The Substitution of Imprisonment with a Fine or Restriction of Liberty under Article 37a of the Polish Criminal Code
The mechanism embodied in Article 37a of the Polish Criminal Code represents a notable development in the systematic efforts to introduce flexibility and proportionality into Polish penal policy. It constitutes a functional expression of the legislative trend towards rationalization of punishment, enabling the substitution of a custodial penalty with non-custodial measures, specifically a fine or restriction of liberty. This legislative design serves to adapt the punishment more effectively to the individual circumstances of the offender and to the actual degree of social harm caused by the offence.
Conceptual Basis and Policy Rationale
The institution established by Article 37a originated as a normative response to the long-standing criticism concerning the overuse of short-term imprisonment. Criminological research and comparative studies have consistently demonstrated that brief custodial sentences seldom achieve their rehabilitative or deterrent goals. Instead, they tend to reinforce criminal stigmatization and impede reintegration. The modern function of Article 37a therefore reflects a broader European consensus emphasizing the ultima ratio character of imprisonment, and promoting the preferential application of community-based penalties that require the offender’s active participation in restitution and social reparation.
By introducing this mechanism, the Polish legislator has sought to maintain the delicate balance between the needs of penal repression and the principles of individualized justice. From a systemic perspective, this provision contributes to the coherent implementation of restorative principles in criminal law.
Statutory Framework and Conditions for Application
Under Article 37a, the court may, under specified circumstances, impose upon the offender a fine or restriction of liberty instead of a term of imprisonment. This substitution is permitted only when the offence is punishable exclusively by imprisonment not exceeding eight years, and when the court considers that a custodial sentence of up to one year would be just. The provision excludes crimes with higher penal threats and offences characterized by heightened criminal intensity or organized participation.
The legislator expressly precluded the application of this article to offenders operating within organized criminal groups or associations, to recidivists as defined in Article 64 §1 of the Code, to perpetrators of terrorist acts, and to those convicted under Article 178a §4 (driving under the influence in aggravated circumstances). These exclusions correspond to an assumption that such categories of offenders pose a substantially enhanced threat to social order and require a proportionately stricter penal response.
In practice, the norm is applied primarily to low-level offences—petty theft, minor fraud, low-value property damage, selected traffic violations, or non-aggravated economic offences. In these cases, a non-custodial penalty under Article 37a may achieve both preventive and rehabilitative objectives without recourse to isolation.
Criteria for Individualization of Sanctions
Judicial application of Article 37a necessitates an individualized assessment of the offender’s culpability and the social harmfulness of the act. Courts must consider factors such as the offender’s criminal record, conduct after the offence, acts of voluntary reparation, and observable indicators of stable resocialization potential. The Supreme Court has consistently emphasized that resort to Article 37a should be predicated upon a positive criminological prognosis and the demonstrable absence of necessity for isolation (Supreme Court judgment of 23 September 2022, case no. V KK 79/22).
Similarly, the Court of Appeal in Kraków held that “the substitution of a custodial sentence with a non-custodial measure should be admissible solely where all penal purposes can be adequately fulfilled by the alternative sanction, ensuring equilibrium between the protection of societal interests and the offender’s resocialization” (judgment of 21 October 2021, II AKa 232/21).
Exclusions, Supplementary Measures, and Judicial Reasoning
The legislative limitations concerning the application of Article 37a rest on a coherent concept of penal hierarchy. Where persistent or organized criminal behaviour is evident, the statutory presumption favours custodial penalties to preserve the preventive function of criminal law. However, in cases involving lesser severity, the imposition of concurrent criminal or compensatory measures—such as prohibitions, restitution obligations, or forfeiture—can ensure adequate protection of public and victim interests, effectively replacing the isolating function of imprisonment.
In traffic-related cases, for example, the combination of a restriction of liberty with a long-term driving ban frequently fulfils the preventive purpose traditionally associated with incarceration, while also avoiding its adverse social effects.
Each judicial decision applying Article 37a must be accompanied by a thorough and logically developed justification. The court is obliged to specify the concrete statutory and factual premises underlying its decision and to articulate how the alternative sanction achieves the goals of individual and general prevention. Appellate courts consistently hold that a failure to provide such reasoning, or reliance on general formulas, constitutes a serious procedural violation leading to the annulment of the judgment (cf. Court of Appeal in Warsaw, judgment of 10 December 2020, II AKa 260/20).
Doctrinal Evaluation and Practical Implications
Doctrinal commentary consistently cautions that Article 37a should be regarded as an exceptional measure rather than a general policy tool. Excessive reliance on it may undermine the deterrent and retributive aspects of criminal law. Nonetheless, empirical evidence suggests that its judicious and well-reasoned application correlates with reduced rates of recidivism among offenders subjected to non-custodial sanctions compared with those serving short-term imprisonment.
Consequently, Article 37a represents a modern legislative instrument harmonizing domestic law with the prevailing European orientation towards restorative and individualized justice. It provides offenders convicted of lesser offences an opportunity to avoid the detrimental social and psychological effects of isolation, without compromising the protective and compensatory functions of punishment. Its proper application demands judicial prudence, in-depth analysis of statutory conditions, and a transparent articulation of the balancing rationale between the interests of society, the victim’s welfare, and the offender’s rehabilitation prospects.