According to Art. 115 § 2. When assessing the degree of social harmfulness of an act, the court takes into account the type and nature of the violated or threatened good, the extent of the damage caused or threatened, the manner and circumstances of committing the act, the gravity of the obligations violated by the perpetrator, as well as the form of intention, the perpetrator’s motivation, the type of violated precautionary rules and the degree of their violation.
In the case law of the Supreme Court, discrepancies in the interpretation of this provision can be observed: in accordance with the resolution of the Supreme Court of 15 May 2024 (II ZIZ 15/23), the circumstances listed in Article 115 § 2 of the Penal Code may affect the assessment of the degree of social harmfulness of the act if and only if they occur at all in a given case. For this reason, the provision of Article 115 § 2 of the Penal Code cannot be interpreted in such a way that in every case, when assessing the social harmfulness of an act, all the factors listed in this provision must be taken into account. It is also not the case that the assessment of the degree of each factor has to be made.
Meanwhile, earlier in the Judgment of 17 April 2024, the Supreme Court stated that the legislator, by formulating in Article 115 § 2 of the Penal Code normative premises for assessing the degree of social harmfulness of an act, built a closed catalogue of circumstances, each of which is characterized by legal importance. Omitting any of them in the assessment, or formulating one’s own circumstances, different from the statutory ones, and attributing them to fundamental importance, constitutes a violation of substantive law. Therefore, it is not appropriate to assess the degree of social harmfulness of a given conduct solely on the basis of a partial assessment based on individual elements
It cannot be denied that it would be justified for the Supreme Court to take a more unified position.
