Placing in a psychiatric institution
One of the preventive measures provided for in the Executive Penal Code is placement in a psychiatric institution. The competent court is the court in whose district the perpetrator is staying, which is a court of the same rank as the court that issued the judgment in the first instance.
Before adjudicating a precautionary measure, the court hears:
- a psychologist;
- a psychiatrist - in cases of insane, impaired or with personality disorders, or when the court deems it advisable;
- sexologist or sexologist psychologist - in cases of people with disorders of sexual preferences.
- an expert on addiction - optional in cases of addicts.
Psychiatric establishments may be organized as establishments with basic, enhanced, or maximum security conditions.
The perpetrator is referred to a psychiatric institution with the conditions of maximum security, if his repeated behavior that threatens the life or health of other people or causes the destruction of items of significant value cannot be controlled in a closed psychiatric facility with conditions of enhanced security or if it is not possible to prevent his willful withdrawal from a closed psychiatric facility with enhanced security conditions for the perpetrator.
The perpetrator shall be referred to a psychiatric facility which has the conditions of enhanced security if his behavior that threatens the life or health of other people or causes the destruction of items of significant value cannot be mastered in a psychiatric facility which has the conditions of basic security. The perpetrator who poses a threat outside the establishment will also be referred to the facility with enhanced security, when it is not possible to prevent his willful departure from a psychiatric facility with the conditions of basic security.
An offender who does not qualify for a psychiatric institution with maximum or enhanced security is referred to a psychiatric facility with the conditions of basic security.
The court includes the period of the prisoner's stay in the institution towards the penalty.
The court may not consider the application for a change or revocation of a protective measure, if less than 6 months have elapsed since the previous ruling on this matter was issued, and the applicant has not indicated new circumstances relevant to the decision.
It should be emphasized that the decision on the precautionary measure may be appealed against.
Poor health may not be the basis for suspending the enforcement of the judgment
The health situation of the convicted person may be considered by the court in the proceedings on the postponement of the execution of the sentence of imprisonment or the penitentiary court in the proceedings for a break in the execution of the sentence pursuant to art. 153 of the Executive Penal Code. The court that issued the judgment in the first instance is also competent in the proceedings concerning the execution of this judgment.
The aforementioned provision of the Executive Penal Code provides that the penitentiary court grants a break in the execution of the sentence in the event of a mental illness or other serious illness that prevents the execution of this sentence.
In the decision of the Supreme Court of October 28, 2020, file ref. V KK 443/20, the Supreme Court considered a cassation appeal against the judgment of the second instance court. The defense lawyer requested a stay of the enforcement of a final judgment pursuant to Art. 532 § 1 of the Code of Criminal Procedure. This provision states that in the event of lodging a cassation appeal, the Supreme Court may suspend the execution of the judgment under appeal. In this situation, in the opinion of the defense lawyer, the convict was not able to serve his sentence in a prison due to his poor health condition.
The Supreme Court stated that the possibility for a convicted person to use the institution of suspending the enforcement of a final judgment regulated in Art. 532 § 1 of the CCP should be associated only with the circumstances related to the factual inaccuracy of the judgment under appeal. In the opinion of the Supreme Court, circumstances related to the convict's health condition, his family situation or other socially justified reasons should not be taken into account.
The Supreme Court also noted that the health situation of a convicted person may be considered by the court only in proceedings relating to the postponement of the execution of the sentence of imprisonment or proceedings for a break in the execution of the sentence. However, it cannot be a condition for applying the institution of Art. 532 § 1 of the CCP
Criminal liability for plagiarism
Plagiarism is a crime described in the Act of February 4, 1994 on copyright and related rights. Pursuant to Art. 115.1 of the Act is punishable by anyone who appropriates the authorship of all or part of someone else's work or artistic performance.
It requires clarification that Art. 8 of the Act creates a presumption that the author is entitled to the copyright (unless the provisions state otherwise). Moreover, it is presumed that the creator is a person whose name has been mentioned in this capacity on copies of the work or whose authorship has been made public in any other way in connection with the dissemination of the work.
In addition to the misappropriation of authorship, another possible form of implementation of the offense under Art. 115 sec. 1 of the Copyright and Related Rights Act is misleading as to the authorship of all or part of someone else's work or artistic performance.
For both indicated forms of plagiarism, the perpetrator is subject to a fine, restriction of liberty or imprisonment for up to 3 years.
In practice, there are different types of plagiarism - it may concern the entire work or just a part of it, be open or hidden. Open plagiarism consists in taking some or all of someone else's work unchanged or with only minimal changes. Hidden plagiarism, on the other hand, is a more transformed form.
