Observation in a closed facility (Article 203 of the Code of Criminal Procedure)
In the course of a criminal trial, it is not uncommon for a situation to be sought from doctors on the suspect's physical and mental health. The means that can be used for this purpose are various, from obtaining information from the patient's treatment record, through seeking expert opinions, to the most invasive measure in the suspect's rights and freedoms, in the form of an examination of the suspect combined with observation in a closed facility for a specified period. Due to this interference, the application of this measure depends on the fulfillment of several conditions, some of which refer to the provisions on the application of pre-trial detention.
- Experts must report the need. In other words, there must be a circumstance as a result of which they are unable, in the course of ordinary activities, to determine the mental health of the suspect.
- It can only be used when the evidence gathered indicates a high probability that the accused has committed the offence. As stated by the Supreme Court in the decision of September 22, 2021 (file reference number: I DSK 3/21, LEX No. 3359053): "The observation referred to in Art. 203 § 1 CCP may be adjudicated in the event of a high probability - based on the circumstances of the case at a given moment of the proceedings, including the evidence already collected - that the defendant is the perpetrator of the act with which he is accused and which meets the criteria of a crime. The purpose of the opinion to be issued is therefore to assess the sanity of the accused.”
- With reference to art. 249 § 3 and § 5 of the Code of Criminal Procedure, there is an obligation to interrogate the suspect before sending him for observation, if possible, as well as to notify the prosecutor and defense counsel, if the suspect so requests. Moreover, if the suspect did not have a defense counsel in the previous proceedings, a public defender is appointed at his request.
- The duration of observation is 4 weeks, however, it may be extended for a total period not exceeding 8 weeks. Nevertheless, the Supreme Court, in its decision of November 19, 2014 (file reference: V KK 259/14, LEX No. 1621622), allowed the possibility of using evidence from observations exceeding the above-mentioned period: "The obvious fact of exceeding the maximum period of observation does not justify (.. .) accepting the impossibility of using an opinion drawn up after such observation in the trial.” . Moreover, in such a situation, Art. 156 § 5a, i.e. the suspect and the defender "shall be immediately made available to the case files in the part containing the content of the evidence attached to the application". This is another appeal to ensure that the suspect's rights are protected.
- By referring to art. article 259 § 2, art. 203 of the Code of Criminal Procedure does not apply when, based on the circumstances of the case, it can be expected that the court will order the defendant to be sentenced to imprisonment with conditional suspension of its execution or a milder penalty, or that the observation period will exceed the expected length of imprisonment without conditional suspension. This provision does not apply when the suspect himself requests to be observed
Recidivism is defined as the return of the same perpetrator to a crime, with which the criminal law associates negative consequences. We can distinguish criminological and penitentiary recidivism as well as general and special.
Criminological recidivism means a repetition of any crime, regardless of whether the perpetrator has been previously convicted, while penitentiary recidivism occurs when the perpetrator is once again serving a prison sentence imposed for any crime, regardless of when and to what extent he served a prison sentence previously adjudged.
General recidivism, which occurs when the conditions of Art. 64 § 1 of the Penal Code, prevents the application of specific criminal law institutions to a case that has previously been punished for a crime of a specific type. For example, in the case of a perpetrator who has already been punished with a prison sentence exceeding 5 years, conditional discontinuation is excluded. On the other hand, special (or special) recidivism consists in – facultative or obligatory – intensification of the penalty for the perpetrator punished for a crime of a specific type, who again committed a crime of a specific type within a specific period of time, after serving a specific part of the adjudicated penalty of imprisonment. Within the framework of special recidivism, ordinary (or basic) recidivism is distinguished, and multiple recidivism - in the case of which a return to the crime of the same type is required.
The regulation on special recidivism works to the detriment of the perpetrator, therefore it must be interpreted strictly. Conviction based on Art. 64 § 1 of the Penal Code, i.e. as part of ordinary or otherwise simple special recidivism, is conditional upon the fulfillment of the following conditions:
- the offender committed an intentional crime,
- he was sentenced to imprisonment for them;
- has served at least 6 months of the sentence imposed for this offence;
- commits an intentional crime similar to the one for which he has been convicted;
- commits them within 5 years of serving at least 6 months of the imposed sentence.
The concept of an intentional offense includes acts based on intent within the meaning of Art. 9 § 1 of the Penal Code, as well as on the combined subjective side, where the output type is carried out intentionally, while only the consequence (consequence) of a prohibited act is covered by unintentionality. The intentional commission of a prohibited act must have an intellectual basis, the perpetrator commits the act with direct intention, i.e. when he wants to commit a crime, or with possible intention, i.e. when anticipating the commission of a prohibited act, he agrees to it. In the first place, therefore, it is about the awareness of the perpetrator.
Another premise of juridical recidivism is the similarity of the crimes committed by the perpetrator. The basis for determining the similarity of crimes is what has been covered by the hallmarks of an intentional crime. Based on Article. 115 § 3 k.k. three criteria of crime similarity are derived. It is a closed catalog, and these criteria are independent, which means that the existence of at least one determines the similarity of crimes. These include: gender identity, the use of violence or threats of violence when committing a crime, and acting for financial gain.
Only a conviction may be the basis for a special recidivism, but it may also be a conviction issued by a court in another European Union country. The judgment constituting the basis for the application of the structure specified in art. 64 § 1 k.k. there will be no judgment conditionally discontinuing the proceedings, no judgment under which the court refrained from imposing a penalty, nor imposing a fine or restriction of liberty.
Due to the fact that the offender must serve at least 6 months of imprisonment, it should be stated that the premise for special recidivism is sentencing to imprisonment of at least this length. It must be a penalty imposed in the judgment, but it does not have to be an absolute penalty - then, the condition is to order its execution. The penalty of imprisonment may be covered by a cumulative sentence, however, assigning a recidivism in a case for another offense will be possible only if the individual penalty for a similar and intentional offense was not less than 6 months.
It is worth emphasizing, however, that in accordance with the jurisprudence of the Supreme Court, the penalty of imprisonment, which is the basis for special recidivism, is not a substitute penalty (judgment of October 20, 2022, I KK 285/22), nor a stay in a correctional facility. On the other hand, a sentence served in the electronic supervision system can already be considered as such a basis (judgment of 13 July 2022, IV KK 198/22).
In addition, the legislator provided for a 5-year limitation period for recidivism, which means that a similar intentional crime is to be committed within 5 years of serving at least 6 months of imprisonment. A new crime - at least a fragment of it– it must be committed during the period when this 5-year period is running.
Finally, it should be recalled that Art. 64 k.k. does not modify the limits of the statutory threat of punishment, but belongs to the judicial scope of the finally imposed penalty.
Discontinuation of criminal proceedings due to the obvious lack of factual grounds for the accusation under Art. 339 § 3 point 2 CCP
Discontinuation of the proceedings at a hearing because it is established that the act described in the indictment does not contain the characteristics of a prohibited act is a common practice of the Courts, intended to streamline the course of the proceedings and relieve the Courts. Its application, however, carries the risk of a serious violation of procedural law and should be used only in exceptional cases, supported by an in-depth analysis of the collected evidence.
