Probacja (Mar 2023)
CONVICTION UNDER THE CONDITIONS OF ARTICLE 65 1 AND 2 OF THE PENAL CODE AS A NEGATIVE PREREQUISITE FOR THE USE OF THE ELECTRONIC TAGGING SYSTEM INTERPRETATIVE DOUBTS
Abstract
The article regards the legal prerequisites for excluding the use of the electronic tagging system, in particular the relationship between the provisions of Article 431a 1 (1) of the Penal Enforcement Code and the provisions of Article 65 1 and 2 of the Penal Code. The article draws attention to the increasing use of the electronic tagging system in Poland and the benefits resulting from this fact. The publication contains an analysis of the problem of whether a conviction for a crime from the commission of which the offender has made a regular source of income or committed a crime acting in an organized group or association aimed at committing a crime and for a crime of a terrorist nature - constitute a negative premise for the use of the electronic tagging system. The article draws attention to the practical aspect of the problem raised in connection with the divergent interpretation of the above-mentioned provisions, which leads to a situation in which, in the same factual and legal situations, common courts issue divergent rulings. The author, assessing the relationship between the provisions of the Penal Enforcement Code and the Penal Code, notes that the provisions of the Penal Code are applicable in executive proceedings only in the event that the Penal Enforcement Code contains a direct reference to them. The author finally comes to the conclusion that the conviction of the offender for crimes listed in Article 65 1 and 2 of the Penal Code does not constitute a legal obstacle to the issuance of a ruling allowing the offender to serve his sentence in the electronic tagging system. The position expressed in the work has been supported by views presented in the literature and case law.
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