Conditional remission of criminal proceedings

The usage of conditional termination of proceedings shall be possible only if the precise circumstances provided for in Article 66. They require designation of the inadequacy of continuing criminal proceedings. Thus, the court has the right (a) not an obligation) conditionally discontinue the proceedings if all the conditions provided for by the Act are met, i.e. when:

• the wrongdoer's faults and the social harm of the act are not considered significant
• there is no uncertainty about the circumstances of the act
• The perpetrator has not yet been punished for intentional crime
• the perpetrator's attitude, his characteristics and individual conditions and the way of life to date justify the presumption that, despite the cancellation of proceedings, he will comply with the legal order and in peculiar he will not commit the offence.
• the offence is punishable by a punishment of up to 5 years (from 1 July 2015) imprisonment.

The degree of social harm of action and conditional dismissal

The degree of social harmfulness of the act shall be assessed in the context of the wording of Article 115(2) of the Code of Circumstances which the court considers in the process of assessing the material content of the act.
The characteristics of the individual action, which specify these circumstances, find its degree of social harm and, with atypical occurrence of circumstances reducing social harm, may consequence in it reaching a degree of negligible, excluding criminality, or slight – enabling Concluding dismissal of criminal proceedings (yes: Olsztyn territory Court in judgement of 06 March 2014, Act VII Ka 1190/13).

Determination of the degree of social harm of the act

Evaluation the degree of social harm should take place from the point of view of the values strategy acceptable in society. Thus, only an act which, due to circumstantial factors of value, goes beyond threshold standards of harmfulness will be socially harmful.

In accordance with Article 115(2) kk, this degree is affected by:

• type of legal good infringed
• the nature of the infringement of the legal good
• the degree of the injury
• the way in which he commits, the way in which he commits
• the weight of the duties affected by the perpetrator
• intention character, motivation of the perpetrator
• the kind of precautionary rules breached and the degree of infringement of those rules.

The legislator so gives a closed catalog of determinants which find the degree of social harm to the crime. As the judicature rightly raises, the assessment of the degree of social harm to a peculiar behaviour should be always an overall assessment taking into account the circumstances referred to in Article 115(2) of the Code, and not the sum or the derivative of the partial assessments of 1 or another of those circumstances (judgment of 8 March 2012, act No SNO 5/12).

In conclusion, only a comprehensive and thorough assessment of all the above elements can lead to the determination of the degree of social harm of the act, including that the degree "is not significant". Nor should it be lost sight of the fact that, in order for a conditional remission of proceedings to be possible, it is besides essential to find the degree of blame, which cannot be crucial either (yes: judgement of the Sieradz territory Court of 21 May 2014, Act II Ka 99/14).

Reduced blame and conditional remission of criminal proceedings

It is essential to point out that focusing only on the assessment of the social harm attributed to the accused is not adequate to accomplish the expected effect of obtaining a conditionally redeemable sentence. It is crucial to remember that, in addition to the reduced degree of social harm, the condition of sine qua non conditional remission of criminal proceedings is simply a reduced degree of guilt.

The word ‘court may conditionally waive criminal proceedings if the wine and social harm of the act is not significant’ in Article 66. § 1 kk, for it uses ‘i’ combined condenser. . . . . . . . . . . . . . Both elements, therefore, both the social harm of the act and the wine, must be reduced.

Determination of the degree of guilt – circumstances depreciating blame

As it derives from the explanation of guilt, its degree is determined:

• recognition of the situation by the perpetrator and its legal assessment,
• the anticipation of carrying out a appropriate incentive process and making a legal decision,
• ability to control behaviour

(yes: P. Cardas, J. Majewski, On the 2 Meanings of Guilty in Criminal Law, Pip 1993, z. 10, p. 77), which in turn leads to the conclusion that the mitigating circumstances are derived from the circumstances excluding blame [E. Bieńkowska, B. Kunicka-Michaelska, G. Rejman (ed.), J. Wojciechowska, Criminal Code..., p. 1055].

