Search results

1

Zapis z konferencji ,,KRYMINOLOGIA A POLITYKA KRYMINALNA – wokół myśli i dokonań Profesora Jerzego Jasińskiego - 12 maja, 2009 r., Warszawa

100%

Wójcik D., Kossowska A., Woźniakowska-Fajst D., Ożarowska-Wolder M.

Biuletyn Polskiego Towarzystwa Kryminologicznego im. prof. Stanisława Batawii

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2009

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issue 18

56-112

2

Działalność Katedry Kryminologii i Polityki Kryminalnej Wydziału Prawa i Administracji UWM w Olsztynie

100%

Chlebowicz P.

Biuletyn Polskiego Towarzystwa Kryminologicznego im. prof. Stanisława Batawii

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2009

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issue 18

12-15

3

Polityka kryminalna i polityka karna we współczesnej polskiej rzeczywistości

85%

Wiktorska P.

Archiwum Kryminologii

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2012

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issue XXXIV

401-425

EN

The article discusses criminal policy, understood as court procedures intended to counteract and limit crime by applying provisions of criminal law. The chapter begins with an analysis of diverse definitions of criminal and penal policy. Then, mechanism of action of such policies in the aspect of administering punishments to perpetrators of criminal deeds is discussed. An analysis of statistical data concerning administering particular types of punishments allows to draw certain conclusions concerning penal policy employed in Poland in the difficult period of social change. The most often administered punishment in the first decade of the 21st century is deprivation of liberty (imprisonment) with conditional suspension (probation), imprisonment and fines are slightly less frequent, the least frequently courts sentence unconditional imprisonment. The picture of the data allows only to make a draft of contemporary visions of solving social problems related with crime – or rather lack of such visions. The reasons of incoherence and – in many cases – irrationality of our criminal policy can be seen in many factors which are impossible to discuss or even list in one article. However it is worth to notice that undoubtedly the progressing expansion and politicization of criminal law should be limited and it should be acknowledged that criminal law is not the best remedy for social problems, which include crime.

4

Recenzja: Paweł Kobes, Funkcje kurateli w polityce kryminalnej, Difin, Warszawa 2019, ss. 378

80%

Porowski M.

Głos Prawa. Przegląd Prawniczy Allerhanda

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2019

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vol. 2

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issue 1(3)

230-234

PL

Tekst stanowi recenzję książki Pawła Kobesa dotyczącej kurateli i jej miejsca w polityce kryminalnej.

EN

This is a review of Paweł Kobes’s book on the legal guardianship and its place in the criminal policy.

5

Kara ograniczenia wolności w świetle polityki kryminalnej w latach 1970-1998

71%

Melezini M., Szczygieł G. B.

