Search results

1

Opinia prawna na temat zmiany ustawy – Kodeks karny

100%

Sakowicz A.

Zeszyty Prawnicze BAS

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2012

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issue 4(36)

181-190

EN

The author argues that the proposed provisions of Article 126c of the Penal Code – inasmuch as it penalizes the person who publicly and contrary to facts denies the crimes of genocide – should be assessed negatively. The expert points out that the content of the above-mentioned provisions is partly covered by personal and material scope of regulation of the current provisions of Article 55 of the Act on the Institute of National Remembrance as it concerns the denial of the crime against peace, humanity. He also claims that the proposed provisions concerning the offence of negationism, by making reference to “act of genocide” (whose elements are specified in Article 118 of the Penal Code), provides for too broad scope of penalization.

2

Opinia prawna na temat projektu ustawy o przeciwdziałaniu zagrożeniom przestępczością na tle seksualnym i o zmianie niektórych innych ustaw

80%

Sakowicz A.

Zeszyty Prawnicze BAS

|

2015

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issue 2(46)

149-161

EN

The proposed bill requires further legislative work. The author of the opinion critically assesses the idea of a special register of sex offenders, claiming that the manner of its implementation, the scope thereof, the conditions of use and stigmatization of people entered therein, due to the impossibility of expungement of record for certain offenses, may raise doubts as to the nature and the proportionality of this protective measure. In addition, doubts are raised as to the possibility of applying the registry against the perpetrators finally sentenced before its entry into force and the imposition of this measure irrespective of the degree of fault and social harmfulness of the act, as well as neglecting the need to individually influence the perpetrator.

3

Przepadek w znowelizowanym kodeksie karnym

80%

Błaszczyk M.

Studia Iuridica

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2016

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vol. 65

93-107

PL

Under the Act of 20 February 2015 – changing the Penal Code and some other acts, from 1 July 2015 the forfeiture has been removed from the catalogue of penalties – the art. 39 point 4 of the Penal Code was repealed – and also from the catalogue of security measures of an administrative nature – the wording of the art. 99 § 1 of the Penal Code has been changed, the art. 100 of the Penal Code has been repealed and its content has been transferred to the art. 49a of the Penal Code. Currently, the forfeiture is fully regulated in chapter Va of the Penal Code, entitled „Forfeiture and compensatory measures”. Changing the normative status of the forfeiture is not understood. I consider it as a mistake. This change was not associated with changes of the normative status of forfeiture in the Fiscal Penal Code and Code of Offences. Besides the changes concerning the status of the forfeiture which has obviously system nature under the amendment came to repeal the provisions of articles 44 § 8, 45 § 6 and art. 45 § 4 of the Penal Code. These were changes of organizational character. They were accompanied by changes in the provisions of the Executive Penal Code and Code of Criminal Procedure, which took over the content of the repealed provisions of the Penal Code. The wording of the art. 45 § 3 of the Penal Code regulating one of the legal presumptions relating to the forfeiture of financial benefits has been changed. This has increased the warranty standard of that provision.

4

Ocena propozycji zmiany ustawy – Kodeks karny w zakresie penalizacji czynów polegających na umieszczaniu w miejscu publicznym do tego nieprzeznaczonym podpisu, rysunku lub napisu bez zgody zarządzającego tym miejscem

80%

Wasil W.

Zeszyty Prawnicze BAS

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2018

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issue 2(58)

210-214

EN

The amendment proposed in the petition aims to improve the efficiency of investigation and prosecution of persons who committed an act of vandalism by illegally placing graffiti in a public sphere. In the author’s opinion adding a new article to the Penal Code is not necessary. A modification of current provisions, e.g. by increasing sanctions provided in the Misdemeanours Code, would be a more appropriate way to achieve promoter’s goals.

5

Artykuł 55a ustawy o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu w relacji do art. 55 tej ustawy oraz art. 133 Kodeksu karnego

80%

Grześkowiak A.

Zeszyty Prawnicze BAS

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2018

|

issue 2(58)

148-172

EN

The purpose of this opinion is to determine the relation between Article 133 of the Penal Code and Article 55 of the Act on The Institute of National Remembrance. The statutory features of these punishable acts have been analysed. Article 133 of the Penal Code penalizes a public insult of the Polish Nation (in a broad, constitutional sense of that term). According to Article 55 of the Act on The Institute of National Remembrance it is prohibited to deny, publicly and contrary to the facts, Nazi crimes, communist crimes or other crimes against peace, humanity or war crimes, perpetrated on persons of Polish nationality or Polish citizens of other nationalities. Article 55a of the mentioned Act protects good reputation as a part of dignity of the Polish Nation and the Polish State. Different legal norms of behavior are described in each of these provisions – the scope of criminalisation is different. Neither Article 133 of the Penal Code, nor Article 55 of the Act on The Institute of National Remembrance match all punishable features provided by Article 55a of the Act on The Institute of National Remembrance.

6

Karta ewidencyjna zabytku – aspekty prawne

80%

Gabler D.

Archeologia Polski

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2012

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vol. 57

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issue 1-2

293-303

EN

There is a growing interest among amateur searchers in documents from the Archaeological Map of Poland (Archeologiczne Zdjęcie Polski) collection, containing data from architectural and construction monument record sheets. For a large group of non-professional searchers, the data brings valuable information on given buildings, such as type, location, photographic and drawing documentation. Access to documents of this kind can facilitate considerably the pursuit of individual searching/collecting passions, although not always with a noble purpose in mind. Recognizing this possibility, searchers have stepped up efforts to procure legally information of interest to them. The present article attempts to determine in practice whether it is possible and in what way to counteract such claims in the light of the legal provisions currently in force in Poland and in referrence to judiciary doctrine and judicature.

