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Polityka karna w sprawach o wykroczenia w początkach lat dziewięćdziesiątych

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Szumski J.
Archiwum Kryminologii
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1995
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issue XXI
135-152
EN
  The paper describes and appraises the policy of prosecution and punishment in cases of transgressions in the years 1990‒1994, i.e. after the systemic transformations in Poland. It is a continuation of a study of penal policy carried out while the former Code of Transgressions was still in force; the aim now is to draw a comparison between the old and new tendencies in the practice of prosecution and punishment. The comparison, however, encounters specific difficulties. The first reason for this is that a full judicial control over decisions of transgression boards was introduced and the boards were submitted to the Ministry of Justice supervision. The second reason is that the statistical data gathered now by that department are much scantier as compared to those formerly gathered by the Ministry of Internal Affairs while the transgression boards were still subordinated to it. In the seventies, a systematic aggravation of the penal policy took place. Admittedly, that policy was then temporarily mitigated with the birth of Solidarity; yet after the imposition of martial law in 1982, followed by the passing of the 1985 act, penal policy once again grew repressive, this time much more so. Then, at the close of the past decade, as a result of social pressure, penal policy was quite distinctly liberalized. To show the transformations of that policy in the nineties, it has usually been compared to the tendencies found in both a “repressive” year of 1987 and a “liberal” one of 1988. As follows from analysis of the prosecution policy measured by the number of motions for punishment submitted to transgression boards, the number of such motions was greatly reduced in the years 1990-1994 as compared to preceding decades. The fact considered that recorded crime went up distinctly in that period, as probably did also the number of petty infringements of the law – that is, transgressions – this reduction can be interpreted as a limitation of the scope of prosecution with respect to such acts. On the one hand, this resulted from a lowered activity of the police, on the other hand – from the force’s aim towards improving their image in society. A similar trend could be found in the case of police orders the number of which was also reduced. Characteristically, the average fine imposed by police order amounted to not even a half of the statutory upper limit. This notwithstanding, a draft amendment of the code of transgressions was published in the Spring of 1994 which suggested that the limit be raised tenfold; the draft also provided for an identical raise in the upper limit of fine as a main penalty, This solution was sharply criticized by the present author as its actual implanentation would result in a general aggravation of economic repression. The structure of transgressions for which the boards imposed punishment in the nineties underwent a rather significant change: the number of persons brought before the boards for traffic transgressions went up considerably (to about 70%) while that of persons guilty of disturbance of public order went down. This latter trend should be seen as advantageous since the formerly mass-scale prosecution of perpetrators of such acts, most of them alcohol dependent, was generally considered futile. Also liberalized was the structure of penal measures imposed on all perpetrators of transgressions. Admittedly, fine remained the prevalent response (about 95% of decisions); yet the proportion of the strictest measures (arrest and limitation of liberty) went down distinctly, and that of the most lenient ones (reprimand and renouncement of inflicting punishment) went up. The fact considered that the penalty of arrest was limited to the minimum and imposed chiefly on persons guilty of the acts that are to be classified as offenses under the draft of the Penal Code, the proposed preservation of that penalty in the future Code of Transgressions cannot be praised. This same conclusion is also true for conditional suspention the execution of arrest which is nearly a dead institution in practice. As clearly follows from statistical data used in the present analysis, changes in the structure of penal measures imposed reflected a mitigation of penal policy. Instead, no data are gathered as to the severity load of those measures. This situation is bound to provoke criticism, chiefly because of the lack of data on the amounts of fines. Fines being the most frequently imposed measures, their amounts constitute the basic index of punitiveness of the boards’ decisions. The fact considered that the statutory amount of fine was last raised in 1992 while nominal wages showed a regular upwards trend, the conclusion is justified that we in fact dealt with what was perhaps an unintended mitigation of the actual severity of economic repression. As follows from the principles of rational penal policy, the provions legal in force have to be to be amended. Due, however, to pauperization of society, the raise in the maximum statutory fine cannot be as drastic as suggested in the above-mentioned draft amendment of 1994. This might well lead to revival of the once pursued practice of using fines as an instrument of adding to the budget. The statistical data under analysis also provide no information on the imposition of additional penal measures, the sole exception being prohibition of operating motor driven vehicles. All that can