Archiwum Kryminologii

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2002

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issue XXVI

133-159

EN

The subject of the article is an analysis of the non-custodial sentencje known in Poland as curtailment of liberty (and thus excluding fines) as an important instrument of penal policy in the 1970-1998, the main focus being on two strands or this policy–legislative policy and penal policy–to the exclusion of the latter’s administrative aspects. In the light of the guiding principles of the 1969 Criminal Code non-custodial sentences were intended to become an important penal policy measure for treatment of perpetrators of minor offenses and at the same time to provide a substitute for short terms of imprisonment, which had been found relatively ineffective as a means of achieving rehabilitation of convicted offenders. However, the normative extent of the code’s provision for non-custodial penalties proved to be relatively narrow. Within the range of alternatives to custodial punishment curtailment of liberty was an option available only under 17.5% of the defined offenses. Under Article 54 §1 sentencing to curtailment of liberty was admissible for 24% of all offenses and under Article 57 §1.3 for 27.9% of the total. The potential possibilities of non-custodial treatment of offenders were circumscribed by the provisions of Articles 54 §2, 52, 59 and 60. A significant influence on the frequency of sentencing to curtailment of liberty was the actual incidence of criminal acts punishable by alternative form of treatment. Based on an analysis of Ministry of Justice and judicial statistics it appears that such acts were not among the most frequently committed offenses, amounting to about 10% of all convictions. The systematic growth of the proportion of sentences to curtailment of liberty, from 6.2% in 1970 to l8% in 1980, should, therefore, be regarded as achievement of the maximum level of possible sentences of this kind. If we consider the share of curtailment of liberty in the structure of sentences for offenses punishable by alternative forms of treatment we will find that there was a judicial bias towards curtailment of liberty. The frequency of such treatment of offenders fluctuated between 32.83% and 56.54%, while the range for fines came to 21.26%‒5I,99 % and for imprisonment to 3,4%‒21.26%. It can, therefore, be said that in the first decade following the 1969 Criminal Code’s entry into force curtailment of liberty fulfilled the purpose envisaged by the lawmakers, that is as an alternative to short terms of imprisonment. Undoubtedly, a factor contributing to the increase in the proportion of non-custodial sentences in the structure of final and conclusive judgments was the jurisprudence of the Supreme Court, in particular its guidelines for the administration of justice and judicial practice issued on 30 May 1979 (VII KZP 31/1977) concerning sentencing policy with respect to offenses for which the prescribed punishment is, interchangeably, imprisonmet, curtailment of liberty or a fine. Imprisonment, these stated, should be a penalty imposed only in the last resort when non-custodial forms of treatment are deemed incapable of performing the function of protection of the legal order. If a salient characteristic of the 1970s was stability of legislative policy, which precluded the possibility of shaping penal policy by means of legislation, the 1980s, or more precisely the period from 12 December 1981 to 1989, saw the emergence of a tendency in the opposite direction. For it brought the adoption of numerous basic amendments in criminal legislation, the general thrust of which was towards severer difinition of criminal responsibility. This was reflected in a decrease in the proportion of non-custodial sentences in the structure of final and conclusive judgments (from 15.6% in 1981 to 8.2% in 1984) and a concurrent increase in the frequency with which courts sentenced offenders to imprisonment (from 25.3% in 1981 to 33.1% in 1984). During the years in which the rigorous provisions of the Special Criminal Responsibility Act were in force, that is in the period from 10 May 1985 to 30 June 1988, there was a systematic rise in the proportion of curtailment of liberty in the structure of sentences (from 10.1% in 1985 to 17.4% in 1987), which might have something to do with the introduction by the May legislation of provisions allowing for non-custodial treatment of offenders in summary proceedings. The 1988 amendments to the Criminal Code, aimed at relaxing definitions of criminal responsibility, included, albeit in only a limited degree, provisions relating to the applicability of curtailment of liberty. These changes reflected a desire to increase the significance of non-custodial treatment in penal policy. However, in judicial practice there ensued a decrease in sentencing to curtailment of liberty, from 10.5% in 1989 to 5.3% in 1990. The period of political, economic and social change in Poland which began in 1989 stimulated criminal law reform. The aim of numerous legislative change which followed was to reduce the punitive character of the Criminal Code. One reflection of this was greater provision for non-custodial treatment of offenders (introduced by the new Criminal Code enacted in 1995) through a broadening of the grounds for commuting sentences of imprisonment to curtailment of liberty or a fine under Article 54), reduction of the role of repeated criminality as an aggravating circumstance in punishment of offenders, and abolition of extended sentences for offenses classified as "hooligansm" or committed by repeat offenders. In 1991-1995 the share of curtailment of liberty in the structure of sentences held steady at a level of 3.5%‒3,9%, making it the lowest ever for the period in which the 1969 Criminal Code was in force. This was not a result of the greater repressiveness of the criminal justice system since we observed a drop in the frquency of sentences of imprisonment. The courts tended to favor the use of conditional suspension of custodial sentences (the share of which rose from 43.9% in 1989 to 55.1% in 1997) and fines (up from 4.9% in 1989 to 27.4% in 1997). The explanation should, rather, be sought in problems with execution of sentences to curtaiment of liberty, chief among them the job shrinkages caused by changes in the free-market economy. Analysis indicates that curtailment of liberty did not fulfill the expectations associated with this form of punishment. It did not become a significant instrument of penal policy nor did it contribute to reducing the scale of sentencing to terms of imprisonment. Even after a substantial widening of provision for punishment by curtailment of liberty its share of sentences ordered by the courts reached a level of only 5.2% (in 1977). The new Criminal Code has substantially expanded the possibilities of sentencing offenders to curtailment of liberty. This form of punishment is intended to be an important instrument of penal policy with respect to misdemeanors and minor offenses and to replace imprisonment and even fines if ordering the latter is thought to serve no purpose. At the same time the Criminal Code has introduced modifications in the legal shape of this punishment. By preserving, contrary to the intentions of the code’s original drafters, multivariate forms of punishment it gives curtailment of liberty some of the hallmarks of probation by introducing the possibility of imposing certain additional conditions and establishing supervision. The new elements in the design of curtailment of liberty have met with numerous criticisms of the doctrine (including by the authors of the article). How it will affect the functioning of the institution analyzed the immediate future will tell.

6

Wątpliwości i kontrowersje wokół definicji handlu ludźmi

71%

Sitarz O.