All these conditions should be verified by the prism of the peculiar act and decently examined by the court of law. In the event that a crucial degree of social harm or of conditional guilt is established, the dismissal of the proceedings is not admissible, even if the perpetrator's attitude and his life-style to date deserve a affirmative assessment (yes: the Sieradz territory Court, in its judgement of 21 May 2014, Act II Ka 99/14).

The profession pursued – the impact on determining the degree of responsibility of the offender – examples from the case law

the territory Court of Olsztyn in its judgement of 6 March 2014, Act VII Ka 1190/13, stressed that since the suspect is simply a individual of public assurance – an worker of the state administration, only due to his public responsibilities is his legal awareness higherthan an average man.

In turn, the territory Court of Świdnica in its judgement of 20 July 2018, Act IV Ka 395/18, stated that in the present case, the fact that even if the suspect fulfils another condition for conditional remission (yet judicial inaccuracy) and is presently working as teacher, these qualities of the perpetrator do not alter the assessment of the degree of guilt and the social harm attributed to the act.

That court stressed that the proposed application to the suspect of conditional remission of proceedings is not legally justified, since in order to settle specified a final case, it is essential to assess, inter alia, the degree of responsibility of the perpetrator and the degree of social harm of the act at a negligible level (Article 66(1) kk). However, specified qualities cannot be attributed erstwhile the suspect acted deliberately, deliberately.

No uncertainty about the circumstances of the act

It is clear that it is essential to establish all the grounds for the defendant's criminal liability for a conditional dismissal. There can so be no uncertainty that the accused has fulfilled all the features of the alleged criminal offence and that the conditions of liability essential to respect him as the perpetrator of the offence have been fulfilled. These facts must be undisputed.

The Court of First Instance should carry out an in-depth examination of the facts of the case by establishing whether these conditions have occurred cumulatively. The court must then, after ascertaining the unlawful conduct of the accused, explain the elements in question and the subject substance of this act which would have the effect of assessing both the degree of his social harm and the degree of his culpability (yes: judgement of the ultimate Court of 20 October 2011, act No III KK 159/11).

Confession and conditional dismissal

The defendant's confession to the alleged act is not a statutory condition for the usage of a conditional redemption institution. So if the suspect does not plead guilty, but collected evidence There is no uncertainty about his actions and the essential circumstances of the act, there are no obstacles to the conditional remission of proceedings (yes: T. Kozioł, Conditional remission of criminal proceedings. Warsaw 2009, pp, 96-97 ).

The defendant’s position on the conditional remission of proceedings is so completely indifferent to the ruling authority (yes: judgement of the territory Court of Piotrków Trybunalski of 16 February 2018, No. IV Ka 80/18).

Condition of prior criminality of the offender with conditional dismissal

The condition of prior criminality of the offender is not met by persons previously punished for any intentional crime, regardless of its similarity to the now accused act and the kind of punishment previously imposed.

The impunity of a wrongdoer for an intentional crime, as it is aptly raised in doctrine, is essential Prognostic factor for the intent of assessing whether the same offender, despite the termination of the proceedings, will comply with the legal order and in peculiar will not commit the offence again (video A. Zoll [ed.], Penal Code. General. Commentary, Vol. I, Kraków 2007, p. 834; Z. Sienkiewicz [in:] M. Bojarski, J. Gezek, Z. Sienkiewicz, Penal Law Material. General and peculiar Part, Warsaw 2010, p. 347).

If, therefore, this premise of impunity is placed among those which are linked to a affirmative criminological forecast, then only the perpetrator who will be convinced by the court of law that the act recognised was an isolated incident in his life and in the future he will not commit a crime, he can benefit from the benefits of conditional release of proceedings.

The concept of prior criminality of the offender

It should besides be noted that the erstwhile penal code in the doctrine and jurisprudence has developed the view that a prior criminality of the offender should be assumed in the event of withdrawal. Similarly, it cannot be regarded as a criminal individual to whom a conditional criminal procedure has previously been terminated, or to which the proceedings were dismissed due to the negligible social harm of the act (yes: Resolution of the Joint Criminal and Military Chambers of the SN of 29 January 1971, VI KZP 26/69, OSNKW 1971, z. 3, item 33).