A premature decision of the Court to discontinue the case without holding a hearing may prevent the submission of relevant evidence and, as a consequence, insufficient clarification of the circumstances of the case. The practice in which the Courts, despite applying for obtaining evidence, decides to resign from conducting the proceedings is unacceptable. As stipulated in Art. 167 of the Code of Criminal Procedure, evidence in the case is taken at the request of the parties or ex officio, therefore the withdrawal from taking evidence without examining the evidence requests of the prosecutor cannot be considered admissible. Even if, however, the Court familiarized itself with the submitted evidence requests and nevertheless decided to reject them, in accordance with Art. 170 §1a of the Code of Criminal Procedure, he may do so only when he is sure that carrying them out would not lead to the determination of circumstances of significant importance to the case. In a situation where the prosecutor would turn to the Police in order to obtain evidence, the discontinuation of the proceedings before the officers took evidence may be considered as depriving him of the opportunity to take evidence, which should be guaranteed under the provisions of the Code of Criminal Procedure. When considering discontinuation of the proceedings on the basis of finding that there are no signs of a crime, the court should also take into account the fact that failure to conduct a hearing and thus resignation from examining all the circumstances of the evidence may be considered a serious infringement of Art. 92 of the Code of Criminal Procedure, according to which the decision may be based only on all the circumstances disclosed in the proceedings, which are relevant to the decision.
Bearing in mind the above-mentioned threats related to the abuse by the Courts of Art. 339 § 3 point 2 CCP it should be stated that the discontinuation of the proceedings due to the Court's finding that there are no signs of a prohibited act, unless it has decided to conduct a comprehensive and exhaustive evidentiary procedure, should not be admissible.
Changes in the Penal Code in 2023
The amendment, which is to enter into force on 1 October 2023, will introduce many changes to Polish criminal law, in particular regarding the amount of sanctions. First of all, the statutory punishment is to be tightened in the case of crimes directed against life, health and sexual freedom. Moreover, new types of offenses will appear in the special part of the Penal Code.
The most "high-profile" modifications seem to be: raising the upper limit of imprisonment from 15 years to 30 years and abolishing the penalty of 25 years of imprisonment, as well as introducing the penalty of absolute life imprisonment into the penal code (i.e. without the possibility of parole under probation) .
Higher sanctions by way of amendment will appear in connection with crimes such as: rape, accepting bribes, robbery, as well as armed robbery, or intentionally causing grievous bodily harm (in the case of the last two of the above-mentioned types of crimes, the maximum penalty will be henceforth at the level of 20 years of imprisonment). Thus, it can be seen that the changes introduced in the criminal law are relatively extensive and aim at tightening up the judiciary.
Apart from general modifications in the catalog of penalties and changes in the statutory penalty for particular types of offences, the legislator decided to specify new types of prohibited acts. These are: acceptance of a murder order, evasion of compensation for damage caused by a crime, extortion of property through blackmail, and, moreover, a staged form in the form of preparation to commit murder will henceforth be punishable by imprisonment from 2 to 15 years.
No matter how loudly commented in the public debate (including critical comments) on the introduced reform, the amendment, as a result of being signed by the President of the Republic of Poland, will soon become a binding regulation. However, it should be hoped that increasing the statutory penalty and introducing greater rigor to the legal system will consequently have a preventive value and will help to deter potential criminals from committing prohibited acts.
Social harmfulness of the act as a constitutive element of the crime
Art. 1 of the Polish Penal Code (Act of June 6, 1997. Penal Code (i.e. Journal of Laws of 2022, item 1138, as amended) - hereinafter referred to as: "penal code") establishes a legal definition of a crime, in other words, it indicates the premises, the occurrence of which in a given factual state determines the criminal liability of the perpetrator. The legislator makes the commission of a crime dependent on three basic factors, i.e. the unlawfulness of the act, guilt and social harmfulness of the manifested behavior. The last of the above elements, in particular, is characterized by a high degree of indefiniteness, as a consequence of which the interpretation of the concept cannot be carried out without analyzing the statements of the case law. Statements of the judiciary are usually an extension of the norm provided for by the legislator in Art. 115 § 2 of the Penal Code, which indicates the criteria that the court should take into account when assessing the degree of social harmfulness. These are: the type and nature of the infringed good, the size of the damage caused or threatened, the manner and circumstances of the act, the importance of the obligations violated by the perpetrator, as well as the form of intention, motivation of the perpetrator, the type of breached precautionary rules and the degree of their violation.
Based on the judgment of 2021 (Judgment of the Supreme Court of July 27, 2021, III KK 346/20, LEX No. 3305210.), the Supreme Court expresses the view that "the assessment of the degree of social harmfulness of a particular behavior should be a comprehensive assessment, taking into account the circumstances listed in Art. . 115 § 2 of the Penal Code, and not the sum or derivative of partial assessments of one or another "negativeness" inherent in individual circumstances, and therefore, if in Art. 1 § 2 k.k. there is talk of negligible social harmfulness of an act, the requirement of insignificance applies to social harmfulness assessed comprehensively, and not its individual factors. Thus, the adjudicating panel emphasizes that the method of assessing the degree of social harmfulness in a given factual state should be rather holistic. The individual factors subject to assessment are, in consequence, more of a starting point for examining the occurrence of the above-mentioned factors. premises.
When reviewing the jurisprudence of Polish courts, it is easy to see that the category of social harmfulness is often interpreted ad casum. It can be seen, therefore, that it is difficult to find one universal standard for assessing the occurrence of this premise when verifying whether a crime has been committed. For example, in one of the most characteristic judgments of SA in Warsaw (Judgement of SA in Warsaw of September 30, 2022, II AKa 110/22, LEX No. 3432025.), in connection with a crime against the head of state, there is a thesis that "the level of protection of public figures, including the President of the Republic of Poland, must take into account the increased risk of public criticism. For these reasons, it is unjustified to divide the opinion posted by the defendant in social media, as it were, into parts and to claim that the offensive word used there at the very end ("moron") is sufficient to conclude that the specific gravity of the entire entry is characterized by a degree of social harmfulness higher than insignificant".
Finally, it is also worth pointing to one of the SA judgments (Judgment SA in Warsaw of 30/09/2022, II AKa 110/22, LEX No. 3432025), in which the adjudicating panel stated that "they do not affect the assessment of the degree of social harmfulness of the act such circumstances as: no criminal record (criminal record) of the perpetrator, his life so far, his properties and personal conditions, difficult financial or family situation, because although these circumstances should be taken into account by the court when imposing a sentence (or applying probation measures), they are not taken into account in aspect of assessing the degree of social harmfulness of an act.” The outlined directive certainly specifies the criteria set out by the legislator in Article 115 § 2 of the Penal Code, treating them somewhat negatively.
The insignificance of the social harmfulness of the act.
A. M. was charged with the fact that "in the period from October 2010 to December 2016, he repeatedly accused A. B. of conduct and properties that could humiliate him in public opinion and expose him to the loss of trust needed to practice his profession by accusing him of falsifying documents of the cooperative in which he is the President of the Management Board, attesting untruths and lies, suggesting bribery, attributing and making statements that did not come from him, threatening to send him denunciations, uttering other untrue statements aimed at discrediting him in the eyes of members and contractors cooperative, and also harassed him by directing individual (personalized) statements that should concern a multi-person management board, and in cases conducted by the Prosecutor's Office he swindled and presented false evidence, which led to unfounded accusations against him of extorting untruths in document", i.e. for an act under Art. 212 § 1 k.k.
However, due to the insignificant social harmfulness of the act, the proceedings were discontinued.
In the context of this case, the Supreme Court issued a decision of December 14, 2022 (II KK 460/22), in which it stated that the condition for examining the social harmfulness of an act is its unlawfulness, and therefore the argument that this behavior is unlawful, in no way cannot constitute a violation of Art. 115 § 2 k.k. It must be clarified that the examination of the level of social harmfulness of an act belongs to the sphere of factual findings, and not to the assessment of whether the provision of Art. 115 § 2 k.k.
Hearing of minors
The interrogation of minors, both witnesses and victims, as well as adults victims of specific crimes, which will be characterized below, is conditioned on the basis of the Code of Criminal Procedure (hereinafter: CPC) in a manner different from the typical course of this activity.