7

Opinia prawna na temat projektu ustawy o zmianie ustawy – Kodeks karny

80%

Sakowicz A.

Zeszyty Prawnicze BAS

|

2015

|

issue 1(45)

109-118

EN

The author questions the proposal to amend the Act – the Penal Code by supplementing its content with an article criminalizing the use of violence – other than as to a person – obstinately or in a manner significantly impeding another person in satisfying their basic needs in order to compel that person to a particular action, omission, or endurance. He points out inadequate arguments used by the authors of the bill to prove insufficient protection of tenants against forced eviction. It was pointed out that the scope of the proposed provision is not confined to behavior aimed at forcing tenants to leave their apartments, but provides for coverage of all cases of persistent violence. The author favors the fact that, under the bill, prosecution of offenses referred to in Article 191 § 1 and 1a of the Penal Code shall be initiated upon request of the injured person.

8

Znikoma społeczna szkodliwość posiadania broni i amunicji. Glosa do wyroku Sądu Najwyższego z dnia 8 czerwca 2021, sygn. V kk 131/20

80%

Wardak Z.

Roczniki Nauk Prawnych

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2022

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vol. 32

|

issue 2

169-180

EN

The article is a gloss to the judgment of the Supreme Court of June 8, 2021, file ref. V KK 131/20. In this judgment, the Supreme Court stated that in a situation where the perpetrator’s act consisted in transporting a firearm at the employer’s command and under his supervision, by a person who did not have a firearms license, it was socially harmful to a negligible extent. The author, sharing the position of the Supreme Court regarding the negligible social harmfulness of the act, points out that in such a situation we were not dealing with the possession of a firearm that was still in the employer’s possession..

PL

Opracowanie stanowi glosę do wyroku Sądu Najwyższego z dnia 8 czerwca 2021 r. sygn. V KK 131/20. W wyroku tym Sąd Najwyższy stwierdził, że w sytuacji, kiedy czyn sprawcy polegał na przewożeniu broni palnej na polecenie pracodawcy i pod jego nadzorem, przez osobę nie posiadającą pozwolenia na broń, jest społecznie szkodliwe w stopniu znikomym. Autor, podzielając stanowisko Sądu Najwyższego odnośnie znikomej społecznej szkodliwości czynu, zwraca uwagę, iż w takiej sytuacji nie mieliśmy do czynienia z posiadaniem broni palnej, która nadal była w posiadaniu pracodawcy.

9

Nauczyciel funkcjonariuszem publicznym? Zakres ochrony i odpowiedzialności nauczycieli w polskim prawie karnym

70%

Duksa P.

Studia Warmińskie

|

2011

|

issue 48

227-248

EN

Teachers take advantage of the protection guaranteed to public functionaries while performing or in relation to their official duties. According to the survey, teachers often fail to react to acts of violence at school including violence directed to themselves as they do not feel competent enough to act against people demonstrating aggressive behavior. They are also not fully orientated in the mechanisms of the protection guaranteed to public functionaries as well as in its scope. Low legal awareness on the matter results in the fact that teachers not always know that they often balance just within the law and some of their activities (or omissions) are even against the law. They are also not fully aware of the fact that legal liability arising from the specificity of their profession is by nature broader than in the case of other professions. Should they be aware of such liability, there will always be numerous questions and doubts. This article constitutes an attempt to find the answers to the above questions. Simultaneously through a short description of typical crimes committed against teachers and offences committed in relation to the duties performed by teachers the article is a compendium of basic legal knowledge on the matter.

10

Uwagi o przestępstwie uprzywilejowanym z perspektywy dzieciobójstwa

70%

Brzezińska J.

Nowa kodyfikacja prawa karnego

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2013

|

vol. 29

15 - 30

EN

The introductory part of the article describes the dogmatic structure of offences treated less severely than the corresponding standard offences. The description was then collated with the analysis of Article 149 of the Penal Code which classifies the crime of infanticide. As aresult, it has been established that the legislator provides for only one basis for treating infanticide as an offence treated less severely. The basis in question, concerning the mother’s emotional disturbance as aconsequence of labour, has not been defined precisely enough. This is due to the fact that there is no empirical research unambiguously confirming the assumption that labour has apathological impact on the psyche of a woman. Thus, the structure of Article 149 of the Penal Code in its current form does not reflect the actual causes of aperpetrator’s criminogenic activity and it is necessary to determine the real basis for treating infanticide as an offence treated less severely than the corresponding standard offence.

11

Judgement of the Supreme Court, dated 17 February 2016 (Ref. no. WA 16/15)

70%

Kleczkowska A.

Polish Yearbook of International Law

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2016

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vol. 36

267-276

EN

In its Judgement of 17 February 2016, the Polish Supreme Court adjudicated the case of Polish soldiers accused of crimes committed in the village of Nangar Khel in Afghanistan in 2007. Ultimately, the Supreme Court found that Polish soldiers were guilty of, inter alia, breach of Article 318 of the Polish Penal Code, which stipulates that a soldier commits a crime even when executing an order if he is aware of this crime. However, the part of the judgement devoted to the problem of unlawful orders is very limited and almost completely lacks references to international law. The Supreme Court could have referred to a number of international legal acts, starting from the beginning of 20th century and up to the more recent regulations, including those in the Rome Statute. Moreover, the Supreme Court did not use international case law. As a result, the argumentation of the Supreme Court should be assessed as limited and unconvincing.

12

Polski hymn państwowy i jego prawnokarna ochrona

70%

Szeleszczuk D.

