Przestępczość polityczna - zarys problematyki

• Authors: Lech Falandysz , Krzysztof Poklewski- Koziełł

Title variants

EN

Political crime - an outline of the problem

• Languages of publication: PL

Abstracts

PL

              The interest in political crime has been growing in the Polish doctrine of penal law and criminology of the 1980's. In 1982, the Institute of Penal Law of  Warsaw university organized a conference dealing with the problems of political crime and the status of political prisoners. In 1984, the works of J. Kubiak and S. Hoc were published, with those of T. Szymanowski and S. Popławski to follow during the next two years. In 1986, articles by Z. Ciepiński and S. Pawela appeared in the organ of the Academy’s of Internal Affairs Institute of Law, and the Learned Society for Penal Law devoted one of its 1987 session to the problems of political crime. The present paper formulates and develops the main threads of the lectures delivered in 1982 and 1987 by the present authors.                Accepting the opinions of O. Kirchheimer and S. Schafer, classical in a sense, as to the extreme complexity of political crime and the impossibility of formulating a universal criterion basing on which such crime might be distinguished, we give an outline of the chief elements of that interesting social phenomenon.               The oldest Roman legal constructions of proditio and perduellio were transformed during the period of empire into crimen leasae maiestatis, an institution that was to persist for centuries to come in the shape of offences against state or the ruler. The origins of the modern history of political crime as a separate legal category date back to the end of the 18th century and the changes brought about by the French Revolution. In the early half of the 19th century, France and Belgium were the first to grant to political offences a privileged status among  prohibited acts, introducing the competence of assizes, a separate system of penalties, and abolishing death penalty towards political offenders; this also took place in several other European countries. The privilege of political offences was based mainly on their distinct motives and their perpetrators personality traits.                The 19th-century optimism and romanticism of approach towards political crime paled in the late half of the century as the surge of anarchistic and revolutionary movements grew. The legal status of a political offender started to worsen; the great 20th-century dictatorships were tragic to their real and supposed antagonists, treated with particular severity so as to terrify the citizens. In about two centuries of modern history, the legal category of political offence went through all possible extremes: now the time has come to reconsider it.                A general, universal and timeless definition of political offence does not seem possible, even the most extreme of its forms being relativistic. Offenders called by some ,,terrorists’’ are ,,fighters for liberty’’ in the eyes of others. On the other hand,  state terror is sometimes given the neutral name of ,,special operation’’ or ,,new policy’’. Last of all, one might also say quoting the extreme section of radical criminology that there is a political entanglement to all offences, administration of justice being an instrument of politics. Also the opposite is sometimes contended, namely, that political crime does not exist at all, enemies of the system being common criminals or madmen. There is also a marked trend to exclude terrorism, war crimes, and genocide from the discussed definition.                In international law, the notion of political crime is purely functional: the separate states base on it when refusing extradition and granting political asylum. As regards the internal penal legislation, some states only distinguish political offence as a legal notion. There are in the doctrine of penal law three basic methods of defining that notion. According to the objective approach, the kind good being assaulted constitutes the essence of political crime: thus the group of such acts is restricted to direct attempts against the state's basic political interests only. According to the second conception, the subjective one political crime is any prohibited act committed for political motives or to political end. The third, mixed theory consists in taking both these aspects into account: the interest protected by law and the perpetrator's ideological motivation or aims which cannot be recognized as censurable. Additionally, the preponderance or domination theory allows for a punishable act to be recognized as a political offence if political elements prove to have predominated in the given circumstances, aims, and motives.                Robert Merton's was the most successful attempt to characterize a political (nonconformist) offender. Contrary to the common offender, his political counterpart 1) makes no effort whatever to hide his infringement of norms he repudiates or questions as to their legal validity; 2) he wants to replace the norms he considers wrong with other norms based on a different moral foundation; 3) his aims are completely or largely disinterested; 4) he is commonly perceived as quite different a person than a common offender. If we broaden the notion of ,,nonconformist" by adding adjectives like ,,religious" and ,,ethical" to it, we bring it closer to that of ,,convictional criminal" used by Schafer and of ,,prisoner of conscience" used by the Amnesty International.                The radical trends in sociology and criminology of the recent decades brought an important element to change the aproach to political crime: an opinion is promoted that the state itself is the main source of that crime as it may use every possible legal norm and institution to fight its opponents.                