Conditional termination of proceedings and deficiency of validity of conviction

In view of the anticipation of applying this investigating institution, it is of course crucial not to issue a erstwhile conviction, but to date on which the judgement was final. The grounds for ‘inaccuracies for intentional crime’ under Article 66(1)(k) concern final convictions which occurred until the date of judgement on conditional remission of proceedings (yes: judgement of the ultimate Court of 1 October 2010, II KK 141/10, OSNKW 2010, of 11, item 102; vote of B.J. Stefańska, Ius Novum 2011, No 1, pp.193-196; judgement of the ultimate Court of 17 May 2000, V KKN 104/00, Lex No 50954).

Misleading the court as to prior criminality by the defendant

The fact that the condition of non-criminality for an intentional offence, as set out in Article 66(1) of the Code, does not find the limited state of the court's cognition on the date of the conditional termination of proceedings (resulting from the deficiency of current information on the conviction and its validity, e.g. from the National Criminal registry or from any another failure of the court, or the case, or even the introduction of a procedural authority in error), only objectively existing reality (provided even after the ruling) characterising the legal situation of the perpetrator (yes: ultimate Court judgement of 17 May 2016, Act No III KK 28/16).

Positive criminological forecast

It is imperative for the court to take a reasoned presumption that the perpetrator's attitude, his qualities and individual conditions and the way of life to date justify the presumption that, despite the withdrawal of the proceedings, he will respect the legal order, in peculiar he will not commit a crime (yes: judgement of the Sieradz territory Court of 21 May 2014, Act II Ka 99/14).

As has already been said, pleading guilty is not a essential condition for applying the advantage of conditional dismissal. However, the attitude presented by the perpetrator, including the attitude to the act already committed, is 1 of the essential grounds for acceptance positive criminological forecastwhich plays an crucial function in the application of conditional termination.

The critical attitude towards the crime committed, the awareness of the reprehensibility of conduct, the expression of remorse and regret due to the violation of the law, the apology of the victim – this is in addition to the individual characteristics of the perpetrator and the way in which he lived, the circumstances allowing him to accept that, despite the conditional remission of proceedings, and thus not to punish, the perpetrator would not return to the way of the crime and would respect the applicable legal order.

It is essential that the perpetrator of his own attitude confirmed unequivocally full awareness of the reprehensibility of his actions to which he violated the right protected by the law and gave him the reflection that not respecting the law is something abstractly undesirable, but causes harm to a peculiar person.

Building a affirmative criminological forecast of the accused on the basis of the very fact of his impunity, young age and actions without premeditation, influenced by emotion no basis to accept that, through the benefit of conditional termination of proceedings, the accused will make and establish the imperative of respect for the law.

It is besides essential to analyse the defendant's attitude following the violation of the law, as it is an crucial exponent of the perpetrator's intellectual attitude to the law. The manifest in a clear way that the perpetrator himself sees the wrongness of his actions, sincerely regrets his actions and cuts off from him only the likelihood that, despite not being punished, the law will not be broken in the future (yes: judgement of the Gliwice territory Court of 17 June 2016, ref. Act VI Ka 311/16).

Changing the defendant's attitude

The Warsaw-Prague territory Court in Warsaw in its judgement of 14 March 2017, Act No VI Ka 1567/16, in the case concerning the suspect of physical and intellectual abuse of his wife in which the suspect was besides temporarily arrested, he stated that since the suspect started matrimony therapy and yet accepted the request to work on changing his attitude and, together with his wife, rebuilds matrimony relations for the benefit of the full family, in peculiar 5 minors, it is hard to recognise that the defendant's individual qualities and conditions do not warrant a affirmative criminological forecast.

On the contrary, the court held that, in the light of the defendant’s current attitude and his attempts to repair the matrimony relation and the defendant’s inaccuracies, it should be considered that the defendant’s individual qualities and conditions justify the presumption that, despite his resignation, he would respect the legal order and in peculiar would not commit the offence.

