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1

Kara śmierci w trybie doraźnym (sprawa IVK dor. 24/83 w Sądzie Wojewódzkim w Warszawie)

100%

Rzepliński A.

Archiwum Kryminologii

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2008

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issue XXIX-XXX

905-943

2

Granice reformy więziennictwa

63%

Porowski M., Rzepliński A.

Archiwum Kryminologii

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1986

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issue XIII

141-172

EN

A reform consists in the intention to introduce changes into a given system of social institutions which would not be aimed at its radical and qualitative transformation but would resolve themselves into improvement or rationalization. The reformatory thought may be inspired by conservative, liberal or radical attitudes which determine the motives, limits and profoundness of the changes. In the present paper, a conception of a reform of the prison system has been presented which would assimilate its contents to the substance of punishment, i.e. retribution in its humanistic interpretation and the values that come to the foreground of the axiological system of our times. These values are included in the notion of the dignity of a human being which results from treating man as the aim in itself and a being endowed with free will. The authors have assumed in the present paper that when reforming the prison system, all of its elements can be manipulated with the following exceptions: deprivation of the isolated person of his right to decide about his place of abode, and his duty to stay in a place determined by the authority which executes the penalty. Therefore, the following things can be changed: the ideological grounds of the system, i.e. its aims, functions and the role it plays in the global system of interests; external organization of the system, i.e. its -management regulation of interactions between the isolated and the isolating communities, organization the staff; material equipment of the system, i.e. buildings and their architecture, the arrangements concerning security, economy nd production. The authors oppose the conception which has been called here the reason of humanized retribution to the two contemporary variants of the prison policy. Ideologists of the first of them (the variant oriented at a psycho-social corrective treatment) model prisons having in view the future law abiding functioning of the offender in the society. An individual is here but a ,.human material" which is to undergo transformation as a result of the application of adequate measures. Ideologists of the second variant (one oriented at education through work) emphasize the social needs not connected with the prisoner who is treated as a quantum of man power that can be used. Retribution is inherent in the prison policy irrespective of the intention of its promotors and executors. After all it is one of the elements of the execution of penalty. The moral value of retribution resulting from a just punishment was recognized in the philosophy and dogmatic assumptions of pastoral theology. Recognizing punishment to be the offender’s personal right, we at the same time recognize his dignity due to a rational person. Therefore, punishment based on retribution certifying to the subjectivity and dignity of an human being, is tantamount to the humane attitude. To render possible the realization of the reason of humanized retribution, definite conditions have to emerge. These are: consistently grounding the punishment on the responsibility for the commission of a given act: this excludes the use of the perpetrator’s way of life, state or personality, and opinions as the essential criteria for meeting out punishment, and leads to the imposition of prison sentences for the most serious crimes only; stopping both the building of new prisons an the artificial increase of the capacity of the existing ones; overcoming the barrier of functional connections between prisons and state enterprises which use the immates cheap and first of all easily disposable man power. The reform of the prison policy inspired by the reason of humanized retribution can be expressed in three fundamental postulates which are: (i) the principle of the rule of law and that of mutual respect for the legel status of the prison staff and of the