ANOTHER REVOLUTION IN CRIMINAL LAW?!

On October 1, 2023, amendment to the Criminal Code came into force by an act of July 7, 2022 amending the Act - Criminal Code and certain other laws.

The changes address, among others, the level of penalties, the right of persons deprived of liberty to maintain contact with the outside world, the right of defense, control over convicted persons and of those in pretrial detainees, and the right of such persons to file complaints and motions with the enforcement entities.

The announced changes have caused polarization among the legal professionals.

The Warsaw Bar Association, in its position dated August 3, 2022, indicated, among others, that:

- the changes included in the amendment are a regression of criminal law through the introduction of solutions applicable in the legal system of the People's Republic of Poland [PRL];

- the law adopted by the Sejm has the features of penal populism;

- judges' discretion in resolving matters is being restricted;

- lifting of the lower limits of the statutory threat of punishment is unreasonable;

- the law may have negative impact on the effectiveness of law enforcement authorities in disclosure of crimes;

- conditions of imprisonment will deteriorate by further overcrowding of prisons and detention centres.

The position also notes that the changes will be introduced without discussion with the representatives of doctrine, legal practitioners and the public.

A similar position was presented to President Andrzej Duda in an appeal dated November 26, 2022 by more than 170 scientists specializing in legal sciences.

The appeal indicated that the changes introduced would be a violation of the constitutional principle of proportionality, and that the introduced absolute imprisonment is inhumane and incompatible with the European Convention on Human Rights.

The Polish Parliament was summonsed to reject the law in its entirety, and the Polish President to veto it.

The Ombudsman last July submitted extensive comments to the Minister of Justice on the law in question, also indicating that the Ombudsman's Office has received letters from persons deprived of liberty and from their families, which letters contained concerns about the upcoming changes.

The Ombudsman also noted that the amendment to the criminal law has been long awaited, but there are many inaccuracies and irregularities in the announced changes. The Ombudsman also pointed to positive changes, such as allowing the court to proceed remotely in executive proceedings in cases involving persons deprived of their liberty, changes to the electronic surveillance system, updating the provisions on extending special protection to authorized persons, or changes to the way convicts use visits with minors under 15 years of age.

The new provisions that guarantee the extension of the functioning of the Common Courts Information Portal to criminal cases are also viewed positively, which should be another step in the process of informatization of proceedings in Poland, but the direction of changes must not, however, violate the basic procedural guarantees of the parties.

The most important changes that have been introduced into the criminal law on October 1, 2023 are discussed below.

CRIMINAL LIABILITY OF MINORS - CHANGE IN AGE CAPACITY

Under former law, according to Article 10.1 of the Criminal Code, as a rule, criminal liability was imposed on anyone who has committed a prohibited act after the age of 17. The above-mentioned rule was reinforced by Article 10.2 of the Criminal Code, which, in certain situations, allowed criminal liability of persons over the age of 15. Such a person, had to have committed an act enumerated jointly in the act, and the circumstances of the case and the degree of development of the offender (his personal qualities and conditions) had to favour his punishment as of a person over 17 years old. An example of the above would be a situation in which educational or corrective measures that have previously been applied have proven to be ineffective.

After October 1, 2023, in connection with the creation of new types of aggravated rape (e.g., rape of a pregnant woman, rape during which the perpetrator records video or audio of the act, or rape that results in the death of a human being), newly created types of crimes were added to the catalogue of crimes for which persons over 15 are liable. In addition, the catalogue was expanded to include the basic type of rape.

Another important change is the addition of item 2a, which introduces criminal liability for those who commit a crime for so-called "aggravated murder" after the age of 14 and before the age of 15. The Minister of Justice, authorized to present the Government's position on the issue, referred to the minimum age of criminal liability in Europe, which is between 10 and 18. In addition, the draft indicated the opinion of a psychiatrist who studied the conditions for establishing the minimum age of criminal liability from medical point of view.

Have the changes been in the right direction? We will still have to wait for an answer, as there is a small percentage of 14-year-olds who commit such a crime. One thing is certain, the most important thing with regard to juvenile offenders is the effective application of educational or corrective measures, not just the sanction of punishment, since the application of a strictly penalizing function can only lead to even greater depravity of the juvenile offender, not to his rehabilitation.

REMOVAL OF THE PENALTY OF 25 YEARS OF IMPRISONMENT

The most significant change in the described amendment to the Criminal Code is undoubtedly the removal of the penalty of 25 years of imprisonment, provided in Article 32.4 of the Criminal Code. The main reason for the removal of this type of punishment was the previous deprivation of the possibility to measure the severity of the punishment.

The Ministry of Justice pointed to the "significant gap" between punishment of imprisonment (15 years) and a punishment of 25 years' imprisonment. In making the amendment, the punishment imprisonment was simultaneously increased to 30 years. However, the legal community, noting the problem in punishing those who are accomplices in the most serious crimes (e.g., accomplices, instigators, helpers), is critical about the removal of the 25-year imprisonment as such. ^[1]

It also noted problems with the significant increase in severity of penalties for certain crimes, such as the qualified types of unlawful imprisonment, forgery of invoices in excess of PLN 10 million, and qualified robbery.