Archiwum Kryminologii

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2010

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issue XXXII

327-344

EN

The publication discusses introduction of new solutions pertaining to human trafficking to Polish legal system, namely the very definition of the phenomenon in the act of law. The article is divided into 6 parts. In part one, the author indicates the reasons why the law in this area needs to be changed and enumerates the duties imposed on the legislator. Since human trafficking is a very complex criminological phenomenon, part three discusses the problem of the criminological definition of human trafficking. The legislator, creating penal provisions for such deeds must naturally take the phenomenology of human trafficking into account, at the same time bearing in mind that the provisions at this stage of using them will be subject to interpretation. This interpretation, as criminal law is repressive in nature, has its own rules. Hence part four is devoted to selected issues of interpretation in criminal law but only from the point of view of the analysed changes in law. The penultimate part includes discussion of the role and meaning of legal definitions in criminal law, also in the light of international obligations of the Republic of Poland. The final part contains a critical analysis of the definition of human trafficking.

7

"Kryminalne" aspekty przestępczości podatkowej

71%

Wilk L.

Archiwum Kryminologii

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2009

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issue XXXI

209-221

EN

There is a common opinion that fiscal offence has no criminal character but is merely an administrative offence and consists only of petty deeds of little social noxiousness. This opinion is not accurate with regard to basic types of tax crimes which very often are varieties of common frauds or forgery that may seriously endanger financial transactions of a country or local government. They are characterised by the fact that the tax procedures and legal structures are faked or falsely initiated and employed to commit or de facto to camouflage offences of criminal character. One example could be tax fraud involving simulation of a series of transactions which have no real economic of commercial significance and serve to fake alleged tax obligations and to initiate the procedure of VAT and ultimately to obtain from the Treasury substantial amounts of unjust VAT refunds under false pretences. These are in fact ordinary criminal offenses committed with the use of tax refund procedures. Possibility of moving VAT free goods between countries of the European Union with the lack of adequate monitoring mechanisms in the Member States resulted in a dangerous increase in the number of organized frauds, which are simply regarded as a mechanism “embedded” in the EU VAT system. They are referred to as tax carousels or carousel frauds. Tax law, its mechanisms, and its procedures are sometimes used not only for this type of criminal extortion of property from the tax authorities but also as for a so-called money laundering and legalization of illegal incomes. Generally, tax offences shows more and more close links with strictly criminal offences, it is becoming more and more organised, professionalism of the perpetrators is increasing, and even a growth in brutalization of such crimes can observed. This should change a traditional approach to tax crime.

8

Czynny żal jako instrument polityki kryminalnej i karnej

71%

Sitarz O.

Archiwum Kryminologii

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2009

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issue XXXI

159-172

EN

The object of the analysis are the institution known in the criminal law as active repentance and other similar normative institutions, which are sometimes referred to by scientists as active repentance in its broad sense or as quasi-active repentance. I was interested in the behavior of the perpetrator after commitment of an offence as a factor affecting the extent of perpetrator’s criminal liability in the context of criminal and penal policy (legally permissible modification of criminal responsibility in individual cases). Even a brief review of the institutions of active repentance in the Polish criminal law (regulated in the general and specific chapters of the Penal Code) allows to state that there is no uniformity, consistency, and rationality in shaping of this substantial instrument of criminal and penal policy. Sometimes one may have an impression that the issue of active repentance was regulated quite accidentally, not as a part of the comprehensive, rational criminal policy pursued by the entire criminal justice system. Since the key question is whether the established and accepted objectives and functions of punishment and / or criminal law can be achieved without a punishment, therefore the first part of the article is devoted to theories and functions of the penalty in conjunction with the reasons and functions attributed to active repentance. The different functions of an active repentance – to increase the efficiency – require some specific element in the design of this institution to be taken into consideration. These variables may be: if the benefits gained by the repentant are facultative or mandatory, the extent of the benefits, additional requirements imposed on the offender related to his conduct, an indication of a shorter or longer time limit to meet the statutory requirements and / or conditions related to repentant’s motivation, directory of the deeds in which the perpetrator can use the benefits arising from his active repentance, and indirectly also the place and method of regulation. Whether these variables should include consent of the victim, with all its consequences, probably also needs to be taken into consideration. Referring to the presented features of active repentance, by operating with the indicated variables, one can attempt to construct a variety of models of active repentance appropriate for performance of specific functions. Assuming its preventive function, active repentance should be provided for the widest range of crimes possible. Preferably, active repentance should be described clearly and precisely in the general part of the Criminal Code. Benefits provided for the accused person should be as wide as possible and always obligatory. Effective preventive function enforces the need to spread this instrument, especially the profits associated with it.