Przegląd Sejmowy

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2020

|

issue 4(159)

147-164

EN

The subject of this study is the issue of criminal law protection of the Polish national anthem. The author presents regulations concerning the anthem’s matter in historical, constitutional and criminal law perspective. The analysis of criminal provisions leads him to the conclusion that in the current state of law the only basis for criminal liability for insulting the anthem are the provisions of the Code of Petty Offences (Article 49 § 2). This view is a polemic with the position of authors claiming that the basis for liability for insulting the anthem is Article 137 § 1 of the Penal Code. Taking into account the jurisprudence of the Constitutional Tribunal and based on a comparative legal analysis, the author questions the proposals aimed at decriminalizing the behaviors concerning the national symbols of Poland. He formulates a de lege ferenda postulate to supplement the content of Article 137 § 1 of the Penal Code so that it would also cover the Polish national anthem without any doubts as to interpretation. Solutions functioning in many European countries may be a model for the Polish legislator.

13

AMENDMENT OF ARTICLE 209 OF THE PENAL CODE - LEGAL AND PRACTICAL ASPECTS

70%

Olek I.

Przegląd Policyjny

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2019

|

vol. 135(3)

244-256

EN

This article considers the legal and practical aspects of the amendment to Article 209 of the Penal Code, which provides for liability for evading maintenance obligations, determined by the number of court orders, settlements and other agreements. The necessity to change the regulations was justifi ed by the low recoverability of maintenance arrears and the relatively small number of indictments made against the perpetrators of these acts. The crime of not paying child maintenance is socially burdensome and generates signifi cant expenses from the state budget. The legislator, justifying the draft law, considered that its amendment would temporarily increase the burden of law enforcement, but the author cites arguments that this increase will be permanent and will affect not only the prosecutor’s offi ce and the police, but also other institutions which will be required to report information about the offender. However, for over a year after the introduction of the amendment, the authorities conducting preparatory proceedings have been overburdened. In addition, imprecise regulations are diffi cult to interpret and put into practice. The study also addresses the issues of new institutions enabling the perpetrator to avoid liability for the act committed in connection with the payment of all maintenance arrears and the current penalties, as well as the features of both the basic and qualifi ed types of the crime.

14

Increase in Figures on Drug Offences in the Czech Republic: An Epidemic of Drug Crime or Something Else?

70%

Zeman P., Štefunková M., Trávníčková I.

Česká kriminologie (Czech Criminology)

|

2017

|

vol. 2

|

issue 1

1-13

EN

After several years of stagnation, the Czech Republic has experienced a sharp rise in numbers of drug offences registered by the police as well as in other statistical indicators related to this type of crime. Between 2009 and 2014, the number of drug offences registered per year by the police increased by 80% and the number of persons convicted of drug offences per year almost doubled. This finding could indicate that there is a period of an enormous spread of drug offences on the streets of the Czech Republic. But the reliance on official crime statistics as the only source of data on crime rate and trends can lead to misleading and oversimplified conclusions. The paper is based on the results of the recent research of the Institute of Criminology and Social Prevention in Prague. Using a qualitative approach and findings from the analysis of statistics on drug offences, the analysis of epidemiological data, the assessment of the new legislation, the analysis of relevant strategic documents and the expert questionnaire survey, the authors present possible explanations for the recent development in drug offences rate, pointing out certain shortcomings of the official statistics of registered offences. The analysis indicates that the real increase in drug crime, connected mainly with the rise in numbers of problem (high-risk) drug users, can in part explain the development of the registered drug crime rate. However, other factors, like the shift in the priorities of the Czech police leaders and related shift in the allocation of capacities, play probably more important role, which confirms the limited usability of registered crime statistics in describing and explaining the real state and development of crime.

15

Postulat usunięcia terminu obyczajność z Kodeksu karnego

61%

Piosik Ł.

Poznańskie Studia Polonistyczne. Seria Językoznawcza

|

2021

|

vol. 28

|

issue 1

123-142

EN

In my article, I formulate and describe the demand to remove the term obyczajność (propriety) from the Penal Code. In the course of the analysis, I will attempt to prove that its presence in the Act is an example of cultivating a terminological tradition that dates back to the partitions period and was started for a reason that is currently outdated – the general language was insufficient to describe sexual crimes. I also show that due to the discrepancy between the general and legal language, the use of the term obyczajność may mislead a non-professional interpreter of a legal text. The text concludes with a more precise description of the titular demand, i.e. a proposal to change the title of Chapter 25 of the Penal Code.

16

Praktyczny wymiar strony podmiotowej jako znamienia czynu zabronionego z art. 284 k.k. w świetle orzecznictwa sądowego

61%

Orzeł J.

Roczniki Administracji i Prawa

|

2015

|

vol. 15/1

161-171

PL

Przedmiotem artykułu jest analiza orzeczeń najwyższej instancji sądowej oraz sądów apelacyjnych na przestrzeni lat 1996– 2015, uzupełniona o stanowisko doktryny, w zakresie reprezentowanych poglądów dotyczących dekodowania znamienia strony podmiotowej czynu zabronionego z art. 284 k.k. w zachowaniu sprawcy występku przywłaszczenia. Autor dokonuje syntezy tez sądowych, podejmując próbę stworzenia enumeratywnego katalogu zachowań wskazujących na zamiar przywłaszczenia, jednocześnie poddając pod rozwagę pojawiające się w praktyce stosowania prawa wątpliwości związane z jego subsumcją na kanwie niejednolitej wykładni reprezentowanej w orzeczeniach sądowych.

EN

The article analyses the judgements of the highest judicial instance and of the appeal courts in the years 1996 - 2015, supplemented by the position of doctrine, in terms of represented views on decoding the feature of the perpetrator of an act prohibited under art. 284 of the Penal Code in the behaviour of a perpetrator of a petty crime - appropriation. The Author synthesises the judicial theses in attempt to create an enumerative catalogue of behaviours indicating the intent of appropriation and at the same time raising for consideration the doubts that appear in the practice of law and are associated with its subsumption based on an inconsistent interpretation represented in court decisions

17

Efektywność nadzoru ochronnego (wyniki badań 232 recydywistów poddanych nadzorowi ochronnemu)

53%

Rzeplińska I.

