Report of the Human Rights Defender on the activities of the National Preventive Mechanism in Poland in 2013 ecution. The Constitutional Tribunal ruled that “Article 75 § 1 of the Penal Code, insofar as it does not provide for the possibility for the court to refrain from ordering the execution of the penalty, when the convict was repeatedly sentenced to a conditionally suspended penalty of imprisonment, if justified by special reasons, is inconsistent with Article 45(1) of the Constitution.” The said provision will cease to be applicable after the period of 18 months from the date of judgement publication in the Journal of Laws39, i.e. on 9 February 2015. In the opinion of the Tribunal, the enforcement court should have a possibility to consider, when it establishes that the penal proceedings in another case finished with conviction for a similar intentional crime to a conditionally suspended custodial sentence, whether there are any extraordinary circumstances justifying the staying of the execution of the penalty towards the convicted person, since the unconditional penalty of imprisonment is to constitute ultima ratio.40 Poland still has a long road ahead to eliminate overpopulation of penitentiary units, since it remains far behind the EU countries in terms of surface area per prisoner which reflects the quality of penitentiary isolation (e.g. in Austria it amounts to 6 m2, in Belgium to 9 m2, in Bosnia and Herzegovina – 4 m2, Cyprus – 9.5 m2, Czech Republic – 3.5 m2, Denmark – 6-7 m2, Greece – 10 m2, Spain – 6 m2, Netherlands – 10 m2, Ireland – 6-10 m2, Germany – 7 m2, Portugal – 7 m2, Turkey – 8-9 m2, Scotland – 6-8 m2, Italy – 5 m2). The need to aim at ensuring at least 4 m2 surface area per inmate has been underlined in each report of Dz. U. of 2013, item 905 of 8 August 2013. The said judgment of the Tribunal corresponds to the draft of 10 December 2013. Pursuant to the statement of reasons: “granting the court, which makes a decision, apart from the situation described in Article 75 § 1, ordering the execution of a custodial sentence which was suspended in the sentence (Article 75 § 3a of the Penal Code), the possibility to reduce the penalty compared to the penalty adjudicated with conditional suspension which is to be served by the convict, seems to be reasonable for several reasons.. Before the occurrence of the reason for ordering the execution of penalty, the convicted person could perform the obligations which that person would not have to perform, if the penalty had not been adjudicated as conditionally suspended. It should also be noted that the court adjudicating the penalty treats the decision on conditional suspension as an integral element of the penalty, which results in its sentencing being higher than in the case of unconditional penalty. The new Article 75a provides for the possibility to order the execution of a conditionally suspended custodial sentence or a substitutive penalty in the form of restriction of liberty consisting in the obligation to perform unpaid, controlled social work. This is aimed at increasing the flexibility of the court��s decisions in a specific case and giving preference to non-custodial penalties – in particular with regard to perpetrators sentenced based on the existing regulations, under which the conditionally suspended custodial sentences are used in excess. The lack of this provision could have considerable negative consequences for the ongoing reform of the system of sentencing and execution of penalties. The substantive law regulation is supplemented by the amendment of Article 178a of the Executive Penal Code, providing for the possibility to appeal against judicial decisions in this area. 39 40 28