9

PROBLEMY RACJONALIZACJI POLITYKI KRYMINALNEJ W ZAKRESIE NIELEGALNEGO POSIADANIA NARKOTYKÓW

70%

Romańczuk-Grącka M., Gornowicz M.

Przegląd Policyjny

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2016

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vol. 2(122)

88-104

PL

Celem artykułu jest przedstawienie głównych problemów racjonalizacji polityki kryminalnej w zakresie nielegalnego posiadania narkotyków. Analiza jest poprzedzona rysem historycznym polityki antynarkotykowej w Polsce. Autorzy omawiają znamiona ustawowe przestępstwa z art. 62 ustawy o przeciwdziałaniu narkomanii, ze szczególnym uwzględnieniem znamion strony przedmiotowej. Z powodu braku wskazania expressis verbis granicy pomiędzy typem podstawowym a kwalifi kowanym omawianego przestępstwa może pojawić się wątpliwość w zakresie odmienności orzekania poszczególnych sądów krajowych odnośnie orzekanego wymiaru kary. Dlatego autorzy poświęcają sporo uwagi znamieniu kwalifi kującemu „znaczna ilość”. Wskazują też problemy dotyczące określenia dobra prawnego chronionego tym przepisem oraz inne związane ze zrozumieniem ratio legis tej kryminalizacji. Formułują też wnioski de lege ferenda odnoście profi laktyki przestępstw związanych z popytem i podażą narkotyków.

10

Rola Australii w polityce kryminalnej metropolii brytyjskiej na przełomie XVIII i XIX wieku

57%

Nowak M.

Acta Universitatis Lodziensis. Folia Historica

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2018

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issue 100

69-84

EN

The article based on a criminological analysis of penal transportation. The author talked over three main issues. Firstly, the paradigm of classical criminology that was valid in those days. Moreover, the researcher took into account substantive and procedural law, that is the applicable criminal regulations and the activities of the justice system in the United Kingdom of Great Britain and Ireland. Thirdly, it was necessary to describe the living conditions in Australian and Tasmanian penal colonies. The author comes to the conclusion that penal transportation was testified about a punitive and inhumane law system. In addition, its effectiveness was questionable.

PL

Artykuł opiera się na analizie kary zesłania. Autor porusza trzy główne kwestie. Po pierwsze, omówiono aktualny w tamtych czasach paradygmat kryminologii klasycznej. Następnie wzięto pod uwagę prawo karne materialne oraz procesowe, czyli obowiązujące przepisy i działalność wymiaru sprawiedliwości w Zjednoczonym Królestwie Wielkiej Brytanii i Irlandii. Po trzecie, w opracowaniu powyższej tematyki niezbędny był opis warunków bytowych w australijskich i tasmańskich koloniach karnych. Autor dochodzi do wniosku, że orzekana kara zesłania świadczyła o punitywnym i niehumanitarnym systemie prawa. Ponadto wątpliwa była jej skuteczność.

11

O niektórych miernikach oceny polityki karnej (na przykładzie Polski w ostatnim dwudziestoleciu)

57%

Skupiński J.

Archiwum Kryminologii

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2008

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issue XXIX-XXX

653-657

12

Odpowiedzialność karna a determinizm antropologiczny

57%

Peno M.

Archiwum Kryminologii

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2014

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issue XXXVI

109-132

EN

Much has been written recently about the problem of justifying punishment in the context of anthropological determinism and incompatibilism. However, the problem of the relationship between determinism, on the one hand, and the theory of punishment, on the other, is multi-dimensional. This article focuses on criminal responsibility in a world of determinism. It is mostly an attempt to review the basic concepts and issues in the philosophy of responsibility and compare them with the concepts and issues of the criminal law as broadly defined. The starting point is the observation that if the thesis of determinism is true and it is not possible to reconcile determinism with human freedom, then it will be particularly difficult to justify punishment. Prima facie, this applies to retributionism, although a more thorough analysis leads to the conclusion that various utilitarian approaches will also have to be significantly modified to allow for determinism. Punishment can obviously implement certain goals and be useful in some way without necessarily being just (it can even be cruel and/or immoral). Punishment may be formally fair (like revenge) and constitute “an eye for an eye.” However, if people do not have free will, then they are not responsible for their misdeeds. This is problematic as they do not deserve revenge and their behaviour does not merit condemnation. However, it is possible to apply different measures which are closer to the sui generis of preventive measures. This paper attempts to demonstrate that there is a link between criminal punishment and moral responsibility. This follows from the fact that punishment is marked by moral condemnation and only a morally responsible person can be condemned. Excluding moral responsibility therefore makes it impossible to condemn a perpetrator. The distinguishing feature of, and (indirectly) the moral justification for, criminal punishment are thereby eliminated. In particular, from a retributionist viewpoint, punishment can only be justified if the wrongdoer is morally responsible for his/her actions (in the sense that he/she can be accused of having upset the moral order). If the perpetrator is not morally responsible, it is difficult to morally justify the legitimacy and practice of punishment. Furthermore, the premise about moral responsibility is a prerequisite for justifying punishment in any case involving the notion of guilt. A lack of moral responsibility in a world ruled by determinism does not necessarily mean that people should not be punished for wrongdoing. Nor does it mean that there are no arguments in favour of maintaining the practice of punishment. The basic question is what views – empirical or emotional – should be given priority in the science of criminal law. The answer lies in the demand for minimalism in the criminal law and for a reflective analysis of the foundations of criminal responsibility.

