Summary

According to § 59 of the Penal Code, mitigating or aggravating circumstances, described in the Special Part as the elements of offence, shall not be considered in imposition of a punishment. The prohibition follows implicitly from the principle ne bis in idem: one matter of fact can be used only once; if a matter of fact has served as grounds for conviction of a person, this cannot be used again in imposition of punishment and therefore reduce or increase the punishment.

The purpose of this article is to highlight the main problems with the prohibition on repeated consideration, including specify the boundaries of prohibition and also try to systematise the circumstances which are or may become subject to the prohibition of repeated consideration.

The author takes the view that our case law concerning the prohibition of repeated consideration is only beginning to take shape, whereas the current condition seems to indicate a relatively loose interpretation of the prohibition of repeated consideration, i.e. the fact is rather deemed as not subject to prohibition. In essence, this has led to a situation where the list of mitigating and aggravating circumstances in §§ 57-58 of the Penal Code have lost their meaning and simply become examples. According to the author, the regulator should consider regularising the situation in the sense of amending the wording in §§ 56-58 of the Penal Code and providing only sample lists. Completely waiving the descriptions of circumstances is still not justified, since a sample list will provide the court with certain guidelines for assessing the circumstances influencing the punishment and attributed to the accused, and helps to avoid the repeated consideration prohibited under § 59.