inmates; (ii) the principle of respect for the prisoners dignity; (iii) and the principle of minimalization of isolation of the prison system and of increasing its integration with the outside social environment. The rule of law which is the content of the first principle is the order not only of an absolute observance of the law, but also of the consistence of its contents with the achievements of civilization and morals of the global , society. Thus, on the one hand, the importance of the law as an instrument to eliminate arbitrariness of decisions from the process of execution of penalty is emphasized here, and, on the other hand, the postulate acquires justification that the prisoners' rights - instead of resulting from discretional decisions - be the articulation of the socially accepted values and their realization in accordance with the spirit of times. Thus the prisoners rights become the content and at the same time the safeguard of an humane attitude towards him. The recognition of the rule of law as the central principle of the prison policy is justified by the very reason of humanized retribution. According to this principle. the process of execution of the deprivation o [ liberty is treated as a sui generis legal relationship between the prison management and the prisoner. the safeguard o[ which is the principle of mutual respect for the both parties legal positions. The construction of a definite catalogue of these rights is the task of the legislation. In any case, the prisoner retains his rights to the extent appropriate of any citizen in barracks. The only thing the penal isolation eliminates is the personal participation in the outside social life. A specific prison right is the inmates' right to use the period of isolation in the way that would be most helpful for their evelopment, which means, among other things the opportunity to participate in treatment alternatives offerred to them, or the conditions for individual development. For the principle of mutual respect of legal statuses to be realized, the prisoner should be equipped with effective means of execution of his rights. This is dictated by two reasons. Firstly, the conception of the process of execution of the penalty of deprivation of liberty as a legal relationship between the prisoner and the management naturally brings the normative factor. to the fore; secondly, prison-as an extremely dense social environment-releases tensions increased by the particural susceptibility to aggression on the part of both of its communities. The prison policy is a negation of the principle of respect for the prisoner’s human dignity in the present interpretation, its contents being adjusted to the Spartan attitude towards men in which an human being has an instrumental Value only. Therefore, he may be modeled after a freely chosen pattern by means of open repression, behavioural conditioning and other kinds of manipulation. On the other hand, the opposite Socratean model of influencing the individual is consistent with the authors assumptions. According to this model, the principal means of the so-called prisoners resocialization are discussed in the paper (work, education, access to culture, as well as punishment and award), in the effort to define them in such a way as never to disturb the ideological contents of the Socratean attitude towards the development of the individual. Prisons are social institutions for which everybody is responsible, though to a varying degree. This gives significance to the principle of minimum of isolation and integration of the prison with the outside social milieu. In this connection, a detailed discussion has been included in the present paper of the forms of isolation (internal, external), the effects of its accomplishment (material and social), and the effects of alienation of penal institutions ( totalitarization, prisonization, exlusion of social control, strict control of contacts with the outside social milieu). To sum up, the approach presented in the present paper is aimed at overcoming the stereotype that consist in a critical analysis of the separate elements of the prison system without a comprehensive appraisal of its theoretical and practical values. This stereotype does nothing but consolidate the system the value of which has never been verified, and results in the prison policy becoming more and more eclectic.

