In accordance with Article 46(1) of the Criminal Code, in the event of conviction, the court may regulation and, at the request of the victim or of another individual entitled to judgment, by applying the provisions of civilian law, the work to make good, in full or in part, the harm caused by a criminal offence or compensation for any harm suffered; the provisions of civilian law on the anticipation of judging the pension shall not apply.
If the decision of that work is greatly impeded, the court may decide, instead, to pay up to PLN 200,000 to the victim and, in the event of his death as a consequence of the offence committed, to the individual closest to whom the situation of the victim has importantly deteriorated. Where more than 1 specified individual is established, the attachment shall be decided on behalf of each of them.
Nature of the institution to compensate for crime-related harm
In the current wording of the Criminal Code, the work to make good damage, compensation for harm and attachment has lost the nature of the criminal measures and has become civilian law institutions fulfilling the functions it had previously fulfilled to take account of the adhesive action (so: justification for the draft amendment of the Law print no. 2393/VII word of office and order of the ultimate Court of 19 January 2017, I KZP 15/16, OSNKW 2017, no. 3, item 14).
The ultimate Court, in its order of 22 February 2019, No. IV CSK 597/17 (OSNC-ZD 2020, No. 2, item 29) stressed that after the amendment of the Criminal Code by law of 20 February 2015, the work to make good harm was excluded from the category of criminal measures and included in the category of compensatory measures established at the time.
Compensation is simply a form of monetary compensation for non-material damage, and so primarily serves as compensation, mitigating the effects of non-material injury in the form of negative experiences related to intellectual and physical suffering and resulting from personal property infringements. Circumstances affecting the level of redress, as well as the criteria for their assessment, should be considered on a case-by-case basis in relation to the peculiar individual injured (so: ultimate Court judgement of 26 November 2009, III CSK 62/09, OSNC — ZD 2010, No 3, item 80, LEX No 738354; ultimate Court judgement of 8 October 2008, IV CSK 243/08, LEX No 590267; ultimate Court judgement of 22 June 2005, III CK 392/2004, non-publ.; ultimate Court judgement of 17 September 2010, II CSK 94/10, non-publ.).
Compensation for harm is simply a form of compensation aimed at compensation of individual damage (non-material damage), of course, to the degree that specified compensation, due to the circumstantial nature of these goods, is possible through cash benefits. The literature emphasizes the optional and thus the discretionary nature of redress. The financial compensation for the harm suffered is primarily compensation due to the fact that it is an approximate equivalent of the non-material injury suffered by the victim. It is widely believed that It should make up for the suffering suffered, the failure of the joy of life, and make it easier for him to overcome negative intellectual experiences. (yes: A. Cisek [in] civilian Code. Comment ed. Edward Gniewek Year of issue: 2010 Publisher: C.H.Beck).
The anticipation of compensation for incorrect caused by a crime
Since compensation is made by the application of civilian law, it must be stated that, in accordance with civilian law, only certain acts prohibited under the punishment may form the basis for a judgement of compensation for harm. It is so mainly:
- personal injury and wellness disorders (Article 444(1) kc),
- imprisonment and rape (Article 445 §2 kc) and finally
- violation of individual property (Article 448 kc)
(yes: Gliwice territory Court of 20 April 2018) Ref. Act VI Ka 225/18).
The territory Court of Gliwice in its judgement of 14 May 2018. Ref. act V .2 Ka 132/18 considered that in the doctrine it is assumed that a decision to make amends for an offence is possible only if civilian law allows compensation for the wrong, namely Articles 445 kc and 448 kc.
Judgment on compensation for crime-related harm
The court may besides issue a judgement on compensation. The decisions of the criminal court issued on application and of their own motion are positive. That court does not issue a negative decision nor does it leave it without examination (yes: the ultimate Court resolution of 3 December 2021, Ref. Act III CZP 84/20).
Application of the provisions of civilian law tocompensation for crime-related harm
The civilian law nature of the work arising from the criminal act derives from the wording of Article 46(1) k.k., according to which the criminal court decides on the work to make good harm in full or in part, and the provisions of civilian law do not apply only to the limitation of claims and the anticipation of judging the pension. This means that, in addition to these exceptions, the provisions of civilian law decide on compensation due for harm caused by a criminal offence which is an illegal act within the meaning of civilian law (yes: Damian Wąsik in: Glos to the judgement of the Court of Appeal in Katowice of 9 May 2018, V ACa 409/17).