Misappropriation of authorship is a crime that can only be committed with direct intention. This means that the perpetrator must be fully aware that he is committing plagiarism.
The same penalty as for plagiarism applies to a person who disseminates, without giving the name or pseudonym of the author, someone else's work in the original version or in the form of an elaboration, artistic performance or publicly distorting such a work, artistic performance, phonogram, videogram or broadcast.
It is worth noting that pursuant to Art. 34 of the Act, it is allowed to use works within the limits of permitted use, i.e. in the form of a quotation - provided that the author and the source are appropriately indicated.
Placing the convict in a medical facility due to COVID-19
On April 1, 2020, the Act of March 31, 2020 amending the Act on special solutions related to the prevention, prevention and combating of COVID-19, other infectious diseases and the crisis situations caused by them and some other acts entered into force. Under it, the rules governing the execution of the sentence were changed. This regulation is aimed at adjusting the conditions of prisoners to the circumstances caused by the pandemic.
During the period of an epidemic threat or state of an epidemic declared due to COVID-19, it may not be possible to reduce or eliminate the risk of infection by a convicted person as part of actions taken in a prison. Pursuant to the provisions of the covid act, the director of the penitentiary institution may then apply to the penitentiary court for the execution of the sentence in the form of placing the convict in an appropriate treatment institution. Such a request must then be approved by the Director General of the Prison Service. This will happen if the convicted person cannot be given a break from the execution of the imprisonment sentence.
The court decides on the execution of the penalty of deprivation of liberty by placing the convicted person in an appropriate treatment facility for a specified period or refuses to accept the request, if the required circumstances do not occur.
The time of the convict's stay in the treatment facility may be extended at the request of the director of the prison for a further specified period of time, but may not be longer than until the end of the epidemic threat or state of epidemic announced due to COVID-19.
The possibility of executing a sentence in a medical institution applies to persons placed in a penitentiary institution and remand center.
Execution of punishment during a pandemic
With the entry into force on April 1, 2020 of the Act of March 31, 2020 amending the Act on special solutions related to the prevention, prevention and combating of COVID-19, other infectious diseases and crisis situations caused by them, and certain other acts, the rules concerning the execution of the sentence have changed. These regulations are aimed at easing the conditions necessary to interrupt the execution of a penalty and submit to electronic supervision in order to reduce the risk of infection.
The first of the changes is the possibility of serving a sentence of imprisonment in the electronic supervision system by persons who have been sentenced to imprisonment not exceeding 18 months. Until now, such an option was only available to persons sentenced to a maximum of one year. This change allows more convicts to use this institution. This option may also be used by persons who have not yet started executing the sentence. In this situation, it is important to convince the court that granting consent to serve a sentence in the electronic supervision system is sufficient to achieve the objectives of the sentence, in particular to prevent the repeated offense, as well as to prove that the convict will be able to execute the sentence outside the prison.
In the so-called The anti-crisis shield also contained a regulation that during the period of an epidemic threat or state of an epidemic announced due to COVID-19, the penitentiary court may grant the convict a break from the execution of the imprisonment sentence, unless there is a justified assumption that the convict during his stay outside the prison does not will comply with the legal order, in particular, will commit a crime, or will not comply with the guidelines, orders or decisions of competent authorities related to the prevention of COVID-19 or 17 treatment of SARS-CoV-2 virus infection. The director of the penitentiary institution submits such an application to the court after approval by the Director General of the Prison Service, if giving a break to the inmate may contribute to reducing or eliminating the epidemic. It should be noted that the court will discontinue the proceedings if the prosecutor objects to the application not later than until the decision on this matter is issued.
The break is granted for a specified period of time, not longer than until the end of the epidemic threat or the state of epidemic announced due to COVID-19. On the day of announcing the end of the state of epidemic threat or state of epidemic, the convict will be obliged to return to the prison within 3 days, unless it is not possible due to being placed in quarantine.
It is worth noting that the above provisions will not be available to convicts:
- for an intentional offense punishable by imprisonment exceeding 3 years;
- for an unintentional crime punishable by more than 3 years imprisonment;
- persons convicted in the conditions of ordinary recidivism, multiple recidivism and perpetrators who have made a permanent source of income by committing a crime or have committed a crime by acting in an organized criminal group or association aimed at committing a crime and against the perpetrator of a terrorist crime.