Article 185a of the Code of Criminal Procedure deals with minors injured by crimes committed with the use of violence or unlawful threats or crimes against freedom (Chapter XXIII of the Penal Code), crimes against sexual freedom and decency (Chapter XXV of the Penal Code) and crimes against family and care (Chapter XXVI). A minor who on the day of the interrogation is under 15 years of age should be interrogated only in a situation where his testimony may be of significant importance for the resolution of the case and, as a rule, only once. These regulations also apply to a minor victim of the above-mentioned crimes, who is 15 years old, but there is a justified fear that that an interrogation in other circumstances could have had a negative impact on his mental state. The interrogation, even in preparatory proceedings, is carried out by the court at a meeting with the participation of an expert psychologist. It is worth noting that
that the prosecutor, the defender and the victim's representative have the right to participate in the proceedings. The accused who has been notified of the action and does not have a defense counsel of his choice shall be appointed a public defender. Considering that such an interrogation, as a rule, should take place only once, during the main hearing only the recorded image is reproduced and sound of the interrogation, and the minutes are read.
Art. 185b of the Code of Criminal Procedure provides that a minor witness of a crime committed with the use of violence or unlawful threat or of an offense specified in chapters XXV and XXVI of the Penal Code, who at the time of the activity is under 15 years of age, is interrogated under the conditions described above and only if his testimony may have significant for the resolution of the case. It should be noted that these provisions do not apply to an assisting witness in the commission of an act or a witness whose act is related to the act for which the criminal proceedings are pending.
Art. 185c of the Code of Criminal Procedure is devoted to victims of crimes specified in Art. 197-199 of the Penal Code, i.e. rape and extortion of sexual activity, sexual abuse of insanity or helplessness, sexual abuse of dependence or critical situation. The victim of the above crimes is interrogated as a witness on the same terms as those described above. An additional regulation states that, at the request of the injured party, it should be ensured that the expert psychologist participating in the activities is of the same sex as the injured person, unless this will hinder the proceedings.
Each of the above-mentioned hearings, in accordance with Art. 185d, should take place in properly prepared rooms at the seat of the court or outside its seat. In the case of hearings of minors, these are rooms with pleasant colors, paintings, photos, toys, tables appropriate to their height. These are rooms equipped with cameras and microphones that collect video and sound from a given activity.
The purpose of the regulations described above is to ensure certain standards that enable victims and witnesses to express themselves freely, to be treated appropriately, and to protect against secondary victimization.
Blue Card, and art. 207 k.k.
The Blue Card procedure has been regulated in the Act of 29 July 2005 on counteracting domestic violence. Article 9d. sec. 2 of the aforementioned Act clearly defines what this measure consists of and is characterized by - it covers all activities undertaken in connection with a justified suspicion of domestic violence and carried out by representatives of:
- social welfare organizational units;
- communal commissions for solving alcohol problems;
- the police;
- health protection.
The provision of art. 9d. was introduced into the legal order by the amendment of June 10, 2010 - earlier, the manner of conducting the procedure was regulated primarily by the orders of the Police Commander-in-Chief. Since the aforementioned amendment, this has been the responsibility of the Council of Ministers, which regulates this issue in the relevant regulation (Journal of Laws of 2011, No. 209, item 1245), also indicating the templates of relevant forms. In order to show the importance and importance of this institution, one can refer to the statistics - in 2019 alone, as many as 94,716 "Blue Card - A" forms were drawn up, initiating the entire procedure (S. Spurek [in:] Counteracting domestic violence. Commentary, ed. V, Warsaw 2021, Article 9(d)).
All activities that make up the Blue Card are aimed at providing effective assistance to victims of violence in a wide range and in a long-term way, starting from standardized documentation of events consisting of simple questions, through developing an individual assistance plan for the injured person, informing them about the possibilities of obtaining support, and ending only when the violence in a given family stops and there is a reasonable assumption that it will not happen again. The victim can get psychological and legal help. It is worth mentioning here that the Blue Card procedure is initiated regardless of the victim's consent - the legislator took into account the psychology of the victim, who often refrains from taking steps against the perpetrator (S. Spurek [in:] Countermeasures...).
The Blue Card procedure may be related to the offense of abuse as defined in Art. 207 of the Penal Code: "Whoever physically or mentally abuses the closest person or another person who is in a permanent or temporary relationship of dependence on the perpetrator, is subject to the penalty of imprisonment from 3 months to 5 years."
It should be clearly noted that initiating the Blue Card procedure, e.g. by intervening Police officers, is not tantamount to submitting a notification of the possibility of committing a crime or instituting proceedings. Nevertheless, it may constitute important evidence in the case - the documentation, as mentioned above, is kept uniformly throughout the country and prepared with due diligence is undoubtedly of high value for law enforcement and the judiciary. As the Supreme Court stated in one of its rulings, “there is no doubt that under the procedure of the so-called Under the Blue Card, the intervening police officers formally collect the deposits of various people. It cannot be said that these are spontaneous statements or merely overheard by these officers” (Judgement of the Supreme Court of April 6, 2022, II KK 52/22, OSNK 2022, No. 5, item 17).
Human trafficking as a crime against freedom
On the basis of art. 189a k.k. the crime of trafficking in human beings has been distinguished. The particular need to penalize this crime is additionally emphasized by the fact that paragraph 2 of the above-mentioned The provision deals with punishable preparation to commit the above prohibited act. The staged form in the form of preparation is not automatically sanctioned in the case of every type of crime.
The provision in the form of Art. 189a k.k. was worded quite succinctly. This leads to the observation that he creates a norm only in conjunction with Art. 115 pairs 22 k.k., which contains a legal definition of "trafficking in human beings". Therefore, in order to convict someone for committing (or preparing for) the above-mentioned of the act, it should first be examined whether his behavior fulfilled the features provided for in Art. 189a k.k. in relation to joke. 115 pairs 22 k.k. The second of these provisions states that "trafficking in human beings is the recruitment, transport, delivery, transfer, storage or reception of a person using:
- violence or unlawful threats,
- misleading or exploiting an error or inability to properly understand the action taken,
- abuse of the relationship of dependence, exploitation of a critical situation or state of helplessness,
- granting or accepting a financial or personal benefit or a promise thereof to a person exercising care or supervision over another person
– for the purpose of its use, even with its consent, in particular in prostitution, pornography or other forms of sexual exploitation, forced labor or services, begging, slavery or other forms of exploitation degrading human dignity or for the purpose of obtaining cells, tissues or organs contrary to the provisions of the Act.
If the behavior of the perpetrator concerns a minor, it constitutes trafficking in human beings, even if the methods or means listed in points 1-6 have not been used.”
Quoting the full wording of Art. 115 pairs 22 k.k. is of considerable importance in the context of the analysis of trafficking in human beings in terms of the specificity of the phenomenon intended by the legislator. Until 2010, the lack of a legal definition caused problems of interpretation. As of today, the legislator requires that behaviors that are carried out alternatively in the form of: recruiting, transporting,
the delivery, transfer, storage or receipt of the victim. This catalog, in contrast to the list of motives driving the offender (which is further discussed in Article 115(22) of the Penal Code), seems to be a closed catalog. More than one verbal feature means that the crime of trafficking in human beings can be considered multivariate, i.e. to fulfill the features it is enough to undertake at least one of the behaviors specified by the legislator.
Another aspect worth paying attention to is the directional nature of the act under consideration. In the current legal status, the criminal's action must be marked by a goal. The subjective side is therefore to be characterized by the motivation of the perpetrator in the form of the intention of subsequent use of the victim. An exemplary catalogue, as mentioned above, was distinguished by the legislator on the basis of art. 115 pairs 22 k.k.
