A leave from the serving of the penalty of imprisonment, may be granted only after start of the detention. It is being granted in case of mental illness or other serious illness which prevents the exercise of that penalty – for the duration of the obstacle. Similarly as in the postponement of execution of a final sentence of imprisonment a situation in which execution of a penalty can be life-threatening or cause for serious health hazard for the convicted is considered as a serious illness. In such case it is mandatory.
According to the decision of the Court of Appeal in Gdansk 08.22.2000 r. (II AKz 630/00, unpublished), “as a rule serving final penalty should occur in full, and therefore in such a size it was imposed and continuously. The exception to this is both an institution of parole and a leave from serving of the penalty of imprisonment. Both these institutions must be seen as exceptions by both the penitentiary courts and convicts. “
The penitentiary court can grant a leave from the serving of the penalty of imprisonment, if there are important family or personal reasons. As it was indictaed by Court of Appeal in Karków in the decision of 07.05.2012 (II AKZW 411/12, OSA 2013, Nr 5, poz. 22), “for granting a leave from the serving of the penalty of imprisonment it is necessary for the family reasons, to be of this nature that personal presence of a convict and his personal efforts would improve the situation. That is because a leave from the serving of the penalty of imprisonment is always purposeful”. In its decision a Court of Appeal in Lublin of 15.06.2011, II AKzw 540/11, indicated that “the fact of imposing a penalty of imprisonment and introducing it to exercise is a normal consequence of committing an offense. The detention of a family member usually leads to a deterioration in a position of his family. The fact that the convict has a limited ability to assist his next of kin in their personal affairs constitutes a normal consequence of imprisonment, and does not justify in itself granting a leave from the serving of the penalty of imprisonment for providing a current care for them or obtaining financial resources. Family members of a convict are required to take extra effort in order to ensure that their basic conditions of existence are secured without his help. Only in the case when this is not possible, and their situation is so difficult that threatens their existence, it is reasonable to consider the possibility of granting a leave from the serving of the penalty of imprisonment, whether of course the presence of the convict can lead to improvement the situation of his family. “
A leave from the serving of the penalty of imprisonment can be granted several times, but the total period of leaves may not exceed one year. The court may also require the convict to find employment, to report to designated police unit at specified times or undergo proper treatment or rehabilitation, therapeutic sessions or participate in correctional-educational programs.
A leave from the serving of the penalty of imprisonment cannot be granted within one year from the date of completion of a previous leave and return to the prison, unless there is a case of mental illness or other serious illness or a random accident.
The prosecutor, convict and his lawyer, as well as judicial curator or director of a detention facility if they filed request have the right to attend court session. The decision may be appealed against.
If the prosecutor stated that he is opposed to granting a leave, the decision to grant a leave becomes enforceable from the moment of validation. The appeal brought by the public prosecutor subject to granting a leave shall be heard within 14 days.
The court may revoke a granted leave in the event of termination of the purpose for which it was granted, or in case the convict does not use it for the purpose for which it was granted, or flagrantly violates the law, as well as due to failure to perform the duties imposed.