3

Prawa człowieka a zatrzymanie i tymczasowe aresztowanie w polskim prawie i praktyce jego stosowania

51%

Bulenda T., Hołda Z., Rzepliński A.

Archiwum Kryminologii

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1992

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issue XVIII

103-146

EN

The social and political changes in Poland led to abolition of Realsozialismus which is now being replaced with a democratic country governed by Rechtostaat (Art. 1 of the Constitution) from aspirations after national freedom and respect of human rights in public life. The problem of protection of individual freedom made itself particularly felt here; it is also subject of the present paper which discusses the protection of individual subjectivity in the light or the institutions of arrest and detention awaiting trial. Until quite recently, Poland was one of the many Communist countries where human rights were violated much too often, also on the occasion of arrest and detention awaiting trial. Many factors were conductive to this situation, such as faulty legislation; inadequate socjal consciousness; depreciation of the authorities, law and other norms; prevalence of repressiveness in dealing with social pathologies; and absence of social control of the activity of law enforcement agencies, the police and prison staff in particular. But the weakness of legal protection of individual resulted also from a strong relation of the activities of practically all governemental and social bodies those dealing with prosecution and investigation as well as administration of justice included, to politics. This political nature of functioning of those agencies, resulting monopolistic power of the Communist party, led to a limitation of the independance of the judiciary. The adoption of new political principles of Polish State and election of the new Parliament (on June 4, 1989), together with formaion of the non-Communist Cabinet, created the conditions for a new criminal policy based step by step on European standards. The institutions of arrest and detention awaiting trial well illustrate the pathology of functioning of the agencies of legal order and the direction of changes taking place in criminal policy. They also demonstrate a specific paradox; the Polish people’s great devotion to freedom and the simultaneous unfeeling tramling of that freedom. The two institutions have been discussed from the viewpoint of protection of human rights on both the normative plane and in the practice of the years 1980–1990. Arrest is one of the forms of coercion which consists in a short-term deprivation of liberty. The Polish legal system provides for procedural, preventive and administrative arrest. Each of these types has a separate legal regulation (procedural arrest, the Act of 19 April 1969 – Code of criminal procedure; preventive arrest, the Act of 6 June 1990 on the police and another Act bearing that same date on State Protection Office, together with their executory acts; and administrative arrest, the Act of 28 October 1982 on education to sobriety and control of alcoholism). Moreover, each type of arrest is to serve different aims (procedural arrest, protection of propriety of criminal proceedings; preventive arrest, protectton of order and public safety, human life and health, and property; and administrative arrest, control of alcoholism). Also different are the conditions of arrest, the agencies authorized to apply it, and the period for which a person can be detained. The present authors focus mainly on preventive arrest related to the administrative function of the police as guardian of order. That form was particularly abused and human rights were often violated in the course of its execution. Preventive arrest has recently undergone significant changes both in the normative sphere and in practice. As compared to the former one, its present regulation: 1. defines its legal grounds with greater accuracy; 2. broadens the detainee’s rights; and 3. introduced judicial review. This has contributed to the curbing of arbitrary police activities in this sphere. Duration of arrest is specified in the Constitution (Art. 87) and in the provision of Art. 207 of the code of criminal procedure. It cannot be londer than 48 hours from the moment of detention, and 24 hours in the case of administrative arrest (Art. 40 of the act on education to sobriety and control of alcoholism). Violations of these provisions have so far been frequent. In the case of procedural and preventive arrest, the rights of the detainee are the same. According to the valid provisions, the detainee has the following rights among others: the right to be informed in writing as to the time and reasons of arrest; the right to be advised as to the possibility of complaining to the court against the application of that measure, and to the public prosecutor against the way of its execution: the right to health care. The catalogue of the detainee’s rights is insufficient: e.g. it does not contain the right, to legal assistance (conseul). What particularly impairs the protection of the detainee’s personal interests is the absence of by-laws concerning the execution of arrest in the police house of detention, as the duplicated set of provisions called ,,By-laws for Detainees”, introduced by an order of the Chief of Civic Militia in 1959, hardly comes up to the standards. The provisions now in force have broadened the range of legal means of vindication of his rights that are at the detainee’s disposal. Particularly notable here is the reintroduction of the institution of habeas corpus. Namely, the detainee has been granted the right to complain to the court against arrest (Art. 207 point ”a,, of the Code of criminal procedure) and to the public prosecutor against the way of execution of arrest (Art. 15.7 of the Act on the police). If the arrest has been obviously unjustified, the detainee is due indemnity from the Treasury and monetary compensation of