13

The dawning of a new era in social reaction to crime: promise, potential and limitations of restorative justice

57%

Fattah E. A.

Archiwum Kryminologii

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2012

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issue XXXIV

7-42

EN

Despite dramatic social changes and unprecedented technological innovations penal philosophy has undergone little change. Retribution continues to be the key principle in sentencing and judges continue their hopeless struggle to make the punishment fit the crime. It is truly baffling that the CJS has remained archaic in its philosophy, its outlook and its tools and has remained insulated from whatever changes and advances that had taken place in modern society? For as yet unexplained reasons the system has resisted every attempt to modernize and change? This is probably why it is that despite the manifest advantages and benefits of R.J. over a punitive, retributive system, whose sole aim is to inflict pain and suffering on the wrong-doer, there is still reluctance to do away with the ideas of expiation and penitence in favor of reconciliation and compensation. The strong support for victims of crime, coupled with the undeniable fact that victims are the main losers in a punitive system of justice, have not yet succeeded in convincing politicians, lawmakers or the general public of the need to replace the medieval practice of punishment by a more constructive, more peaceful and less harmful means of dealing with crime and conflict. And yet, the destructive and detrimental effects of punishment are too evident to ignore. All this suggests that the time is right for a paradigm shift in society’s response to crime. There is a desperate need to move from philosophical abstraction to restorative action, from senseless retribution to meaningful restitution, from just deserts to restorative justice. But there is also a need for realism. R.J. is not a pana-cea. Although superior in every respect to retribution R.J. does have certain limitations and there are certain dangers to be avoided when moving towards the full implementation of a restorative justice system.

14

Prawne możliwości walki ze zjawiskiem stalkingu - czy w prawie polskim konieczna jest penalizacja prześladowania?

57%

Woźniakowska-Fajst D.

Archiwum Kryminologii

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2009

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issue XXXI

173-208

EN

The article concerns the phenomenon of stalking, or emotional persecution. It also presents legal solutions concerning stalking in the countries where this type of behavior is penalized, and includes a discussion of the advantages and disadvantages of criminalization of stalking in Poland. In contrast with the admiration, stalking is a behavior which a victim does not wish. Stalking is an English verb denoting a quiet human or animal tracking in order to capture or kill. In accordance to the definition of an American psychologist J. Reid Meloy, stalking is a form of malicious and repeated harassing and annoying of another person which increases his or her feeling of threat. Stalking, just like domestic violence, and mobbing are classified as so-called "emotional violence", by which we understand “interference in the psyche of another person directed against his or her emotions, resulting both immediate and delayed negative effects”. Emotional violence is never a single event. Stalking most often exhibits in such behaviors as: calls, silent calls, night calls, wandering in the vicinity of victim's home, making contact through a third party, questioning about the victim in his or her surroundings, persisting at the door / home / work, sending letters, e-mails, text messages, and gifts, placing postal orders in victim's name, tracking and following the victim, slander (distributing false information and rumors), burglary to victims house or car, stealing victim's belongings, harassing victim's family and friends, as well as attacking and assaulting them. The main problem with providing an adequate legal protection to a victim of a stalker lies in the fact that some of these behaviors are criminal, and some are not prohibited by law, nevertheless if repeated, they carry severe consequences for the victim which cannot be counteracted by means of criminal law. The tragedy of stalking victims lies in the fact that a persecutor may intimidate his victims and force them to change habits and plans, to live in constant fear. Stalker often causes huge mental suffering through actions which, under Polish law, are legally indifferent. What is also important is that actions of a stalker do not have to result from his or her wrongful intentions or desire to annoy the victim (in many law systems malicious intention of the stalker is a sine qua non for criminalization of stalking). Sometimes the persecutor acts with good intentions (the desire to win the love of a loved one), nevertheless behavior of the stalker is frightening for the victim. Results of a study taken to estimate the scale of stalking differ between countries where such studies have been conducted. This discrepancy is probably influenced by the definition assumed by researchers, research methodology, sample size and selection, but also by the different temperament of the inhabitants of these countries.