Archiwum Kryminologii

|

1983

|

issue X

55-85

EN

1.The 1969 Penal Code introduced a new system of sanctions for offences committed by habitual criminals in special circumstances. Two new categories of special recidivism are here introduced: special basic recidivism (Art. 60, § 1 of the Penal Code), and special multi-recidivism (Art. 60, § 2 of the Penal Code). The legal consequences of a conviction under Art. 60, § 1 or § 2 are as follows: 1) longer terms of imprisonment, 2)the application of special measures: protective supervison and commitment to a social readaptation centre, These measures take effect after the prison sentence has been served. Under the protective supervision system, the habitual offender is free, but supervised for a period of 3-5 years. The readaptation centre is a closed institution. The habitual offender is sent there for a minimum period of two years, up to a maximum of five years. After two years the penitentiary court may free the recidivist if it thinks he is unlikely to commit another crime after regaining his freedom. The conditions under which a person is sent to a readaptation centre differ, according to whether he or she was sentenced under Art. 60, §1 or Art. 60, § 2 of the Penal Code. A recidivist may be sent to a readaptation centre by either the criminal court or the penitentiary courts. The decision to apply these measures may be taken at diverse stages of the juridical and penitentiary process: 1) when the sentence is pronounced (by the criminal court), 2) towards the end of the prison sentence (penitentiary court), or 3) during the period of protective supervision (penitentiary court). In the first of the three stages mentioned above, the recidivist senrenced under Art. 60, § 1 of the Penal Code may or may not be put under protective supervison. It is not obligatory. In the case of a person sentenced under § 2 of Art. 60 of the Penal Code, it is obligatory either to put him under protecive supervision or to send him to a social readaptation centre. The decision to send a recidivist to a social readaptation centre (a more severe measure) is taken only if the court is of the opinion that protective supervision would be insufficient io prevent a return to crime. In the second of the three stages mentioned above, towards the end of the recidivists's sentence the penitentiary court takes the following decisions: 1) it may put the habitual criminal under protective supervision if that was not done in the sentence of the criminal court; 2) it may alter the decision of the criminal court and put the offender under a protective supervision order instead of sending him to a social readaptation centre. The third and last stage in which decisions are taken about the application of special measures, is when the offender is actually under the supervision of a Probation Officer. If the supervision is not working out satisfactorily, the recidivist may be sent to a social readaptation centre. 2.The habitual offender is supervised by a Probation Officer after he has served his prison sentence. No person who is under protective supervision may change his place of residence without the consent of the court. He is obliged to appear in court if summoned, and to carry out the court's recommendations (Art. 63 of the Penal Code). The court may order the recidivists: 1. to perform an obligation incumbent on the sentenced person to provide support for another person; 2. to perform specified work for a social purpose; 3. to perform remunerated work, pursuing an education or preparing for an occupation; 4. to refrain from abusing alcohol; 5. to submit to medical treatment; 6. to refrain from frequenting specified surroundings or places; 7. other appropriated behaviour in the period of protective supervision, if it may prevent the commission again of an offense. During the protective supervision period, the court may issue orders, or extend or alter those already given. During the protective supervision period the recidivist comes under the supervision of a Probation Officer appointed by the court, who at the same time is responsible for organizing the resocialization of the person being supervised. Protective supervision ceases: 1 when the appointed period of probation is at an end, and when probation has been successful, 2) Or aerlier, if the person being supervised fails to carry out the orders and obligations placed on him, or if he makes it impossible or difficult for the purpose of the protective supervison order to be attained (e.g. by committing a crime when under supervision, which means that the supervision was unsuccessful, 3) owing to causes which bring supervision to an end (e.g. death of the supervised person). 3. The study reported here dealt with one of the two special measures mentioned above - protective supervision. The main problem examined is the effectiveness of protective supervision. Protective supervision is a system which has two goals: one is to keep the supervised person from committing another crime (here we may speak of the restraining function of supervision), while the other is to resocialise the person on supervision (in this case we may speak of the resocialising function of probation). The key question asked by anyone who examines the effectiveness of some penal measure is: whether, and to what extent, does it attain its aims? With this definition in mind, the effectiveness of probation was examined in two fields. In the first (narrower) field, the author asked if there had been a juridical improvement in the behaviour of persons put under supervision. In the second (wider) field, success was measured by the extent of the supervised persons resocialisation - that is, an attempt was made to find out how the supervised person functioned in society, that is, whether he kept to the basic social norms that society expects,of its members. In both fields, the moment of time when effectiveness of supervision was assessed was that at which supervision ceased. Those who successfully completed their period of probation were checked again at the end of 38 months, to see whether or not they had reverted to crime. The group studied here consisted of all male recidivists in Warsaw who were put under a protective supervision order in 1971-1972. There were 232 persons in the group. Two research techniques were used. ln the first, the relevant documents were studied (documents concerning previous criminal caces, prison documents, records of the course of protective supervision, data, about previous convictions, as well as about periods spent in penal institutions and in remand). In the second, the recidivist was interviewed on the basis of a questionnaire. 4. Out of the 232 persons investigated, 43.1 % completed the supervision period successfully, 53.3% failed to do so, and in 3.4% of the cases death intervened. In this group of recidivists who had been put under supervision the author differentiated three groups: Group I - taken as having been resocialised during the supervision period, and as having successfully completed their supervision. This group consisted of 57 men (26% of the total number studied). Group II – regarded as not having been resocialised, but that completed the probation period successfully, without ill consequences for themselves. Group II consisted of 43 men (19% of the total). Group III, consisting of men who were not resocialised, and who as a result suffered the additional ill effect of being isolated in the social readaptation centre; this group failed to complete their supervision successfully. In this group were 124 men (55% of the total). Some of the unresocialised men in Group III did not carry out any of the duties or orders given them. Some reverted to crime even although for a time they carried out their duties and orders. Some did not carry out their duties and orders, and reverted to crime. In this group the supervision system failed to fulfil the functions expected of it. With regard to those who did not carry out their obligations and orders it failed in its resocialisation function, while with regard to the others, who committed