2015 | XXXVII | 327-346
Article title

Częściowe zawieszenie wykonania kary pozbawienia wolności. Uwagi i propozycje na tle analizy porównawczej stanu przestępczości i obecnej reformy prawa karnego w Polsce i we Francji

Title variants
Partially Suspended Prison Sentences: Comments and Propositions Against a Background of Comparative Analysis of the State of Crime and the Current Reforms of Criminal Law in Poland and France
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This article is devoted to the institution of conditionally suspended sentences, andin particular with a proposal for change in this area. The author formulates thingsdifferently from the changes brought in by the act of 20 February 2015 about adjustingthe law, in the criminal code and other acts. After a discussion of these changes, theauthor presents their own concept for remodelling this institution. This is preceded byconclusions about its current state, structure and the dynamics of crime in Poland andFrance. The author bases their conclusions on an analysis of French solutions in thisregard.According to the author, by comparing the structure and dynamics of recorded crimes and convictions from 2001 to 2010 in France and Poland, they came to theconclusion that the French statistics show a comparatively higher rate of serious crime,particularly ones featuring aggressive or sexual violence. At the same time however,one can observe greater stability in the number of convictions, with economic andfinancial crimes being the only exception. But the larger threat of crime does not influence limitations on the conditions of suspended sentences in a meaningful wayin this country, something that was an important argument during the amendment ofPoland’s penal legislation. It is willingly used by courts, a modern punitive measure, butits construction differs from the Polish solutions in this field significantly. The author discusses this construction in the article. According to French logic, italso provides for the possibility of partially suspended sentences. This is unknown inthe Polish criminal code. It consists of allowing the adjudicating court to decide aboutthe sentence being only partially carried out. It also freely specifies the length of this period, so that it does not exceed the five year limit. This process results in the offenderonly having to undergo part of their prison sentence, while execution of the remainingpart remains conditionally suspended. Comparing this form of suspension, appearing in French legislation next to classicsuspension (i.e. full), with its Polish counterpart now regulated by the newly-editedarticle 69 of the criminal code, the author finds that the French version gives greaterrange and possibility for its use. And this is despite a significantly larger threat ofcrime than in Poland, particularly common crime. Even the process of its applicationis significantly more elastic, since it allows the division of the sentencing process intoa closed part carried out in prison, and an open part carried out in freedom. About whether the suspension should be total or just partial, the French judgedecides according to their own discretion, while the Polish one is tied to a series ofspecific prerequisites, both legal and material. In light of this, it proves Poland putssignificantly greater trust towards the initial legislator.After a theoretical analysis, in a later part of the article the author cites statisticsshowing the practice of partially-suspending sentences in reality. In the years 2005 to2011, a certain growing tendency in use appears in France (of 1.92%). This indicatesa growing significance for this penal measure in the judicature of criminal courts, which implies it works well in practice. In general, the type of suspension most prevalent iswith a given probation period, and therefore the most common of all applicable dutiesand controls (in 2008, there were 26,991 cases, i.e. 82.15% of the general number ofpartial-suspension rulings). Partial suspension in its simplest form is clearly less usedand only makes up 17.85% of the general number of applied partial suspensions (5,844cases in 2008). In contrast, the sum total of both forms of partial suspensions (i.e. thesimplest form and with a probation period) in general rose in use by 14.56% in 2010. Commenting on the above indicators, the author claims the rule of partialsuspension is given with a trial conviction. This results from the necessity ofpreserving a continuity of interactions, including further disciplining of the convictafter completing part of their “factory” punishment depriving them freedom (partieferme) and releasing them into an open environment (partie ouverte). For this purpose,the court lays specified duties upon the convict, and also gives control of them to thepenitentiary service. The educational value of this practice is indisputable. Due to this,it towers over the Polish practice. Partial suspension has become a modern instrumentof criminal policy. In the second part of the article, the author weighs up the possibility of introducingthis type of solution into Polish legislation. A comparison with the French institutionof suspended sentences with the Polish equivalent in the current version of article 69 ofthe criminal code inclines them towards not only the conclusion that it needs revision,but also formulation of ‘de lege ferenda’ postulates as part of this. In the discussion on these, the author indicates arguments for and against partialsuspension of sentences in Polish legislation. According to the author, it is a moremodern solution than the Polish one in its current form. Moreover, the introductionof partial suspension had a positive effect on French criminal policy, making themethods of serving sentences more flexible and dynamic. This is notably its mostimportant advantage over Polish legislation. Another further benefit of utilising partialsuspensions is limiting the placements of convicts placed into penal institutions sincethey are decidedly shorter than the “flow-through” of Polish prisons. Thus the author assesses that they are in favour of this, as well as the Europeanparadigm of penal moderation. Partial suspension of sentences allows an absolutepunishment to be adjusted in the most restrained way, making it humane. It becomespossible to divide it into partly closed (served in a prison) and open (carried out ina free environment). It completely changes not only the character of the punishment,but also its function. It eases problems, the social effects on the convict and their lovedones, yet strengthens the educational effect. This kind of process in administeringpunishment strikes the author as more dynamic than the current one, where servingthe whole of a punishment is a rule of Polish law. The empowerment of the convictedin this process has huge educational value.The author draws attention to the fact that partial suspension is an intermediarymeasure between depriving freedom and those punishments and measures involving liberation. There is a lack of this type of measure mixed into Polish criminal legislation.Their main advantage is that it enriches punitive instruments, allowing flexibilityby increasing the possibility of individualisation in selecting the type and size ofpunishment. Therefore there is a systemic argument for it.Yet another argument for it has a legal-material character. The Polish institutionof suspending sentences is structured too stiffly, which means that the court can onlydecide between suspending the entire sentence and having it served in full. They areextremes, which in modern rational criminal policy ought to be avoided. The nextargument has a criminological character. Neither the Polish nor French literature onthe subject has mentioned research into the effectiveness of imprisonment depending on whether it was carried out in full or in part. Therefore nobody has proven thata punishment served in full is any better. Finally, the existence of partial suspension could rationalise penitentiary policy. This is because it shortens the average period spent serving prison time, making the“flow-through” of convicts in prison more dynamic. This makes it a valuable systeminstrument for opposing their overpopulation. Partial suspension is above all cheaperthan serving a punishment completely in full. The author then discusses several counterarguments about the possibility ofpartially-suspended sentences in Polish legislation. Firstly, we are neither mentally nor doctrinally prepared to abandon the stiff static administration of punishments for a more dynamic process in their application throughthe logical implementation of carrying them out in parts. Another serious barrier is an organisational problem. Introducing partialsuspensions would demand greater dynamism in the work of courts and probation officers, as well as the prison system as a whole. Under Polish conditions, this is notrealistic, since observation of the practice leads to the conclusion that carrying outpunishments in full is easiest, and we prefer that in practice. The convict is placed intoa cell once, without further procedures or changes. Partial suspension would mean theactivities of courts, prison and probation personnel would multiply greatly, and nobodywants this. Consequently, it would increase the resistance of these services, which isa serious barrier to prudent changes.In conclusion, the author invites discussion on the proposed solutions aboutpartially-suspended sentences.
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