In ruling on the compensatory measurement referred to in Article 46(1) k.k., the court should find precisely the amount of the damage. At the same time, account should be taken of the explanation developed in the judicature that the decision in criminal proceedings on compensation does not alter the conditions on which the compensation claim is based and the rules governing the determination of the amount of compensation, thus maintaining a civilian law nature (yes: judgement of the Szczecin Court of Appeal of 30 November 2016, ref. I ACa 712/16, LEX No 219508).
The amount of compensation for the incorrect caused by the crime
In its judgement of 29 May 2008 in Case II K 78/08 LEX No 420389, the ultimate Court indicated that the amount of the compensation should take into account the current conditions and the surviving rate of the society in which the victim resides. The closest point of mention should be the standard of surviving of the individual entitled to redress, as his or her surviving rate will affect the kind of consumer spending likely to offset the suffering suffered..
The amount of compensation for the injury suffered shall not be determined by the question of the property and profit opportunities of the accused. In particular, the suffering of the victim should be assessed (yes: the territory Court of Gliwice in its judgement of 14 May 2018. Ref. act V .2 Ka 132/18).
In view of the compensatory nature of compensation for harm, it is widely believed that the determination of an appropriate sum of compensation must not consist in only granting a symbolic amount of money. On the contrary, the amount of compensation should correspond to the amount of harm determined (cancer: A. Olejniczak in: A. Kidyba (ed.), civilian Code. Comment. Tom III. Commitments – general part, comment on Article 445 k.c., thesis 20, similarly: A. Cisek [in] civilian Code. Comment ed. Edward Gniewek Year of issue: 2010 Publisher: C.H.Beck).
The fundamental criterion determining the amount of compensation due is, first of all, the size of the harm suffered by the victim; the compensation is intended to service as compensation. This clearly indicates that The criteria to be taken into account for the determination of the compensation amount are not the circumstances relating to the defendant's commercial opportunities and his estate, as they do not affect the degree of the harm caused or the degree of the offender's fault. It cannot be concluded that the ‘value’ of the same harm would be differentiated according to the prosperity or commercial capacity of the perpetrator of the offence (yes: judgement of the Court of Appeal in Gdańsk of 5 September 2018 in Case II AKa 252/18)
On the another hand, the Court of Appeals in Krakow in its judgement of 15 December 2015, No. II AKa 270/15, LEX No. 2071950 indicated that compensation for harm is intended to compensate for non-material damage, which is linked to the violation of purely subjective human experiences, physical and intellectual suffering, including stress and physical and intellectual suffering of the victim. The amount of compensation should so be determined within reasonable limits, on the 1 hand adjusted to the level of harm and, on the another hand, cannot be excessive, excessive, detached from the life rate of society, and so determined within reasonable limits.
Compensation must not scope an excessive value in relation to the harm suffered and must be maintained within reasonable limits and adapted to the material relations in society. This is justified on the basis of nonsubjective criteria relating to the assessments adopted in society (yes: judgement of the Court of Appeal in Gdańsk of 13.02.2013, II AKa 25/13, judgement of the Court of Appeal in Lublin of 29.03.2012, II AKa 21/12, or judgement of the Court of Appeal in Rzeszów of 31.01.2013, II AKa 3/13).
The award by the Court of First Instance of an adequate sum of compensation for the harm suffered, pursuant to Article 448 k.c., is simply a substance of advanced assessment and depends on the designation of the judge, so a modification of the amount awarded may only happen in the event of a breach of the criteria for determining it, of disproportionate overestimation or understatement of that amount (yes: judgments of the ultimate Court of 4.02.2008, III KK 349/07, Lex No. 395071 and 5.12.2006, II PK 102/06, OSNP 2008/1 – 2/11).