Access to the files of the proceedings
Pursuant to the provisions of the Code of Criminal Procedure, when the case is at the judicial stage, the parties (the accused, public, auxiliary, private and subsidiary prosecutor, but not the aggrieved party), defense lawyers, attorneys and statutory representatives of the parties have the right to unlimited access to the case files and to obtain of them, copies and transcripts. This right also includes the possibility of taking photographs of files. This possibility is extremely useful in order to fully and correctly participate in the case - in fact, only by knowing all the documentation contained in the files can you prepare a comprehensive and effective line of defense.
The situation is slightly different in the preparatory proceedings. Apart from the fact that the aggrieved party is a party in the course of proceedings (at this stage he does not yet have the function of an auxiliary prosecutor), Art. 156 § 5 of the Code of Criminal Procedure makes access to files conditional upon the consent of the prosecutor. This consent may be refused in a situation where disclosure of the files would jeopardize the proper course of the proceedings or the interest of the state. However, what is crucial, the files constituting the basis for pre-trial detention should be made available in every situation. In addition, after the completion of the collection of evidence, the suspect has the right to participate in the final review of the materials of the proceedings - this is the latest moment in which the files should be made available to him.
Amendments to Art. 37a of the Criminal Code
Restrictions on the application of the conditional suspension of a prison sentence and greater emphasis on the use of the so-called prison sentences (fine and restriction of liberty) resulted in the introduction of Art. 37a - it took place in 2015. A significant change to the content of this provision entered into force on June 24, 2020.
Until now, it was formulated in a relatively simple way - a fine or restriction of liberty could be imposed for an offense punishable by a penalty not exceeding 8 years of imprisonment. Currently, there are more requirements - first of all, the Court must impose a specific initial penalty and determine what penalty should be imposed in a given case. If it is less than a year, it may be replaced by restriction of liberty (not less than 3 months) or a fine (not less than 100 daily rates), but at the same time applying a criminal measure, compensation measure or forfeiture. Additionally, Art. 37a may not currently apply to persons operating in an organized group or association aimed at committing a crime or tax offense and perpetrators of terrorist offenses.
The current wording of Art. 37a of the Criminal Code is therefore as follows:
§ 1. If the crime is only punishable by imprisonment not exceeding 8 years, and the imprisonment imposed for it would not be more severe than one year, the court may instead of this penalty order a restriction of liberty not lower than 3 months or a fine not lower than 100 daily rates. if at the same time there is a measure of kama, compensation measure or forfeiture.
§ 2. The provision of § 1 shall not apply to perpetrators who commit a crime by acting in an organized group or association aimed at committing a crime or a fiscal offense and to perpetrators of terrorist offenses.
Limitation of sanity as a circumstance taken into account by the court when imposing a sentence
According to Art. 31 of the Criminal Code, a person who, due to a mental illness, mental retardation or other disturbance of mental functions, was unable to recognize its significance during the act or direct its conduct - does not commit a crime. In practice, this means that, for example, a person who committed a prohibited act under the influence of a mental illness should not be convicted for it.
Moreover, in the next paragraph of this provision, the code indicates that not only people who do not fully recognize the meaning of the act are to be treated more leniently, but also those whose ability to recognize the meaning of the act or direct the proceedings was significantly limited at the time when the crime was committed. In such a situation, the court may apply extraordinary leniency.
In the judgment of January 24, 2019, file ref. IV KK 459/17 The Supreme Court spoke about yet another situation. It stated that a reduction in sanity - even to an insignificant degree - may be important in determining the sentence. The court emphasized that the issue of accountability is of primary importance in determining the perpetrator's guilt, however, even in the absence of the premises referred to in Art. 31 of the CC, even a slight limitation of sanity may result in a lower degree of guilt and punishment.
Changes to the criminal appeal procedure
In 2020, new provisions introduced by the Act of 19 July 2019 amending the Act - Code of Criminal Procedure and certain other acts entered into force. One of the changes concerned the appeal procedure.
Art. 454 of the Code of Procedure contains the ne peius rule, which limits the different adjudication by the appellate court on the merits of the case. This solution is a manifestation of the privileged position of the accused in the trial. The accused may not be convicted for the first time on appeal. The provision applies to the issuing of judgments by the appellate court in connection with an appeal only to the detriment of the accused. This prohibition absolutely excludes the possibility of convicting an accused who has been acquitted or the proceedings against him have been discontinued.
As a consequence, the appellate court may only quash the judgment under appeal and refer the case to the court of first instance for reconsideration. Therefore, the ne peius rule does not exclude the possibility of convicting the accused when he was acquitted or discontinuing the proceedings conditionally or unconditionally, or imposing a sentence of life imprisonment when an appeal was lodged against the accused.
