„Pro rata parte” problem under criminal law

Abstract

A particularly important issue in connection with the courts ruling in the course of a criminal trial on compensation for damage caused jointly by several people is the question of determining the extent to which each of them will be required to compensate for it. The penal code does not contain provisions explicitly regulating this matter. This problem may arise when imposing an obligation to remedy the damage both as a probative condition and as a compensatory measure. It applies not only to complicity, but also to incitement, aiding and abetting, executive, or even referral. The jurisprudence and doctrine propose to resolve this problem by: a decision on the joint and several liability of the perpetrators; an obligation on each of them to make good the damage jointly and severally; an obligation on each of them to make good the damage in its entirety; an obligation on each of them to make good the damage in equal parts or pro rata parte; or, depending on the specific situation, joint and several compensation or pro rata parte. Each of these solutions found both their supporters and opponents, and there were also positions favouring the intermediate option. In this publication, particular attention has been paid to the pro rata parte construction, since on the basis of the current legal situation it seems to be the most rational and fair solution. On the other hand, if the court is unable to determine the participation of individual perpetrators in the damage caused, it may be more reasonable to declare such obligation in equal parts. The court’s task is to assess which way of remedying the damage in the circumstances of a particular case is the most appropriate and advisable. It should be noted that each case is different in procedural practice and for this reason courts must always take into account the different circumstances of the case regarding the level of the penalty and at the same time ensure that the damage caused to the victim is compensated the fullest extent possible.