It should be pointed out that the concept of ‘adequate sum’ utilized in Article 448 is indeterminate, however, the Court of First Instance should take into account all the circumstances affecting the degree of the injury suffered. According to the doctrine, the amount of compensation should correspond to the amount of harm established, since the provision is about equivalent to the lost goods (yes: A. Cisek (in:) E. Gniewek, Commentary, 2008, Art. 445, nb 3). Derogations from this regulation should be absolutely exceptional.
The intent of the compensation is to repair non-injury resulting from physical and intellectual suffering, and therefore, by fixing the compensation amount, the degree of physical suffering associated with the occurrence of the accident and the pain resulting from the injury and long-term treatment (so: judgement of the Court of Appeal of Białystok of 1.2.2005, III AP 9/04, OSA 2005, No 12, item 33).
The adequacy of the compensation amount, as provided for in Article 445(1) kc, is intended to alleviate the harm suffered, while not being a origin of enrichment (yes: judgement of the ultimate Court of 9 February 2000, act No. III CKN 582/98, non-publ.).
This amount may not be excessive in relation to the injury suffered, but must be ‘adequate’ in the sense that it should be maintained within reasonable limits, taking into account the injury suffered by the injured person, in line with the current conditions and the average life rate of the society (yes: ultimate Court judgement of 28 September 2001, act No III CKN 427/00, non-publ.).
The basic criterion for determining the amount of compensation due to the injured individual is, therefore, the degree and strength of the injury suffered, assessed according to nonsubjective measures, and the degree of adverse consequences for the injured individual resulting. In turn, the determination of the ‘appropriate’ sum of compensation granted requires consideration of all the circumstances of the case, in peculiar the nature of the harm suffered, the severity of the infringement and the degree of the responsibility of the offender and the property situation of the debtor (yes: judgement of the Court of Appeal in Warsaw of 22 February 2004 II ACa 641/03, publ: Wokanda 2004, No 9, p. 44, judgement of the ultimate Court of 16 April 2002, V CKN 1010/00 publ: OSNC of 2003, No 4, item 56).
Article 56 of the Criminal Code states that the provisions of Article 53 (the Criminal Procedure Directive), Article 54(1) (the Criminal punishment Rules for minors) and Article 55 (the Criminal punishment Individualisation Principle) do not apply (even as appropriate) to the work to make good the harm caused by the offence or to make good the harm suffered.
Judgement of compensation in criminal proceedings and investigation of the unmet part of the civilian proceedings
A judgement of compensation or redress pursuant to Article 46(1) or an attachment pursuant to Article 46(2) shall not prevent the investigation of an unfulfilled part of the claim by civilian proceedings (Article 46(3) kk).
If the work to make good the harm or compensation for the harm suffered or the victim’s attachment does not cover all the harm or does not constitute full compensation for the harm suffered, the victim may prosecute additional claims in civilian proceedings (Art. 415 §2 kpk).
This should be divided into the case law of the ultimate Court, which is now confirmed in Article 415(1) of the General Court, according to which the pursuit of property claims in criminal proceedings is treated as an equivalent way of their investigation in relation to civilian proceedings. Between these proceedings, there is simply a relation that, at the time of the suspension of 1 of these proceedings, the second of these proceedings cannot take place and, after a final decision on the claim, it should not be permissible to re-judge in 1 of them the same part of the claim.
Therefore, the position expressed in the ultimate Court judgement of 20 December 2018, II CSK 754/17, is correct that the re-judgment of the same proportion of compensation in civilian proceedings where it was previously decided to grant it in a final judgement of a criminal court justifies the allegation of the seriousness of the substance judged.
However, this consideration cannot be applied without further reservations to the decision of the criminal court of its own motion to make amends for the incorrect suffered, since compensation for the incorrect suffered is of a different nature than compensation. It is indivisible. However, the criminal court will not always have all the elements of the facts essential to find the harm suffered by the victim, including the claims of the victim on this aspect. The Criminal Court shall regulation only on the basis of the material at its disposal for the intent of ruling on criminal liability (p. 88 of the grounds for the draft amendment of the Law, printing No 2393/VII of the word of office).