As opposed to the two countries where the conception of political criminals separate status was born, France and Belgium - discussed particularly broadly by the authors of lectures - the United States repudiate in their law and law courts decisions the existence of political crime. Instead, there is ,,civil disobedience'' which, together with the specifically American constitutional mechanisms, constitutes an instrument of the struggle for the protection of civil rights and liberties. The fact is stressed in the legal and criminological literature that a refusal to recognize the political character of acts that deserve such recognition contributes to the discredit of administration of justice as the establishment's political instrument. At the same time, various methods of illegal ,,neutralization" of political opponents are brought to light, including the so-called dirty tricks of the FBI and the different forms of abuse of authority by the CIA.                In Great Britain, there is according to the official standpoint no political crime in the light of penal law. But the problem itself does exist in practice which is evidenced among others by the quest - a feverish one at times - after the measure to control the difficulties resulting from it; among such measures, there are administrative acts or on appropriate interpretation of the existing regulations, e.g. rules of imprisonment. The doctrine of penal law and criminology do not seem too interested in the discussed problem; its treatment by L. Radzinowicz and R. Hood is no doubt an exception, particularly if we consider the fates of the activists of the three socio-political movements before World War I: Chartists who fought for workmen’s rights, Fenians who demanded the grant of rights to the Irish, and suffragists. Despite the fact that the problem is only treated in its historical aspect, materials of immediate interest can be drawn from its analysis.                In the Federal Republic of Germany, political crime lacks a separate status: yet a growth in the interest in such crime can be observed. This was particularly true in the seventies and was due to the activities of terrorist groups and to students protests. Also G. Radbruch’s conception of ,,convictional criminal’’ plays a certain part there, among intellectuals with leftist tendencies above all. Also in that country, the discussion grows especially important about the relation between the powerful and the powerless. Another significant point is H. J. Schneider’s demand for the problems of political crime to be granted a privileged position in criminological research. Considering the aspects of that crime in their broad interpretation, Schneider found it possible to include both terrorism and genocide in his discussion; thus, for the first time ever, a profound treatment of Nazi crimes was included in the West-German criminology.                In Poland, after the country regained independence in 1918, several different laws were in force for over ten years concerning political crime and prisoners, in a difficult internal situation. In 1931, uniform rules of imprisonment entered into force which provided for no mitigation for political prisoners. The penalty of arrest, introduced by the 1932 penal code admittedly included certain elements of the status of a political prisoner, but the opposition’s struggle for its proper formulation went on till the outbreak of World War II.                After the war, ,,counter-revolutionaries’’ and ,,traitors of the nation’’ were treated with utmost severity. This situation in which political opponents were so treated on a mass scale ended with the fall of Stalinism. The recent Polish discussion about the notion and status of political prisoner dates from the events  of 1980-1981. Many were not aware at that time that there had been in the 1970’s in Poland a partial legal regulation of the special status of persons defined as perpetrators of political offences. It followed from the fact that Poland ratified in 1958 the ILO Convention No. 105 and that in consequence, the Minister of Justice issued an appropriate order. In the provisions of the decree (issued on the imposition of martial law on December 13, 1981) on remittal and forgiveness of certain offences, those ,,committed for political reasons’’ were mentioned amond  others. Thus the lawyers could argue that the notion of political offence was know to the legislator, the only problem consisting in providing a more detailed legal regulation of that sphere. But the authorities chose a different solution. At the beginning, those convicted of the sc-called ,non-criminal" acts were granted an actual (and not legal) status of political prisoners. Later on, most of such persons were released from prison by the terms of the succeeding amnesty acts. in 1986, the Act on ,,decriminalization'' transferred the competence to decide in most of those cases to misdemeanour courts.                The interest in the problems of political crime, increased since 1982, still persists in the circles of the Polish doctrine of penal law and criminology. There is a general trend to give that notion a broader interpretation as compared with the present doctrine of penal law which practically limits its range to offences against the  state's basic political and economic interests only.                We believe the Polish doctrine of penal law; criminology and legislation in Poland now face at least three basic questions: 1) whether to introduce into the law a special status of political offenders and prisoners in its traditional construction; 2) whether to recognize similarly a privileged legal situation of a larger group of ,,ideological nonconformists" mentioned by the ILO Convention No. 105;3) whether and to what extent to include in the notion of political offence the prohibited acts committed by state functionaries while exercising authority.