be observed is a very serious growth in the proportion of this latter penalty which was due to a mass prosecution of perpetrators of petty traffic offenses. Characteristically, though, the incidence of imposition of this measure on such persons (those additionally guilty of drunken driving included) has been on a regular decrease. Also astonishing is the fact that despite the introduction of judicial review of the boards’ decisions (which had been postulated for many decades by the scientific circles), no statistical data are gathered showing the extent to which penal policy pursued by those boards is actually corrected by courts. Admittedly, it follows from the findings of the solo relevant research project conducted in the nineties that today as in the past, courts usually tend to reduce the penalties imposed by transgression boards (the penalty of prohibition of operating motor driven vehicles in particular). What remains unknown, though, is both the general number of persons who demand that their cases be examined by courts and the actual decisions of those courts. Although penal policy in cases of transgressions grew slightly more severe in 1990‒1994, its present liberalization as compared to the two preceding decades is generally seen as favorable. What probably accounts for this liberalization is the exclusion of transgression boards from under the supervision of Ministry of Internal Affairs and the resulting deprivation of the head of that particular Ministry of the right to issue instructions as to the sentencing policy which invariably increased its punitiveness. Thus an instrument of pressure was abolished which limited the discretion of members of transgression boards. This shows that respect for the independence of those appointed to apply tbe law may result in a reduction of repressiveness even with no legislative changes in the system of penal measures. This is not to say, though, that – still  based on rigorous provisions as it is – the system does not require a possibly prompt amendment.
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Główne kierunki polityki karnej realizowanej przez kolegia do spraw wykroczeń w latach 1972–1989

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Szumski J.
Archiwum Kryminologii
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1993
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issue XIX
107-131
EN
The paper characterizes the evolution of penal policy with respect to per peetrators of transgressions, pursued in Poland by elected agencies attacbed to the state administration and called “transgression boards”. In the years 1972–1989, their decisions were supervised by the Minister of Internal Affairs. Most of the discussion, based on statistical materials, concerns changes in the structure and dynamics of penal measures applied by the boards. The measures have been defined as all legal reactions applicable upon the finding the perpetrator’s guilt. The present paper does not deal with all of those measures, though: for lack of statistical data, tukets imposed by the penal prosecution agencies and the possible reactions on part of those agencies if they renounce moving the case to the board for punishment according to the principle of  expediency of prosecution could not be discussed. Penal policy has been characterized against the background of amendments introduced in the period under analysis and of instructions issued by the Minister of Internal Affairs that shape the boards’ decisions. After 1982, such instructions usually aimed at aggravating repression. The statutory catalogue of penal measures contained in the transgressions code is relatively extensive. The most severe measure is detention which amounts to deprivation of liberty for up to 3 months. As stated in the code, it should be applied in exceptional cases only. In the first decade of validity of the code, detention was imposed in l–l.5 % of all decisions which meant the deprivation of liberty of 9,00–10,000 persons. It is therefore doubtful whether detention was indeed treated as an exceptional measure by practicians. In the next years, it was imposed much less often. The penalty of suspended detention played any role in the practice of transgression boards. As shown by studies, those who applied law  treated suspended detention as a separate penal measure to replace other measures not involving deprivation of liberty rather than a way of limiting the use of immediaste detention. Also disappointed were the  expectations related to another new measure, formally more severe than fine, that is limitation of liberty which was to “educate through work”. According to the legislators’ assumptions, that penalty was to  be the main alternative to detention; in practice, it was imposed rather often  (about 5% of all measures applied) but served mainly as a substitute for fine. The basic measure applied to perpetrators of transgressions was fine, imposed on 90% of cases of those punished by the boards. According to provisions of the Transgressions Code, though, a substitute penalty of detention can be imposed in the case of justified doubts as to the possibility of execution of fine. For this reason, it was found advisable in the present analysis to treat this form of fine as a measure different in quality from fine imposed without a substitute penalty which could in no case lead to imprisonment. Also research findings encouraged the treatment of these two kinds of fine as separate penal measures: the substitute penalty was treated in practice as a specific method of aggravating repression, and imposed in defiance with provisions of the Code. Owing to this approach it could be evidenced that the proportion of fines combined with the threat of