15

O kontroli chuligaństwa futbolowego w Polsce ze szczególnym uwzględnieniem sytuacyjnej prewencji uwag kilka

57%

Drzazga E.

Archiwum Kryminologii

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2013

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issue XXXV

193-212

EN

The development of international measures of football hooliganism control has been proceeding along several paths and included a number of different aspects of broadly understood control over the phenomenon. One can define 4 periods differing in the football hooliganism control paradigms applied: the first period - stretching from 1960s to 1985, second - between 1985 and 1997, third - 1997 to 2000 and fourth - from 2000 up to the present day. Consider-ing the issue of situational prevention of football hooliganism, control measures could be divided into two groups, or levels. The first level was mostly concerned with 'hard' means, i.e. such based on activities that rendered breaking the law or upsetting the public order more challenging. This was done with simple techniques of isolating opposing groups of supporters from each other by police cordons, fencing out sections of stadiums, putting up barriers, or 'cages' for visiting fans. Other popular 'hard' means aimed at increasing the perpetrator's risk of being subject to negative consequences, which mostly meant intensified police presence at a stadium. The progression to level 2 control was triggered by results brought by research on crowd management techniques conducted after the 2000 European Championship. The new trend involved gradual balancing out the 'hard' and 'soft' means, the latter having the purpose of limiting provocation and excuses (promoting the atmosphere of a joyful festival at football events, avoiding 'arming' and confrontation by security personnel, employment of surveillance and emergency services, etc.). A comparison of the ways in which football hooliganism situational prevention developed with the integrated model of situational crime prevention brings an interesting insight into the effectiveness of the new situational trend, which is a method broadly employed in Western Europe to counter football hooliganism. According to R. Wortley, while the notion of opportunity reduction assumes that there already is an offender who is motivated or at least ambivalent and ready to commit a crime, the fact is that motivation to commit a crime may occur as a result of particular situational factors. Wortley defined 4 types of factors motivating a perpetrator to commit a crime, or the so-called precipitators: prompts, pressures, permissibility, and provocations. The integrated concept of situational prevention discussed in the article is a merger of the traditional methods of limiting crime opportunities, or the so-called 'hard' means, with a complementary set of techniques minimizing other situational factors proposed by R. Wortley, i.e. 'soft' means. D.B. Cornish and R.V. Clarke proposed a combination of the two approaches, which resulted in vastly broadened array of situational crime prevention techniques.

16

Młodociani w świetle prawa i badań kryminologicznych

57%

Wiktorska P.

Archiwum Kryminologii

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2012

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issue XXXIV

135-155

EN

The article discusses the problem of young adult offenders in the light of provisions of current Polish criminal law and of criminological studies on this category of convicts over the years. Polish criminal code of 1997 in the article 115 paragraph 10 defines a young adult offender as a person 21 years old who commits a crime or a person under 24 years who is tried in a court of first instance. Two basic issues are involved in the notion of a young adult offender. First the age limits of the subject, second the character of penal measures to be used towards this particular category of offenders. Both issues are discussed at length in the article, particularly with respect to the fact that criminal law makes use of scientific findings from sociology, psychology and medicine to create normative regulations concerning conditions of liability of young adult offenders for their unlawful acts. As an example, one may discuss particular normative directives of the sentence provided for a young adult offenders as the court is obliged to, most of all, educate and resocialise. Educational and resocialisation aspect of the punishment does not mean that young adult offender are treated leniently, sometimes it may indicate a longer time of resocialisation and, at the same time, a longer imprisonment sentence to execute this objective . While sentencing a young adult offender, the court should decide in such a manner so that the liability of the accused is directed more into educational model than repressive one, yet this does not denote resignation from administering the penalty of unconditional imprisonment. Still, it needs to be admitted that in the Polish legal system there are few concrete provisions of law which define in detail how a young offenders should be treated which, according to the author, is somehow concerning. There are significant differences in criminal execution law. First, as a rule, young adult offenders should be imprisoned separately from adult ones. This is understandable because of susceptibility of young people to influence and pressure from adults. Moreover, young adult offenders are subject to system of programmed educational and resocialisation measures during imprisonment, which on one hand seems right, on the other evokes a series of questions and reservations. Discussion of normative situation of young adult offender are illustrated with selected criminological studies carried out so far concerning this category of offenders. Reported results of research show that young adult offenders have typical features characteristic for the whole group. Information on dysfunctional families and alcohol problems are always present. It is accompanied by low education level of their parents and their unemployment. Problems in the behavior of such offenders appear already in kindergarten age and increase during school education while the education process itself leaves a lot to be desired.