EN

The interest in political crime has been growing in the Polish doctrine of penal law and criminology of the 1980's. In 1982, the Institute of Penal Law of  Warsaw university organized a conference dealing with the problems of political crime and the status of political prisoners. In 1984, the works of J. Kubiak and S. Hoc were published, with those of T. Szymanowski and S. Popławski to follow during the next two years. In 1986, articles by Z. Ciepiński and S. Pawela appeared in the organ of the Academy’s of Internal Affairs Institute of Law, and the Learned Society for Penal Law devoted one of its 1987 session to the problems of political crime. The present paper formulates and develops the main threads of the lectures delivered in 1982 and 1987 by the present authors.                Accepting the opinions of O. Kirchheimer and S. Schafer, classical in a sense, as to the extreme complexity of political crime and the impossibility of formulating a universal criterion basing on which such crime might be distinguished, we give an outline of the chief elements of that interesting social phenomenon.               The oldest Roman legal constructions of proditio and perduellio were transformed during the period of empire into crimen leasae maiestatis, an institution that was to persist for centuries to come in the shape of offences against state or the ruler. The origins of the modern history of political crime as a separate legal category date back to the end of the 18th century and the changes brought about by the French Revolution. In the early half of the 19th century, France and Belgium were the first to grant to political offences a privileged status among  prohibited acts, introducing the competence of assizes, a separate system of penalties, and abolishing death penalty towards political offenders; this also took place in several other European countries. The privilege of political offences was based mainly on their distinct motives and their perpetrators personality traits.                The 19th-century optimism and romanticism of approach towards political crime paled in the late half of the century as the surge of anarchistic and revolutionary movements grew. The legal status of a political offender started to worsen; the great 20th-century dictatorships were tragic to their real and supposed antagonists, treated with particular severity so as to terrify the citizens. In about two centuries of modern history, the legal category of political offence went through all possible extremes: now the time has come to reconsider it.                A general, universal and timeless definition of political offence does not seem possible, even the most extreme of its forms being relativistic. Offenders called by some ,,terrorists’’ are ,,fighters for liberty’’ in the eyes of others. On the other hand,  state terror is sometimes given the neutral name of ,,special operation’’ or ,,new policy’’. Last of all, one might also say quoting the extreme section of radical criminology that there is a political entanglement to all offences, administration of justice being an instrument of politics. Also the opposite is sometimes contended, namely, that political crime does not exist at all, enemies of the system being common criminals or madmen. There is also a marked trend to exclude terrorism, war crimes, and genocide from the discussed definition.                In international law, the notion of political crime is purely functional: the separate states base on it when refusing extradition and granting political asylum. As regards the internal penal legislation, some states only distinguish political offence as a legal notion. There are in the doctrine of penal law three basic methods of defining that notion. According to the objective approach, the kind good being assaulted constitutes the essence of political crime: thus the group of such acts is restricted to direct attempts against the state's basic political interests only. According to the second conception, the subjective one political crime is any prohibited act committed for political motives or to political end. The third, mixed theory consists in taking both these aspects into account: the interest protected by law and the perpetrator's ideological motivation or aims which cannot be recognized as censurable. Additionally, the preponderance or domination theory allows for a punishable act to be recognized as a political offence if political elements prove to have predominated in the given circumstances, aims, and motives.                Robert Merton's was the most successful attempt to characterize a political (nonconformist) offender. Contrary to the common offender, his political counterpart 1) makes no effort whatever to hide his infringement of norms he repudiates or questions as to their legal validity; 2) he wants to replace the norms he considers wrong with other norms based on a different moral foundation; 3) his aims are completely or largely disinterested; 4) he is commonly perceived as quite different a person than a common offender. If we broaden the notion of ,,nonconformist" by adding adjectives like ,,religious" and ,,ethical" to it, we bring it closer to that of ,,convictional criminal" used by Schafer and of ,,prisoner of conscience" used by the Amnesty International.                The radical trends in sociology and criminology of the recent decades brought an important element to change the aproach to political crime: an opinion is promoted that the state itself is the main source of that crime as it may use every possible legal norm and institution to fight its opponents.                