a crime while under supervision, it failed in both its functions: restraint and resocialisation. The following characteristics were found in Groups I, II and III. Group I consisted mostly of the youngest men (only one-eighth of the group were over 40). They were educated at least up to elementary school standard (approx. age 14-15). During the probation period they carried out work that called for skills. They were physically healthy. In their case the supervision period was one in which their lives were financially more stable (they had paid jobs). They also had stable family lives, and started their own a families. Of all the groups, they had the fewest convictions up to the time the probation period began. They had mainly committed offences against property, but a significant number had been gauilty of crimes of a predominantly aggressive nature. Drunkenness was not noted among them during the supervision period. The men in this group declared that after they had come out of prison and been put under protective supervision they had no special trouble in beginning life again in freedom. They also said they were pleased with life. Group II consisted of men who, judged from the formal point of view, completed their supervision period successfully. But their behaviour during supervision, and above all their heavy drinking, does not justify us in regarding them as having been resocialised. These were habitual criminals who when put under supervision were older (mostly over the age of thirty), as compared witn the men in Group I. As many as a quarter of the men in Group II were habitual criminals aged forty and over. Compared with the men in Group I, they were less well educated, and worse qualified for jobs. Among them various types of physical complaints were found, possibly because they were older, and possibly also because they had a longer career of crime. Fewer of them were married. They seemed to make little effort to achieve financial stability. During the supervision period they frequently changed their job - often because of some infringement of discipline, or because they arbitrarily threw up their job. When they began probation, they had more convictions behind them than the men in Group I. Group II had the lowest number of men who had committed serious crimes against property, or serious aggressive crimes. They were guilty mostly of petty crimes. Above all the habitual criminals in this group are the most awkward ones from the social point of view. They were the ones who mostly said they were dissatisfied with their lives. While on supervision they did not give up heavy drinking. Moreover, although ordered to take a "drying-out" cure , they did not go for treatment at all, or did so irregularly. Before their conviction they had worked irregularly, with gaps in between jobs, but during the whole supervision period they worked. Groups III: protective supervision was a failure with group. As compared with the other groups the men in this one had more previous convictions - the average number of previous convictions being nearly six. More of them, as compared with the men in the other groups, went in mainly for crimes against property; the minority went in for crimes of a predominantly aggressive character and crimes of diverse types. Half of the men in Group II came into the 21-30 age group when ,they began supervision, while the other half were older (moreover, one-seventh were habitual criminals aged over forty). Even at the beginning of supervision the men in this group were in a worse situation than the others - especially as compared with the men in Group II, for they were worse educated, and worse prepared for earning living. The majority of the men in this group were single. Only one in five was married. Their health was noticeably poorer than that of the men in the other groups. Most of the men in this group drank heavilly during the supervision period. The men here confessed that immediately after getting out of prison they had trouble in getting back to a normal life. The main obstacles were lack of money, and the difficulty in finding a job. When questioned they said that on the whole they were not happy about their lives. The majority (72.6%) had reverted to crime while on supervision. The others had been taken out of supervision because they did not carry out their obligations ot the orders or the probation officer. 6. In this study of men put under protective supervision, one in every four is reckoned to have been a success. it was noted that during the supervision period factors that made for success were: setting up a family, having a regular skilled job, and avoidance of heavy drinking. In view of the above, it is the youngest habitual criminals who have the best chance of completing their supervision period successfultry. Age is in their favour, they have a better chance of a stable family life, they are better educated, better fitted for a job, they do not show the symptoms of social degradation associated with alcoholism, Because of these factors they are more likely to be able to return to a normal life. 7. During a period of 38 months from the end of the each man's supervision period, a check was kept on whether or not these men had further convictions. The men covered by this part of the study were those in Groups I and II, that is, those who successfully completed their probation. Thirteen men from Group I and twelve men from Group II (that is, twenty-five men altogether), had subsequent convictions. They constituted 25% of the two groups. It may therefore be stated that the majority (three-quarters) of the men in Groups I and II had no convictions during the thirty-eight months following the end of their supervision period. 8. In the supervised groups studied here, we took one quarter as having been resocialised by the end of supervision, one-fifth as having at most improved formally, and over a half as not having been resocialised - in their case supervision ended in failure. On the basis of this study it may be stated that the chief criterion on which the man on supervision was judged (and on which the success of the supervision proces was judged) was whether or not he carried out the instruction to have a paid job. This was due to two reasons: in the first place, if the man was in paid employment, it mean that he was fulfilling at least the minimum of the demands made on him during the supervision period (this minimum was: to earn his own living). Secondly, it was easy for both the Probation Officer and for the man he was supervising to check whether this order was being carried out, and how. The implementation of their instructions was treated as being of less importance. The main one was to have paid employment. If the man being supervised was in a job, but failed to carry out other instructions given to him, the Probation Officers did not ask for him to be taken off supervision. At the present moment, when reform of the criminal law in Poland is under discussion, one of the problems being examined is that of the penal liability of people who revert to crime, and the question of what legal penalties should be imposed on them. It has been pointed out during this discussion that the severe legal penalties imposed on habitual criminals during the last ten years have not been effective. Consequently the question still remains open: whether we should not apply the special measures described above - protective supervision or commitment to a social readaptation centre after the prison sentence is served. What we have learned from the use of a closed institution such as a social readaptation centre shows that it is completely ineffective. As for protective supervision, it has been postulated that this way of controlling the behaviour of habitual criminals should be transferred from the sphere of penal measures to the sphere of social security measures. It has been suggested that within the framework of post penitentiary care, specific medsures to help, which would be carried out by the probation officers, would be available to habitual criminals after coming out of prison.

