The issue of so-called forced marriages in Polish legislation appeared on 13.01.2023 in connection with the amendment to the Penal Code. The introduction of the provisions of
Art. 191b to the Penal Code is the implementation of the obligation arising from art. 37 of the Council of Europe Convention on preventing and combating violence against women and domestic violence of 11 May 2011.
The Convention introduced the obligation to penalize intentional actions consisting in forcing an adult or a child to enter into a marriage, as well as luring persons to the territory of a Party or another country also for the purpose of forcing them to enter into a marriage (art. 37 par. 1 and par. 2). The criminalization of forced marriage was forwarded to the authorities by the GREVIO Committee to assist Member States in creating a legal framework.
Article 191b § 1 of the Penal Code penalizes forcing to enter into marriage, both within the meaning of Polish law and to enter into a marital union consistent with the religious or cultural tradition of the perpetrator. § 2 concerns inciting to leave Poland in order to commit the act from § 1. The provision of Article 191b § 1 is lex specialis in relation to Article 191 § 1 (forcing through the use of violence against a person or unlawful threat). This provision remains in negligible coincidence with Article 190 § 1 of the Penal Code (threat), of course when the unlawful threat used by the perpetrator of the act from Article 191b was in the nature of a punishable threat (the exclusion of multiple assessments will occur when applying the principle of consumption, and the consummating provision is Article 191b). It is not possible to rule out the occurrence of an actual conflict of provisions with Article 156 or 157 of the Penal Code (serious or moderate damage to health), in the case when the violence used by the perpetrator is so intense that it will lead to the occurrence of one of these damages (although it seems that in such cases the rule will be two acts, and as a result, a concurrence of crimes).
This provision was placed in the chapter on crimes against freedom, which is justified – it is about protecting the freedom to make decisions. Article 191b primarily protects the freedom of an individual to decide independently about entering into a relationship. Additionally, depending on the situation, dignity, physical integrity or personal freedom may also be protected. This crime must be committed using violence, unlawful threat, abuse of dependency or exploitation of the difficult situation of the victim. It is crucial that the actions of the perpetrator must directly lead to the injured party entering into a marriage or a relationship of a similar nature. Therefore, a causal relationship between the perpetrator’s action and the effect is necessary.
The concept of a „relationship corresponding to marriage” in the cultural or religious circle of the perpetrator is vague and difficult to define unequivocally. It may also include same-sex relationships, although they are not considered marriage under Polish law. An important element of the provision in question is the relationship of dependence, which allows the perpetrator to influence the victim’s decisions. It may be permanent or temporary. The crime under Article 191b § 1 is an intentional crime and requires direct intent – this results from the deliberate action of the perpetrator and the means used by him.
The prohibited act must be committed by means of violence, unlawful threat or by abuse of the relationship of dependence or by exploiting a critical situation. In order to fulfill the features of the type from Article 191b § 1 of the Penal Code, the Act requires that another person be brought to enter into a marriage or a relationship corresponding to marriage in the religious or cultural circle of the perpetrator. According to the dictionary meaning, „to bring about” means „to become the cause of something, to cause someone to do something, to cause something, to provoke something”. The verb „brings about” is classified as an action-effect feature. This feature appears in the description of many crimes, indicating the necessity of a different effect each time. Its use in Article 191b § 1 of the Penal Code determines the effect-related nature of the type of crime discussed. The bringing about referred to in Article 191b § 1 of the Penal Code can only be said to take place when the perpetrator’s conduct, corresponding to the features specified in this provision, conditions the conclusion by another person of marriage or a relationship corresponding to marriage in the perpetrator’s religious or cultural circle. There must be a connection of both a causal and normative nature between the perpetrator’s conduct and the act of entering into a marriage or a relationship corresponding to marriage in the perpetrator’s religious or cultural circle.