As opposed to the two countries where the conception of political criminals separate status was born, France and Belgium - discussed particularly broadly by the authors of lectures - the United States repudiate in their law and law courts decisions the existence of political crime. Instead, there is ,,civil disobedience'' which, together with the specifically American constitutional mechanisms, constitutes an instrument of the struggle for the protection of civil rights and liberties. The fact is stressed in the legal and criminological literature that a refusal to recognize the political character of acts that deserve such recognition contributes to the discredit of administration of justice as the establishment's political instrument. At the same time, various methods of illegal ,,neutralization" of political opponents are brought to light, including the so-called dirty tricks of the FBI and the different forms of abuse of authority by the CIA.                In Great Britain, there is according to the official standpoint no political crime in the light of penal law. But the problem itself does exist in practice which is evidenced among others by the quest - a feverish one at times - after the measure to control the difficulties resulting from it; among such measures, there are administrative acts or on appropriate interpretation of the existing regulations, e.g. rules of imprisonment. The doctrine of penal law and criminology do not seem too interested in the discussed problem; its treatment by L. Radzinowicz and R. Hood is no doubt an exception, particularly if we consider the fates of the activists of the three socio-political movements before World War I: Chartists who fought for workmen’s rights, Fenians who demanded the grant of rights to the Irish, and suffragists. Despite the fact that the problem is only treated in its historical aspect, materials of immediate interest can be drawn from its analysis.                In the Federal Republic of Germany, political crime lacks a separate status: yet a growth in the interest in such crime can be observed. This was particularly true in the seventies and was due to the activities of terrorist groups and to students protests. Also G. Radbruch’s conception of ,,convictional criminal’’ plays a certain part there, among intellectuals with leftist tendencies above all. Also in that country, the discussion grows especially important about the relation between the powerful and the powerless. Another significant point is H. J. Schneider’s demand for the problems of political crime to be granted a privileged position in criminological research. Considering the aspects of that crime in their broad interpretation, Schneider found it possible to include both terrorism and genocide in his discussion; thus, for the first time ever, a profound treatment of Nazi crimes was included in the West-German criminology.                In Poland, after the country regained independence in 1918, several different laws were in force for over ten years concerning political crime and prisoners, in a difficult internal situation. In 1931, uniform rules of imprisonment entered into force which provided for no mitigation for political prisoners. The penalty of arrest, introduced by the 1932 penal code admittedly included certain elements of the status of a political prisoner, but the opposition’s struggle for its proper formulation went on till the outbreak of World War II.                After the war, ,,counter-revolutionaries’’ and ,,traitors of the nation’’ were treated with utmost severity. This situation in which political opponents were so treated on a mass scale ended with the fall of Stalinism. The recent Polish discussion about the notion and status of political prisoner dates from the events  of 1980-1981. Many were not aware at that time that there had been in the 1970’s in Poland a partial legal regulation of the special status of persons defined as perpetrators of political offences. It followed from the fact that Poland ratified in 1958 the ILO Convention No. 105 and that in consequence, the Minister of Justice issued an appropriate order. In the provisions of the decree (issued on the imposition of martial law on December 13, 1981) on remittal and forgiveness of certain offences, those ,,committed for political reasons’’ were mentioned amond  others. Thus the lawyers could argue that the notion of political offence was know to the legislator, the only problem consisting in providing a more detailed legal regulation of that sphere. But the authorities chose a different solution. At the beginning, those convicted of the sc-called ,non-criminal" acts were granted an actual (and not legal) status of political prisoners. Later on, most of such persons were released from prison by the terms of the succeeding amnesty acts. in 1986, the Act on ,,decriminalization'' transferred the competence to decide in most of those cases to misdemeanour courts.                The interest in the problems of political crime, increased since 1982, still persists in the circles of the Polish doctrine of penal law and criminology. There is a general trend to give that notion a broader interpretation as compared with the present doctrine of penal law which practically limits its range to offences against the  state's basic political and economic interests only.                We believe the Polish doctrine of penal law; criminology and legislation in Poland now face at least three basic questions: 1) whether to introduce into the law a special status of political offenders and prisoners in its traditional construction; 2) whether to recognize similarly a privileged legal situation of a larger group of ,,ideological nonconformists" mentioned by the ILO Convention No. 105;3) whether and to what extent to include in the notion of political offence the prohibited acts committed by state functionaries while exercising authority.