Obligation to make good the harm and the work to repay the proceedings conditionally

Pursuant to Article 67(3) of the Treaty, the associate State afraid shall, by way of a conditional remission of the criminal proceedings. The Court of First Instance shall impose an work on the offender to make good the harm in full or in part and, where possible, besides to make good the harm suffered or, alternatively of those obligations, to regulation on the attachment. Of course, the literal wording of the provision indicates that the Court of First Instance mandatory, erstwhile the proceedings are terminated, it is the work of the parties to declare these compensatory measures whether they have requested specified a decision.

This provision should be understood as meaning that the court imposes an work to make good the harm in full or in part, whenever it applies to a individual subject to conditional remission of proceedings if the offender has caused the offence attributed to him and This harm inactive exists at the time of judgment. The mention to Article 67 §3 kk , as with the another compensatory measures , is intended to compensate for the harm caused by the offence, which clearly means that it can only be ruled if there is an unmet injury to date, or when, at the time of the ruling, there is inactive a feeling of harm to the victims.

Pursuant to Article 415 §2 kpk, where an work to make good harm or compensation for harm suffered or an attachment to the victim does not cover all the harm or do not constitute full compensation for any harm suffered, the victim may prosecute additional claims in civilian proceedings.

Compensation for violating individual property

When we are dealing with specified a crime and circumstances, which show that there has been no material, material or material damage, there has besides been a violation of the individual property of the victim, the court may then declare the work to make amends for the harm suffered or to replace it.

The measures decided pursuant to Article 67(3) kk (the work to remedy harm in part and in full, the compensation for the harm suffered and the attachment) are strictly compensatory. They are civilian measures in material criminal law.

The prognostic value of these obligations, erstwhile imposed on the offender pursuant to Article 67 §3 k , is not a derivative of any separate function of these measures (probative, educational, etc.), but only a reflection of their compensation function and the circumstances in which they are judged (in connection with conditional remission of proceedings, which may be taken, among others, erstwhile the perpetrator evades the duties imposed on him) (so Prof. Jarosław Majewski, Criminal Code, Comment on Changes 2015, Wolters Kluwer SA, 2015).

Reparation and forgiveness of the victim

The territory Court of Radom in its judgement of 8 June 2018, Act V Ka 448/18, pointed out that if, in the case of the victims, they reconciled with the accused and forgave him, as evidenced even by the settlement concluded between the parties before the mediator, and did not make any another claims against him – so can't so talk about the existence of a feeling of harm on the part of the victims, and there is no reason to justice compensation for the harm suffered, and thus besides the attachment to the place of redress.

Reapplication of conditional redemption in the same case

The Warsaw-Prague territory Court in Warsaw in its judgement of 14 March 2017, Act No VI Ka 1567/16, erstwhile referring to the anticipation of re-applying a conditional waiver institution in the same case, he concluded that no of the provisions of criminal law not prohibited the re-conditional remission of criminal proceedings in the same case. That court pointed out that the applicant was incorrect to rise the argument against the reconditional dismissal of the proceedings that the Court of First Instance created the condition of the alleged ‘eternal failure’ of the case.

Trial period related to conditional remission of proceedings

Conditional remission shall take place for a trial period of 1 to 3 years and shall run from the finality of the judgment.
The dimension of the trial period is determined by the court's designation that the period in question will let to verify a affirmative forecast of the defendant's further conduct, so that, despite not having conducted the trial against the accused and convicted of the offence, it will not in future violate the applicable legal order.

By conditionally dying criminal proceedings, the court may, during the trial period, surrender the offender under the supervision of a probation officer or a trustworthy person, an association, an institution or a social organization whose activities include the care of rearing, preventing demoralisation or assisting convicted persons.

Obligation of the court to find the period of trial under conditional remission

Pursuant to Article 67(1) of the Rules of Procedure, the court is obliged to find the time of the trial utilizing conditional remission of proceedings. The determination of the duration of conditional remission of criminal proceedings may take place only in a judgement in which that trial measurement has been decided, indicating that the legal basis for determining it in the wording of the judgement must be Article 413(1)(5) (yes: judgement of the ultimate Court of 3 October 2008, III KK 167/08, Lex No 465878).