moral injury (Art. 487 of the Code of criminal procedure); the same concerns the situation where he has suffered damage or injury as a result of an improper execution of arest (Art.Art. 417-419 of the Civil code). Besides, the detainee may approach the court with a claim in virtue of protection of his personal interests (Art.Art. 23 and 24 of the civil code). In the latter half of 1990, arrest was executed in 798 police houses of detention all over the country, that is fewer by a whole 71,7 per cent as compared to 1989. The recent changes have made it possible to abolish the division of houses of detention into categories (of which there used to be three according to the duration of detention). The number of arrests amounted to over 500,000 a year at times (with the peak of 572,220 in 1982 – see Table 1). Starting from 1988, it gradually went down to nearly one-third of its original value which reflects above all the general liberalization of the police approach towards crime and other deviations. In the period under analysis, the living conditions in the police jails were – and still are primitive and many a time offensive to human dignity. This has been confirmed by the present author’s own study and two surveys of those jails carried out by the National Ombudsperson. An acute problem is the right to apply constraint during and upon detention. It is regulated by provisions of the police Act and an Ordinance of the Council of Ministere of 17 September 1990 which specifies the situations, conditions and ways in which direct coercion can be used by the police. Without questioning the grounds for such coercion, not only the legal conditions of its application but also the faults or even abuses in this sphere have been pointed out. What the authors find the most severe violation of human dignity are neither humiliating conditions of isolation nor illicit prolongation of detention but first and foremost beating of a person after he has surrendered to the power of enforcement officers. Cases of beating have again started growing in number this year (as has been found by the Helsinki Committee in PoIand and the National Ombudsperson). The activities of the public prosecutor’s office in this sphere have been criticised in the article. The paper also discusses the consequences of the introduction of Art. 209 of the Code of criminal procedure which made it possible to commit to the police jails persons detained awaiting trial (for up to ten days or three months), and even those sentenced to a prison term (of up to six months). This provision has recently been quashed, but the police press for its reintroduction. Until quite recently, the police jails were submitted to no supervision whatever. The public prosecutor’s. office remained passive and carried out but most perfunctory supervision, if any. This situation hardly served the protection of detainees’ rights. It was only improved in 1988 when the police jails were submitted to supervision by the Ombudsperson and later also by Commissions: of Administration and Internal Affairs of the Diet and of the Rule of Law and Human Rigths of the Senate, and by other agencies and institutions. Also pre-trial detention is a serious interference with human rights. It is one of the preventive measures provided for by the Code of criminal procedure, and at the stage of execution – by the Code of execution of penalties and the Ordinance of Minister of Justice of 2 May 1989 – by-laws of execution of detention awaiting trial. The discussed measure can be applied by the court, and before the indictment also by the public prosecutor. The present authors find the latter’s right to apply pre-trial detention contradictory to provisions of international law, the covenants ratified by Poland included (see Art. 9,3 of the International Covenant on Political and Civil Rights). The legal provisions fail to specify the upper limit of duration of pre-trial detention. The amendement of the Code of criminal procedure and the changed policy of application of dotention resulted in a fall in the number of those detained awaiting trial. There were 9,722 such detainees on July 31, 1989 (see Tables 4–5). There was also a radical drop in the number of persons detained for over 12 months: in 1990, as few as 0,03 per cent of those kept at the public prosecutor’s disposal had been detained for at least 12 months. However, an alarming upward tendency in the number of persons detained awaiting trial can be noted lately. Discussing the conditions for optional or obligatory pre-trial detention, the authors criticize some of them as estimative in nature, and thus involving the danger of arbitrary use of this measure. The reasoning has been based on decisions of the Supreme Court which is of particular importance for the effective protection of the detainee’s rights. There have been a lot of faults in the practice of application and execution of pre-trial detention which was frequently used as a means of pressure aimed at forcing a person to plead guilty or to denounce an accomplice. In Poland, the application of pre-trail detention is the domain of the public prosecutor’s office. In the years 1975–1989, prosecutors applied this measure in nine out of every ten cases. The population of houses of detention and other penitentiary institutions shaped differently starting from 1945. A comparison of changes in the numer in the number of convicted persons with those of persons detained awaiting trial shows that the latter population was more stable starting from the 1960’s and never changed as radically in number as that of prisoners. That was the case despite the increased frequency of application of detention in the 1970’s. What contributed to this situation above all was the shortening of preparatory proceedings. In the period under analysis, the total number of persons detained awaiting trial in a given year largely approximated that of prisoners in that same year, and showed the same fluctuations