Keywords

PL

przestępczość polityczna; czyny zabronione; historia; prawo karne; kryminologia; przywilej; terror; regulacje prawne; political crime; prohibited acts; history; criminal law; criminology; privilege; legal regulation; przestępczość polityczna; czyny zabronione; historia; prawo karne; kryminologia; przywilej; terror; regulacje prawne; political crime; prohibited acts; history; criminal law; criminology; privilege; legal regulation

EN

political crime; prohibited acts; history; criminal law; criminology; privilege; legal regulation

• Publisher: Instytut Nauk Prawnych PAN / Institute of Legal Studies PAN
• Journal: Archiwum Kryminologii
• Year: 1989
• Issue: XVI
• Pages: 189-210

Dates

published

1989-05-16

Contributors

author

Lech Falandysz

author

Krzysztof Poklewski- Koziełł

References

• Allen F.A., The Crimes of Politics. Political Dimensions of Criminal Justice, Cambridge, Massachusetts 1974.
• Ancel M., Le crime politique et le droit pénal du XXe siècle, ,,Revue d'Histoire Politique et Constitutionnelle” 1938, nr 1.
• Andrejew I., Polskie prawa karne w zarysie, wyd. VII, Warszawa 1986.
• Bonn R.L., Criminology, New York-Hamburg-Johannesburg 1984.
• Ciopiński Z., Pawela S. (red.), Prawnokarna ochrona, interesów państwa. Wybrane zagadnienia, Warszawa 1987.
• Ciopiński Z., Przestępstwo polityczne w ujęciu porównawczym, ,,Zeszyty Naukowe ASW” 1986, z. 45.
• Dekret z dnia 12 grudnia 1981 r. o przebaczeniu i puszczeniu w niepamięć niektórych przestępstw i wykroczeń, Dz. U. z 1981 r. Nr 29 poz. 158.
• Dz. Urz. Min. Sprawiedl. nr 20 z dnia 15 października 1922.
• Dz. Urz. Min. Sprawiedl. z dnia 30 czerwca 1978 nr 2 poz. 9.
• Falandysz L., W kręgu kryminologii radykalnej, Wiedza Powszechna, Warszawa 1986.
• Findlay M., ,,Criminalization” and the Detention of ,,Political Prisoners” - An Irish Perspective, ,,Contemporary Crises” 1985, nr 9.
• Glaser S., Geneza pojęcia przestępstwa politycznego, ,,Palestra” 1926, nr 8-9.
• Hoc S., Przestępstwo polityczne. Koncepcje teoretyczne i ustawowe, ,,Zeszyty Naukowe Akademii Spraw Wewnętrznych” 1984, z. 37.
• Jowitt, W.A.E., Walsh C., The Dictionary of English Law, Sweet & Maxwell, London 1959.
• Kaiser G i in. (red.), Kleines Kriminologisches Wörterbuch, 2. völlig neubearbeitete und erweiterte Auflage, C.F. Mller, Juristischer Verlag, Heidelberg 1985.
• Kirchheimer O., Political Justice. The Use of Legal Procedure for Political Ends, Princeton University Press, Princeton, New Jersey 1961.
• Kittrie N.N., A New Look at Political Offenses and Terrorism [w:] S.F. Landau, L. Sebba (red.), Criminology in Perspective, Lexington Books, Lexington-Toronto 1977.
• Krisberg B., Crime and Privilege. Toward a New Criminology, Englewood Cliffs, N. J. 1975.
• Kubiak J.R., Geneza i teorie przestępstwa politycznego, ,,Palestra” 1984, nr 12.
