In its judgment of 17 April 2024 (II KK 115/24), the Supreme Court stated that in the case of multiple crimes, which include the offense under Article 209 § 1 of the Criminal Code, there is no res judicata if the previous final conviction concerns only a fragment of the act charged later. Evading the obligation to pay alimony during the period not covered by the final conviction is already a new criminal act, entailing further criminal liability, and the time limits of the next crime should be precisely defined, taking into account the content of the previous conviction.
In the justification of the aforementioned judgment, we read that from the list of periods of non-payment of alimony offenses assigned to the accused under the judgments of the District Court for Warsaw Praga Południe in Warsaw, i.e. the order judgment reference number file reference III K 870/20 (from 3 August 2018 to 10 January 2020) and the chronologically earlier penal order judgment with file reference III K 899/20 (from 1 October 2018 to 20 March 2019), it clearly follows that the penal order judgment appealed against in cassation determined the time of committing the act under Article 209 § 1 of the Penal Code by the accused in such a way that it fully overlapped with the previous final conviction for the offence of failure to pay alimony under Article 209 § 1 of the Criminal Code, and moreover, it went beyond this time frame, essentially being reduced to two periods falling: from 3 August 2018 to 30 September 2018 and from 21 March 2019 to 10 January 2020.
Therefore, indisputably, when ruling in case file reference III K 870/20, the court on the merits committed a gross violation of Art. 504 § 1 point 4 of the Code of Criminal Procedure, which provision requires a precise – in the circumstances of a given case – determination of the time of the commission of the crime. In the description of the act attributed by virtue of a penal order, similarly to the judgment issued after the main hearing (Art. 413 § 2 point 1 of the Code of Criminal Procedure), it is necessary to include not only the manner of committing the crime, its possible effects, the type of attacked interest protected by law, but also the time and place of its commission. Precise determination of the time of committing the offence, as indicated, is of crucial importance for holding the perpetrator criminally liable (see judgments of the Supreme Court: of 19 March 2019, IV KK 58/19 and of 20 April 2017, V KK 39/17).