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Przemiany polityki karnej sądów powszechnych rozwijanej na tle przepisów nowej kodyfikacji karnej (1970-1980)

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Jasiński J.

Archiwum Kryminologii

1982

issue VIII-IX

25-150

We are now entering in Poland into the second decade of the new penal system in force. The period of time which has elapsed: since the introduction of this system is long enough to enable us to take a close look at the new legal institutions envisaged in the system, at the practical value of these institutions and trends observed in their application. This paper is devoted to the above considerations, or to be more exact, to the part played by the application of penal measures. In order to characterize roughly the guidelines underlying the above penal codifications it should first be stated that what the legislators had in mind was a need to treat serious and petty offences in a different way. Those who were guilty of serious crimes were to suffer from penalties of immediate deprivation of liberty, and, exceptionally, that of capital punishment. Some categories of offenders regarded as dangerous, repulsive or persistent were to meet augmented penal repressions. Among these were perpetrators of hooligan, type offences, and recidivists some of whom, after completing their sentences, were to be treated with special penal measures, such as protective supervision and/or placing in a social readaptation centre. At the same time various lenient penal measures were to be imposed against perpetrators of petty offences. Sometimes proceedings against such persons were to be discontinued. Besides, some petty offences became depenalized (for the first time in 1967 and then on a larger scale in 1971) by considering them to be transgressions and getting them transfered from the courts to the Penal Administrative Commissions. The Penal Code, the Penal Executive Code and the Code of Criminal Procedure have been in force since 1st January, 1970. However, it should be borne in mind that penal legislation is not confined to the above mentioned codes. It also embraces some statutes with two very important ones issued in the early seventies: the Code of Transgressions included in the set of acts of 20th May 1971 (Dz.U. no. 12, para 114- 118) making up a codified system of transgressions law and the Financial Penal Code of 26th Oct. 1971 (Dz.U. no. 28, para 260). It is only after the above acts had been passed the process of codification of the Polish penal legislation was completed. If one takes into consideration the need to have a minimum period of time necessary for learning how to make use of new regulations and the date when the previously mentioned acts came into force, as compared with the 1969 codes, one should take the year 1972 as a starting point for the analysis of the penal policy as determined by the new penal codification in the full form. The problems of the applications of penalties by courts arising from the 1969 penal code regulations are among the most complex ones and bear evidence of the fact that at this particular issue, the regulations of the present code are not exceptionally successful. For the purposes of our discussion we should try to introduce some order into this complex subject. Therefore, we shall distinguish three groups among the regulations of the imposition of the penalty by the courts. The first group will include the regulations from the special part of the penal code (and other penal acts), which describe the kind and limits of penal sanctions provided for the perpetrators of crimes envisaged in the regulations. The second group shall include the regulations from the general part of the Penal Code (or statutes with general part, such as the financial Penal Code or Chapter 37 of the military part of the Penal Code) which modify the norms found in the regulations belonging to the above first group. The above modifications concern the changes in the limits of sanctions, rules of the order of choice: among the alternative sanctions, or possibilities of application of penal measures which are not provided for a particular offence. The third group will encompass the regulations specifying the principles to be used by courts in choosing the kind and extent of penal measures against offenders. The essential feature of the above legal system is that it lacks rules which would provide one strictly defined penalty for an offender of a given offence. The court is always faced with the necessity of making a choice of a penalty: first of all, whether to apply any punishment at all, or to confine oneself to a conditional discontinuance of the proceedings (arid sometimes, if the statute makes it possible, to renounce the execution of the penalty). If a sentence is passed, what kind of penalty is to be imposed, whether it should be combined with another basic penalty, or additional penalties, punitive financial award or preventive means should be made use of. What then should be the directives for the court in making the choice? The answer to this question is provided by the Penal Code, above all in Art. 50. In this article three different directives are included for the court in imposing a penalty at its discretion: (1) the degree of social danger of the offence, (2) regard for the social effectiveness of the penalty, and (3) the preventive and educational effect on the person convicted. These directives, dressed as they are in a new wording, correspond, as it were, to the classical purposes of punishment. The first of these is to give justice, i.e. to mete out retribution for the "evil" done by the offender in the form of suffering proportional to this "evil". The second purpose is general prevention, i.e. a tendency to punish the offender in order to prevent others from committing offences. The third purpose of punishment is special prevention, i.e. the effect on the offenders themselves in order to prevent them from committing further criminal acts. The difficulties involved in the implementation of the principle of justice once it ceases to be understood literally as that of "eye for eye, tooth for tooth”, are well known and need not be mentioned here. One ought, however, to point out that there is no "objective" or "invariable" scale of translating the degree of "evil" committed by the offender into the suffering caused to him, This scale is arbitrary and variable. Its variability can be seen both when the degrees of penalties imposed for the same offences at various times are compared, and, what is even more significant, when the comparison is made of penalties for the offences against various values protected by the law. It is thus clear that various penal policies can be pursued based on the principle of just retribution within the framework of the same legal system. The fact that § 1, Art. 50 of the Penal Code makes a mention of the social effect of a penalty rather than of general prevention was not accidental. However, from the argumentation included in the Introduction to the draft of the Penal Code it can easily be seen that what the authors of the draft really had in mind was that social effect meant instilling fear for the punishment in the prospective offenders. In the statements concerning special prevention only two forms of such effect on the convicted persons were distinguished, i.e. prevention and education. The first term refers, as may be judged from the argumentation in the Introduction to the draft of the Penal Code, to making it impossible for the convicted person to pursue crime by physically isolating him from the society in a penal institution or to ultimate exclusion from the society by the application of capital punishment. The second term is self-explanatory: education means that the attitudes and motivation of a convicted person are to be transformed in such a way that he will comply with the requirements of the law in the future. An essential draw back in Art. 50 of the Penal Code is that it includes three separate recommendations as to the court’s decisions on the way of dealing with the offender on the assumption that each of these recommendations would lead to the same result without any collisions between them. Had such a possibility come to the notice of the legislator at the proper time, the above directives would have been classified according to some order of importance or a regulation would have been introduced to solve any collision between them. As the main interest in this work is centered on the penal policy of the courts, of particular importance are the statements made by the Supreme Court concerning the content and interpretation of § 1 Art. 50 of the Penal Code rather than the opinions formulated in the doctrine of the law. Initially, the Supreme Court’s position was that the directives of § 1 Art. 50 of the Penal Code were all equal. But in 1975 for offenders convicted for the misappropriation of social property of high value the Supreme Court recommended the use of the directive of retaliation and general deterrence without mentioning the special prevention directive, thus making some distinction between them. Finally, in 1977 it became clear that the Supreme Court had accepted "just retaliation" as a priority directive in imposing penalties. Within the directive of "just retaliation" (social danger of the act) some shift in the emphasis can be noticed. At first the social danger of the act was regarded to be a synthesis of objective and subjective elements, and finally, the main importance was stressed of one of the objective elements, i.e. the extent of the damage caused or the benefit gained by the perpetrator. Thus a problem arises what value should be attached to these modifications in the positions taken by the Supreme Court. In anticipating further conclusions one is tempted to say now that these modifications were associated by significant augmentation of the penalties imposed by the courts. At least two explanations may be offered here. One is that the reason for the stiffening of the penal policy can be traced to the courts' making a greater use of the "retaliation" directive in the imposition of penalties. This may have an additional support in the fact that the penalties became more severe at the very time when the shift occurred in the emphasis from recommending the taking into consideration of all the three directives of Art. 50 of the Penal Code to "retaliation". Simultaneously special stress was to be put on making the responsibility more objective in the form of close relationship between the fine and the extent of the damage caused. In the second explanation both the above mentioned reasons, i.e. emphasis on retaliation and stiffening of penalties, would be regarded as caused by a third party. They can arbitrarily be called a process of making the legal values more rigid in the circles providing directives for the criminal justice system apparatus. The rigidity would manifest itself either in regarding the offences committed in this country to become more socially dangerous or the offenders to deserve a more severe treatment. It should, therefore, be noted that none of the directives mentioned in the Art. 50 of the Penal Code is unequivocally leading to a lenient or to a stiff criminal policy. Uniter the banners of either of the directives some offenders, some offences, may be considered as calling for lenient