PL

1.The 1969 Penal Code introduced a new system of sanctions for offences committed by habitual criminals in special circumstances. Two new categories of special recidivism are here introduced: special basic recidivism (Art. 60, § 1 of the Penal Code), and special multi-recidivism (Art. 60, § 2 of the Penal Code). The legal consequences of a conviction under Art. 60, § 1 or § 2 are as follows: 1) longer terms of imprisonment, 2)the application of special measures: protective supervison and commitment to a social readaptation centre, These measures take effect after the prison sentence has been served. Under the protective supervision system, the habitual offender is free, but supervised for a period of 3-5 years. The readaptation centre is a closed institution. The habitual offender is sent there for a minimum period of two years, up to a maximum of five years. After two years the penitentiary court may free the recidivist if it thinks he is unlikely to commit another crime after regaining his freedom. The conditions under which a person is sent to a readaptation centre differ, according to whether he or she was sentenced under Art. 60, §1 or Art. 60, § 2 of the Penal Code. A recidivist may be sent to a readaptation centre by either the criminal court or the penitentiary courts. The decision to apply these measures may be taken at diverse stages of the juridical and penitentiary process: 1) when the sentence is pronounced (by the criminal court), 2) towards the end of the prison sentence (penitentiary court), or 3) during the period of protective supervision (penitentiary court). In the first of the three stages mentioned above, the recidivist senrenced under Art. 60, § 1 of the Penal Code may or may not be put under protective supervison. It is not obligatory. In the case of a person sentenced under § 2 of Art. 60 of the Penal Code, it is obligatory either to put him under protecive supervision or to send him to a social readaptation centre. The decision to send a recidivist to a social readaptation centre (a more severe measure) is taken only if the court is of the opinion that protective supervision would be insufficient io prevent a return to crime. In the second of the three stages mentioned above, towards the end of the recidivists's sentence the penitentiary court takes the following decisions: 1) it may put the habitual criminal under protective supervision if that was not done in the sentence of the criminal court; 2) it may alter the decision of the criminal court and put the offender under a protective supervision order instead of sending him to a social readaptation centre. The third and last stage in which decisions are taken about the application of special measures, is when the offender is actually under the supervision of a Probation Officer. If the supervision is not working out satisfactorily, the recidivist may be sent to a social readaptation centre. 2.The habitual offender is supervised by a Probation Officer after he has served his prison sentence. No person who is under protective supervision may change his place of residence without the consent of the court. He is obliged to appear in court if summoned, and to carry out the court's recommendations (Art. 63 of the Penal Code). The court may order the recidivists: 1. to perform an obligation incumbent on the sentenced person to provide support for another person; 2. to perform specified work for a social purpose; 3. to perform remunerated work, pursuing an education or preparing for an occupation; 4. to refrain from abusing alcohol; 5. to submit to medical treatment; 6. to refrain from frequenting specified surroundings or places; 7. other appropriated behaviour in the period of protective supervision, if it may prevent the commission again of an offense. During the protective supervision period, the court may issue orders, or extend or alter those already given. During the protective supervision period the recidivist comes under the supervision of a Probation Officer appointed by the court, who at the same time is responsible for organizing the resocialization of the person being supervised. Protective supervision ceases: 1 when the appointed period of probation is at an end, and when probation has been successful, 2) Or aerlier, if the person being supervised fails to carry out the orders and obligations placed on him, or if he makes it impossible or difficult for the purpose of the protective supervison order to be attained (e.g. by committing a crime when under supervision, which means that the supervision was unsuccessful, 3) owing to causes which bring supervision to an end (e.g. death of the supervised person). 3. The study reported here dealt with one of the two special measures mentioned above - protective supervision. The main problem examined is the effectiveness of protective supervision. Protective supervision is a system which has two goals: one is to keep the supervised person from committing another crime (here we may speak of the restraining function of supervision), while the other is to resocialise the person on supervision (in this case we may speak of the resocialising function of probation). The key question asked by anyone who examines the effectiveness of some penal measure is: whether, and to what extent, does it attain its aims? With this definition in mind, the effectiveness of probation was examined in two fields. In the first (narrower) field, the author asked if there had been a juridical improvement in the behaviour of persons put under supervision. In the second (wider) field, success was measured by the extent of the supervised persons resocialisation - that is, an attempt was made to find out how the supervised person functioned in society, that is, whether he kept to the basic social norms that society expects,of its members. In both fields, the moment of time when effectiveness of supervision was assessed was that at which supervision ceased. Those who successfully completed their period of probation were checked again at the end of 38 months, to see whether or not they had reverted to crime. The group studied here consisted of all male recidivists in Warsaw who were put under a protective supervision order in 1971-1972. There were 232 persons in the group. Two research techniques were used. ln the first, the relevant documents were studied (documents concerning previous criminal caces, prison documents, records of the course of protective supervision, data, about previous convictions, as well as about periods spent in penal institutions and in remand). In the second, the recidivist was interviewed on the basis of a questionnaire. 4. Out of the 232 persons investigated, 43.1 % completed the supervision period successfully, 53.3% failed to do so, and in 3.4% of the cases death intervened. In this group of recidivists who had been put under supervision the author differentiated three groups: Group I - taken as having been resocialised during the supervision period, and as having successfully completed their supervision. This group consisted of 57 men (26% of the total number studied). Group II – regarded as not having been resocialised, but that completed the probation period successfully, without ill consequences for themselves. Group II consisted of 43 men (19% of the total). Group III, consisting of men who were not resocialised, and who as a result suffered the additional ill effect of being isolated in the social readaptation centre; this group failed to complete their supervision successfully. In this group were 124 men (55% of the total). Some of the unresocialised men in Group III did not carry out any of the duties or orders given them. Some reverted to crime even although for a time they carried out their duties and orders. Some did not carry out their duties and orders, and reverted to crime. In this group the supervision system failed to fulfil the functions expected of it. With regard to those who did not carry out their obligations and orders it failed in its resocialisation function, while with regard to the others, who committed a crime while under