17

Oszustwo asekuracyjne (art. 298 k.k.) w praktyce wymiaru sprawiedliwości

57%

Buczkowski K.

Archiwum Kryminologii

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2013

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issue XXXV

213-246

EN

The insurance market is the area of business where fraud is attempted most frequently. Most painful to insurers are undue claims filed for damages under insurance contracts. Insurance related crimes are socially accepted, hence not condemned within a community. Despite their considerably harmful social potential, they are not sufficiently prosecuted, which partly stems from the conduct of insurance companies, who – in consideration of their positive image – are not eager to admit that they have fallen victims to fraud. This article presents a broad analysis of statistical data on the crime under Article 298 of the Penal Code and presents results of research on pretrial proceedings and cases concluding with court verdict ruling against the perpetrator of an insurance fraud. An analysis of the statistical data showed a significant decrease (since 2007) in the number of proceedings instigated under Article 298 Penal Code. The reason behind this phe-nomenon may be that this type of acts are classified as crime under Article 286 Penal Code, i.e. 'classic' fraud. Generally speaking, proceedings instigated under Article 298 Penal Code have accounted for a very low percentage of all proceedings over the entire decade – 0.02%. The aim of the criminological research presented in the article was to show the practical side of protecting the insurance market against fraudulent conduct of insured parties; also to attempt to find out if the penal regulation is appropriate, if prosecution under Article 298 Penal Code is correct, and finally, if any changes: be them legislative, to prosecution or penal policies, are necessary to provide effective protection for the insurance industry. In the file research conducted, the key assumption was to cover a possibly largest group of events defined as insurance fraud. In stage 1 of the research, the proceedings included all those conducted between 1995 – 2003 under Article 4 of the Trade Protection Act of 12.10.1994 and under Article 298 Penal Code (the Penal Code, as of the day of its enforce-ment, i.e. 1st Sept. 1998, invalidated the relevant provision of the aforesaid Act). As stage 2, court proceedings conducted in 2008 were examined, i.e. five years after completion of the core stage of the research. The aim of stage 2 analysis was to compare and define changes in insurance fraud prosecution policies and manners in which the fraud was committed. The results show that the prospects for rendering the provisions of Article 298 Penal Code useful in providing a penal framework in the Polish law system for dealing with 'specialised' crimes, aiming at protection of the insurance industry, have proven unrealistic. The regulations concerning the offence in question did not become the main tool for countering undue claims of property insurance, including vehicle insurance.

18

Obowiązki nakładane na osoby skazane z art. 207 § 1 k.k. w orzecznictwie sądów rejonowych

57%

Wrona G.

Archiwum Kryminologii

|

2011

|

issue XXXIII

213-225

EN

The article contains an analysis of district court sentences which included protective and re-straining orders under article 72§1 of Polish Criminal Code (hereinafter referred to as PCC) on perpetrators of harassment punishable under article 207§1 of PCC. Because of the character of the crime of harassment, the main part of the article concerns orders of refraining from contacts with victims and of leaving the common place of residence. The article contains analysis and conclusions of a research of cases which ended in a decree absolute in 2008 – 2009 and concerned prosecution under article 207§1 of the Code. The research, completed in 2010, was conducted in eleven district courts, all of them subordinate to different courts of appeals. The results of the research show a significant divergence in the manner of sentencing restraining orders throughout the country. One may notice the extremes of the approach, particularly as far as the order of leaving the common place of residence is concerned. As a result, the courts use such opportunity only in a few percent of the cases where such orders can be sentenced. It is hard to speak of any line of sentencing with such a small number of cases. Meanwhile, the legislator amended the Act on Family Violence Prevention with the view on the duties imposed under article 72§1 of PCC. As a result of this amendment, two changes were introduced. The first consisted in distinguishing correctional and educational actions in section 6a. The second concerned the order of refraining from contacts with the victim in section 7a of the said article which was extended by adding a restraining order of staying away at a minimum distance from the victim. At the same time the legislator did not take into account the doubts expressed by the doctrine about possibility of successful enforcement of orders under sections 7a and 7b (order to leave the common place of residence). The conclusions of the article concern the necessity of more frequent interpretation of duties under article 72§1 sections 7a and 7b PCC by the courts and, as a consequence, of es-tablishing a uniform and consistent judicature in sentencing such restraining orders. It is sug-gested that this can be achieved if the guidelines by Polish Attorney General on preliminary proceedings in family violence cases include an instruction for the prosecutors to apply to courts for such restraining orders. This way, the courts of law will be obliged to take a stance on such motions and a chance to standardise the manner of sentencing them will arise.

