Total penalty - how is the court entitled to combine the multiple penalties of the convicted person?


As a rule, the offender should receive a penalty adequate to the committed act. What if such a person has committed a number of crimes? It might seem that each act should be assessed separately and then the penalties are added up. Sometimes, however, such a combination of punishments would be an excessive penalty for the convict - the killer could receive a much lighter punishment than a thief who robbed several people for relatively small amounts. In order to prevent such situations from occurring, the provisions of the criminal law introduced the institution of an aggregate penalty.

The total penalty is adjudicated in the case of a coincidence of crimes, i.e. in a situation where the perpetrator has committed two or more crimes which are examined in one proceeding. In this case, the court first imposes penalties for individual offenses, the so-called individual penalties and then imposes a total penalty. The Polish penal system provides for a mixed system of combining penalties. There is the principle of absorption, whereby the most severe penalty absorbs other lighter penalties, and the principle of accumulation, which consists in adding up penalties for individual crimes.

What is the purpose of the aggregate penalty and when can it be applied?

The institution of an aggregate penalty is regulated in Art. 85 et seq. of the Penal Code (hereinafter referred to as the CC). The legislator's aim is primarily to perform preventive and educational tasks that the punishment is to achieve in relation to the convict. The joint penalty is also supposed to influence the shaping of the legal awareness of the society.

Pursuant to the provision of Art. 85 of the Criminal Code, in a situation where the perpetrator has committed two or more crimes and penalties of the same type or other subject to joint penalties were imposed for them, the court decides a total penalty. The first condition that must be met is therefore that the perpetrator has committed more than one crime. According to the judgment of the Supreme Court of November 22, 2005, V KK 129/05, both common crimes (sanctioned in the Penal Code) and fiscal crimes (under the Fiscal Penal Code) may be combined.

Another condition is that each of the judgments of the criminal court should be a conviction - no acquittal or discontinuance orders may be combined. However, a conviction does not have to be final - it can be a first-instance conviction.

Subsequently, it is required that the penalties imposed are of the same type or that they are generically different but can be combined. At this point, it should be emphasized that this condition applies only to originally imposed penalties. This was confirmed by the Supreme Court in the judgment of 20 February 2006, IV KK 1/06, stating that: "The Penal Code does not provide for the possibility of imposing an aggregate penalty as to alternative penalties, specified in place of the basic penalties of restriction of liberty or a fine". Which also means that the penalty of deprivation of liberty cannot be combined with a substitute penalty of deprivation of liberty issued in lieu of restriction of liberty.

If all the above-mentioned conditions are met, the court is obliged to impose an aggregate penalty, the principle of court decision-making does not apply in this matter.

It should also be added that currently the provisions of the Penal Code provide the possibility of combining previously adjudicated total penalties. Therefore, if, after the issuance of a cumulative judgment, there is a need to issue a new cumulative judgment, then as soon as it becomes final, the previous cumulative judgment loses its force.

What penalties and punitive measures can be combined?

At the outset, it should be mentioned that not only individual penalties issued in one criminal proceedings are combined. Penalties imposed by different courts in different proceedings can also be combined.

The penalties and penal measures that can be combined include:

  • graded penalties of the same type, i.e. fine, restriction of liberty and imprisonment;

  • restriction of liberty and imprisonment;

  • 25 years imprisonment with other penalties;

  • life imprisonment with other sentences;

  • timely punitive measures of the same kind.

There are, however, some exceptions to the above possibilities for combining penalties:

  • in accordance with Art. 85 § 3 of the Penal Code, the combined penalty cannot be imposed for an offense committed after the commencement of and before the end of the execution of another individual penalty or a total penalty. This means that the penalty committed while carrying out the rest of the penalties cannot be included in the total penalty;

  • penalties imposed by another European Union country are not subject to merger.

What are the rules for combining penalties?

The doctrine of criminal law adopts four systems of combining penalties, i.e .:

  • accumulation system - consists in adding individual unit penalties together and executing one cumulative penalty;

  • absorption system - the most severe punishment absorbs the milder punishments. Only the most severe penalty is enforced.

  • asperation system - the most severe penalty is taken as the basis and it is tightened depending on the number and size of the remaining penalties;

  • reduction system - consists in lowering the penalty determined as a result of adding up the individual penalties imposed for individual crimes.