• Lemouland J.J., Les critères jurisprudentiels de l’infraction politique, ,,Revue de Science Criminelle et de Droit Pénal Comparé”, 1988, nr 1.
• Merton R.K., Teoria socjologiczna i struktura społeczna, Wydawnictwo Naukowe PWN, Warszawa 1982.
• Neymark E., O metodę traktowania przestępców politycznych, ,,Palestra” 1925, nr VII-VIII.
• Pawela S., Sytuacja prawna osoby pozbawionej wolności, „Zeszyty Naukowe Akademii Spraw Wewnętrznych” 1986, z. 45.
• Poklewski-Koziełł K., Przestępczość polityczna a polityka kryminalna, Sprawozdanie, ,,Państwo i Prawo” 1987, nr 12.
• Popławski S., Przestępstwa polityczne, „Zeszyty Naukowe Akademii Spraw Wewnętrznych” 1986, z. 42.
• Proal L., La criminalité politique, F. Alcan, Paris 1895.
• Quinney R., Criminology, wyd. II, Little, Brown, Boston-Toronto 1979.
• Radbruch G., Der Überzeugungsverbrecher, ,,Zeitschrift für die gesamte Strafrechtswissenschaft” 1924, t. 44.
• Radbruch G., Einführung in die Rechtswissenschaft, wyd. XIII, K.F. Koehler, Stuttgart 1980.
• Radbruch G., Zarys filozofii prawa, Księgarnia Powszechna, Warszawa-Kraków 1938.
• Radzinowicz L., Hood R., A History of English Criminal Law and its Administration from 1750, vol. 5, The Emergence of Penal Policy, Stevens & Sons, London 1986.
• Rasch W., Die Gestaltung der Haftbedingungen für politisch motivierte Täter in der Bundesrepublik Deutschland, ,,Monatschrift für Kriminologie und Strafrechtsreform”1976, z. 2-3.
• Roebuch J., Weeber S.G., Political Crime in the United States. Analysing Crime by and against Government, New York-London 1978.
• Ryszka F., Historia państwa i prawa Polski 1918-1939. Część II, Państwowe Wydawnictwo Naukowe, Warszawa 1968.
• Rzepliński A., Kodeks karny wykonawczy. Autorski projekt nowelizacji, IPSiR, Warszawa 1986.
• Schafer S., The Political Criminal. The Problem of Morality and Crime, Free Press, New York-London 1974.
• Schneider H.J., Kriminologie, De Gruyter, Berlin-New York 1987.
• Skupiński J., Konwencja ONZ z 10 XII 1984 przeciwko torturom oraz innym formom nieludzkiego traktowania, ,,Państwo i Prawo” 1986, nr 11.
• Stefanowicz K., Sprawozdanie, ,,Państwo i Prawo” 1983, nr 2.
• Szabo D., Criminologie et politique criminelle, Presses de l'Université de Montréal, Paris-Montreal 1978.
• Szymanowski T., Prawa i obowiązki więźniów politycznych (Rzeczywistość i postulaty) [w:] S. Walczak (red.), Spory wokół reformy więziennictwa, Uniwersytet Warszawski, Warszawa 1985.
• Thio A., Deviant Behavior, Boston-Geneva-London 1983.
• Turk A.T., Political Criminality. The Defiance and the Defense of Authority, Beverly Hills-London-New Delhi 1982.
• Ustawa z dnia 24 października 1986 o zmianie niektórych przepisów prawa o wykroczeniach, Dz.U. z 1986. Nr 39, poz. 193.
• Waillez G., L'infraction politique en droit positif belge, Vander, Louvain 1970.
• Wierzbicki B., Pojęcie przestępstwa politycznego w prawie międzynarodowym, Państwowe Wydawnictwo Naukowe, Warszawa 1979.

Identifiers

DOI

10.7420/AK1989D