Provision in the form of Art. 37a of the Act of June 6, 1997 The Penal Code (i.e. Journal of Laws of 2022, item 1138 – hereinafter the CC) is in force in the Polish legal system only from July 1, 2015. It is a kind of „gate” for the authority applying the law , enabling him to impose a non-custodial sentence against the perpetrator in the form of restriction of liberty or a fine in a situation where the legislator provides for a given type of crime only a penalty of deprivation of liberty.
According to the current code regulation, if the crime is only punishable by imprisonment not exceeding 8 years, and the penalty of imprisonment imposed for it would not be more severe than one year, the court may instead of impose a penalty of restriction of liberty not lower than 3 months or a fine not lower than 100 daily rates, if at the same time there is a penalty measure, compensation measure or forfeiture.
At the same time, in paragraph 2, the legislator makes exclusions as to the possibility of applying the above solution. The court cannot replace the penalty of deprivation of liberty with another non-isolation penalty in a situation where the case commits a crime, acting in an organized group or association aimed at committing a crime, or in the event of a fiscal offense. Additionally, the disposal of art. 37a of the Penal Code does not apply to perpetrators of terrorist crimes.
On the basis of art. 37a of the Penal Code So far, quite extensive jurisprudence has been developed to interpret the content of the regulation under consideration. In one of the judgments, the Supreme Court took a position on the method of imposing a non-custodial sentence. The adjudicating panel concluded that the wording of Art. 37a of the Penal Code in every legal state, it makes it impossible to impose, apart from the penalty of restriction of liberty, a fine (Judgment of the Supreme Court of November 18, 2021, V KK 479/21, LEX No. 3327676). courts the possibility of imposing on the perpetrators only a spontaneous penalty of restriction of liberty or a spontaneous penalty of a fine, while excluding the total imposition of the above-mentioned sanctions.
The thesis from the 2016 Supreme Court’s decision, ref. No. II KK 361/15, OSNKW 2016, No. 6, item 39. According to which any type of offense punishable by a single penalty of deprivation of liberty not exceeding 8 years is a type with an alternative punishment; Thus, the sanctioning norm is created from at least two provisions – Art. 37a of the Penal Code and the provision constituting the basis for the sentence.
One of the most recent judgments of common courts is the judgment of the District Court in Siedlce of 23 May 2022, ref. No. II Ka 157/22, LEX no. 3350517, in which the thesis is stated that the institution provided for in Art. 37a of the Penal Code is of an exceptional nature, and its essence is the unquestionable recognition that in a given case non-custodial penalties constitute a sufficient ailment for the perpetrator who does not need to be – even conditionally – isolated from society. A contrario, in the opinion of the adjudicating panel, the above should be understood as meaning that in a situation where a fine or a penalty of restriction of liberty for some reason would not meet the preventive and educational goals of the penalty, the court should impose a penalty of deprivation of liberty on the perpetrator.
Finally, it is also worth paying attention to the judgment of the SA in Warsaw of June 12, 2019, file ref. II AKa 251/18, LEX no. 2706356. The Warsaw court found there that, referring to the regulation under Art. 37a of the Criminal Code, the court is each time obliged to an individual approach and comprehensive analysis of a specific case. At the same time, the adjudicating panel revealed the will to prevent abuse by the authorities applying the law of the normative regulation analyzed above.