The scope of the evidence and, therefore, the procedural material applicable to the determination of the amount of compensation for the harm suffered by the civilian court is of greater importance than the criminal court. For this reason, criminal law allows for the determination of part of compensation (Article 46(1) of the Code) and allows, under circumstantial provisions of civilian law, to analyse in civilian proceedings the further part of compensation or higher part of compensation (Article 46(3) of the Code and Article 415(2) of the Law).
The statutory amendments providing for the anticipation for a criminal court of its own motion to make good the harm suffered by the victim in connection with the offence were intended to improve the situation of the victim as a consequence of the government under consideration should not be interpreted as making it hard or impossible to prosecute those claims. specified an effect, contrary to the prospects of the standard set out in Article 45(1) of the Constitution, would lead to an explanation that the victim, who was tried in a criminal judgement of his own motion for compensation for the harm suffered, could not, in civilian proceedings, make compensation to a further degree (yes: the ultimate Court resolution of 3 December 2021, Ref. Act III CZP 84/20).
The Court of Appeal in Szczecin, in its judgement of 29 May 2018, No. I ACa 17/18, LEX No. 2529539, held that, in the case-law, it is correct to point out that, in the event that the offender failed to fulfil the benefit resulting from the conviction and in the absence of an identity of the parties to the civilian process and of the offender on whom the criminal court imposed the work to pay the compensation, it is not justified to claim that there is an accumulation of the value of the compensation (summing the benefits awarded to the victim and the individual liable for solidarity). The compensation granted in the criminal judgement should be accounted for for the compensation granted in civilian proceedings against the perpetrator of the harm or against the individual liable jointly and severally (relatively in solidum) .
Compensation to the victim of communications offences
Pursuant to Article 47(3) kk, in case of conviction of the offender for the offence referred to in Article 173, Article 174, Article 177 or Article 355, if the offender was intoxicated or under the influence of an intoxicating agent or escaped from the scene of an accident, the court shall decide the attachment to the victim and, in the event of his death, as a consequence of the offence committed, the attachment to the nearest individual whose life situation was severely affected by the death of the victim. Where more than 1 specified individual is established, the attachment shall be decided on behalf of each of them. If it is not possible to identify specified a person, the court shall decide on the attachment of the Fund for Harmful Assistance and Postpenitentiary Assistance. The court shall decide at least PLN 10,000.
This provision shall not apply if the court has ruled that the harm caused by the offence has been caused or that the harm suffered has been compensated for more than PLN 10,000 (Article 47(5)).
Compensation and punishment for the crime
Pursuant to Article 53 § 2b kk, which enters into force on 1 October 2023, 1 of the extenuating circumstances for the intent of administering penalties and criminal measures is to make good the harm caused by the offence or to make good the harm caused by the offence.
Reparation and a Chuligan offense
In the event of conviction for an offence of a hooligan nature (referred to in Article 57a(1) kk), the court shall regulation on the victim, unless it decides to make good the damage, the work to make good the harm suffered or the work to make good the harm suffered pursuant to Article 46 kk. If the victim has not been established, the court may decide to pay tribute to the Fund for Harmful Aid and Postpenitionary Aid (Art. 57a. §2 kk).
Compensation and conditional remission of criminal proceedings
By conditionally waiving criminal proceedings, the court imposes an work on the offender to make good the harm in full or in part, and, where possible, besides to make amends for the incorrect suffered, or, alternatively of those obligations, to regulation on the attachment (Art. 67 §3 kk).
If the court deems it appropriate for the suspect to be able to agree with the victim in the substance of compensation or redress, it may postpone the sitting, setting a time limit for the parties. At the request of the accused and the victim, justified by the request to make arrangements, the court shall manage the applicable interruption or postpone the sitting (341 §3 kpk). The Court of First Instance shall take into account the result of the defendant's agreement with the victim in those matters (§ 4).
Criminal liability for evasion of compensation
The added amendment of the Criminal Code of 7 July 2022 Article 244c kk (entry into force on 1 October 2023) Article 244c(1) kk states that who is absconding from the execution of a judgement against the victim or the individual closest to him, for a criminal offence prosecuted by public prosecution, a compensatory measurement in the form of an work to make good the harm or compensation for the harm or abuse suffered shall be punishable by imprisonment from 3 months to 5 years.