It is also important to point out the previously ambiguous jurisprudence as to whether trafficking in human beings constitutes a crime also when the subject of the act is one person. Interpretation of Art. 189a k.k. in relation to joke. 115 pairs 22
k.k. leads to the clear conclusion that the answer to this question should be affirmative. Literally, in the provision, the legislator treats an action directed against a "person" (singular). However, the lack of a legal definition previously caused a judiciary ferment, which is why the introduction of Art. 115 pairs 22 k.k. considered a legislative success. A positive example is the line of jurisprudence represented in the judgment of SA in Lublin of 18.12.2001, II AKa 270/01, where the court pointed to the possibility of recognizing as trafficking in human beings a transaction made in connection with one victim.
Finally, it is also worth considering the issue of how the criminal acts. The legislator lists the methods used by the perpetrator when trafficking in human beings. Therefore, it is important not to forget about this issue when examining the implementation of signs.
Obtaining evidence in a criminal trial
There are two types of evidence in the Polish criminal procedure - personal evidence and material evidence. The first group includes explanations provided by the accused, testimonies of witnesses and expert opinions. Material evidence, on the other hand, is the second, very broad group to which we can include all items and traces that can be secured, both tangible and intangible, that are related to the crime and will help in the reconstruction of the event that is the subject of criminal proceedings. Evidence is obtained through trial and forensic activities, such as visual inspections and interrogations. These activities must be carried out in accordance with the indications of science, so that the evidence material is not exposed to damage or distortion. The correctness of the conduct of activities should be monitored by the prosecutor, and after the end of the preparatory proceedings - by the court. Traces that have been improperly obtained will not be considered reliable evidence in the course of pending proceedings.
Visual inspection is one of the most common methods of obtaining evidence. According to Art. 207 of the Code of Criminal Procedure, “if necessary, the place, person or thing is inspected. If an object may be damaged or deformed during the examination, a part of this object should, as far as possible, be kept unchanged, and if this is not possible - this condition should be fixed in another way ”. The inspection may be of people, place or things. Examination of the person or body examination that may cause a feeling of embarrassment should be performed by a person of the same sex, unless there are special difficulties. Other people of the opposite sex may only be present when necessary. The role of the visual inspection is even greater as it can be successfully performed only once. With each subsequent attempt to execute them, most traces will already be breached and they will lose their value to the court.
A search, unlike a visual inspection, is limited to searching for specific items. Although there is no high risk of obliterating other traces, as in the case of visual inspection, the search must also be carried out in accordance with strictly defined rules. Pursuant to Art. 221 of the Code of Criminal Procedure, searches of the inhabited premises can be made at night only in urgent cases. The time from 10 p.m. to 6 a.m. is considered the night time.
Thanks to the interrogations, valuable personal evidence can be obtained in the form of testimonies (in the case of witnesses) or explanations (in the case of the accused or the suspect). The guiding principle of conducting interviews is to ensure freedom of expression to the interrogated person. Only after allowing free expression, you can ask questions intended to supplement, clarify or control the statement. Importantly, if the interviewed person is under 15 years of age, the activities with his participation should, if possible, be carried out in the presence of a statutory representative or a real guardian, unless the interests of the proceedings prevent this. The interviewed person is not allowed to ask any questions suggesting the content of the statement. It is unacceptable to influence the statements of the interviewed person by means of coercion or an unlawful threat, the use of hypnosis or chemical or technical measures affecting the mental processes of the interviewee or aimed at controlling the unconscious reactions of his or her body in connection with the interview.
Disclosing and collecting evidence correctly is a difficult procedure that requires specialized knowledge and experience. However, due to the high importance of evidence in criminal proceedings, it is necessary that their acquisition takes place in accordance with precisely established rules and under the control of procedural bodies, both for the interests of the parties and the interest of the judiciary.
• Art. 211a of the Criminal Code: - "§ 1. Whoever, in order to gain financial gain, organizes the adoption of children contrary to the provisions of the Act, shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years. who has parental responsibility over the child, consents to the adoption of that child by another person: 1) in order to gain financial or personal gain, withholding this purpose before the court adjudicating in the adoption proceedings, and in the event the parent expresses consent to the adoption of the child in the future without indicating the person of the adopter - before the court accepting the declaration of consent, 2) excluding the procedure for adoption. § 3. The same penalty shall be imposed on anyone who agrees to adopt a child by himself under the conditions referred to in § 2. "
One of the effects of the amendment introduced by the Act of 20 May 2010 amending the Penal Code, the Police Act, the Act - Provisions introducing the Penal Code and the Act - Code of Criminal Procedure is Article 211a of the Criminal Code. It replaced the now obsolete article 253 §2. In addition, along with the Act of October 16, 2019 amending the Act - Penal Code and the Act - Code of Civil Procedure, it was given a new wording. By criminalizing the illegal organization of adoptions, the Polish legislator tries to fulfill the obligations imposed on States - Parties by the Convention of 20 November 1989 on the Rights of the Child. As a result of its ratification, it has become necessary to strengthen the protection of children's rights, inter alia, in order to combat the illegal transfer of children and their illegal export abroad.
Before the entry into force of the 2010 amendment, article 253 was included in chapter XXII - "Offenses against public order". The systematics adopted at that time clearly exposed public order as the main object of protection. Currently, the best interests of the child are cared for. Such action can in no way be equated with leaving complete freedom in terms of adoption procedures. Nevertheless, due to the more and more frequent and clearer emphasis on the essence of the protection of children's rights in various normative acts with an international dimension - the Polish legislator has also shifted the focus to the rights of the youngest.
It is also worth paying attention to the concept of "child". In terms of the convention, which is the basis for the current national regulation - a child is a person under the age of 18, unless legally they have reached the age of majority earlier. This means that a woman at the age of 16 who, with the consent of the guardianship court, got married will not be a child within the meaning of the Act.
The legal act of October 16, 2019 also introduced a legal definition of adoption. Until now, only the term "adoption" was used, in legal language using both terms alternately. However, this approach turned out to be too narrow. In view of the above, the legislator decided to put this issue in order, defining "adoption" as "the acquisition of parental responsibility over a child by a person other than the person from whom the child comes". The essence of unlawful action in the case of a crime stipulated in Art. 211a of the Penal Code it is the mere achievement of a specific legal effect. As a consequence, the legal and family institution that the interested party reaches for is irrelevant. As A. Muszyńska points out - the effect of acquiring parental authority can be achieved both through the adoption procedure and, for example, through the fictitious recognition of the child by a person claiming to be the biological parent. "Adoption therefore covers all situations where the effect of the action is the acquisition of parental responsibility over the child, regardless of the legal instruments used for this purpose." (A. Muszyńska [in:] Penal Code. Particular. Commentary, edited by J. Giezek, Warsaw 2021, art. 211 (a)). On the other hand, illegal organization of adoption comes down to conducting the adoption proceedings against the provisions of the Act, i.e. without the participation of relevant institutions and without the necessary verification. This is contrary to the aim of the institution - it is conducted against the best interests of the child, so it will not necessarily be appropriate to ensure proper conditions for upbringing in a family.
The offense under Art. 211a is universal and deliberate. The exception is §2 - typifying individual offenses - the subject may only be a person who has parental authority over a child. The gravity of the offense also means that not only the act is penalized, but also the attempt.