NEW RULES ON THE IMPOSITION OF FINES AND RESTRICTION OF LIBERTY

The amendment, which came into force on October 1, 2023, also introduced a lower limit for non-custodial punishments (restriction of liberty and fine). The new regulations can be applied when an offense is punishable by both a fine or imprisonment, and when an offense is punishable by both restriction of liberty and imprisonment (alternative penalty range).

In the case of a fine, the lower limits have been established at the following levels:

- 50 rates - in the case of an act punishable by imprisonment not exceeding one year;

- 100 rates - in the case of an act punishable by imprisonment not exceeding 2 years;

- 150 rates - for an act punishable by imprisonment exceeding 2 years.

The lower limit of restriction of liberty was established at the following levels:

- 2 months - in the case of an act punishable by imprisonment not exceeding one year;

- 3 months - for an act punishable by imprisonment not exceeding 2 years;

- 4 months - for an act punishable by imprisonment exceeding 2 years.

The doctrine also indicated the erroneous construction of the provisions, which can lead to erroneous application, i.e. the recognition that the provisions in question can be applied in the case of a cumulative sanction (imprisonment and fine; imprisonment and restriction of liberty)^[2].

By defining the lower limit of punishment, the legislator has de facto limited the court's competence in establishing the degree of penalty. Previously, the Court had discretion and could impose a lower penalty (fine or restriction of liberty) when it considered that the degree of social harmfulness of the act was low.

CHANGE IN THE TERM OF IMPRISONMENT

As previously mentioned, after the amendment, imprisonment has the shortest duration of 1 month and the longest duration of 30 years. Imprisonment is imposed in months and years. An exception to the imposition of imprisonment in months and years is the imposition of a combined imprisonment for concurrent crimes for which the imprisonment and restriction of liberty have been imposed.

As a rule, the lack of indication of the lower limit of imprisonment means that imprison is for 1 month. By analogy, this  rule applies to the upper limit of imprisonment, i.e. 30 years.

PENALTY RANGE DIRECTIVES

The amendment of the substantive criminal law also addressed the issue of the penalty range directive. Article 53 of the Penal Code was amended and an open catalogue of aggravating and mitigating circumstances was indicated.

Before October 1, 2023, the court imposed the punishment at its discretion, within the limits provided by the law, taking into account that its severity does not exceed the degree of guilt, the degree of social harmfulness of the act and taking into account the preventive and educational goals that the punishment is to achieve for the convicted person, as well as the needs for shaping the legal awareness of society.

However, after the amendment, the court imposes the punishment at its discretion, within the limits provided by the law, taking into account the degree of social harmfulness of the act, aggravating and mitigating circumstances, the objectives of the punishment in terms of social impact, as well as the preventive goals that it is intended to achieve for the convicted person. The severity of the punishment must not exceed the degree of guilt.

The legislator considered the following examples to be the examples of aggravating circumstances: previous criminal record for an intentional crime or similar unintentional crime, taking advantage of the victim's helplessness, disability, illness or old age, committing a premeditated crime, or acting with particular cruelty.

Whereas, the legislator considered the following examples to be the examples of mitigating circumstances: committing a crime as a result of a motivation deserving consideration, committing a crime under the influence of anger, fear or agitation justified by the circumstances of the incident, taking action to prevent or reduce the extent of harm or damage resulting from the crime, or reconciliation with the victim.

In the legal community, such a formation of the punishment range directives encounters criticism. The aspect that is criticized the most is that "the role of the leading directive is given to the impact of retaliation and deterrence".^[3].

PUNITIVE MEASURE OF A DRIVING BAN

As for the criminal measure of a driving ban, amendments have been made in Article 42.2 and 3. Until now, the court has adjudicated for a period of not less than 3 years, a prohibition to drive any vehicle or vehicles of a certain type, if the perpetrator, at the time of committing the offense listed in sec. 1, was under the influence of alcohol, under the influence of an intoxicant, or has fled from the scene of an incident specified in Article 173, Article 174 or Article 177. Currently, the court imposes such a prohibition for a period of not less than 3 years also in a situation when, after the incident and before the offender is subjected by an authorized body to a test to determine the alcohol or intoxicant content in their body, the offender consumed alcohol or took an intoxicant.

The passage of the same wording was added to sec. 3, which regulates a lifetime ban on driving any motor vehicle.

The purpose of the amendment to this provision was, of course, to prevent the perpetrator of an offense listed in the above articles from contesting being in one of the indicated states at the time of the offense by excusing himself from falling into that state after the offense has been committed.

However, it is dangerous to accept the presumption of being under the influence of alcohol or being intoxicated .

