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.