The discussion of illegal adoption can be concluded by drawing attention to the difference between this crime and human trafficking. This was already indicated by the Court of Appeal in Kraków, which in its decision of 11 January 1995 stated that "trade is trade in goods and money Thus, trafficking in children (human beings, a living commodity) expresses the treatment of a human being as a commodity, and thus the objectlessness of a human being as his object. Adoption activity is also a kind of trade in human beings, irrespective of the subjectivity of the adopted person, or severely restricting it (Art. 118 § 1 of the CC). An important difference between commercial and adoptive transactions is the purpose of the transfer of the child and the rights related to it: for the child's benefit or against its interests. The purpose of adoption gives it the features of a positive, socially desirable, approved and recommended activity. It is not material gain, but the purpose of transferring children in the course of adoption determines the criminal nature of this activity "(Decision of the SA in Krakow of 11.01.1995, II AKz 480/94, Wokanda 1995, No. 11, item 55)
Objective attribution of the effect in the event of a road accident
Accident inadvertently caused by land, water or air traffic is regulated in Art. 177 of the Act of June 6, 1997 Penal Code. The offense in question can be committed by both action and omission. This type of crime is common, i.e. it can be committed by any traffic participant; intentional or unintentional and material, which means that its hallmarks include the effect - causing an accident in which another person suffered bodily injury, serious damage to health or death. This offense is included in the group of the so-called relative to applications, the principle is prosecution ex officio, however - as stated in §3 - if the victim is only the closest person, the prosecution takes place at the request.
The basic principle of criminal law is to be responsible only for your own behavior. However, when it comes to crimes characterized by the occurrence of a specific effect, the concept of objective attribution dominates, allowing the perpetrator to be attributed the effect of the crime in the event that his behavior "created or significantly increased a legally unacceptable danger to the legal interest constituting the object of the attack and this risk was realized in the form of the occurrence of a given crime. criminal effect "(T. Razowski [in:] Penal Code. Particular. Commentary, edited by J. Giezek, Warsaw 2021, art. 177). As regards the breach of the precautionary principles in the context of Art. 177 of the Penal Code both in the doctrine and jurisprudence, since the 2000s, the construction of objective attribution seems to be well-established.
As pointed out by the Supreme Court in the judgment of 8 April 2013, "liability for the effect is justified only by such a contribution that significantly increases the risk of this effect, which is relevant from the point of view of typifying the act" (Judgment of the Supreme Court of 8 April 2013, no. , II KK 206/12, LEX no. 1311397.) this, in turn, means that “criminal liability cannot be assigned for an offense stipulated in Art. 177 of the Penal Code in a situation where the occurrence of the effect described in Art. 177 of the Penal Code it would also happen if the perpetrator whose act is subject to criminal law evaluation complied with the precautionary rules required from him. " (J. Kanarek, Considerations on objective attribution of effect and the science of risk increase in the context of their application to crimes stipulated in Art. 177 of the Penal Code, PS 2015, No. 9, pp. 49-59.). Similarly, the Supreme Court argued in the judgment of 30 August 2011, stressing “the effecting may only be objectively attributed to the perpetrator, when it realizes a danger which would be prevented by compliance with the breached duty of care. In other words, the effecting of an effect can only be attributed to the offender if his compliance with his duty of care would have prevented the effect from taking place. " (The judgment of the Supreme Court of 30 August 2011, IV KK 187/11, LEX No. 950442.).
The issue of the objective attribution of the effect in the event of a road accident also requires consideration of the concept of observing precautionary rules. There is no closed catalog of behaviors that could qualify as a violation of these basic principles. The jurisprudence indicates, among others: failure to properly observe the driving field (Judgment of the District Court in Poznań of 12/11/2019, IV Ka 895/19, LEX No. 2780792.), failure to increase attention despite changes in weather conditions (Judgment of the Supreme Court of 21.10. 2020, II DSI 40/20, LEX No. 3093793.), failure to make sure before overtaking whether the driver has adequate visibility and sufficient space to perform the maneuver without obstructing anyone's movement (Judgment of the Supreme Court of March 26, 2019, V KK 115 / 18, LEX no. 2647164.), and, obviously, non-compliance with the permitted administrative speeds.
An exception to compulsory imprisonment
Provision in the form of Art. 37a of the Act of June 6, 1997 The Penal Code (i.e. Journal of Laws of 2022, item 1138 - hereinafter the CC) is in force in the Polish legal system only from July 1, 2015. It is a kind of "gate" for the authority applying the law , enabling him to impose a non-custodial sentence against the perpetrator in the form of restriction of liberty or a fine in a situation where the legislator provides for a given type of crime only a penalty of deprivation of liberty.
According to the current code regulation, if the crime is only punishable by imprisonment not exceeding 8 years, and the penalty of imprisonment imposed for it would not be more severe than one year, the court may instead of impose a penalty of 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 penalty measure, compensation measure or forfeiture.
At the same time, in paragraph 2, the legislator makes exclusions as to the possibility of applying the above solution. The court cannot replace the penalty of deprivation of liberty with another non-isolation penalty in a situation where the case commits a crime, acting in an organized group or association aimed at committing a crime, or in the event of a fiscal offense. Additionally, the disposal of art. 37a of the Penal Code does not apply to perpetrators of terrorist crimes.
On the basis of art. 37a of the Penal Code So far, quite extensive jurisprudence has been developed to interpret the content of the regulation under consideration. In one of the judgments, the Supreme Court took a position on the method of imposing a non-custodial sentence. The adjudicating panel concluded that the wording of Art. 37a of the Penal Code in every legal state, it makes it impossible to impose, apart from the penalty of restriction of liberty, a fine (Judgment of the Supreme Court of November 18, 2021, V KK 479/21, LEX No. 3327676). courts the possibility of imposing on the perpetrators only a spontaneous penalty of restriction of liberty or a spontaneous penalty of a fine, while excluding the total imposition of the above-mentioned sanctions.
The thesis from the 2016 Supreme Court's decision, ref. No. II KK 361/15, OSNKW 2016, No. 6, item 39. According to which any type of offense punishable by a single penalty of deprivation of liberty not exceeding 8 years is a type with an alternative punishment; Thus, the sanctioning norm is created from at least two provisions - Art. 37a of the Penal Code and the provision constituting the basis for the sentence.
One of the most recent judgments of common courts is the judgment of the District Court in Siedlce of 23 May 2022, ref. No. II Ka 157/22, LEX no. 3350517, in which the thesis is stated that the institution provided for in Art. 37a of the Penal Code is of an exceptional nature, and its essence is the unquestionable recognition that in a given case non-custodial penalties constitute a sufficient ailment for the perpetrator who does not need to be - even conditionally - isolated from society. A contrario, in the opinion of the adjudicating panel, the above should be understood as meaning that in a situation where a fine or a penalty of restriction of liberty for some reason would not meet the preventive and educational goals of the penalty, the court should impose a penalty of deprivation of liberty on the perpetrator.
Finally, it is also worth paying attention to the judgment of the SA in Warsaw of June 12, 2019, file ref. II AKa 251/18, LEX no. 2706356. The Warsaw court found there that, referring to the regulation under Art. 37a of the Criminal Code, the court is each time obliged to an individual approach and comprehensive analysis of a specific case. At the same time, the adjudicating panel revealed the will to prevent abuse by the authorities applying the law of the normative regulation analyzed above.
Assessment by the court of the social harmfulness of the act
Pursuant to Art. 115 § 2 of the Criminal Code, when assessing the degree of social harmfulness of the act, the court takes into account the type and nature of the infringed good, the extent of the damage caused or threatening, the manner and circumstances of the act, the importance of the obligations violated by the perpetrator, as well as the form of the intention, the perpetrator's motivation, and the type of the breached precautionary rules and the degree of their violation.