penal measures, whereas other offenders, other offences - may be thought of as deserving severe penalties. Thus, the final shape of the penal policy depends on how the line is drawn between those "calling for" lenient treatment and those "deserving" punitive reaction. Taking all the above into consideration the present author thinks of the second explanation as more probable than the first. It should be noted that only the penal measures imposed for offences dealt with by public prosecutor are analysed. Thus the analysis will not include a decreasingly small number of convictions for offences prosecuted by the complainant himself (about 8 thousand in 1972 and 3 thousand in 1980). Although the capital punishment, as seen from Table 1, is imposed in a few cases only, its very existence in the Polish criminal law is strongly criticized by some lawyers and criminologists. Among penal measures used by common courts the penalty of immediate deprivation of liberty takes the second place after the capital punishment on the scale of severity. It is imposed in months and years (Art. 32 §2) and may range from 3 months to 15 years (art. 32 §1) and 25 years. If one analyses information on the duration of the above penalties, four characteristic elements have to be noted: (1) In 1980 for only one in 11 persons the immediate deprivation of liberty was shorter than one year (in 1975 - one in nine and one in four or five in 1972); (2) the immediate deprivation of liberty was most often imposed for the period between one and two years: over 40 per cent and in some years nearly 50 per cent of all persons had such a penalty imposed on them; (3) a long-term penalty (i.e. 3 years and more) was imposed on one person in five over the period 1975- 80 (in 1972 it was one in seven); (4) the absolute number of most severe sentences (over 10 to 15 and 25 years) was on the increase systematically till 1976. It should be particularly emphasized as from 1975 a decrease has been observed in the total number of imposing the penalty of immediate deprivation of liberty. The most commonly used penal measure was deprivation of liberty with conditional suspension of the execution (Art. 73 of the Penal Code). According to Art. 75 of the Penal Code the court when suspending the execution of the penalty of deprivation of liberty can, among other things, impose one or more obligations provided for in the above article. These obligations were imposed on the persons sentenced to the penalty of deprivation of liberty more and more frequently. The courts most often obliged the sentenced persons "to refrain from abusing alcohol", "to perform specified works or render specified contributions for social purposes" and "to perform remunerated work, to pursue education or prepare himself for an occupation". What is also interesting is that the courts have ordered more and more obligations, or to put it differently, they have less and less often confined themselves to ordering one obligation only. Thus the court’s action in this respect has been intensified. Irrespective of ordering the above obligations the court suspending the execution of penalty of deprivation of liberty may, for the test period, "place the sentenced person under the supervision of a designated person, institution or social organization" (Art. 76 § 2). The fraction of those placed under supervision in the totals of liberty was stable in the early seventies (30- 31 per cent), it began to rise in 1974 and reached nearly 40 per cent in 1980. The court may conditionally suspend the execution of a penalty of deprivation of liberty of up to 2 years when sentencing for an intentional offence and of up to 3 years when sentencing for an unintentional offence. (Art. 73 §1). Over the period 1972-80 certain changes were also observed in the extent of these penalties. They were similar to those of the extent in the penalties of immediate deprivation of liberty. They can be summarized as follows: (1) a very significant fall occurred in the fraction of penalties below 1 year (from 45.7 to 12.3 per cent); (2) the most often suspended penalty of deprivation of liberty was that of 1 year (36.6 to 44 per cent); (3) the percentage of suspended penalties over 1 year and up to 2 years increased markedly (from 17.7 to 44.1 per cent). The imposition of a penalty of deprivation of liberty, both immediate and conditionally suspended, is associated with the possibility (and in some cases - an obligation) of imposing a fine in an amount from 500 to 1 000 000 zlotys (Art. 36 §2 - 4. Unfortunately, the judicial statistics do not distinguish (except for some offences) whether the fine is imposed together with immediate or suspended sentence of deprivation of liberty. It turns out that the persons sentenced for the above penalties suffered from a fine quite often and this additional burden became more and more frequent: in 1972 the percentage of penalties of unconditional or suspended deprivation of liberty was 61.1, and in 1980 - 68.1. In the period of only 8 years 1972 - 80 almost no fines were imposed up to 1 000 zlotys, their number having decreased from 13.6 thousand to 82 and the respective contributions from 15.0 to 0.1 per cent. The penalty of limitation of liberty is among the new penal measures which after some hesitation have become accepted in practice. In the period under discussion the contribution made by sentences of this penalty increased threefold: in 1980 they amounted to 18.0 per cent of all sentences. In other words, one in six persons sentenced in cases initiated by public prosecutor is punished by limitation of liberty. This penalty imposes some limitations on a person sentenced, e.g. he may not change his place of abode (Art. 