In the case of the Polish criminal system, the CC has not adopted any of the above-mentioned systems. Regulated in Art. 86 § 1 of the Penal Code, the method of determining the total penalty qualifies as a mixed approach, based on various components from all the indicated systems. Consequently, the imposition of an aggregate penalty must be carried out in two stages. In the first of them, the court imposes individual penalties for individual crimes. The second stage is, however, imposing a combined penalty. It is not possible to accept a different course of the process of imposing the sanction in question, as its lower limit is determined by the highest of the individual penalties imposed, while the upper limit is determined by the sum of individual penalties. Wherein Art. 86 § 1 of the Penal Code introduces certain limitations. The cumulative sentence cannot be higher than 810 daily fines - if the total penalty is a fine; from 2 years of restriction of liberty - if the total penalty is restriction of liberty; and from 20 years of imprisonment - if the total penalty is imprisonment.

However, there are three exceptions to the above:

  • if the sum of the sentences imposed is 25 years or more, and at least one of the penalties is not less than 10 years, the court may order a total penalty of 25 years imprisonment;

  • if the most severe penalty imposed for one of the offenses is a penalty of 25 years imprisonment or life imprisonment, this penalty is imposed as a cumulative penalty;

  • if two or more sentences of 25 years of imprisonment overlap, the court may order a total penalty of life imprisonment.

Combining fines

In the case of imposing a fine on the perpetrator in one or more of the combined judgments, the court re-determines the amount of the daily rate. At the same time, the amount of the daily rate may not exceed the highest previously established. If even one of the fines subject to aggregation is imposed in amount, the total penalty of the fine is imposed in amounts.

Combining penalties of restriction of liberty with penalties of imprisonment

If the court combines penalties of restriction of liberty, it must redefine the obligations or the amount of the deduction, as well as order a cash benefit. Pursuant to Art. 87 of the CC, combining the penalty of restriction of liberty with the penalty of deprivation of liberty, the court imposes the total penalty of deprivation of liberty, assuming that a month of restriction of liberty is equal to 15 days of deprivation of liberty, i.e. in the proportion 1: 2.

If for the concurrent offenses punishments of imprisonment and restriction of liberty were imposed, and the total penalty of deprivation of liberty would not exceed 6 months, and the total penalty of restriction of liberty - 2 years, the court may order these total penalties simultaneously, provided that the objectives of the sentence are fulfilled in this way.

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Joining conditional suspended sentences

The provision of art. 89 of the Criminal Code makes it possible to combine conditional suspended sentences. Pursuant to this provision, a convicted person may apply for a conditional suspension of the execution of a joint sentence in the event of a conviction for concurrent offenses to imprisonment with conditional suspension and without a conditional suspension of their execution. The court may conditionally suspend the execution of the total sentence, provided that the term of imprisonment does not exceed 1 year and if the perpetrator at the time of committing each of these offenses was not sentenced to imprisonment and it is sufficient to achieve the objectives of the sentence. When ordering a cumulative penalty of deprivation of liberty with a conditional suspension of its execution, the court may additionally order a fine, even if it was not ordered for the offenses at the same time.

Combining criminal and precautionary measures

The legislator adopted the combination of penal measures and precautionary measures in Art. 90 of the CC. Penal measures, forfeiture, compensatory measures, precautionary measures and supervision are used, even if they were only adjudicated for one of the concurrent offenses. In the event of a ruling for concurrent offenses of deprivation of public rights, prohibitions or obligations of the same type, the court shall apply the provisions on the total penalty accordingly.

Total penalty - summary

As can be seen, the Polish judiciary is much less severe than, for example, the criminal system in the United States, where multiple life sentences are not so rare for coincidence.

The Polish Penal Code adopts a mixed system of combining penalties. Which also means that the amount of the final sanction largely depends on the circumstances of the offenses, the attitude of the convict and his life and family situation. The smallest cumulative sentence may amount to the highest penalty, while its upper limit is the sum of all penalties. It is logical that a number of crimes consisting in small thefts or frauds should not result in, for example, a penalty of life imprisonment. In the case of crimes with serious social consequences, such as homicide, where, for example, two sentences of 25 years of imprisonment are combined, it seems fair to leave the court the possibility of imposing a sentence of life imprisonment. Thanks to such a great freedom in combining penalties, the court is able to adjust the final penalty to the actual behavior and guilt of the convicted person.