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  1. 2 Brzozowski W.

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Postępowanie ze sprawcami niebezpiecznymi – główne wątpliwości konstytucyjne

100%
Brzozowski W.
Przegląd Legislacyjny
|
2015
|
issue PL 4(94)
25-41
EN
The adoption of the Act of 22 November 2013 on the procedures related to people with mental disorders who pose a threat to other people’s life, health or sexual freedom was followed by a heated political and legal debate. Several doubts were raised concerning the constitutional admissibility of post-penal detention of the so-called dangerous perpetrators. The author discusses the most important allegations, mindful of the fact that they have been challenged before the Constitutional Tribunal and that they are expected to be examined shortly. Firstly, the new legislation is seen by many as being inconsistent with the constitutional standards of criminal law, since one may be held criminally responsible without having committed an act prohibited by a statute in force at the moment of commission thereof. However, it may be questioned whether the measures provided for by the challenged act constitute a form of punishment in the constitutional sense of this term. Secondly, some legal scholars claim that the provisions of the act do not fulfill the constitutional requirement of adequate specificity, as they refer to vague criteria such as ‘high probability’ and ‘very high probability’ of committing a criminal offence, while only the latter allows detention. This argument deserves serious consideration, although it seems that it would be difficult to find more specific criteria to apply in that matter. Finally, it was argued that the post-penal measures provided for by the act constitute a disproportionate interference with the personal freedom, for deprivation of liberty is not necessary to achieve the legitimate aim of safeguarding the public interest. This allegation should be carefully examined and if the existing preventive measures are found to be sufficient, post-penal detention should be declared inconsistent with the Polish Constitution.
2

Pojęcie konstytucyjnego organu Rzeczypospolitej Polskiej w przepisach karnych

100%
Brzozowski W.
Przegląd Legislacyjny
|
2017
|
issue PL 4 (102)
9-22
EN
The term ‘constitutional state body’ is used not only by legal science but may also be found in legal provisions, including criminal law. It appears, however, that interpretation of that term in criminal law context is not uniform and there are many definitions suggested. Such situation may raise serious concerns from the constitutional perspective. The concept of a constitutional body of the Republic of Poland, whenever found in criminal law provisions, should be interpreted as denoting any state body which is individually mentioned in the text of the Constitution. Such a definition is intuitive and can be easily understood by everyone, contrary to other, narrow interpretations. Although restrictive method of interpretation may be common in criminal law, it seems in this case to be based on random criteria. In order to avoid the widely varying interpretations in future, it would be a good idea to provide the notion of a constitutional state body with a legal definition. Another option would be to simply enumerate the state bodies which are to be protected.
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