deprivation of liberty (another measures designed as exceptional) went up rapidly in mid-1910s to become stabilized at about 20% of all decisions of the  transgression boards. The abuse of that measure, also designed as exceptional, was accompanied mainly by less frequent fines without a substitute penalty. At the same time, the proportion of the two most lenient measures, that is admonition and renouncement of inflicting punishment, went down regularly and amounted to a mere 2% of decisions despite the broad applications of those measures contained in the Code. This reflects the practicians’ tendency to use the aggravating legal solutions much more often than those which mitigate penalty; this led to increased repressiveness of penal policy. Beside the above-mentioned reactions, the Transgressions Code provides for a number of measures called additional penalties which are to accompany the principal ones. They can also be applied as self-standing measures in specific situations. Yet the agencies that apply law never availed themselves of this latter possibility. Instead, additional penalties were lavishly imposed (particularly the witholrawal it driving licence and the penalty of making the sentence publicly known) which led to accumulation of repressions suffered by the punished person. This is why the serious growth in the number of additional penalties, after the legal changes introduced in mid-l980s and instructions issued by the Minister of Internal Affairs in particular, was still another proof of the aggravation of penal policy with respect to perpertrators of transgressions. Characteristically, the Polish Transgressions Code combines the application of some of the non-custodical measures with the threat of deprivation of liberty in the case of failure in the execution of those measures. This concerns the above-mentioned fine but also, in definite conditions, the limitation of liberty and suspended detention. In practice, the threat of imprisonment was used very often, the total proportion of the three above measures becoming stabilized, after an initial growth, at about 20–25% of decisions which mainly resulted from excessive imposition of fines with a substitute penalty of detention. Most importantly, though, that threat was realized with respect to every fifth or sixth person in that group. As a result, the average of 20–25 thousand persons a year were imprisoned despite the fact that a measure not involving deprivation of liberty had originally been applied to them. A paradoxical situation arose where persons sentenced to the principal penalty of detention constituted a small percentage of those imprisoned by force of decisions of the transgression boards, while most served a substitute penalty due to a failure in the execution of the previously applied non-custodial measure. Still another expression of the growing repressiveness of penal policy was the greater and greater involved in the most frequently imposed penalty of fines in both of its forms: due to amendments of the Transgressions Code, the amound of fine went up a quicker pace than the average wages in socialized economy during most of the 1980s. A statutory solution concerning transgression that was most vehemently critized by the doctrine was the most limited judicial supervision over  decisions of the transgression boards. The appel instance were boards of  the second instance; only decisions imposing detention and limitation of liberty could be appealed against to the court. Thus judicial supervision concerned neither the substitute penalties which involved deprivation of liberty nor the most acute ban on driving motor vehicles. Meanwhile as shown by experimental findings, 6–15% of persons punished by the boards were acquitted by the court to which they complained, and a non-isolation measure was  substituted for deprivation of  liberty in over one-third of the cases. This shows that courts saw decisions of the boards not only as essentially defective but also as excessively repressive. This latter conclusion is rather symptomatic the fact considered that penal policy pursued by courts with respect to offenders was sewere, too. What has also to be stressed when characterizing the decisions in cases of transgressions is the frequent use of the statutory possibility of deciding in expedited proceedings and proceedings  by writ of payment. From the viewpoint of rational penal policy, that tendency deserves to be criticized as protection of the defendant’s basic processual guaranties suffers statutory limitation in those modes of procedure, and the speed and simplification of proceedings affect the individualization of punishment. Also of importance was the fact that the frequent decisions in expedited proceedings served as a specific form of aggravation of represion since – as shown by research findings – the penalties imposed in that mode were more severe than in the ordinary proceedings. Analysis of the evolution of decisions of the transgression boards has led to the conclusion that throughout the period under analysis, penal policy was regularly aggravated which was largely influenced by punitive instructions of the Minister of Internal Affairs. The only periods of mitigation of penalties were  the years 1981 and 1989: this resulted mainly from social conflicts and public opinion pressure on reduction of repressiveness of the penal system. For this reason, the 1989 amendment of the Transgression Code, forced by systemic changes, which deprived the Minister of Internal Affairs of his original control over decisions of the transgression boards and submitted all of those decisions to judical review brings the hope for liberalization and rationalization of penal policy in cases of transgressions.
