view of the defendant in most cases is very beneficial, given the possibility of measuring on the basis of Article 11(3) one penalties, instead of a few resulting from specific overlapping rules.
Where there is a limitation on the criminality of a criminal offence based on a provision forming part of a cumulative qualification, such provision shall be indicated on the basis of a conviction for an act subject to a cumulative qualification
Limitation period for a cumulative offence (Article 101(1) (k.k.) was the subject of a compositional resolution seven Supreme Court Judges dated 20 September 2018 (reference no. I KZP 7/18).
The resolution states that “in the event of an act, exhaustive characteristics two or more provisions of a criminal law which constitutes a criminal offence subject to cumulative legal competence (Article 11(2) k.k.), the limitation period for its criminality is fixed, on the basis of Article 101 k.k., on the basis of the amount of the penalty for this offence determined in accordance with Article 11(3) k.k.
or other conditions mentioned in the statute of limitations rules and applicable to the entire cumulatively qualified offence.’
The Supreme Court analysed the issue and focused on First, on two opposing positions existing in doctrine and in the case-law in this respect.
According to first of them, if the act fulfils the criteria two or more of the provisions of the Criminal Law, the limitation period shall be determined by a provision providing for the strictest penalty and shall apply to all acts subject to cumulative legal competence.
As a key argument for this position, the content of the normalisation was indicated Article 101 k.k., which provision provides for limitation periods concerning criminality rather than legal competence.
On the other hand, it should be pointed out that, in the event of a coincidence of the provisions of the criminal law, the appointment on the basis of convictions of all the convergent provisions is permitted only if the limitation period has not yet expired for any of them. According to the second of the above positions, the principle of cumulative legal competence of the act cannot ignore other provisions which exclude the possibility of convicting the person who commits a particular type of offence.
Supreme Court in Resolution dated 20 September 2018 pointed out that the main reason for the discrepancy in the case-law in the matter in question was a different interpretation of the term ‘criminal offence’ used under Article 101 k.k.
in conjunction with Article 11(2) Mr SN stressed that according to the view prevailing in the case law, this term refers to the type of crime created by the construction of Article 11(2) KK, not to particular types of offences whose characteristics exhaustive The same thing.
But in thought second post ‘crime’ used under Article 101 KK for a criminal offence subject to Article 11(2) The CCC of cumulative legal competence should be understood as referring to individual types of offences whose characteristics exhaustive The same thing.
In view of the above considerations, the Supreme Court, by adopting the resolution in question, relied, to a large extent, on the position that the expiry of the limitation period applicable to a particular type of offence, when the provision of a criminal law containing its characteristics remains in cumulative legal qualifications with other provisions of the criminal law, does not preclude its appointment as a legal qualification as an attributable offender. The Supreme Court stressed that in connection with the use of construction with Article 11(2) KK creates a new type of crime that can only have one limitation period and adoption one the limitation period results not only from the content of the provision Article 101 KK, which defines one limitation period for crime, but also from Article 11(1)) KK, which states that the same which can only be one crime.
Given the content of the Supreme Court resolution dated 20 September 2018, It should be pointed out that it is not beneficial for the defendant's defence.
Where there is a limitation on the criminality of a criminal offence based on a provision forming part of a cumulative qualification, such provision shall be indicated on the basis of a conviction for an act subject to a cumulative qualification unless a criminal offence which is past is punishable by the most severe penalty in relation to other acts in which he has convicted a cumulative qualification).
De facto, therefore, there may be a situation where the extent of the penalty is affected by acts which have already been criminalised.
Author: Hanna Żołnierkiewicz
Lawyer in the Legal Department. From 2017 associated with Russell Bedford Dmowski & Partners Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He runs the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.