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As a result of the motion filed by the defence counsel for the resumption of the legally concluded criminal proceedings, the District Court in Częstochowa resumed the proceedings, and then repealed the order for payment issued in the case of the Law Firm’s Client in the part concerning the penal measure in the form of a lifetime ban on driving all motor vehicles and remanded the case for re-examination in this respect to the court of first instance.

By the order for payment, the Client was sentenced to a lifetime ban on driving any motor vehicles in connection with the conviction for an offence under Article 178a § 4 of the Criminal Code. According to the current wording of Article 42 § 3 of the Penal Code, the Court was obliged to issue such a decision and, as a rule (except in special cases), it was not possible to waive the imposition of a lifetime ban.

On 4 June 2021, the Constitutional Tribunal adjudicated that Article 42(3) of the Criminal Code, insofar as it obliges a court to impose a ban on driving any motor vehicles for life in the event of committing an offence specified in Article 178a(4) of the Criminal Code, is inconsistent with Article 45(1) in conjunction with Article 42(3) of the Constitution of the Republic of Poland.

In the Tribunal’s view, the construction of the challenged legal norm binds the Court
and practically leaves no room for the Court to freely create a criminal sanction, which is a process that is part of the essence of the administration of justice by criminal courts. The Tribunal pointed out that at the stage of adjudicating a penal measure, the court has very limited possibilities to issue a ruling. The freedom (but not the arbitrariness) of the judicial assessment of the penalty must be guaranteed at the stage of deciding on its amount, and not at the enforcement phase. The discretion to adjudicate a penal measure by the adjudicating court has been significantly limited by the legislator, who – by taking over the competences of the judiciary – determined in advance what sanction is to be imposed in the event of the occurrence of circumstances specified in the provision. Moreover, the legislator made it impossible for the court to adjust the amount of the penal measure to the nature of the violated interest and to the consequences of the act committed, thus further limiting the minimum of the court’s exclusive competence. Imposing such restrictions on the court with regard to the possibility of adjusting the criminal response to the circumstances of the offence translates into the impossibility of exercising the right to a fair trial arising from Article 45(1) of the Constitution. The court is in fact reduced to the role of an executor of the Act, because – unless it wants to
find extraordinary circumstances in a given factual situation – when issuing a conviction, it will be forced to impose a penal measure of life imprisonment.

The issuance of this judgment by the Constitutional Tribunal paves the way for the revocation of final judgments issued after 4 June 2021, which impose a lifetime driving ban in connection with a conviction for an offence under Article 178a § 4 of the Criminal Code. It is worth noting, however, that the Tribunal did not undermine the constitutionality of the penal measure imposed on life imprisonment in the form of a ban on driving motor vehicles, but only stated that the very fact of the obligation to impose such a penal measure for life is inconsistent with the Constitution.

The court examining the application for reopening of proceedings examines whether the conduct of the proceedings on the basis of unconstitutional regulations and the issuance of a ruling in such circumstances translated into the content of the ruling and the procedural situation of the defendant. For this reason, the role of the defence counsel is very important, as he must demonstrate that in a specific proceeding, the Court’s decision based on an unconstitutional provision had an impact on the content of the final judgment. Therefore, it is necessary to analyse the case in detail and include the correct arguments in the application for reopening the proceedings.

If the application is granted, the court issues a judgment in which it resumes the criminal proceedings that have been legally concluded, repeals the previous ruling in the appealed part and remands the case for re-examination. In the justification of such a judgment, it indicates the circumstances that should be taken into account by the court of first instance and the facts necessary to be clarified.