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System środków penalnych w projekcie kodeksu wykroczeń

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Szumski J.
Archiwum Kryminologii
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1994
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issue XX
53-78
EN
This paper discusses and appraises changes in the system of penal measures in the draft of the Transgressions Code, and to some extent also in the draft of the Code of the Execution of Penalties. A great variety of problems are discussed: the author concentrates on a broad definition of a penal measure, treating as such measure each legal reaction to the fact of transgression, made by a competent agency upon identification of the perpetrator. The discussion concentrates on the draft’s division into penalties and penal measures. Also discussed are other reactions included in the code that can be applied to the perpetrator but do not belong to either of the above two categories. The autor carries out a critical analysis of the solutions concerning penalties, penal measures, alternatives to punishment, and the main  directives as to the severity of penal measures. Taken into account in the analysis have been, on the one hand, the praiseworthy regulations, most of which result from acceptance by authors of the draft of postulates, made for a long time by the doctrine and aimed toward the   rationalization and humanization of Polish law on transgressions. On the other hand, the analysis paints out those solutions which the author finds to be redundant or improperly formulated With respect to reactions that are termed “penalties” the author declares himself a resolved opponent of arrest: in his opinion, that penalty should not be imposed on perpetrators of the pettiest transgressions, the more so as some of the offences specified in the draft code are not threatened with deprivation of liberty at all. Here, the practice of deciding in cases of transgressions is brought to mind where arrest was usually imposed for disturbances of public order or peace committed by intoxicated persons; most of such perpetrators were alcoholics, and  their short-term imprisonment was in fact a specific preventive measure. The author also expresses his support of the renouncement of the institution of conditional suspention of the penalty of arrest (should even arrest be preserved in the future code): in practice, instead of limiting the use of arrest, that institution was treated as a self-standing reaction, a substitute for the penal measures not involving deprivation of liberty. On the other hand, the author praises the elimination from the draft of the penalty of limitation of liberty which fails to come up to expectations as an alternative to arrest and only causes serious problems with its execution. As regards, further, the penalty of fines ‒ the basic reaction towards perpetrators of transgressions ‒ the author considers the pros and cons and declarls himself in favor of the system of daily rates. Aware of the controversial nature of this suggestion, he justifies it mainly with the need for the unification of the system of imposition of fines in penal law and the  law on transgressions. The author praises the solution where only the court is empowered to impose arrest in default of paying a fine. In principle, he also praises the way this sphere ‒ the main weak point of decisions in cases of transgressions so far ‒ has been regulated in the draft of the Code of the Execution of Penalties. Here, arrest as a substitute for fines is treated as the last resort, and many solutions are Offerd to cause the payment of a fine; fines can even be defanted on if then cannot be paid for reasons beyond the convicted person’s control, and it proves impossible or inexpedient to carry out that penalty in another way. The author believes, however, that some of the solutions suggested in the draft of the Code of the Execution of Penalties have not been formulated with sufficient precision. As far as penal measures are concerned ‒ under the draft of the Transgressions Code, they include with deawal of a driving license, forfeiture of property, and payment to the injured person or for a public purpose ‒ the author criticizes mainly the limited possibilities of their application as self-standing measures: they can only be applied in the case of renouncement of inflicting a punishment. This solution is in fact a preservation of the possibility, criticized by scientific community, of the accumulation of different penal measures, and leads to unnecessary aggravation of punishment. On the other hand, the author praises many other novel solutions related to penal measures, including in particular a considerable mitigation of the statutory application of a most annoying withdrawal of a driving license; in his opinion, however, that ban should be optional and not obligatory. The author also praises the regulation of forfeiture of propesty, mainly because of the ban on its application if the decision to impose it were out of proportion with the seriousness of the transgression. Besides, the author fully approves of the renunciation of the former additional penalty, the “ban on pursuit of definite activity or performance of functions requiring a license”, and also of the labelling measure of publication of the sentence. In the sphere of general directives of the imposition of penal measures, the draft is based on the concept which combines elements of