Act dated 19 June 2020 on interest rate subsidies on bank loans granted to entrepreneurs affected COVID-19 and the simplified procedure for approval of the arrangement in relation to the application COVID-19 (‘Tarcza 4.0”), introduced a change to the penal code.
He changed his content Article 37a the Criminal Code Act and it has now adopted the following:
- section 1. If the offence is only punishable by imprisonment not exceeding 8 years, and the sentence of imprisonment imposed for them would not be more severe than a year, the court may instead order a sentence of restriction of freedom not lower than 3 months or fine not lower than 100 daily rates if the penalty measure, compensatory measure or forfeiture is decided at the same time.
- section 2. Provision section 1 does not apply to perpetrators who commit a crime by acting in an organised group or a relationship to commit a crime, or fiscal criminal offence and perpetrators of terrorist offences.’
This is an important change from the point of view of the perpetrator, as in the previous state of the law (sound Article 37a Criminal Code before the entry into force of the ‘Tarchy 4.0”) the only condition for a fine or a penalty of restriction of liberty was only a criminal threat to 8 years. Joining judgment after having fulfilled the condition of a criminal threat to 8 years, the court could choose one of the three penalties in force in the penal code.
Other premises have now been added i.e.:
- • the sentence would not exceed one year of imprisonment and that
- • the penalty imposed may not be lower than 3 the months of restriction of freedom, when the fine is decided, it may not be less than 100 daily rates if the penalty measure, compensatory measure or forfeiture is decided at the same time.
In addition, section 2 the said provision excludes the possibility of its application to perpetrators who commit a crime by acting in an organised group or for the purpose of committing a crime; or fiscal criminal offence and perpetrators of terrorist offences.
With reference to point 1, It should be pointed out that the decision whether the penalty would not be higher than the year of imprisonment is a subjective assessment of the judge and only if the court decides that no higher penalty will be imposed may it consider applying that provision. The court will have to justify why it would not have applied a penalty of more than one year.
This provision raises a lot of controversy as it currently significantly limits the possibility of the court to apply it.
This is not a good change because it is a return to the relics of the penal code from 1969, and even then this provision caused great controversy, primarily because, according to the position of the doctrine, it was internally contradictory.
Article 37a a criminal code allows for a different penalty than a prison sentence if the court considers it to be sufficient. At present, the court will have to "primarily sentence the defendant to imprisonment" no more than one year and then apply fines or restrictions. Consequently, the court loses its choice of the three penalties allowed by law (fine, restrictions on freedom, imprisonment), as has been regulated so far.