Punishment for drinking alcohol in public

Description of the facts

The President She was blamed for having consumed alcohol in the form of beer on the bicycle-speed track on 5.8.2024, at about 16.20 p.m., in J. on C. Street, on the bicycle-speed track, in a public place contrary to the prohibition, i.e. for acting with Article 43¹ paragraph 1 AlkU.

District Court in J, by order of 2.9.2024, II W 825/24, found guilty The President guilty of committing the alleged act and for doing so under Article 43¹ Paragraph 1 of the AlkU, imposed the punishment of a period of restrictions on freedom with the work to execute unpaid, controlled work for social purposes of 30 hours (point I) and besides ruled on the costs of proceedings (point II).

This judgement was finalized on 19.9.2024, in view of the parties' failure to challenge it.

On the basis of the above judgment, the cassation in favour of the suspect was brought by the lawyer General. He challenged him in part concerning the judgement on the punishment contained in point I and accused him of gross and materially affecting the content of the judgement of a breach of the substantive law, namely Article 43¹ Paragraph 1 of the AlkU, consisting in the measurement of blame The president on the basis of that provision, the month's punishment for restrictions on freedom, even though its sanctions only supply for the anticipation of fines.

The author of the cassation requested that the judgement be set aside in the contested part and that the case be referred to the territory Court in J for review.

The ultimate Court, having examined the cassation brought by the lawyer General in favour of the defendant, annulled the judgement in the contested part, i.e. the judgement on the punishment and in this respect referred the case to the territory Court in J for re-examination.

Reasons for SN

According to the ultimate Court, the cassation brought by the lawyer General proved to be justified in the clear sense, which justified its examination and the inclusion by the ultimate Court at a sitting without the participation of the parties (Article 535(5) of the NCP).

It correctly points out to the author of the cassation that the territory Court of J by order of 2.9.2024, II W 825/24, ruled against the accused The President the punishment of restrictions on freedom not provided for in the statutory threat for this offence.

Assigned offence in accordance with Article 43¹ Paragraph 1 of the AlkU shall be subject only to fines. The question of the punishment is governed by Article 24(1) KW, providing that it is to be measured between PLN 20 and PLN 5000, unless the law provides otherwise. Thus Article 43¹ Paragraph 1 of the AlkU, for the offence referred to therein, provides for a non-alternative fine.

In that state of affairs, the judgement under appeal by a judgement of the punishment of the period of regulation of liberty, which is not provided for in the regulation referred to by the Code of Offence, is undoubtedly more severe than the legislature and more aggravating to the offender, constitutes a gross and material infringement of the provision of substantive law referred to in the extraordinary means of appeal.

It was so essential to repeal the judgement under appeal in part concerning the punishment ruling and to mention the case to the territory Court again in J. The court of meriti shall, erstwhile again, take into account the observations made above and the punishment ruling, in accordance with Article 442(1) of the NCP in Article 109(2) of the NAP and Article 112 of the NAP, in order to guarantee that, in the light of the direction of the correction, the fine does not actually deteriorate.

Comment