just retribution (proportional to guilt) and special prevention. The former directive is to define the maximum degree of severity of reaction under penal law, while the latter should influence the choice and extent of the penal measure applied. Unlike the draft of the Penal Code, the draft of the Transgressions Code does not include the directive of general prevention. The present author praises this omission and supports the opinion, popular in scientific community, that general prevention should be included in the statutory sanctions while its aims can be achieved within the directive of just retribution. With respect to the latter, the author argues that reaction of penal law should be commensurate not only with the guilt but also with the seriousness of the act; he also stresses that compensation for the damages done to the injured person should become an integral part of just retribution, and acquire an important position in the future Transgressions Code. Further discussion concerns alternatives to punishment, that is: (1) renunciaton of inflicting punishment, and (2) refusal to start proceedings before the boards for the adjudication of transgressions where the case is referred to other agencies (e.g. place of employment or school) for application of so-callcd educational measures. Under the draft, renunciation of inflicting punishment may consist both in a complete renunciation of applying any penal measure, and in rcnunciation of imposing a penalty which is combined with the application of another penal measure. In the author’s opinion; this solution has to be modified. The very name of the institution concerned here can hardly be squared with the  possibility of applying a penal measure, often one ‒ e.g. withdrawal of a driving license ‒ that is actually more severe than a penalty such as a small fine. For this reason, the author’s suggestion aims at a situation where renunciation of inflicting punishment would consist only in abandonment of the application of any measures whatever. Instead, the possibilities of application of self-standing penal measures should be much extended and regulated by separate provisions. The other of the above-mentioned institutions, whose regulation violates the principle of definiteness of reaction under penal law, should be eliminated altogether. What also speaks for this solution is the fact that the institution concerned is based on a belief in the effectiveness of educational actions which has not been verified empirically; moreover, its application may expose the offender to consequences more severe (e.g. dismissal from work) than those resulting from proceedings before the beards for the adjudication of transgressions. In the final part of the paper, the author comments on the general conception of the Polish reform of broadly conceived penal law. He proclaims himself in favor of the opinion, found in literature, that Polish law has to be amended radically (based on the suggestions contained in the draft), and that the work on its codification have to proceed parallel to its amendment; they must also be given sufficient time to be completed.  
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Zezwolenia na czasowe opuszczenie zakładu karnego

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Szumski J., Siemaszko A., Wójcik D.
Archiwum Kryminologii
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1998
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issue XXIII-XXIV
115-165
EN
The article is composed of four basic parts. The first one is historical: it discusses the evolution of legal regulation of various forms of permits to temporarily leave prison (except interruption of execution of the penalty of imprisonment) and the practice of granting such permits in the period preceding the adoption of the new punishment execution code [PEC]. Concerned here were: permit granted by way of reward to leave prison for up to 5 days (Art. 55 § 3 PEC); so-called compassionate permit to stay away from prison for up to 5 days (Art. 59 PEC); so called reward permit for 24 hours (§ 62.1 of Instruction on the execution of the penalty of imprisonment before its amendment of 1995); and regulation permit also granted for 24 hours (abolished by the abvementioned amendment of the Instruction). Hence the discussion contained in the first part of the paper proceeds on two different planes. On the one hand, we discuss the legal shape of the permits undergoing legislative changes and at the same time submitted them to critical dogmatic analysis. On the other hand, we strive to demonstrate the functioning of those legal solutions in penitentiary practice basing on the findings of few earlier empirical surveys and on statistical materials gathered by the prison administration since 1985. Our main focus is the practice of the 1990s when systemic transformation and the related humanization of the process of imprisonment led to considerable growth in the number of granted permits to temporarily leave prison, and the relevant legal transformations the effected, that is amendment of PEC and the Instruction on the execution of the penalty of imprisonment. The issue of permits was then broadly covered by the media which - not always competently and objectively - criticized the authorities for too many such permits granted; this led to an animated discussion in the doctrine. Critics considered this policy of penitentiary authorities too liberal; they argued it led to a growth in crime caused by