supervision, it failed in both its functions: restraint and resocialisation. The following characteristics were found in Groups I, II and III. Group I consisted mostly of the youngest men (only one-eighth of the group were over 40). They were educated at least up to elementary school standard (approx. age 14-15). During the probation period they carried out work that called for skills. They were physically healthy. In their case the supervision period was one in which their lives were financially more stable (they had paid jobs). They also had stable family lives, and started their own a families. Of all the groups, they had the fewest convictions up to the time the probation period began. They had mainly committed offences against property, but a significant number had been gauilty of crimes of a predominantly aggressive nature. Drunkenness was not noted among them during the supervision period. The men in this group declared that after they had come out of prison and been put under protective supervision they had no special trouble in beginning life again in freedom. They also said they were pleased with life. Group II consisted of men who, judged from the formal point of view, completed their supervision period successfully. But their behaviour during supervision, and above all their heavy drinking, does not justify us in regarding them as having been resocialised. These were habitual criminals who when put under supervision were older (mostly over the age of thirty), as compared witn the men in Group I. As many as a quarter of the men in Group II were habitual criminals aged forty and over. Compared with the men in Group I, they were less well educated, and worse qualified for jobs. Among them various types of physical complaints were found, possibly because they were older, and possibly also because they had a longer career of crime. Fewer of them were married. They seemed to make little effort to achieve financial stability. During the supervision period they frequently changed their job - often because of some infringement of discipline, or because they arbitrarily threw up their job. When they began probation, they had more convictions behind them than the men in Group I. Group II had the lowest number of men who had committed serious crimes against property, or serious aggressive crimes. They were guilty mostly of petty crimes. Above all the habitual criminals in this group are the most awkward ones from the social point of view. They were the ones who mostly said they were dissatisfied with their lives. While on supervision they did not give up heavy drinking. Moreover, although ordered to take a "drying-out" cure , they did not go for treatment at all, or did so irregularly. Before their conviction they had worked irregularly, with gaps in between jobs, but during the whole supervision period they worked. Groups III: protective supervision was a failure with group. As compared with the other groups the men in this one had more previous convictions - the average number of previous convictions being nearly six. More of them, as compared with the men in the other groups, went in mainly for crimes against property; the minority went in for crimes of a predominantly aggressive character and crimes of diverse types. Half of the men in Group II came into the 21-30 age group when ,they began supervision, while the other half were older (moreover, one-seventh were habitual criminals aged over forty). Even at the beginning of supervision the men in this group were in a worse situation than the others - especially as compared with the men in Group II, for they were worse educated, and worse prepared for earning living. The majority of the men in this group were single. Only one in five was married. Their health was noticeably poorer than that of the men in the other groups. Most of the men in this group drank heavilly during the supervision period. The men here confessed that immediately after getting out of prison they had trouble in getting back to a normal life. The main obstacles were lack of money, and the difficulty in finding a job. When questioned they said that on the whole they were not happy about their lives. The majority (72.6%) had reverted to crime while on supervision. The others had been taken out of supervision because they did not carry out their obligations ot the orders or the probation officer. 6. In this study of men put under protective supervision, one in every four is reckoned to have been a success. it was noted that during the supervision period factors that made for success were: setting up a family, having a regular skilled job, and avoidance of heavy drinking. In view of the above, it is the youngest habitual criminals who have the best chance of completing their supervision period successfultry. Age is in their favour, they have a better chance of a stable family life, they are better educated, better fitted for a job, they do not show the symptoms of social degradation associated with alcoholism, Because of these factors they are more likely to be able to return to a normal life. 7. During a period of 38 months from the end of the each man's supervision period, a check was kept on whether or not these men had further convictions. The men covered by this part of the study were those in Groups I and II, that is, those who successfully completed their probation. Thirteen men from Group I and twelve men from Group II (that is, twenty-five men altogether), had subsequent convictions. They constituted 25% of the two groups. It may therefore be stated that the majority (three-quarters) of the men in Groups I and II had no convictions during the thirty-eight months following the end of their supervision period. 8. In the supervised groups studied here, we took one quarter as having been resocialised by the end of supervision, one-fifth as having at most improved formally, and over a half as not having been resocialised - in their case supervision ended in failure. On the basis of this study it may be stated that the chief criterion on which the man on supervision was judged (and on which the success of the supervision proces was judged) was whether or not he carried out the instruction to have a paid job. This was due to two reasons: in the first place, if the man was in paid employment, it mean that he was fulfilling at least the minimum of the demands made on him during the supervision period (this minimum was: to earn his own living). Secondly, it was easy for both the Probation Officer and for the man he was supervising to check whether this order was being carried out, and how. The implementation of their instructions was treated as being of less importance. The main one was to have paid employment. If the man being supervised was in a job, but failed to carry out other instructions given to him, the Probation Officers did not ask for him to be taken off supervision. At the present moment, when reform of the criminal law in Poland is under discussion, one of the problems being examined is that of the penal liability of people who revert to crime, and the question of what legal penalties should be imposed on them. It has been pointed out during this discussion that the severe legal penalties imposed on habitual criminals during the last ten years have not been effective. Consequently the question still remains open: whether we should not apply the special measures described above - protective supervision or commitment to a social readaptation centre after the prison sentence is served. What we have learned from the use of a closed institution such as a social readaptation centre shows that it is completely ineffective. As for protective supervision, it has been postulated that this way of controlling the behaviour of habitual criminals should be transferred from the sphere of penal measures to the sphere of social security measures. It has been suggested that within the framework of post penitentiary care, specific medsures to help, which would be carried out by the probation officers, would be available to habitual criminals after coming out of prison.