The amendment narrowed the scope of the ne peius rule by excluding conditional discontinuation of proceedings. This means that if a judgment is challenged to the detriment of the defendant containing such a decision, the appellate court may change the judgment under appeal and convict the defendant.
Moreover, § 3 was deleted from the new wording of the Code, which means that now, in the event of an appeal applying for the imposition of a life imprisonment, the court of appeal may order such a penalty.
This change deprives the accused of the possibility to question the decision on the penalty in the instance control. It also makes it impossible to lodge a cassation appeal on general terms - it cannot be filed solely because the penalty is disproportionate.
This amendment aroused great controversy in the legal community. Adam Bodnar, the Ombudsman for Human Rights, spoke about the possibility of violating the Constitution by these provisions.
In the overwhelming majority of cases in criminal law, the prosecutor is the prosecutor. This does not change the fact that there are also ways of bringing an indictment by the aggrieved party in a situation where state law enforcement agencies are not interested in it. This could be due to a refusal to initiate an investigation or an investigation due to a failure by law enforcement to find sufficient evidence. Despite their passivity, the aggrieved party, determined to punish the perpetrator, may independently file a complaint to the court. Such an institution is regulated by Art. 55 of the Code of Criminal Procedure and is known as a subsidiary indictment.
Such a trial should not differ in any way from a trial initiated as a result of an indictment brought by a public prosecutor (prosecutor). It should be emphasized that the indictment brought by the aggrieved party should be drawn up and signed by an attorney, legal advisor or counselor at the General Prosecutor's Office of the Republic of Poland.
A prosecutor may join a case initiated in this way at any time, thus becoming a public prosecutor. The proceedings are then conducted on the basis of a public indictment, and the aggrieved party who brought the indictment enjoys the rights of an auxiliary prosecutor. The prosecutor may withdraw the indictment only with the consent of the aggrieved party who brought the indictment.
The provisions on the subsidiary indictment are characterized by the fact that the victim must first exhaust the entire available procedure. First, the prosecutor must refuse to institute proceedings or discontinue them in the form of a decision. Subsequently, this decision should be appealed to the court. When examining the complaint, the court repeals the decision, indicating the reasons and circumstances that require more detailed explanation by the prosecutor. When the court finds no grounds to institute proceedings again, it refuses to initiate or discontinues them.
In connection with the amendment to the Code of Criminal Procedure, new regulations entered into force in 2020, which extend the path of the victim to bring a subsidiary indictment. Currently, the aggrieved party may bring an indictment to the court only within one month from the delivery of the notification about the superior prosecutor's decision to uphold the appealed decision.
Prosecutor's objection regarding the detention on remand
The Code of Conduct regulates that a court may change pre-trial detention on bail provided that a specific bail is issued. The accused must submit this surety within the time limit set by the court, but at the reasoned request of the accused or his defense counsel, submitted no later than on the last day of the time limit, the court may extend this time limit.
Until now, this decision was final. On October 5, 2019, an amendment to the Code of Criminal Procedure entered into force introducing the institution of the prosecutor's objection to the court's decision in these circumstances. New § 3 art. 257 of the Code of Criminal Procedure stipulates that if the prosecutor declares that he opposes a change in the preventive measure, this provision, in so far as it concerns the change of pre-trial detention into a surety, becomes enforceable on the day of its validity. The prosecutor may raise objections at the latest after the announcement of the order by the court.
The prosecutor's objection will make it impossible to release the detainee who has paid the bail until the court decision becomes final, and thus the court's appeal may be heard by the second instance or the time to lodge such an appeal shall expire. In practice, this can significantly extend the detention period.
This amendment aroused considerable controversy. According to some lawyers, it constitutes a dangerous strengthening of the role of the prosecutor in criminal proceedings. There is even a charge of non-compliance with the Polish Constitution. The firmly opposite position in this matter was taken by, among others District Bar Council in Warsaw. The authors of the amendment emphasize that these changes are to limit the excessive power of judges.
What threatens a witness who gives false testimony for fear of impending criminal liability?
Until now, the position in this case was unequivocal - a witness who gave false testimony or concealed the truth because he was afraid of criminal liability, did not commit a crime. This was a guarantee of a potential suspect in the rights of the defense. The situation changed after the introduction of new provisions into the Criminal Code (entered into force on April 14, 2016). For the first time, the Supreme Court ruled on the interpretation of new provisions on January 15, 2020. Although it refused to issue a resolution, it decided to clarify the doubts arising in this matter.
