Unconstitutionality of Covid-related regulations on the statute of limitations for crimes and fiscal offences

Although the Constitutional Tribunal has become famous for its controversial judgments in recent years, the one I am writing about today should be accepted with full approval.

And all this was due to a legal question submitted to the Constitutional Tribunal by the District Court in Jarosław. Based on the criminal fiscal case it was examining, the Court questioned the constitutionality of Article 15zzr¹(1) of the so-called special Covid Act. In the case examined by this Court, the criminality of the offence charged against the accused, assuming the code-based limitation regime, expired on 31 December 2021, which provided grounds for discontinuing the proceedings. However, the assumption that the limitation period had expired was opposed by the aforementioned Article 15zzr¹(1) of the special Covid Act, which stated that during the period of the state of epidemic threat or the state of epidemic, announced due to COVID-19, and during the period of 6 months after their cancellation, the statute of limitations for punishable acts and the statute of limitations for enforcing penalties in cases of crimes and fiscal offenses do not run.

In questioning the above-mentioned legal regulation’s compliance with the Constitution, the District Court in Jarosław pointed out that the legislator did not indicate the date by which the suspension of the statute of limitations for criminal offenses and the statute of limitations for enforcing penalties would apply, nor did it specify the maximum time limit to which it may last.  The Court argued that Article 15zzr¹(1) of the Covid Act essentially creates the institution of “suspending the statute of limitations for an indefinite period”, thereby harming the citizens’ sense of predictability and certainty of law.

The District Court in Jarosław also considered that in a situation when the state of epidemic or the state of epidemic threat ceases by way of a regulation – in accordance with the authorisation resulting from Article 46a of the Act on preventing and combating infections and infectious diseases in humans of 5 December 2008, de facto by means of a regulation (i.e. a lower level instrument than an act), this modifies the statutory limitation periods for criminal convictions and the limitation periods for enforcing penalties.

At the time of examining the case by the Constitutional Tribunal, i.e. on 12 December 2023, the provision in question was no longer in operation because it was abrogated on 1 October 2023. On that basis, both the Attorney-General and the Marshal of the Sejm acting on behalf of the Sejm of the Republic of Poland requested the discontinuation of the proceedings in accordance with the provisions of the Act on the organisation and the procedure before the Constitutional Tribunal, which states that if a normative act in the questioned scope has lost its binding force before the Tribunal issues a ruling, the Tribunal should discontinue the proceedings at a closed session.

In its judgment of 12 December 2023, ref. No P 12/22, the Constitutional Tribunal declared Article 15zzr¹(1) of the Covid Act as unconstitutional with respect to Article 2 of the Constitution which expresses the principle of a democratic state of law. The Constitutional Tribunal emphasized that the legal situation created by Article 15zzr¹(1) of the Covid Act that interferes with the legal position of an individual depended on the decision of the executive authority, i.e. the minister responsible for health issues who decides on the state of epidemic threat and the state of epidemic on the basis of Article 46(2) of the Act on preventing and combating infections and infectious diseases in humans of 5 December 2008. Therefore, there was a peculiar connection between the functioning of the relevant criminal law regulation in the form of suspension of the limitation period for punishable acts and the limitation period for enforcing penalties in cases of crimes and fiscal offenses and the decision of the minister responsible for health issues taken at the level of a sub-statutory act in the form of an executive regulation – and not even the Covid Act, only the Sanitary Act, which is yet another normative act. In other words, the legislator’s delegation (intentional or not) to the executive body (the minister responsible for the relevant department of government administration) of the decision on the functioning of the legal institution that shapes the legal position of an individual is constitutionally unacceptable in a democratic state of law that respects the separation of powers.

The Tribunal also noted in the said judgment that the aforementioned regulation was introduced only fifteen months after the outbreak of the epidemic in the territory of the Republic of Poland, when criminal proceedings were essentially continued. Secondly, the examined provision was contrary to Article 44(2) of the Fiscal Penal Code because – despite the expiry of the limitation period for public liabilities – it still maintained the punishability of the crime related thereto. Thirdly, the suspension of the limitation period for punishable acts without specifying a specific date (despite the expiry of the limitation period for public liabilities) resulted in a situation where while the epidemic situation calmed down, it exposed the interested entities to legal consequences that could not have been previously predicted, and new regulations adopted by the legislator cannot surprise their addressees as to the further conduct of public authorities.

Referring to the position of the Attorney-General and the Marshal of the Sejm, the Constitutional Tribunal noted that the abrogation of the challenged provision did not modify the legal situation. Pursuant to the intertemporal provisions of the Act abrogating Article 15zzr¹(1) (Act amending the Act – Code of Civil Procedure, the Act – Law on the System of Common Courts, the Act – Code of Criminal Procedure and certain other acts of 7 July 2023), Article 15zzr¹ of the Covid Act still affects the legal system, because the suspension of the limitation period for punishable acts and the limitation period for enforcing penalties in cases of crimes and fiscal offenses introduced by this provision was upheld (sanctioned) by the legislator who resumed the running of these periods only on 1 October 2023.

The judgment of the Constitutional Tribunal eliminated the provision in question from legal transactions. This judgment provides the basis for resuming those proceedings in which a conviction was issued in connection with the application of the aforementioned regulation, even though the limitation period for punishable acts has expired under the provisions of the Penal Code or the Penal Fiscal Code.