18

The emergence of community control sanctions in the Romanian sanctioning system

53%

Oancea G., Micle M. I.

Archiwum Kryminologii

|

2020

|

issue XLII/1

207-224

PL

This article presents the context that led to the establishment of the probation system in Romania in relation to some reforms of the criminal sanctioning system. These reforms were necessary because of the difficulties faced by the penitentiary system before and after 1989, as well as the need to align the administration of penalties with the requirements imposed by the country’s accession to the Council of Europe and the European Union. Eighteen years after the creation of the probation system within the Ministry of Justice, it can be stated that this endeavour constitutes a success, but it is absolutely necessary to continue the efforts towards consolidating it. In addition, these measures have to be accompanied by a change of vision in relation to how other community members can be involved in the process of social reintegration of individuals who have broken the law. W artykule został przedstawiony proces wdrożenia systemu probacyjnego w Rumunii w kontekście reform dotyczących zmian systemu sankcji karnych. Z uwagi na trudności, z jakimi borykał się system penitencjarny w Rumunii przed rokiem 1989 i po tym roku, wprowadzenie takich zmian było konieczne. Przemawiała za tym także potrzeba dostosowania systemu karnego do wymogów nałożonych na państwa członkowskie przez Radę Europy i Unię Europejską. Z perspektywy 18 lat od wdrożenia systemu probacyjnego w ramach Ministerstwa Sprawiedliwości przedsięwzięcie to jest uznawane za sukces. Konieczne wydaje się jednak kontynuowanie dotychczasowego wysiłku, by system ten dodatkowo umocnić. Wykonywaniu środków probacyjnych musi bowiem towarzyszyć zmiana co do postrzegania przez członków społeczeństwa konieczności ich zaangażowania w proces reintegracji społecznej osób, które weszły w konflikt z prawem.

EN

This article presents the context that led to the establishment of the probation system in Romania, on the background of undertaking of some reforms of the criminal sanctions system. The necessity of achieving them was represented by the difficulties faced by the penitentiary system before and after 1989, but also by the need to align the administration of penalties to the requirements imposed by the country‘s accession to the Council of Europe and the European Union. Eighteen years after the creation of the probation system within the Ministry of Justice, it can be stated that, this endeavor constitutes a success, but it is absolutely necessary to continue the efforts towards its consolidation. In addition, these measures have to be accompanied by a change of vision in relation to how other community members can be involved in the process of social reintegration of persons in conflict with the criminal law.

19

Przepadek w znowelizowanym kodeksie karnym

51%

Błaszczyk M.

Studia Iuridica

|

2016

|

vol. 65

93-108

EN

Under the Act of 20 February 2015 – changing the Penal Code and some other acts, from 1 July 2015 the forfeiture has been removed from the catalogue of penalties – the art. 39 point 4 of the Penal Code was repealed – and also from the catalogue of security measures of an administrative nature – the wording of the art. 99 § 1 of the Penal Code has been changed, the art. 100 of the Penal Code has been repealed and its content has been transferred to the art. 49a of the Penal Code. Currently, the forfeiture is fully regulated in chapter Va of the Penal Code, entitled „Forfeiture and compensatory measures”. Changing the normative status of the forfeiture is not understood. I consider it as a mistake. This change was not associated with changes of the normative status of forfeiture in the Fiscal Penal Code and Code of Offences. Besides the changes concerning the status of the forfeiture which has obviously system nature under the amendment came to repeal the provisions of articles 44 § 8, 45 § 6 and art. 45 § 4 of the Penal Code. These were changes of organizational character. They were accompanied by changes in the provisions of the Executive Penal Code and Code of Criminal Procedure, which took over the content of the repealed provisions of the Penal Code. The wording of the art. 45 § 3 of the Penal Code regulating one of the legal presumptions relating to the forfeiture of financial benefits has been changed. This has increased the warranty standard of that provision.

20

Koncepcje dialogowości Michaiła Bachtina a prawo karne

51%

Barczak-Oplustil A.

Annales Universitatis Paedagogicae Cracoviensis. Studia Poetica

|

2022

|

vol. 10

146-164

EN

The article provides a look at the interpretation of the penal code from the perspective of Mikhail Bakhtin’s dialogic theory of the utterance. It was preceded by a description of the similarities and differences between literary text and legal text, indicated by representatives of “Law and Literature” movement. The reference point for these considerations was the verb “cause”, which was analyzed including the changing context, as well as its understanding by the addressees of the prohibition of which this word is a part.

PL

Artykuł stanowi spojrzenie na interpretację Kodeksu karnego z perspektywy koncepcji dialogowości Michaiła Bachtina. Poprzedzone ono zastało omówieniem podobieństw i różnic występujących między tekstem literackim a tekstem prawnym, na które wskazują przedstawiciele kierunku prawo i literatura. Punktem odniesienia dla czynionych rozważań był czasownik „powoduje”, analizowany z uwzględnieniem zmieniającego się kontekstu, jak również jego rozumienia przez adresatów zakazu, którego jest on częścią.

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The emergence of community control sanctions in the Romanian sanctioning system

Przepadek w znowelizowanym kodeksie karnym

Koncepcje dialogowości Michaiła Bachtina a prawo karne