Amendments to the Criminal Code – harsher does not mean better

On December 2, 2022, the President of the Republic of Poland signed into law the Act of July 7, 2022 on Amendments to the Penal Code and Certain Other Acts. The law introduces a number of changes to the Penal Code mainly, and they mostly consist of making the permissible penalties for individual crimes more severe, raising the lower limits of penalties, new possibilities for their imposition, and introducing punishability for preparation to commit certain acts.

The main change is the raising of the upper limit of imprisonment from 15 years to 30 years and the elimination of the separate penalty of 25 years' imprisonment. For an example that illustrates well the meaning of these changes, it is worth quoting one of the most well-known provisions of the Criminal Code before and after the amendment, i.e. Article 148 § 1 defining the punishment for murder – its current content:  Who kills a human being shall be subject to imprisonment for not less than 8 years, 25 years' imprisonment or life imprisonment., will be replaced by the following: Who kills a human being shall be punished by imprisonment for not less than 10 years or life imprisonment. Thus, in this provision we have both an increase in the lower limit for murder from 8 to 10 years of imprisonment, and the possibility of imposing this punishment from 10 to 30 years (the possibility of imposing life imprisonment also remains). At the same time, the punishment of preparation for murder is introduced – from 2 to 15 years of imprisonment.

The most controversial of the changes introduced is the possibility for the court to impose a parole ban when imposing a life sentence. According to the amendment, the court, when imposing a sentence of life imprisonment in any case, will be able to impose a ban on the conditional release of the convict if the nature and circumstances of the act and the personal characteristics of the offender indicate that his remaining at liberty will cause a permanent danger to the life, health, freedom or sexual freedom of others. Moreover, in a situation where the court will impose life imprisonment for an act committed by the offender after a final conviction for a crime against life and health, liberty, sexual freedom, public security or a crime of a terrorist nature for life imprisonment or imprisonment for a term of not less than 20 years, the court will be able to impose a ban on conditional release and this regardless of the nature and circumstances of the act.

The above-mentioned amendments, which, with minor exceptions, will come into effect as soon as 3 months after the date of promulgation, arouse strong opposition from specialists, legal professionals and scholars of criminal law. An expression of this opposition is the appeal addressed to the President and signed by more than 170 scientists specializing in criminal sciences, to veto the amendment in question. The appeal was signed by such experts as Prof. Lech Gardocki, Prof. Stanislaw Waltoś, Prof. Włodzimierz Wróbel and Prof. Andrzej Zoll, who are undoubtedly recognized authorities in the field of criminal law.

In their strong appeal, the scholars write, among other things, that this law takes Polish criminal law back to the times of the People's Republic of Poland, that absolute life imprisonment is forbidden by the European Convention on Human Rights and contradicts Christian and humanist values as precluding any kind of rehabilitation, and that it is obvious to any lawyer that the amendment being pushed by the Minister of Justice is destructive and has no justification in the actual state of the crime threat. The scholars also mention the low legislative level of the amendment and point out that its entry into force will lead to loopholes, inconsistencies and absurdities, sometimes even dangerous for victims, which will further burden the work of the prosecutor's office and the courts. Time has shown that this appeal, in connection with the signing of the law by the President, has proved ineffective.

In conclusion, we should share the assessment of specialists, indicating that the introduction of the changes in question will not improve the situation (instead, it may lead to its deterioration), and even if the punishments imposed for crimes are harsher, the number of crimes committed will not decrease, nor will security improve. It needs to be recalled that it is clear to all criminal lawyers that the reduction in the number of crimes is primarily affected by the inevitability of punishment. The punishment inflicted must also not be too lenient, while it is not the current Criminal Code (yet) that stands in the way of imposing harsh punishments.

A particularly glaring type of punishment that should not be in the Criminal Code is life imprisonment with a ban on parole. For this punishment deprives the offender of any prospect of leaving prison and eliminates the possibility of rehabilitating such a person. We can only hope that the courts, having this possibility, will not impose this punishment, or that it will happen extremely rarely.