Thus, the assessment of the social harmfulness of an act cannot be based solely on a comparison of the statutory sanctions for individual crimes. It must always be an assessment of a specific act. Following the decision of the Supreme Court of November 17, 2020 (file reference number IV KK 83/20, LEX 3080550), "the legislator listed in Art. 115 § 2 of the CC so numerous and varied premises subject to assessment when determining the social harmfulness of an act, that there is no risk that the courts will only automatically use the threat of punishment as the most important determinant of this assessment. After all, in this catalog there is no premise of the "threat of punishment". After all, it should be remembered that the differences in the severity of the sanctions for committing individual types of crimes reflect at best the differences in the assessment of the social harmfulness of individual categories (types) of criminalized behaviors. Here we are talking not about such an assessment, but about the harmfulness of a specific behavior belonging to a specific category. Therefore, in some cases, the social harmfulness of acts that constitute offenses threatened with relatively mild sanctions may be significant ”.
Moreover, in order to recognize the insignificance of the social harmfulness of an act, it is not necessary that this negligence affect both the subjective side (i.e. the mental attitude of the perpetrator) and the objective side (i.e. the behavior of the perpetrator) (judgment of the Supreme Court of February 12, 2021, file ref. act I KK 74/20).
Moreover, the assessment of social harmfulness must be an overall assessment, and not an assessment of individual activities (judgment of the Supreme Court of 27 July 2021, file reference number III KK 346/20).
To be adjudicated by a judge in a state of intoxication
In the resolution of the Supreme Court of February 15, 2022 I DI 3/22 we read that the provision of Art. 231 of the Penal Code is the norm of criminal law, the least precise of all typified offenses and crimes codified in the Penal Code. However, this provision cannot be extended to conduct, even from the point of view of social perception, reprehensible, which in this case is adjudication by a judge in a state of intoxication or after drinking alcohol. So far, the Polish legislator has not decided to penalize a judge's ruling under the influence of alcohol, as is the case when driving a car while under the influence of alcohol.
Let us recall that pursuant to Art. 231 of the Penal Code A public officer who, by exceeding his powers or not fulfilling his duties, acts to the detriment of public or private interest, shall be subject to the penalty of deprivation of liberty for up to 3 years.
A resolution was passed in a case concerning a judge, which, while under the influence of alcohol in a state ranging from at least 0.6 per mille to at least 1.0 per mille of alcohol in the blood, presided over the appeals hearings. In the opinion of the Supreme Court, however, in this case we have only a disciplinary tort consisting in violating the dignity of a judge
Amendment of the Code of Civil Procedure - Art. 7533. Provision of a security in the form of a monthly allowance for the provision of means of subsistence
As of January 1, 2022 to the Civil Procedure Code, pursuant to Art. 2 point 3 of the Act of December 2, 2021 (Journal of Laws 2021.2328) amending the above-mentioned The Act, a new provision was added - Art. 7523. It establishes the financial scope of the judicial security of claims based on art. 444 § 2, which provides that if the injured party has lost all or part of the ability to work, or if his needs have increased or the prospects of future success have decreased, he may require the person obliged to repair the damage to receive an appropriate pension or pursuant to Art. 446 § 2, talking about the possibility of claiming a pension from the person obliged to redress the damage due to the death of the injured person, for the benefit of the person to whom the deceased had a statutory maintenance obligation.
This security takes the form of a monthly allowance for the provision of means of subsistence in connection with the damage suffered only as a result of a tort, which constitutes one of the crimes against safety in road transport, referred to in Chapter XXI of the Criminal Code, or murder with the use of a motor vehicle in in land traffic, or deliberately causing serious damage to health with the use of a motor vehicle in land traffic.
This security may not be lower than the amount of the lowest old-age pension currently amounting to, pursuant to Art. 85 sec. 2 of the Act of 17 December 1998 on pensions from the Social Insurance Fund PLN 1250.00 per month. The exception when the collateral may be lower than this amount is when obtaining disability benefits from other sources would support granting collateral in the amount of a lower amount. The upper limit for the monthly benefit is the amount of the victim's monthly net salary or income in the period preceding the event and five times the amount of the lowest old-age pension, i.e. PLN 6,250.
Preventive measures - what should you know?
Preventive measures are the type of coercive measures used in criminal proceedings against the accused, which are intended to secure the proper course of the proceedings or, exceptionally, to prevent the accused from committing a new, serious crime. Preventive measures can only be applied to the person to whom the order to present the charges has been issued, and the collected evidence indicates a high probability that the accused has committed a crime. Before taking a preventive measure, the court or the prosecutor should, if possible, question the accused. A defense counsel must be admitted to the hearing if he or she shows up. It is worth remembering that the right of the accused is to demand that the defense counsel be informed about the ongoing questioning.
There are two main groups of preventive measures in the Polish legal system - non-isolation and isolation measures. The first group includes means of appeal such as:
- Police supervision
- An order to leave the apartment temporarily
- Suspension from official duties or in the exercise of the profession
- Order to refrain from carrying out specific activities
- An order to refrain from driving a certain type of vehicle
- It is forbidden to leave the country
The second group includes only one, special punitive measure, which is temporary arrest. Its unique character results primarily from its isolation, which is followed by a serious restriction of the rights and freedoms of the accused. It is for this reason that, in order to apply this measure, the prosecutor must obtain the consent of the judge. Pre-trial detention may be used for a period not longer than 3 months. At the request of the public prosecutor, if due to the special circumstances of the case it was not possible to complete the preparatory proceedings, this period may be extended each time for another 3 months. As rightly pointed out by the Court of Appeal in Katowice in its decision of 8 July 2008 (II AKz 480/08), pre-trial detention is intended to properly secure the course of the proceedings for the time of gathering relevant evidence in the case and cannot fulfill the function of a punishment. Even the most evidently complicated case, especially of an economic or property nature, cannot extend it to unacceptable sizes.
The prosecutor has the right to apply measures in the preparatory proceedings, and the court in the jurisdictional proceedings. Preventive measures must always be based on a specific statutory legal basis, must be necessary (i.e. necessary) and applied to achieve a legally permissible (intentional) purpose. In addition, the prerequisites for the application of preventive measures are to use them in order to secure the proper course of the proceedings or, exceptionally, to prevent the accused from committing a new, serious crime.
In addition to the above-mentioned general conditions for the application of a precautionary measure, one of the specific conditions is also required. Their catalog can be found in art. 258 of the Code of Criminal Procedure Those are:
- Well-founded fear of the accused's flight or hiding
- Well-founded fear that the accused has unlawfully obstructed the criminal proceedings (e.g. by persuading them to give false testimony)
- If the accused is accused of committing a crime or a misdemeanor punishable by a maximum term of imprisonment of at least 8 years, or if the court of first instance has sentenced the accused to a term of imprisonment of more than 3 years, the need to apply pre-trial detention in order to secure the proper course of the proceedings may be justified by the threat of the accused with severe punishment
- Exceptionally, when there is a justified fear that the accused who has been charged with committing a crime or willful misconduct will commit a crime against life, health or public safety, especially when he or she threatened to commit such an offense.
Despite the extensive development of the issue of preventive measures in the Code of Criminal Procedure, the provisions allow for a relatively large amount of freedom in their application. For years, Polish legal circles have been paying attention to the problem of abuse of pre-trial detention, there is also talk of unreliably prepared justifications or even the lack of them. We should remember that the application of preventive measures, including in particular pre-trial detention, should relate to exceptional situations and should always take into account not only the good of society, but also the fundamental rights of the accused.
Change in the penal code - false alarm
From January 12, 2022, the legislator introduced a qualified form of crime, the so-called false alarm. This offense consists in reporting a non-existent event that threatens the life or health of many people or property in significant dimensions. Until now, the perpetrator of such an act was subject to imprisonment from 6 months to 8 years. Currently, if the perpetrator reports more than one incident, he is exposed to a more severe penalty - imprisonment from 2 to 12 years.
What is a substitute prison sentence?
