The amendments introduced by the amendment to the Criminal Code are assessed inconclusively. The strengthening of penalties is to be preventive, but fears arise that they conflict with human rights.
On 13 May 2019, The Sejm passed the bill of the day 16 May 2019 amending the Act – Criminal Code (hereinafter referred to as ‘Newisation’) and some other laws. It includes proposals to exacerbate penalties for murder and rape.
Kara 30 years of imprisonment and the punishment of a life sentence
The previous wording of the Act of 6 June 1997 Criminal Code (Journal of Laws, item 553, i.e. dated 20 July 2018, Journal of Laws of 2018, item 1600, hereafter referred to as ‘k.k’, provides for Article 32 five types of penalties, i.e. fines, restrictions on freedom, imprisonment, 25 years of imprisonment and life imprisonment.
The amendment provides for a waiver of penalties 25 years of imprisonment, and in exchange for this extension of the term of imprisonment, which is to be the shortest month and the longest 30 years of imprisonment, introduction by amending the provisions Article 37 i.e.
prison sentences, including resignation 25 years in prison in the case of the most serious crimes and introduction of penalties 30 years in prison. Penalties 30 years of imprisonment, can be ruled against the perpetrator of the murder (according to the amended provision Article 148 k.k.
and for causing serious health damage resulting in the loss of life of the victim (revised provision Article 158(3) k.k.).
The critical environment first indicates that the changes introduced are unconstitutional, agree with human rights and do not guarantee effective protection of citizens from criminal offences. On the other hand, However, the parties also hear voices that strengthening criminal responsibility will be an effective tool for preventing potential perpetrators from committing crimes
The amendments also concern life sentences. New content Article 77(3) k.k. by punishing a perpetrator for life imprisonment for an act he committed after having sentenced him to life imprisonment for another offence in no less time than 20 years, the court will rule against parole.
Moreover, the content of the amended provision Article 78(3) k.k. indicates that a person sentenced to life imprisonment may be released conditionally after serving time 35 years of penalty (as defined in the provision before the amendment, the possibility of conditional release existed after 25 years of imprisonment).
Reinforcement of penalties for crimes against sexual freedom and morals
The next rather extensive and significant change is the tightening of criminal liability for offences against sexual freedom and the substantial extension of the scope of the provisions relating to such crimes. The penalty for the offence of basic rape has been tightened by changing the maximum dimension to 15 years of imprisonment (Article 197 k.k. Upgrading).
With regard to the type of eligible crime of rape, it's a new one. Article 197(3) expands the catalogue of circumstances for which the perpetrator will be subject to severe criminal liability, i.e.
for raping while simultaneously using firearms, a knife or other similarly dangerous object or an incapacitating agent or acting in another way directly life-threatening, for raping a pregnant woman (if the offender knew that the woman was pregnant or could easily have been pregnant), for raping and perpetuating the image or sound from the action, indicating this act for years 3 to 20.
Sole Article Article 197 k.k. was further extended to include additional provisions exacerbating the liability of the offender where the victim is a minor who remains or does not remain dependent on the offender, where the offender acts with particular cruelty, where the consequence of the rape is severe damage to the health or death of the victim.
It was also renewed Article 200 (k) relating to the offence of sexual exploitation of a minor. In addition to increasing the maximum penalty for years 12 to 15 the type of primary offence has also been introduced a qualified type if the victim is a minor below 7 one year old – in this case the maximum penalty is to be 20 years of imprisonment.
As for other crimes against sexual freedom and morality, the upper limit of the penalty has also been increased.
Evaluation of amendments
In addition to the above mentioned issues, the amendment introduces changes such as strengthening responsibility for other types of crime and introducing new types of crime (preparation for murder, acceptance of a murder order, evasion of damages caused by the crime and theft of impudence). However, there is no doubt that, in the light of recent events, including media events in particular, the most important issue seems to be the tightening of criminal liability for crimes against sexual freedom (especially when the victims of these crimes are minors), the introduction of penalties 30 years of imprisonment and ruthless life imprisonment.
The changes introduced by the Amendment cause controversy in both the Polish legal community and the foreign legal community. In particular, the introduction of an absolute prison sentence was met with criticism from among others the organization JUSTICIA European Rights Network and the scientific community of the Jagiellonian University.
The critical environment first indicates that the changes introduced are unconstitutional, agree with human rights and do not guarantee effective protection of citizens from criminal offences.
On the other hand, However, the parties are also hearing voices that strengthening criminal responsibility will be an effective tool for preventing potential perpetrators from committing crimes.
Written by Hana Żołnierkiewicz
Lawyer in the Legal Department. From 2017 related to Russell Bedford Dmowski and Associates Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He runs the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.