33 §1), and can take three forms. One of them is an obligation of "performing unremunerated supervised work for public purposes from 20 do 50 hours per month" (Art. 34 §1). The penalty of limitation of liberty in this form was applied to 41.4 per cent of sentenced persons in 1980 as compared with 38.1 per cent in 1972. The second form is applicable only to persons employed in a socialized work establishment and consists in deducing 10 to 25 per cent of the remuneration for work for the benefit of the State Treasury (Art. 34 §2). It was applied to 46,4 per cent of sentenced persons in 1980 as compared with 58.8 per cent in 1972. The third form - most seldom applied - is used when the court directs a person not being in an employment relation to an appropriate socialized work establishment for the purpose of performing work there and deduces from 10 do 25 per cent of the remuneration for work (Art. 34 §3). It was, however, applied in 12.2 per cent of cases in 1980 as compared with 3.1 per cent in 1972. Although the penalty of limitation of liberty may be not less than 3 months and not more than 2 years (Art. 33 §1), its minimum duration of 3 months has lately been imposed in 1.1- 1.3 per cent of sentenced persons as compared with 5.2 per cent in 1972. The most commonly imposed duration was over 6 month to 1 year. In 1980 nearly one person sentenced in 3 had it imposed on for a period from 1 to 2 years while in 1972 this happened to one person in 25. Again, like the penalty of unconditional deprivation of liberty, deprivation of liberty with suspension, fine imposed together with deprivation of liberty, the penalty of limitation of liberty shows an ever marked tendency to be imposed most infrequently in its lower extent and most often in its high and highest extent. The same applies to the fine (Art. 36 §1). It can be adjudged in an amount from 500 to 25 000 zlotys, i.e. within much narrower limits than that imposed together with a penalty of deprivation of liberty. The changes which took place in the years 1972- 80 as regards the extent of the fine, resemble those which occurred in the case of a fine adjudged together with deprivation of liberty (Table 1). We shall finish our discussion of basic penalties with two pieces pf information. The imposition of the supplementary penalty only (Art. 55) was confiscation of property in 90 per cent of cases, and prohibition of operating motor driven vehicles in the remaining 10 percent. Educational and corrective measures applied (Art. 9 §3) consisted in placing in a borstal in some dozen percent of cases, which is a kind of deprivation of liberty. The largest group, about half of all on whom these measures were imposed, was placed under the supervision of a probation officer. We shall now try to formulate some general conclusions drawn from the date on the structure an extent of penal measures. We shall use four groups of indexes to present the conclusions in most concise form (Table 2). These indexes will describe the most important statistically determined aspects of Poland's penal system. The first group of indexes refers to the extent of crime known to the police. Traditionally the penal measures applied are thought of as a response to this crime. Therefore, if one wants to understand their evolution one has to look into the nature of the evolution of crime. The determination of the extent of crimes known to the police can be carried out in several ways. It can be based on the data on the offences (taken from the police and public prosecutor’s statistics) or on the data on the offenders supplied as a rule by the judicial, statistics. The data on the serious offences known to the police encompass acts chosen in an arbitrary way limited by the extent of those published in the Statistical Year Books for the years 1971- 80. The number of sentences can be determined more simply from the number of sentences for acts regarded as the most serious ones by the legislator (Art. 5 of the Penal Code). All this information is presented in the form of rates per 100 000 total population (data on the offences known to the police) or per 100 000 adult population (data on sentences). By comparing the changes in these rates two conclusions can be drawn. First, the number of serious crimes known to the police as well as that of the crime perpetrators brought to trial during the seventies was at a similar level although it showed some variations. The general rate of offences known to the police was measured in three different ways, namely the rate of crimes known to the police, the persons found guilty and the sentenced ones. It proves the relevance of two well known observations: the first one is that when the criminal case passes along the subsequent links in the chain of the justice system (police, public prosecutor’s office, court) the size of the crime known to the police becomes smaller. The second observation is that serious crimes are less susceptible to such fluctuations. The second conclusion drawn from the comparison of crime rates introduced above is that it he statement about the stable extent of crime first of all, that of most serious crime, is of greatest importance for further discussion. This statement warrants the opinion that the observed changes in the structure and intensity of penal measures cannot be accounted for by the corresponding changes in the extent and character of the crime known to the police. The reasons of these changes should be traced to changes in legal values, i.e. in the evolution of the opinions as to what kind of penal reactions form the "proper" response to definite offences against the law, what penalty is "adequate" to the amount of social danger involved in the