In the Polish legal system, it is possible to replace a fine with a penalty of imprisonment. Pursuant to § 1 of Art. 46 of the CC the court orders the execution of a substitute imprisonment sentence in a situation where it is found that:
- enforcement turned out to be ineffective or the circumstances of the case show that it would be ineffective;
- the convicted person did not consent to undertake socially useful work changed pursuant to art. 45 of the CC or declines to comply with it; or when
- it is impossible or unnecessary to convert the fine into socially useful work.
In the doctrine of criminal law, it has been assumed that the most interfering in the sphere of the offender's goods, the form of substitute execution of a fine (...) takes place only after the possibility of executing the penalty is exhausted at earlier stages of the proceedings "[W. Dadak, Grzywna samistna ..., p. 177]. This means that "as long as there is a real possibility of paying the fine, also in the form of payment in installments, or replacement in the form of socially useful work, the court should not adjudicate substitute sentence of imprisonment "[K. Dąbkiewicz [in:] Executive Penal Code. Comment, LEX / el. 2020, art. 46.]
What can be the maximum term of a substitute prison sentence?
According to Polish regulations, one day of imprisonment is equivalent to two daily rates of the fine (in the case of a fine - a fine of PLN 20 to PLN 4,000). The substitute penalty may not, however, exceed 12 months of imprisonment, as well as the upper limit of imprisonment specified by law for a given crime. If the law does not provide for an isolation penalty for a given crime, the upper limit of a substitute imprisonment sentence may not exceed 6 months.
The International Criminal Court in The Hague
International criminal law is certainly an area of law that will be dealt with by very few people. However, due to the growing importance of its regulations in general international law, it is worth knowing the basic institutions by which the perpetrators of international crimes are held accountable.
One of the basic elements of international criminal law is now the International Criminal Court in The Hague (ICC), which has been operating since July 1, 2002. The first plans to establish a permanent international criminal court appeared after the Nuremberg trials. Due to the fact that immediately after their completion, Cold War rivalry began between the dominant world powers, any agreements that would transfer to the international level issues as important as criminal liability became impossible. The idea to create the Tribunal returned after the end of the Cold War, but work on its establishment intensified after the crimes committed during the break-up of Yugoslavia and the genocide in Rwanda. Due to their importance, the international community decided to establish ad hoc criminal tribunals - for the former Yugoslavia and for Rwanda, which tried crimes committed only in these countries. It has become clear, however, that a permanent instrument is needed to hold the perpetrators accountable. In 1994, immediately after the Rwandan genocide, the UN International Law Commission adopted a draft statute for the ICC. Work on it ended in 1998 with the signing of the ICC Statute, known as the Rome Statute due to the place of signature. In 2002, after obtaining the appropriate number of ratifications of the Statute, the Tribunal started its activity.
The Rome Statute defines the categories of crimes that fall under the jurisdiction of the ICC. These are:
- crimes against humanity;
- war crimes;
The statute specifies in more detail what crimes fall into each category. It is worth noting that until 2018, due to the lack of a uniform definition of aggression, the jurisdiction of the ICC over this crime was suspended.
So far, the Court has examined the cases of 45 people, coming exclusively from Africa - focusing solely on African countries has been criticized for the Court's activities. Criticism is also caused by the limited area and personal jurisdiction of the ICC - it can only judge crimes committed in the territory of states parties to the Rome Statute by citizens of these states (it is possible to try crimes committed in the territory and by citizens of states which make a unilateral declaration on the recognition of the jurisdiction of the Tribunal). It should be noted here that not all states are parties to the Statute - in particular, the world powers: the USA, Russia and China have so far refused to sign or ratify the Statute.
Poland ratified the Rome Statute on October 9, 2001. However, we should not expect a case involving a Polish citizen in the ICC in the near future - not only due to the nature of the crimes that fall within its jurisdiction, but also because of the fact that the Court's jurisdiction is complementary - may be launched only when the state is not interested in prosecuting the perpetrator of an international crime or is unable to hold him accountable (e.g. due to the collapse of the judiciary). The international crimes themselves are also punishable under the Polish Criminal Code (more precisely its Chapter XVI). It is rather unimaginable that the Polish state would refrain from prosecuting such serious crimes, should they ever take place on its territory in the future.
Contacts with a person temporarily arrested
Pre-trial detention, apart from an essential procedural function, is also an extremely difficult situation for the arrested person and their relatives. This is due to, inter alia, very limited possibilities of contact - both visits and telephone calls may take place only with the consent of the prosecutor (in the preparatory proceedings) or the court (at the court stage), who are often reluctant to grant them due to the fear of fraud. and good conduct.
An additional difficulty is the relatively narrow circle of people who can apply for contact other than by letter with the inmate - these can only be the closest people, i.e. the spouse or partner, ascendants and descendants (i.e. parents, children, grandparents, grandchildren, etc. ), siblings and close relatives. This means that a detainee is not allowed to see or make phone calls, for example with his uncle or niece.
Although an increasing number of Remand Prisons use means of distance communication other than telephones (instant messaging, which also allows for video calls), the provisions of the Executive Penal Code directly exclude the possibility of using them by temporarily arrested persons.
It is also worth remembering that all correspondence sent by and received by persons temporarily arrested is subject to thorough scrutiny and censorship.
Drunk driving - conditional discontinuation of the proceedings
It is clear that driving a motor vehicle (such as a car or motorcycle) while under the influence of alcohol is a dangerous and deeply socially unacceptable behavior. For this reason, as part of subsequent amendments to the Criminal Code, the legislator extended the scope of penalties and penal measures for this crime (as defined in Article 178a paragraph 1 of the Penal Code). Currently, its perpetrator is exposed to:
- a penalty of restriction of liberty or imprisonment for up to 2 years;
- obligation to pay a cash benefit of at least PLN 5,000;
- a driving ban for at least 3 years.
This third consequence is particularly acute for many perpetrators of such crimes. In many situations, the best solution is to apply for a conditional discontinuation of the proceedings, which (apart from the lack of the penalty itself) allows the amount of the cash benefit to be reduced to PLN 1,000, and the period of the driving ban to 1 year. However, the jurisprudence of courts means that (due to the commonly accepted significant social harmfulness of such an action), the conditional discontinuation of proceedings in cases under Art. 178a par. 1 of the Criminal Code is obtained extremely rarely.
What are the conditions and the procedure for adjudicating on granting a prisoner a permit to serve a custodial sentence in the electronic supervision system?
The Electronic Supervision System (ESS) is a state-of-the-art non-custodial system that allows serving a sentence of imprisonment outside the prison.
Execution of a sentence in ESS consists in serving a sentence according to a detailed schedule set by the court. A person serving a sentence in this way must stay in his home or other place where the sentence is served at strictly defined hours. In some cases, with the consent of the court, the convicted person may stay outside the place of serving the sentence to work at the workplace, farm, continue education or perform other life and family duties.
The electronic surveillance system consists of a transmitter installed on a wristband. The device automatically controls the execution of the court's orders by the convict. Importantly, any "absences or delays, the monitoring device immediately notifies the Monitoring Center about this event, which accurately records the course of the penalty. The penitentiary judge and professional probation officer are also immediately informed about each such fact. "
The conditions to be met for a penitentiary court to grant a prisoner a permit to serve a custodial sentence in the electronic supervision system are specified in Art. 43 la § 1 of the Executive Penal Code. Pursuant to the above-mentioned article, the following conditions must be met:
- the sentenced person was sentenced to imprisonment not exceeding one year and 6 months and the conditions provided for in Art. 64 § 2 of the Criminal Code; (Article 64 § 2 of the Criminal Code concerns recidivism)
- it is sufficient to achieve the goals of the punishment;
- the convicted person has a specific place of permanent residence;
- adults living together with the convicted person have given the consent referred to in art. 43h § 3;
- serving a penalty of deprivation of liberty in the electronic supervision system shall not be prevented by the technical conditions referred to in art. 43 h § 1.
