Recidivism is defined as the return of the same perpetrator to a crime, with which the criminal law associates negative consequences. We can distinguish criminological and penitentiary recidivism as well as general and special.
Criminological recidivism means a repetition of any crime, regardless of whether the perpetrator has been previously convicted, while penitentiary recidivism occurs when the perpetrator is once again serving a prison sentence imposed for any crime, regardless of when and to what extent he served a prison sentence previously adjudged.
General recidivism, which occurs when the conditions of Art. 64 § 1 of the Penal Code, prevents the application of specific criminal law institutions to a case that has previously been punished for a crime of a specific type. For example, in the case of a perpetrator who has already been punished with a prison sentence exceeding 5 years, conditional discontinuation is excluded. On the other hand, special (or special) recidivism consists in – facultative or obligatory – intensification of the penalty for the perpetrator punished for a crime of a specific type, who again committed a crime of a specific type within a specific period of time, after serving a specific part of the adjudicated penalty of imprisonment. Within the framework of special recidivism, ordinary (or basic) recidivism is distinguished, and multiple recidivism – in the case of which a return to the crime of the same type is required.
The regulation on special recidivism works to the detriment of the perpetrator, therefore it must be interpreted strictly. Conviction based on Art. 64 § 1 of the Penal Code, i.e. as part of ordinary or otherwise simple special recidivism, is conditional upon the fulfillment of the following conditions:
- the offender committed an intentional crime,
- he was sentenced to imprisonment for them;
- has served at least 6 months of the sentence imposed for this offence;
- commits an intentional crime similar to the one for which he has been convicted;
- commits them within 5 years of serving at least 6 months of the imposed sentence.
The concept of an intentional offense includes acts based on intent within the meaning of Art. 9 § 1 of the Penal Code, as well as on the combined subjective side, where the output type is carried out intentionally, while only the consequence (consequence) of a prohibited act is covered by unintentionality. The intentional commission of a prohibited act must have an intellectual basis, the perpetrator commits the act with direct intention, i.e. when he wants to commit a crime, or with possible intention, i.e. when anticipating the commission of a prohibited act, he agrees to it. In the first place, therefore, it is about the awareness of the perpetrator.
Another premise of juridical recidivism is the similarity of the crimes committed by the perpetrator. The basis for determining the similarity of crimes is what has been covered by the hallmarks of an intentional crime. Based on Article. 115 § 3 k.k. three criteria of crime similarity are derived. It is a closed catalog, and these criteria are independent, which means that the existence of at least one determines the similarity of crimes. These include: gender identity, the use of violence or threats of violence when committing a crime, and acting for financial gain.
Only a conviction may be the basis for a special recidivism, but it may also be a conviction issued by a court in another European Union country. The judgment constituting the basis for the application of the structure specified in art. 64 § 1 k.k. there will be no judgment conditionally discontinuing the proceedings, no judgment under which the court refrained from imposing a penalty, nor imposing a fine or restriction of liberty.
Due to the fact that the offender must serve at least 6 months of imprisonment, it should be stated that the premise for special recidivism is sentencing to imprisonment of at least this length. It must be a penalty imposed in the judgment, but it does not have to be an absolute penalty – then, the condition is to order its execution. The penalty of imprisonment may be covered by a cumulative sentence, however, assigning a recidivism in a case for another offense will be possible only if the individual penalty for a similar and intentional offense was not less than 6 months.
It is worth emphasizing, however, that in accordance with the jurisprudence of the Supreme Court, the penalty of imprisonment, which is the basis for special recidivism, is not a substitute penalty (judgment of October 20, 2022, I KK 285/22), nor a stay in a correctional facility. On the other hand, a sentence served in the electronic supervision system can already be considered as such a basis (judgment of 13 July 2022, IV KK 198/22).
In addition, the legislator provided for a 5-year limitation period for recidivism, which means that a similar intentional crime is to be committed within 5 years of serving at least 6 months of imprisonment. A new crime – at least a fragment of it– it must be committed during the period when this 5-year period is running.
Finally, it should be recalled that Art. 64 k.k. does not modify the limits of the statutory threat of punishment, but belongs to the judicial scope of the finally imposed penalty.