offence and, the belief in the general deterrent effect of severe penalties. The data on the application of preliminary detention show that about one in four persons at the time of being convicted had experienced deprivation of liberty. As expected, this experience was specially common among the persons on which the court had subsequently imposed the penalty of immediate deprivation of liberty. The data collected in the third part of Table 2 on the structure of the penal measures imposed provide a remainder of the changes in these measures. Among them one can observe a certain limitation of sentencing to immediate deprivation of liberty, and a much more marked decrease in the number of sentences to a suspended deprivation of liberty. The former change may be regarded as a symptom of what is so much needed in the Polish criminal justice system, i.e. of eliminating penalties associated with deprivation of liberty and the ever increasing application of penalties without deprivation of liberty in the sentencing practice, not only in verbal statements. As for the latter change it is difficult to take an unequivocal attitude. It is because one should remember that period 1972 - 80 was not only characterized by a fall in the per cent contribution of sentences of suspended deprivation of liberty but also by a rise in the per cent contribution of placing under supervision, ordering obligations, increasing the number of such obligations, imposing fines together with deprivation of liberty, the extent of which is also increasing. We shall now consider the indexes to determine the rate of the application of penal measures. Table 2 shows two such groups chosen out of a variety of others. One group is made up of the numbers of persons sentenced to deprivation of liberty per 100 thousand adult population. The second group constitutes the mean values of various penalties. The above indexes help us to focus our attention on two contradictory, in the author’s opinion, trends. One trend, to limit the imposition of the penalty of immediate deprivation of liberty, is best seen in the fall in the number of sentences to this penalty (per 100 000 adult population) from 272,7 in 1972 to 172,1 in 1980, i.e. by 37 per cent. The other trend, in the opposite direction, is seen in the ’"rates" of sentences to long penalties of deprivation of liberty, i.e. 3 and over years, and particularly, 5 and over years. During only 4 years the mean penalty of immediate deprivation of liberty became longer by nearly 6 months from 19 months in 1972 to over 25 month in 1976. The tendency to augment the penalties has also manifested itself in the rise by as much as 25 per cent of the mean penalty of suspended deprivation of liberty: from about 12 months ip 1972 to about 15 months in 1980. This augmentation seems quite Irrational as it is a well-known fact that for a large majority of such penalties there is no need to have them executed. At the same time there is no evidence that the penalties imposed in the previous extent were ineffective or their lengthening had led to higher effectiveness. The next pair of mean values given in Table 2 provide information about the extent of both kinds of fine. These values must be analysed in close relation with significant devaluation of money in Poland in the seventies. Therefore, the table contains information about the mean monthly salary in the socialized economy in this country (the last line). During the period 1972- 80 the salaries increased more than twofold, but the fines increased fivefold. As early as in 1972 the mean value of either of the above fines was equal to a little over one month salary, in 1980 the fine was equal to more than a two-month salary, and the other fine amounted almost to a three-month salary; the repressiveness of the above penal measures increased markedly. We shall complete our discussion of Table 2 with one general remark. When observing the evolution of penal policy in Poland in the span of the last 25 years, two features may be distinguished. One constant tendency, though not without some hesitations and obstructions, to augment the impact of individual penal measures based almost exclusively on imposing one type of punishment. The second feature is a tendency to combine these effects by simultaneously using various kinds of punishment imposed on a sentenced person. This tendency was noticeable in the sixties, but it became more marked in the light of the present-day regulations which have opened up new and greater possibilities in this respect. The tendencies like the above in the penal policy raise some doubts as to their effectiveness and moral validity. They seem to convey impression that the penal measures in Poland have been undergoing a process of accelerated devaluation. It looks as if in order to attain the same aims of penal policy simultaneous application of the ever increasing measures in ever increasing doses should be resorted to. It is most doubtful whether such a devaluation really takes place as similar results were obtained earlier by means of less severe penal measures. One cannot escape the impression that the present penal policy in Poland is characterised by a certain extravagancy manifesting itself in the above accumulation of various forms of repressiveness instead of making an attempt to use them in an alternative way. The future development of Polish penal policy calls for a fundamental analysis and gradual reorientation.

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1 Archiwum Kryminologii

1 1982

1 Jasiński J.

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Przemiany polityki karnej sądów powszechnych rozwijanej na tle przepisów nowej kodyfikacji karnej (1970-1980)