After meeting the above conditions, the penitentiary court may grant permission to serve the sentence in the ESS system.
[Legal status 8.11.2021]
The absolute penalty of deprivation of liberty is the basis of a cassation appeal
Pursuant to Art. 519 of the Code of Criminal Procedure (hereinafter referred to as the Code of Criminal Procedure), a party to the proceedings is entitled to a cassation against the final judgment of the appellate court terminating the proceedings and against the final decision of the appellate court to discontinue the proceedings and to apply the precautionary measure specified in Art. 93a of the Criminal Code.
Article 523 (2) of the Code of Criminal Procedure stipulates that a cassation appeal in favor of the accused may be brought only in the event of a conviction for a crime or tax offense to imprisonment without a conditional suspension of its execution. This position was once again supported by the Supreme Court in its decision of May 13, 2021 (file reference number II KK 26/21).
The District Court in Warsaw, in its judgment of May 23, 2019 (file reference number XVIII K 218/14), sentenced D.R. for the committed crime, a penalty of one year's imprisonment and a fine. By applying Art. 69 § 1 and 2 of the CC and Art. 70 § 1 point 1 of the Penal Code, the execution of the sentence of imprisonment was conditionally suspended for a period of 3 years by way of a probation. The appeal was lodged in favor of the accused by her counsel - the Court of Appeal in Warsaw changed the judgment under appeal. A cassation appeal against this judgment, pursuant to Art. 427 § 2 of the Code of Criminal Procedure was brought by the defender of the convicted person, alleging a gross violation of Art. 433 § 2 of the Code of Criminal Procedure in connection with joke. 457 § 3 of the Code of Criminal Procedure, in connection with joke. 17 § 1 point 9 of the Code of Criminal Procedure, while the Prosecutor appealed for its dismissal.
In the present case, the appellate court changed the judgment under appeal by correcting the specifically indicated invoices incorrectly described in the charge of the indictment and in the judgment of the Court of first instance. Despite this change, the Court of Appeal still remained within the limits of the alleged act - since it was the same act (as a historical event) and concerned the same invoices (which resulted from the evidence), the data of which had only been incorrectly rewritten by the procedural authority.
After the analysis, the Supreme Court stated that it was obvious that the allegations raised in the case did not concern the deficiencies referred to in Art. 439 § 1 of the Code of Criminal Procedure, it is not possible to consider the arguments presented for their justification, as it would mean that the content of Art. 523 § 2 of the Code of Criminal Procedure in connection with joke. 523 § 4 point 1 of the Code of Criminal Procedure, which oblige the court of cassation to hear the appeal only within the limits of the objection under Art. 439 § 1 of the CCP. These absolute grounds of appeal did not occur.
In the present case, the cassation appeal of the convicted defense counsel was incorrectly accepted, despite the fact that it was inadmissible under the law. Therefore, it was necessary to decide not to examine it.
Prepared on the basis of the decision of the Supreme Court of May 13, 2021, II KK 26/21
Consequences of the public prosecutor's absence at the hearing
The Act, the Code of Criminal Procedure lists situations in which the presence of a prosecutor is obligatory (e.g. in principle in cases of offenses prosecuted by public prosecution), and in which it is optional (e.g. in a conviction session without a hearing).
Often, in situations where the prosecutor was absent at the hearing (even the optional ones), the court would announce a break and set a different date for the hearing. This was to enable the prosecutor to familiarize himself with the statements of the parties to the proceedings.
Such a situation took place in the proceedings of two accused of attempted fraud. At the first hearing, both accused filed motions for voluntary submission to punishment (the so-called sentencing without trial). Due to the absence of the prosecutor, the court announced a break to examine the applications. Despite being informed about the date, the prosecutor did not appear at the next hearing either.
The District Court, having regard to the above, granted the motions of the defendants. The prosecutor appealed, citing "no prosecutor's office".
The case was brought to the Supreme Court, which was to comment on the matter. The Supreme Court (file reference number: I KZP 16/20, however, refused to adopt a resolution) stated that the prosecutor's absence at the hearing, which he does not have to attend, should be considered as the absence of his possible objection to the accused voluntarily submitting to punishment.
Such an opinion of the Supreme Court may accelerate the activity of courts full of cases, because if the cases do not require the presence of the prosecutor at the hearing, e.g. due to his lack of objections to the judgment, the proceedings will end faster, sometimes even at the first hearing.
Offenses under the Copyright and Related Rights Act
Copyright is one of the branches of private law. The Act of February 4, 1994 on copyright and related rights contains not only the definition of a work and the manner of protection of proprietary and non-proprietary copyrights. It also lists the crimes that can be committed under this act. Penal sanctions in the Act are of a special nature in relation to the Criminal Law Act.
In art. 115-119 of the Act lists the following offenses:
- misappropriation of authorship,
- disseminating the work without permission,
- illegal recording and reproduction of objects of copyright and related rights,
- dealing in copyright and related rights,
- creating devices for unauthorized removal or circumvention of technical security measures,
- violation of the right to control and the right to information.
It should be borne in mind that infringement of copyright and related rights is subject to not only civil law consequences (such as a lawsuit for cessation of infringement or damages) but also criminal ones. The legislator came to the conclusion that the protection of intellectual property should be tightened - precisely through the application of criminal sanctions. Accordingly, the above-mentioned crimes are punishable by fines, restriction of liberty and even imprisonment for up to 5 years.
The concept of "violent crime" in Art. 41a § 1 of the Criminal Code
In art. 41a § 1 of the Criminal Code, regarding the possibility of applying specific penal measures, the phrase "violent crime" appears. The way it is understood has become the subject of a resolution of the Supreme Court of March 31, 2021, file ref. I KZP 7/20, in which the court found that violence can be understood as both physical and psychological violence.
Sebastian K. was convicted by a court of first instance for abusing family members and failing to comply with the imposed penal measures, to a penalty of eight months' imprisonment. Penal measures under Art. 41A § 1 of the Criminal Code. The judgment was appealed by the defense and the prosecutor, but only with regard to the application of penal measures. This case, as a court of second instance, was dealt with by the District Court in Tarnów, which decided to refer to the Supreme Court a legal issue requiring a fundamental interpretation of the act. That court asked the question:
"Is the content of Art. 41a § 1 of the CC the phrase "violent crime" means crimes which by statute include violence (use / use of violence) or crimes that were actually committed with the use of violence, and in this case, whether the term "violence" which is part of the phrase means only physical violence, or also violence in some other form, especially psychological? "
In this case, the Supreme Court decided to pass a resolution by a panel of three judges. The court found that “A violent crime within the meaning of Art. 41a § 1 of the Criminal Code is any crime that was actually committed with the use of violence, and the word “violence” used in this provision includes both physical and mental violence ”(Database of Supreme Court Rulings).
This means that the punitive measures provided for in Art. 41a § 1 of the Criminal Code may be applied not only in the event of committing crimes whose statutory features include violence, but also for any crime in the commission of which such violence was actually used. The Supreme Court thus upheld the sentence expressed in the resolution of 23 October 2002 I KZP 33/02 (OSNKW 2002 / 11-12 / 93). Moreover, it can also be psychological, not just physical. Such an interpretation positively influences the level of protection of crime victims, which was also emphasized by the Supreme Court. This will allow for a much better care for the position of the victims and will reduce the impunity of the perpetrators. Such an understanding also guarantees that the interpretation of the said provision complies with Art. 2 of the Act on Counteracting Domestic Violence (Journal of Laws of 2020, item 218, as amended), which also refers to harm and psychological harm.
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):