In the interests of equal treatment of convicted persons and respect for, among others, the principle of correct legislation, the Ombudsman asks the Minister of Justice to improve the rules on the so-called joint penalty from “Tarcza” 4.0”. These rules are unfair to convicts because they prevent ruling one aggregate penalties for all offences committed so far which have been linked.
The combined penalty is at the same time an institution of substantive criminal law and an instrument of state criminal policy. It refers to the unsub who committed two or more crimes before he collapsed first a sentence, even if it's not final, about any of them.
The court applying the Criminal Code, certain systems combine individual penalties – for individual offences – into one total penalty imposed by the combined judgment. Such punishment may, but it does not have to, be gentler than the sum of unit penalties.
When examining requests from citizens, the RPO saw that Article 81(1)(2) Act on 19 June 2020 on interest rate subsidies on bank loans granted to entrepreneurs affected COVID-19 and the simplified procedure for approval of the system in connection with the occurrence of COVID19 (so-called Shield 4.0), contains a legal gap preventing a judgment in certain cases of cumulative penalties.
Following concern for equal treatment of convicted persons and for respect for the principle of the completeness of the system of law and the principle of correct legislation, the RPO asked Minister Zbigniew Ziobra to consider initiating appropriate legislative work to improve the current unacceptable state of affairs
Total penalty in the Shield 4.0
First of all, you can't now pronounce a combined penalty if the convicted person has only one in his account two judgments for similar offences, but with different validity dates when one the judgment passed before the entry into force of the Shield 4.0, a second It's over.
In addition, where, for example, a minimum penalty is presented for a total sentence two final judgments on the date after the entry into force of the Shield 4.0 and just one The final judgment before it, that's a combined judgment regarding two judgments can be issued on the basis of new provisions, i.e. the Shield 4.0., and the decision which was finalised before its entry into force remains to be implemented separately.
Where several judgments with individual penalties, valid before the entry of the Shield, are submitted in the joint judgment proceedings 4.0 and several final decisions after that date - the court must rule on the basis of two various legal states (old – before the Shield) 4.0 and new – resulting from the Shield 4.0..
Article 81(1)(2) Shields 4.0 excludes the general rule of application of the law, i.e. more favourable (Article 4(1) k.k.). And she's the only one who would let us use it. one - in this case, more relatively - the legal state and would allow to combine penalties generically identical to all judgments.
In such a case, the operative part of the cumulative judgment should therefore take the form in which one the total judgment will be given two different or dimensionally identical combined penalties, i.e. theoretically suitable for a junction one It's a joint punishment. Sheep two cumulative penalties, imposed one the cumulative judgment will, in turn, be subject to separate execution ‘in turn’.
In the light of this, the sentenced person is deprived in general of the possibility of a cumulative sentence, or of a ‘province’ of a full total sentence, but also one aggregate penalties for all offences which have so far been linked. This is unfair to him.
Legal gap in the pace of legislative changes
The Ombudsman cites Article 2 The Constitution and the resulting rule of the principle of the completeness of the legal system, the correct legislation, the protection of citizens' confidence in the state and the law it provides.
He emphasizes that the feature of a well-built system of law is its completeness, and therefore the lack of loopholes in the law. The only gap is the lack of regulation that can reasonably be claimed not to be intended by the legislator.
In other words, if the legislature had acted rationally, this state of affairs would have been regulated by him.
In this case, it is difficult to suspect the legislator's awareness and rationality of the regulation. This, in turn, allows us to assume that only the fast covid legislation contributed to it.
With concern for equal treatment of convicted persons and respect for the principle of the completeness of the system of law and the principle of correct legislation, the RPO asked Minister Zbigniew Ziobra to consider initiating appropriate legislative work to improve the current unacceptable state.