CONCURRENCE OF EXTRAORDINARY AGGRAVATION AND MITIGATION OF PENALTY

Articles 3-7 were added to Article 57 of the Criminal Code, which specify that if the grounds for extraordinary mitigation or aggravation of penalty of an obligatory and optional nature coincide, the Court shall apply the ground of an obligatory nature. If the grounds for extraordinary aggravation of an obligatory nature and the grounds for extraordinary leniency specified in Article 60 § 3 (for collaborators) coincide, the court may apply extraordinary mitigation of penalty.

EXTRAORDINARY MITIGATION FOR COLLABORATORS

The amendment of Article 60 of the Criminal Code does not affect its basic principles contained in sec. 1 and 2. Sec. 3 has been amended, under which, the court applies extraordinary mitigation of punishment to a person who discloses information regarding persons participating in an offence and the relevant circumstances of the offence, only at the request of the prosecutor.

Before the amendment, the Court decided about extraordinary mitigation for a collaborator ex officio.

In addition, sec. 6 was modified in the discussed provision, which sets out the rules for imposing punishments under extraordinary mitigation.

Other amendments include adjusting the wording of the provision to the removal of the penalty of 25 years' imprisonment.

The above-mentioned amendment has caused a lot of controversy among the legal community due to the shifting of the court's powers to prosecutors, which is expected to lead to a reduction in courts’ independence in adjudicating.

EXTENSION OF PROHIBITIONS FOR THOSE CONVICTED OF THE MOST SERIOUS CRIMES

Before the amendment, offenders for so-called "good conduct" could benefit from the institution of conditional early release from serving their sentence. Paragraphs 3 and 4 were added to Article 77 of the Criminal Code, which allow courts to prohibit conditional release in the case of a final conviction for a crime against life and health, freedom, sexual freedom, public security or a crime of a terrorist nature for life imprisonment or a sentence of imprisonment for a term of not less than 20 years, and if the nature and circumstances of the act and the personal characteristics of the case indicate that his remaining at liberty will cause a permanent danger to the life, health, freedom or sexual freedom of others.

The above amendment is controversial due to the fact that at the time of deciding, the Court is to make a final assessment about the possibility of changing the convict's attitude.

The inability to carry out the legitimacy of continuing to carry out such lengthy sentences may be considered contrary to Article 40 of the Polish Constitution on the prohibition of cruel and inhuman punishment and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which stipulates that no one shall be subjected to inhuman or degrading punishment.

However, such a solution may become a reason for refusing to grant extradition requests and European arrest warrants issued by Polish courts.

The formal prerequisites that a convict must meet in order to apply for conditional release have also been changed. Currently, a convict can be released after serving at least half of the sentence, and if a sentence of imprisonment for a term of not less than 25 years has been imposed - after serving at least 15 years of the sentence. A prisoner sentenced to life imprisonment can be released after serving 30 years of the sentence

CHANGES REGARDING RECIDIVISM

The adopted amendment left unchanged the definition of special, basic and multiple recidivism.

In Article 64.1, a provision was added under which the court is obliged to impose a sentence above the lower limit of the statutory threat, with the possibility of imposing a sentence up to the upper limit of the statutory threat increased by half, if a person convicted of an intentional crime with a sentence of imprisonment commits an intentional crime similar to that for which he has already been convicted (basic recidivism) within five years after serving at least six months.

In addition, in sec. 2 of the provision in question, instead of an obligation to impose a sentence above the lower limit of the statutory threat, an obligation to impose a sentence from the lower limit of the statutory threat increased by half was imposed.

Article 64a has been added by which the third type of recidivism was introduced and concerns the crime of murder combined with rape and crimes against sexual freedom, whose upper limit of the threat of imprisonment is at least 8 years, and provides for other conditions and aggravations like the provision of Article 64.2 of the Criminal Code.

The amendment to the above provision makes the penalties more severe for repeat offenders and those who have made a regular source of income from committing the crime.

CUMULATIVE PENALTY

Due to the cumulation of the penalties for the offenses indicated in Article 32 of the Criminal Code, the upper limit of the cumulative penalty has been increased - from 20 years to 30 years of imprisonment.

In addition, the amount of the cumulative penalty of a fine shall be imposed by the court "above the highest penalty imposed for the individual crimes" and not "from the highest penalty (...)" as before, with the proviso that if the highest of the fines to be combined is imposed at 4,500 daily rates or more, the court shall impose this penalty as a cumulative penalty of a fine.

SUMMARY

Despite much controversy, the amendments came into effect on October 1, 2023. Many legal academics take the position that due to the incorrect enactment of the provision defining the effective date of the amendments, the new provisions cannot yet be considered to be binding, which could have a real impact on criminal adjudication.

We will closely observe the impact of the above-described legislative changes on the realization of the basic functions of criminal law in a democratic state of law, including, in particular, the guarantee, justice and prevention functions.

The above changes are only part of the modifications made to the Criminal Code itself. The provisions of the Criminal Procedure Code, the Misdemeanor Code and the Executive Criminal Code have also been amended - we will describe them in the publication that will follow.