resulting from the aggravated or relaxed criminal policy in the country. The trends here have nothing in common with the actual dynamics of crime as such. The authors assume that the number of persons detained awaiting trial reflects decisions in the sphere of criminal policy rather than the actual changes in crime, the economic situation, or even severe political tensions. What is also characteristic of the practice in this respect is the fact of a faulty application of the discussed measure. In the years 1975–1989, at least every 111th and at most every 71st person previously detained awaiting trial was subsequently found not guilty by the court. In some years, there were over 500 such persons. The authors discuss preventive barriers defined by the Supreme Court which are to ban clearly unjustified detention. As follows from analysis of the practical application of conditions for pre-trial detention, the one most frequently quoted was the alleged considerable social danger of the crime. Repressive conditions prevailed over the purely procedural ones. ln order to find out about the actual dimensions of the problem of pre-trial detention, the authors consulted the data concerning the use of preventive measure not involving isolation in criminal proceedings (such measures being financial and non-financial pledge, police supervision, and safe-conduct; see Table 6). It turned out that in the years 1978-1990, preventive measures other than detention awaiting trial never amounted to more than 43,5 and to less than 18 per cent of all preventive measures applied. After the above-mentioned Art. 209 of the code of execution of penalties has been quashed, detention awaiting trial can only be executed in the houses of detention created and run by the Ministry of Justice (Art.Art. 4 and 83 of the code of execution of ponalties). On December 31, 1990, there were 65 such institutions in Poland. Twenty-seven of them had additional wards for convicted persons, while 48 prisons had special wards for those detained awaiting trial. Thus pre-trial detention could be executed in the total of 114 of the 151 institutions of the Prison Department. The houses of detention had the total capacity of 18,263 beds, while the number of detainees was 16,200; the discussed institutions were therefore populated in 88,7 per cent. The rights of the discussed category of detainees are specified in the Code of execution of penalties and by-laws of execution of pre-trial deteotion awaiting trial. What is particularly worthy of attention is the provision which states that the detainee enjoys rights that should at least equal those of a convicted person, and that the only limitations allowed in this sphere are those indispensable for securing the proper course of criminal proceedings, maintaining order and safety in the institution, and preventing mutual demoralization of detainees (Art. 86 para 1 of the Code of execution of penalties). A person detained awaiting trial has many legal measures at his disposal to protect his own rights in relation to the application and execution of detention. Thus the detainee can lodge a complaint with a supreme agency of the penitentiary administration (Art. 48 para 4 of the Code of execution of penalties); with the public prosecutor and penitentiary judge (Art.Art. 27–33 and 48 point 5); to the supreme State agencies, the National Ombudsperson included (Art. 48 point 5); he may apeal against a decision of the administration of the house of detention concerning the actual execution of that measure to the penitentiary court (Art. I4,l of the Code of execution of penaltes); he may also sue the Treasury for damage suffered during detention by guilt of functionaries of the penitentiary administration (Art.Art. 417–l9 of the Civil code); he may claim indemnity for obviously unjustified detention (Art.Art. 487–49l of the Code of criminal procedure); and he may bring legal action by virtue of infringement of his personal interests (Art.Art. 23–24 of the Civil code). As shown by experience, the persons detained awaiting trial either never resort to some of these means or do that ineffectively. The living conditions of the discussed category of detainees are specified mainly in the by-laws of pre-trial detention. Many faults and shortcomings have been found here in practice. Some of such faults were so drastic as to make it necessary to close several houses of detention in 1990 to mention just one example (the institutions were either liquidated or designed for repairs). The authors also assume an attitude towards the treatment of some categories of offenders (women, particularly dangerous detainees, persons with mental disorders, HIV carriers), and discuss the treatment of juvenile detainees. Ending the paper, the authors stress the gradual improvement in the treatment of detainees since 1989. It results both from the legislative changes and from a relatively liberal criminal policy. The legal and to some extent also the organizational conditions have been created for implementation of the rule of law. Further changes are necessary, though, including in particular the passing of a new Constitution and penal codes. The drafts of the latter suggest, many new solutions in the sphere of arrest and detention awaiting trial which would make those institutions meet the European standards. What can considered valuable are the trends towards limiting the application of the two measures, specifying the conditions of their application, importantly, extending the guaranties of detainees’ rights.

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3 Archiwum Kryminologii

3 Rzepliński A.

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1 Porowski M.

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Kara śmierci w trybie doraźnym (sprawa IVK dor. 24/83 w Sądzie Wojewódzkim w Warszawie)

Granice reformy więziennictwa

Prawa człowieka a zatrzymanie i tymczasowe aresztowanie w polskim prawie i praktyce jego stosowania