19

Prawo penitencjarne na tle innych gałęzi prawa i wybranych problemów polityki karnej i penitencjarnej

57%

Wiktorska P.

Archiwum Kryminologii

|

2013

|

issue XXXV

377-390

EN

The article consists of two parts. The first systematises definitions of penitentiary law and presents relations between penitentiary law and other branches of law and fields of science. The voices in discussion on penitentiary law sometimes differ, even in such basic issues as the scope of the very term. This sometimes gives rise to difficulties in qualifying particular provisions to a particular branch of law and causes doubts which rules to apply to particular institutions. Relations between penitentiary law and executive penal law, procedural law, penitentiary science and penal and penitentiary policies are discussed. The second part of the article discusses selected problems of current penal policy related most of all to the use of imprisonment sentence. Between penitentiary law and penitentiary policy or, more broadly speaking, penal policy there are obvious relations. On one hand, this policy is shaped on the basis of the letter of law, on the other hand, based on collected experience, it forces changes in law which fails to respond to actual challenges. Sometimes penitentiary policy, and even mere penitentiary practice, influences provisions of penal law, including penitentiary law, directly. It also happens that law and penitentiary policy (or penal one) fail to meet as far as their goals and assumptions are concerned. It seems it is so in the case of imprisonment, which often looks different in penitentiary law provisions and in statistics resulting from employment of penal and penitentiary policy. The basic paradox consists in that, in spite of observed decrease in crime levels , penitentiary system becomes more and more inefficient. Poland has one of the highest prisonisation indices in Europe and constantly growing number of persons sentenced by the courts and waiting for imprisonment sentence to be executed .The waiting line for imprisonment is approaching the number of the imprisoned. This may be due to a several reasons. Firstly, since the beginning of 1990s there has been a steady increase in the shortest imprisonment sentences (of up to 6 months) which were often administered to those guilty of driving a vehicle under alcohol influence. Secondly, Polish prisons are places where a significant number of imprisonments due to probation violations are served – which shows the weakness in execution of alternatives to incarceration. Another problem is cancellation of suspended sentences. The criminal code provided for two ways a suspended sentence can be cancelled, facultative and obligatory. The latter raised serious doubts and was questioned by the Constitutional Tribunal in its decree of 17.07.2013 r., file no. SK 9/10 (as published in the Journal of Laws as item 905).

20

Porządek publiczny jako zasadniczy przedmiot ochrony prawa wykroczeń i czynnik rozgraniczający z powszechnym prawem karnym

57%

Lubelski M.

Archiwum Kryminologii

|

2010

|

issue XXXII

205-222

EN

The author reviews those types of prohibited acts under criminal code and petty offences code which provide for public order protection. This serves as an attempt to prove that a value like public order should rather be protected under petty offences code (or other forms of legal sanctions eg. administrative ones) rather than under criminal law. The scope of criminalisation should not be extended towards criminalisation of acts against public order. This can be summarised in a debate on forms of legal reaction to prohibited acts. The review of the relevant act of law becomes the point of departure to formulate the opinion that public order is a separate object of legal protection. It does not require penal sanctions provided for crimes – in spite of well-established opinions in legal literature that petty offences differ from crimes basically only in the degree of social damage they cause. The author also makes numerous observations of a classical penal reaction indicators which can be described as “punitive type sanctions”. This proves that our times bring an abrupt increase of legal regulations which create norms of public order and prohibit acts of administrative character which do not belong to the area of criminal law and should not require sanctions provided for acts classified as crimes. A thorough examination of types of petty offences made in the article provides a surprising picture of what the legislator included under the sphere of public order. Names of particular divisions of the code are irrelevant here. In the view of the examination of the acts prohibited by petty offences code, public order is recognised by designators, that is objects protected by particular types of acts, regardless of the title of the chapter they were placed in. They include quiet night hours, protection of plants in public green areas, lack of graffiti on buildings, freedom from aggressive prostitution offers, beggary without a substantial cause, lack of soil in public places, conducting a business without registration required by law, registration of place of residence, obeying rules on public roads, freedom from various forms of disturbance of peace and quiet, freedom from infringements of public assembly or no production of skeleton keys and seals or stamps without a licence. There is also a category of bitypical offences that is prohibited acts which are classified as a petty offence or a crime depending on the value of property (eg. theft of an item of values less than PLN 250 is a petty offence, not a crime). In the opinion of the author, if they are classified as petty offences they can also be included in the category of violation of order, although this order has more of a civil that administrative character. Separate comments concern the criteria of classification of petty offences in fiscal penal code.

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