In the previous article on criminal law, we discussed the situation in which a given act may constitute either a criminal offence or a petty offence (wykroczenie), depending on its particular circumstances. There exists, however, a situation in which it is necessary to classify a single act simultaneously as both a criminal offence and a petty offence.
Concurrence of Offences
A fundamental principle of both criminal law and petty offences law is that a single act may give rise to liability only once. Article 11 of the Kodeks karny (Criminal Code) provides that the same act may constitute only one criminal offence, and where it fulfils the constituent elements defined in two or more provisions, the court convicts for a single offence. What, however, is the position where a single act fulfils the constituent elements of both a criminal offence and a petty offence?
This situation arises in the case of the so-called ideal concurrence of offences (idealny zbieg czynów). It is possible for a single act by the perpetrator to fulfil the constituent elements of both a criminal offence and a petty offence. In such circumstances, it is not possible to convict in a single judgment for both a criminal offence and a petty offence — if for no other reason than the entirely different procedural regimes applicable to each — and a different solution to this problem is therefore required.
The Correct Approach
The resolution of this situation flows from Article 10 of the Kodeks wykroczeń (Petty Offences Code). That provision requires that proceedings be conducted in respect of both the criminal offence and the petty offence; where a penalty or punitive measure of the same kind is imposed in each set of proceedings, the more severe of the two is enforced. This means that if a person is convicted of a criminal offence and sentenced to a fine of 100 daily units at PLN 50 each, and also convicted of a petty offence and fined PLN 1,000, they will be required to pay only PLN 5,000 (being the criminal fine). Were they to receive a custodial sentence for the criminal offence, the petty offence fine would remain payable independently.
Practical Consequences and an Illustration
The solution described above may appear to be an unnecessary and purposeless complication; in practice, however, it is of fundamental importance, particularly for the protection of victims. This is well illustrated by an example drawn from my own practice, involving clients whom I have represented. Two individuals were injured in a road traffic accident: one sustained bodily harm lasting more than seven days (Article 177 § 1 of the Kodeks karny), whilst the other suffered only minor injuries (Article 86 of the Kodeks wykroczeń). Two sets of proceedings will be conducted against the perpetrator — criminal proceedings and petty offence proceedings — and in each of those proceedings the injured party will be entitled to seek compensation and damages. Were liability to be confined to the criminal offence alone, the person who suffered the less serious injuries would be compelled to bring a separate civil claim.