The individual liable for the offence referred to in paragraph 1 who has carried out the compensatory measurement against him in its entirety shall not be liable to the punishment until 30 days after the date of the first interview as a fishy (§ 2).
The prosecution of this crime shall be at the request of the victim.
Compensation and conviction without trial
If Article 46 of the Criminal Code (declaration of the work to make good damage) does not apply, the court may make the application referred to in Article 335 kpk (application for conviction without trial) subject to compensation in full or in part or to compensation for any harm suffered (Art. 343 §1 kpk).
Compensation and parallel claim proceedings resulting from the offence
In the event of conviction of the suspect or conditional remission of proceedings in the cases referred to in the Act, the court shall decide on the victim, the work to remedy, in full or in part, the harm or compensation for the harm suffered. relation with the victim, the work to make good harm or compensation for the harm suffered shall not be made if the claim resulting from the offence is the subject of another proceeding or the claim has been finalised (Article 415 § 1 kpk).
Enforcement
An executive title should be given to enforce the judgment.
The court or referendar shall, at the request of the individual entitled, grant a declaration of enforceability to the judgement to be enforced (Art. 107(1) kpk).
Decisions imposing an work to make good harm or to make good the harm suffered and the attachment to the victim shall be regarded as decisions on property claims if they are fit for execution under the provisions of the civilian Procedure Code (§ 2).
These provisions shall apply mutatis mutandis to the work arising from a settlement concluded before a court or a referee, as well as to a settlement concluded in mediation proceedings.
Pursuant to Article 25(1) of the Code of civilian Procedure, enforcement of civilian claims, fines, cash benefits and court claims shall be carried out unless otherwise provided for in the Act. First of all, the civilian claims ordered to make good the harm or Reparation for Harm, and subsequent judicial claims (§ 3).
Articles 776 to 795 of the Code of civilian Procedure (Article 26 of the Code of civilian Procedure) shall apply to enforcement titles.
In the event of a decision of an work to make good the harm or compensation to a individual who has not participated in the case, the court, of its own motion and without levying any charge, shall send the enforcement title to the victim or to another individual entitled (Article 196(1) of the Code).
Reparation for the wrongly accused
The defendant, who has been acquitted or sentenced to a mild punishment as a consequence of the resumption of proceedings, cassation or emergency action, is entitled to compensation from the State Treasury for the harm suffered and compensation for the harm suffered, resulting from the execution of a full or partial punishment which he should not have suffered (Art. 552 § 1 kpk). This besides applies if, after the annulment of the conviction, the proceedings have been dismissed due to circumstances which have not been taken into account in the erstwhile proceedings (§ 2).
The right to compensation and redress besides arises in connection with the application of a protective measurement under the above conditions (§ 3). Compensation and redress shall besides be granted in the event of undoubtedly wrongful interim arrest or detention (§ 4).
However, a claim for compensation or redress shall not be granted to any individual who, in the intention of misleading the court or law enforcement authority, has made false announcement of the offence or of false explanation and has thereby caused an adverse judgement on the conviction, provisional arrest, usage of a protective measurement or detention (Art. 553 §1 kpk). but where a individual makes a declaration under the conditions laid down in Article 171(4), (5) and (7), i.e.
- asking questions suggesting the content of the answer to the individual questioned,
- influencing the statements of the individual questioned by coercion or unlawful threat,
- the usage of hypnosis or chemical or method agents affecting the intellectual processes of the individual questioned or intended to control the unconscious reactions of his or her body in connection with the hearing.
as well as where the harm or injury was caused by an excess of powers or a failure to comply with the work by a public officer.
Explanations, statements and statements made in/under conditions excluding freedom of expression or obtained contrary to those prohibitions cannot constitute evidence (§ 7).
In the event of the defendant’s contribution to the issuing of the judgments cited above, Article 362 of the civilian Code (contribution of the injured organization to the insurrection or increase of damage) shall apply mutatis mutandis (§ 3).
A claim for payment of specified a limitation shall be made 1 year after the date on which the judgement giving emergence to recovery was final, in the event of a provisional arrest, from the date on which the decision ending the proceedings was approved and, in the event of detention, from the date on which the decision was released (Article 555 kpk).