prisoners released on permit thus reducing citizens’ feeling of safety, and also made it possible for prisoners to escape or to stay away from prison longer than permitted. It has not been possible to appraise the discussed policy basing on statistical data only due first of all to the fact that the material we based on contained merely data on the number of permits granted and said nothing about the grantees and their characteristics. From statistical analysis it followed merely that from 1985 till 1993, the number of permits granted went up nine times only to become reduced by 40% during the next two years. Also on a regular decrease (from 6.3 to 2.4 percent) in that period were cases of so-called ,,failure to return” - a category which, for obscure reasons, in the statistics includes both the actual failures to return to the institution and cases of late-coming; the proportions were calculated from the total of permits granted. The number of offenses committed by prisoners while on permit was rather small and ranged from 200 to 600 a year. Part two of the article discusses international penitentiary standards relating to inmates’ contacts with the outer world and contained in the UN Standard Minimum Rules of Treatment of Prisoners of 1955 and European Prison Rules of 1987. Also discussed have been provisions regulating the permits to temporarily leave prison in selected European countries: Germany, France, Belgium, Sweden, Finland, Norway, Denmark, Spain, Holland, Austria, Portugal, Italy, Bulgaria and Hungary. It could be stated basing on the analysis that the Polish regulations of the discussed sphere (even those valid before the adoption of the new punishment execution code) were consistent with international standards and by no means inferior to foreign provisions. The next part of the study discusses the findings of the authors' own research conducted on 15-31 August 1995 (that is, before the above-mentioned of PEC and rules of imprisonment) in 12 prisons and remand prisons. The tool was a questionnaire developed by the Law Enforcement Institute. Examined were the files of all prisoners who in the period from 1 January 1994 till 30 June 1995 applied for a permit to temporarily leave prison, or in whose case the application was field by prison administration, whether the permit was actually granted or refused. The sample was composed of 1,043 persons, and the number of applications was 7,336. The total of 6,524 permits were granted to 970 persons. It was found that a vast majority of permits applied for were actually granted which is to some extent accounted for by the fact that most applications were field by prison administration who subsequently supported them. Permits were granted to 93% of the sample which made as many as 6.7 permits per person on the average. What is more significant though, was that over one-fifth or the sample (22.6%) were granted 10 or more permits within a relatively short period of time which manifests the existence of a privileged group among prisoners. That same conclusion can also be drawn from the fact that, the mean length of time spent away from prison being 43 hours, 11% of the sample were on permit for 1 to 2 months, and 1.5% - for over 2 months. As regards return from permit, the proportion of prisoners who never returned was 8.4%, and over one-fourth of them were on the police wanted list during the survey. This phenomenon is the more dangerous as nearly a half of the sample (49.5% a failed to return in due time on at least one occasion. Instead, the number of offenses committed by the sample while on permit seems relatively small, the proportion of offenders being 4.3%. Offenses committed most often were burglary and robbery. Considering, however, the extremely small detectability rate in Poland, the proportion may well depart greatly from the reality. Even the above findings justify the statement as to a dubious value of appraisals of the correctness of permit granting policy basing on statistical material only. They also confirm the need for inclusion is those materials of data on the number not only of permits granted but also of grantees. Leaving aside a number of formal transgressions found in the course of research, the findings generally justify a conclusion that many permits were granted automatically, so to say. It was difficult as a rule to identify any objective criteria for granting or refusing permits; this means that the permit policy violated the principle of individualized treatment of prisoners. The article ends with general conclusions from the practice followed so far and with postulates de lege ferenda formulated on the grounds of amendments introduced by the new PEC of 6 June 1997. Not going into details of those amendments, it has to be stated that they trend towards extension of the legal possibilities of granting permits and of the length of leave thus granted. In the authors’ opinion, most of the amendments deserve to be praised which is of course not to say that none of them raise any reservations. It has to be stressed, though, that the appraisals are not too categorical as the new provisions (which enter into force on 1 September 1998) leave a considerable freedom of interpretation. The practice of their application should therefore be monitored closely to begin with; the findings will then help to verify pertinence of statutory regulations of the granting of permits to temporarily leave prison.
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