Controversy in the Amendment of the Criminal Code

The proposed amendments to the Criminal Code are accompanied by consistent criticism by the legal community. For example, the Krakow Institute of Criminal Law, which consists of employees of the Faculty of Criminal Law of the Jagiellonian University, published a critical report[1] accusing the project of penal populism.

Objections to most of the changes were also raised by, among others, the Ombudsman[2] and the Helsinki Human Rights Foundation[3]. Unfortunately, everything indicates that change will come into force.

7 July 2022 The Sejm adopted a controversial bill amending the bill - Criminal Code and some other laws (Symical Druk nr. 2024)[4]. 4 August This year the Senate rejected it, but it is expected that the project will enter into force. Report on 5 August 2022 The Sejm's Extraordinary Committee on Change in the Codifications made a motion to reject the Senate resolution.

Work on the amendment of the Criminal Code has already been described by us in the article “Strengthening penalties in the Criminal Code. The most controversial changes”, where we pointed out that the government's project would include extending the term sentence of imprisonment to 30 years, introduction of a vehicle forfeiture or equivalent institution, making it possible to apply the institution of a small Crown Witness to the prosecutor's request and amending the judicial directives on penalties.

Reduction of the age of criminal responsibility

one with more controversial changes is already included at the outset of the project. Article 1(1) (b) the draft proposes adding to Article 10 Criminal Code section 2a, which would provide for a reduction in the age of criminal liability for criminal offences from Article 148(2)(3) k.k.

This boundary is now 15 years, and change would be to reduce it to years 14. With regard to this proposal, it should be noted that in the explanatory memorandum to the draft, it is not clear in fact why the existing limit 15 The perpetrator's years were assessed by the Projector as inadequate.

However, the reservations put forward by experts indicate systemic inconsistencies in the proposals. According to the project 14-a teenager could respond criminally, at the same time unable to legally decide whether to participate in sexual relations or even to co-determine his treatment.

Absolute life imprisonment and human rights

Another change of at least reasonable doubt is included in Article 1(25)) a project that provides for the introduction of a so-called "absolute" life sentence.

The solution envisaged by the Projector involves granting the courts the possibility to sentence a life imprisonment with a ban on conditional release of the perpetrator, inter alia, in cases where the nature and circumstances of the act and the personal characteristics of the perpetrator indicate that his stay at liberty will pose a lasting danger to the life, health, freedom or sexual freedom of others.

Understanding the social expectation of the permanent isolation of criminals who commit the most serious crimes, it should be pointed out that the proposed solution directly violates Article 3 The Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR) provides that no one may be subjected to torture or to inhuman or degrading treatment or punishment.

On the can. Article 3 The ECHR’s case law of the European Court of Human Rights has a well-established jurisprudence that the life sentence must provide for the possibility of conditional release of the sentenced person from serving the rest of the sentence[5]. This line is based on the assumption that a person who holds a life sentence can be rehabilitated.

The conflict between the assumptions of the project and the ECHR case-law therefore boils down to the conflict over the variability of human nature.

The projector takes the view that at least in relation to some people it can be estimated in advance that they are unable to change their behaviour and thus the threat they will pose to society for 25, 50 is 60 years will remain at the same high level.

Such an assumption should be assessed (without entering into philosophical discussions) as at least dubious. On the one hand, in the justification of the project are in vain to seek evidence that would confirm the unchanging nature of the perpetrators of the most serious crimes.

On the other hand, – The project promoter explained his proposal as follows (p. 38 Project justification) "A negative socio-criminological forecast, i.e.

a forecast for the functioning of the sentenced in the conditions of freedom, will determine the possibility of exempting a conditional early release from the rest of the life sentence, not a prison forecast, i.e.

referring to the continued functioning of the sentenced in the prison." In this context, it should be noted that this socio-criminological forecast will be prepared for the time of judgment. Such an assessment, even the most accurate, can become obsolete over time. The proposed solution should therefore be assessed negatively.

Specific type of crime — preparation for murder

The next amendment to the Criminal Code proposed in this draft is the addition of Article 148 k.k. Article 148a k.k., which would penalize the conduct of accepting a man's murder order in exchange for a given or promised asset or personal benefit.

In relation to the draft new provision, the allegation was raised that it would be to establish criminal liability for only consent, and thus de facto for man's intent to commit a crime[6]. However, it should be noted that the acceptance of the order must clearly be demonstrated by the addressee of the proposal.

In fact, therefore, Article 148a k.k. will introduce a particular type of crime – preparation for the murder.

However, the project promoter's proposal can be assessed negatively in a systemic perspective. The project also involves adding to Article 148 k.k. section 5, who would have done the prep for the murder. What's significant Article 148(5) k.k. and Article 148a(1) k.k. provides for identical limits to the threat of punishment (punishment of imprisonment for years 2 to 15). In fact, 148a k.k. will constitute an unnecessary superfluum – an unnecessary repetition not bringing new normative content.

In view of the changes in question, it can be concluded that their possible entry into force will be significant.

Author: Paweł Postolko

Lawyer, graduate of Law at the Faculty of Law and Administration of the Jagiellonian University, where he then completed Postgraduate Studies in Economic and Tax Criminal Law. With the law firm Russell Bedford connected from 2021. His professional interests are economic law, taking into account criminal and economic issues. He has practical professional experience in handling court cases.