In case I KZP 10/19 T. K. was accused of testifying untruth. He was advised of criminal liability for false testimony and the right to refuse to answer questions, however he was afraid of the criminal liability that would arise.
Until the entry of new provisions, it was assumed in the jurisprudence that a person who was questioned as a witness could not bear criminal liability for giving false testimony, but due to the fact that he was the perpetrator of an act, he should be questioned as a suspect. Currently, the provision of art. 233 of the Penal Code, adding to it § 1a. This provision states that the perpetrator is subject to the penalty if he testifies untruthfully or conceals the truth for fear of criminal liability threatening him or his immediate relatives. At the same time, the provisions stipulate that anyone who makes a false testimony without being aware of the right to refuse to testify or answer questions is not subject to punishment. This applies, among other things, to the situation where such a witness is not informed of his rights and obligations by the court.
The Supreme Court interprets the new rules in such a way that a witness (regardless of whether he should obtain the status of a suspect in a given case) has the right to remain silent. This is not tantamount to the right to testify falsely or withhold the truth.
The Supreme Court emphasized that the fundamental goal of the criminal trial is to bring the guilty person to criminal liability. This purpose is to be pursued even if his right of defense is contrary to him.
The defendant's absence at the trial
In principle, the accused's participation in the trial is his right, not his duty. According to the amendment of July 19, 2019, which added Art. 378a, the court may conduct evidentiary proceedings (in particular, hear witnesses) even in the event of a duly justified absence of the accused (i.e. release from a medical doctor), even if he has not yet submitted explanations. The defender and the accused at the next hearing may submit a request for supplementary taking of evidence if they show that the taking of evidence in the absence of the accused violated the procedural guarantees, in particular his right to defense. The right to submit such an application will not be granted if it turns out that the absence was unjustified.
The above amendment raises a lot of controversy. Her supporters argue that it will significantly affect the speed and efficiency of proceedings, which will significantly reduce the length of hearings and the fact that the court has only this option, not the obligation. Opponents argue that the taking of evidence in the absence of the accused always violates his procedural rights, and that the acceleration of the trial can only consist of failure to meet the deadline, because in practice the request to supplement the evidentiary proceedings will always involve an additional trial date.
Evidence of exclusion - improvement or threat?
Pursuant to the new provisions of the Code of Criminal Procedure, the evidentiary request is dismissed if it was submitted after the deadline set by the procedural authority, of which the party submitting the request was notified.
An evidential request cannot be refused on this basis if the circumstance to be proved is relevant to determining whether:
- a criminal act has been committed,
- the act constitutes a crime,
- the offense was committed under conditions of recidivism,
- it was the act of the perpetrator, who made himself a permanent source of income from committing the crime,
- the perpetrator commits a crime by acting in an organized group or association aimed at committing a crime,
- the perpetrator committed a terrorist offense,
- there are conditions to stay in a psychiatric institution.
Amendments to the Code of Criminal Procedure are to accelerate the criminal process. Controversy, however, is whether this will not limit the defendant's right of defense too much. Some argue that the introduction of evidence inclusion is a departure from the fundamental principle of material truth, which may result in unfair judgments. Lawyers note that the court is equipped with other tools to prevent delaying proceedings by submitting unfounded evidence. An example is art. 170 par 1 points 1-5 of the Code of Criminal Procedure, according to which the court dismisses the evidence in the event that the circumstance is irrelevant to the resolution of the case, the evidence is not useful for ascertaining a given circumstance, whether it is already proved, when evidence cannot be taken or when the application is intended to extend the proceedings. In their opinion, no further restriction is necessary.
It should be emphasized that the evidence of the circumstances of the perpetration and culpability that are key to the case are free of any inclusion. Defenders of the amendment also point out that the adopted line of defense is usually aimed at demonstrating that the accused did not commit the act he was accused of, so in this respect, evidence inclusion should not limit the defender. In the justification of the draft amendment, it was argued that it was intended in this way to curtail in particular the evidence of the circumstances affecting the sentence.
Some lawyers began to circumvent the new provision by submitting requests to extend the deadline for submitting evidence.
Nearly a year ago, the Act on Prevention of Sex-related Crimes was introduced. Based on it, the Registry of Sex-related Criminal Offenders was introduced. Public part of the Registry consists information about some groups of people that were found guilty of crimes against sexual freedom. The Registry is available on-line. The limited access part of the Registry has more detailed information about all sexual offenders, however it is available only for certain entities, listed in the Act itself. Additionally, the Police has, based on the Act, started the map of sex-related crime danger, that is available here (link in Polish):