The failure of the court to find the time of the trial, in view of the impossibility of determining erstwhile the trial period will pass, takes place from gross insult the conditional termination of the proceedings, since it is not possible to specify it at the phase of the enforcement proceedings (judgment of 24 March 2017, Act V KK 19/17).

Responsibilities of the offender on conditional dismissal

By conditionally waiving criminal proceedings, the court may impose on the offender the obligations referred to in points 1 to 3, 5 to 6b, 7a or 7b of Article 72(1):

1) information on the duration of the trial,
2. apology of the victim,
3) the exercise of the work to keep another person,
5) refraining from alcohol abuse or the usage of another drugs,
6) undergoing drug therapy,
6a) undergoing therapy, in peculiar psychotherapy or psychoeducation,
6(b) participation in corrective and educational impacts,
7a) refraining from contacting the victim or another persons in a certain way or from approaching the victim or others,
7b) leave the premises occupied together with the victim.

In addition, the court may order the cash benefit referred to in Article 39(7) or the driving ban referred to in Article 39(3) to 2 years.
Article 74 kk shall apply mutatis mutandis to any of these obligations.

Driving a motor vehicle under the influence of alcohol and conditional cancellation of proceedings

The territory Court of Czestochowa in its judgement of 5 January 2017, Act VII Ka 1005/16, in the case of the suspect driving the vehicle after consumption of alcohol which led to a collision with another decently moving vehicle, he concluded that both the degree of responsibility of the accused and the degree of social harm of the alleged act could not be considered insignificant in the reality of the case, since the accused is adult and consciousthat driving a mechanical vehicle under the influence of alcohol is not only prohibited, but besides highly reprehensible and risky, due to the fact that even the smallest amount of alcohol in the blood importantly reduces the psychophysical performance of man. The accused not only posed a real threat to safety in land traffic, but above all a threat to the wellness and life of another participants of the movement.

In that ruling, the court stated that it did not substance that the suspect expressed remorse and assured that he would not commit any crime in the future, nor that the suspect had undergone anti-alcoholic therapy after the incidental and that he was a hardworking man.

Court of the costs of conditional remission of proceedings

Pursuant to Article 629 kpk, Articles 627 and 628 (judgment of judicial costs in favour of the Treasury and expenses in favour of an auxiliary prosecutor) shall apply mutatis mutandis in the event of conditional remission of proceedings against the accused.
In the case of an appeal, no substance who brought the appeal, the costs of the appeal shall be determined on the basis of the general principles described above if a conditional decision is changed.

The costs of the process include:
1) judicial costs;
2. reasonable expenses of the parties, including the establishment of a single defender or representative.

However, judicial costs include:
1) fees;
2) expenditure incurred by the Treasury since the beginning of the procedure.

Impact of conditional dismissal on civilian proceedings

Pursuant to Article 11 kpc, the uncovering in criminal proceedings of a final conviction for the offence shall be binding on the court in civilian proceedings. However, a individual who has not been charged may trust in civilian proceedings on any circumstances which exclude or restrict his civilian liability. Binding to civilian proceedings are only the findings contained in the conviction itself and not in its justification (yes: ultimate Court judgement of 6 March 1974, act No. II Cr 46/74, OSPIKA 3/75 item 63).

The ultimate Court concluded in its judgement of 20 September 1973 and in its resolution of 22 October 1974 7, which was entered in the book of rules of law that the determination of a conditionally redeeming conviction was not binding on civilian proceedings.

The determination of a final judgement conditionally waiving criminal proceedings in criminal proceedings should be assessed by a civilian court within the powers conferred on that court by Article 233 § 1 kpc (the rule of free assessment of evidence). These constitute essential circumstances of the case erstwhile the circumstances of the act are clear (yes: ultimate Court judgement of 20 September 1973, No. II PR 223/73, and Code of civilian Procedure). Comment Author: prof. USz dr hab. King Flag-Gieruszyńska, prof. dr hab. Andrzej Zieliński, art. 11).