Judgment of the Constitutional Tribunal: is it easy to become a criminal?

This reflection was inspired by the judgment of the Constitutional Tribunal (“CT”) of February 17, 2015 (file no. K 15/13) which settled the matter of compliance with Article 115 clause 3 of Copyright and Related Rights Act of February 4, 1994 (“Copyright Act”) and Article 42 clause 1 of the Constitution of the Republic of Poland.

The case was conferred to the CT by the Ombudsman whose justification essentially copied the critical comments of the jurisprudence and circles associated with exercising copyrights that were directed at Article 115 clause 3 of Copyright Act. The provision provides for penal liability on account of infringing copyrights or related rights “in any other manner” than specified in clauses 1 and 2 of this provision (relating, among others, to plagiarism) if the purpose of such action is to “gain financial benefit”.

The Ombudsman argued the provision of Article 115 clause 3 of Copyright Act is imprecise due to the fact it assumes an open scope of features of a prohibited act, which in effect prevents from determining what exactly is subject to penalty.

In the Ombudsman’s opinion the expression “infringes in any other manner than specified above” found the provision does not comply with constitutional prerequisites regarding the specification of sanctions in an exact and precise manner, and thus violates nullum crimen sine lege rule. In the public debate on this topic held mainly among Internet users fears were voiced that not complying with this legislative standard may result in uncertainty as to the scope of and separation between behavior permitted and non-permitted by law.

Judgment of CT did not, however, resolve doubts as to the scope of Article 115 clause 3 of the Copyright Act. In the opinion of the Tribunal, the fact the legislator used indeterminate concepts should be regarded as justified in light of the nature of copyright regulation that has to be applied in the dynamic conditions of change in the era of new technology. Therefore, the legislature employed the construction of the so called consequential offense, meaning such offense that is defined by the occurrence of a given result and not by the manner in which this result was achieved.

The CT reminds us that according to previous constitutional decisions the determining standard of legal provisions, also in the scope of covered by Article 42 clause 1 of the Constitution, does not preclude a certain degree of regulatory discretion of the state in the criminal law area.

For this reason, this standard in the scope of criminal regulation, although it lays down requirements more demanding for the legislature, does not require absolute clarity or clearness of expressing legal prohibitions or orders (judgment of CT of January 28, 2003, file no. K 2/02). The determining principle of the criminal code does not preclude the legislature from employing indeterminate or evaluative terms if it is possible to establish their designates (judgment of CT of January 23, 2003, file no. K 2/02).

Taking into account controversies that accompanied the case from the moment the Ombudsman submitted the motion, we may predict the decision will not win favor from some parts of the legal community (who will raise the objection the law was not made more precise) and some portions of society (that will voice concern that, in the era of widespread Internet use, anyone may become a criminal).

We should however appreciate the CT’s attempt to adapt, by means of interpretation, the applicable law to the needs of a changing reality, including fast technological progress, which will make it possible to protect the law more effectively and flexibly. One should not forget about the purpose of the provision: penalizing persons that infringed rights specified in Article 115 clause 3 of the Copyright Act with the purpose of financial gain.

Certainly the opinion the CT expressed in the judgment raises the question whether technological progress will warrant more open formulations of criminal provisions. In other words, has it become impossible to predict technological progress in such a way so as to penalize some behaviors being the result of such progress according to the principle of precision and accuracy of formulating sanctions?