Article 64 of the Criminal Code stipulates that if a perpetrator convicted of an intentional crime for imprisonment commits within 5 years after serving at least six months of punishment, an intentional offense similar to a crime for which he has already been convicted, the court may impose the penalty provided for offender in the amount up to the upper limit of the statutory threat increased by half.
The provision of art. 64 1 of the Penal Code sets very strict criteria for a special single recidivism. According to this provision, a perpetrator’s status may be obtained by a perpetrator who: has previously been convicted of an intentional offense; he was sentenced to at least six months’ imprisonment; within 5 years after serving this sentence he committed an intentional crime; he committed a crime similar to that for which he was convicted.
On the other hand, intentional crime is determined by art. 9 1 of the Penal Code, according to which: a prohibited act is committed intentionally if the perpetrator intends to commit it, that is, he wants to commit it or provides for the possibility of committing it. The intention is synonymous with intent.
Therefore, the mind is based entirely on the psychological factor. Therefore, the perpetrator is aware of the possibility of implementing a prohibited act, he has an idea of this forbidden reality, an awareness of the goal that he can implement despite his conflict with the law, and directs his will, and then his behavior to achieve this goal.
Realizing the goal of his pursuit, he uses his will to initiate activities that are an indication of his behavior in order to prevent the goal from being realized. The element of will was captured in a classical way – the perpetrator wants to commit a prohibited act. This will is based on the pursuit of the forbidden reality and, as a result, the processes of behavior in the form of acting, abandoning or possessing something that was forbidden will be activated.
If the perpetrator previously convicted under ordinary recidivism who has served a total of at least one year of imprisonment and within 5 years after completing all or part of the last sentence, commits another deliberate crime against life or health, crime of rape, robbery, burglary or other crime against a property committed with the use of violence or the threat of its use, the court imposes the penalty of deprivation of liberty for an offense in excess of the lower limit of the statutory threat, and may measure it to the upper limit of the statutory threat increased by half.
The anticipated increase of the upper statutory threat does not apply to the crime.
A stay in such a juvenile shelter or a correctional facility does not constitute a “term of imprisonment” within the meaning of art. 64 of the Penal Code.
Without a previous conviction under a special basic recidivism (Article 64 1 of the Criminal Code), the examination of further conditions under Art. 64 2 of the Penal Code remains devoid of purpose.
According to the wording of art. 64 1 of the Penal Code, criminal liability under the terms of this provision is borne only by the person who, within 5 years of serving a period of at least six months of imprisonment for intentional crime, commits another deliberate crime similar to that for which he has already been convicted. Meanwhile, in the judgment appealed against by cassation, the accused was charged with an offense under art. 292 1 of the Penal Code, and therefore unintentional. It is therefore excluded that the accused has committed him in the conditions set out in Article 64 1 of the penal code
A conviction under conditions of recidivism in a situation where there were no reasons to consider that the accused acted in the conditions of return to crime constitutes a gross violation of the law. It could have a significant impact on the content of the judgment, in particular on the level of the sentence imposed against the penalty of deprivation of liberty, and taking into account the content of art. 78 2 of the Penal Code is also of significance if a defendant applies for a conditional early release after completing a certain part of the sentence.
The defective assignment of multifacets is undoubtedly a gross violation of substantive law and, as a rule, obviously has a significant impact on the content of the judgment, but also leads to the recognition that such a ruling is characterized by gross injustice within the meaning of art. 440 cpk
At the time of the next act, Zbigniew S. was not convicted, but only the accused, which in the light of the requirements set out in Article. 64 1 of the Penal Code is insufficient to accept recidivism.
The court of appeal eliminated art. 64 1 of the Penal Code, because the court of first instance did not exacerbate the penalty to the limits to which this provision allows. However, in view of the fact that the convict acted in a recidivism, the provision of art. 64 1 of the Penal Code should be cited.
Determining the conditions for recidivism requires in each case to take evidence from a conviction for a similar offense and from the data on the completion of the sentence, and in many cases the correctness of the findings may require proof from the files of the case in which the verdict constituting the basis of the offense was issued.
The condition of conviction on the basis of art. 64 2 of the Penal Code, among others, is that the perpetrator committed at least a third willful crime against life or health, crime of rape, robbery, burglary or other crime against property committed by violence or the threat of its use – “again”. The concept of “re-election” refers not to any previously committed crime, but only to crimes covered by the sentence of art. 64 1 of the Penal Code belonging to the group of offenses listed in art. 64 2 of the Penal Code
According to art. 366 1 of the Code of Criminal Procedure, the chairman of the adjudication panel has, inter alia, to ensure that all relevant circumstances of the case are clarified. Undoubtedly, such circumstances should include committing the offense in the conditions of returning to the offense under Art. 64 1 of the Penal Code, since the court may, if they are found, exacerbate the punishment.
It is erroneous that since the accused, before committing another offense of robbery, which is the subject of the proceedings, he was temporarily arrested for a period of 8 months in a case in which he was finally convicted for a previously committed offense of robbery, there are reasons to determine the so-called. special basic recidivers. Among other conditions conditioning the determination of recidivism, the provision of art. 64 1 of the Penal Code requires prior conviction and imprisonment of at least six months of such punishment. However, the “passing” of the penalty of deprivation of liberty pronounced for a prior offense may be referred to only after the conviction has become final.
If the accused from the penalty of 2 years of deprivation of liberty took less than five months, and a further part of the penalty was implemented after the offense assigned by the appealed judgment, it should be considered that he was not satisfied with the constitutive conditions set out in Article. 64 1 of the Penal Code, which concerns serving a sentence of at least six months before committing a punishable offense for a similar offense.
By eliminating from the description of the act attributed to the accused the anti-drug action “in order to obtain financial gain”, the Court eliminated the premise of the similarity of this act to an intentional crime. In this situation, the court of appeal should consistently eliminate the provision of art. 64 1 of the Penal Code, because the change in the description attributed to the convicted offender obliged him to do so.
Norm art 64 1 of the Penal Code, which may be the basis for a special tightening of the sentence, is one of the components of the proper legal qualification of the act, hence its application requires a process of prior notice of the parties.
The condition of conviction (previous conviction) contained in art. 64 1 of the Penal Code is not met if the perpetrator committed a new deliberate crime similar to the offense for which he was only accused, even if later convicted, and at least 6 months of imprisonment was carried out as part of the pre-trial detention against the sentence of imprisonment).
The penalty of deprivation of liberty measured in the conditions of multiple recidivism can not be equal to the lower statutory threat, but it must be at least an ol month higher than the lower statutory threat.
The charge of no recidivism
Admission of an act in the conditions of return to crime under Art. 64 1 of the Criminal Code requires prior imprisonment and serving the perpetrator at least 6 months of this penalty. The execution of the penalty of deprivation of liberty pronounced for a criminal offense may be made only after the conviction has become final (Judgment of the Supreme Court of 6 June 2007, reference number V KK 150/2007).
This is all the more important since the acceptance of recidivism affects the tightening of punishment, because the committing of an act in the conditions of return to crime affects the increase of the sentence. For if a perpetrator convicted of an offense of intentional punishment for imprisonment commits within 5 years after serving at least six months of punishment intentional crime similar to the offense for which he has already been convicted, the court may impose the penalty provided for the offender assigned to the offense up to the upper statutory limit hazard increased by half.