Search results

1

Warunkowe zawieszenie wykonania kary po nowelizacji k.k. i k.k.w. — z perspektywy zadań kuratora sądowego

100%

Niewidomska-Krawczyk M.

Nowa kodyfikacja prawa karnego

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2015

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vol. 36

123 - 138

PL

This article refers to the changes of regulations in Polish penal law connected with conditional suspension of sentence and execution of such sentence. The paper describes the main problems that may occur during execution of such sentences by probation officers.

2

Uprawnienie posła pozbawionego wolności do otrzymywania diety i uposażenia poselskiego

88%

Odrowąż-Sypniewski W.

Zeszyty Prawnicze BAS

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2018

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issue 3(59)

172-177

EN

According to Article 5a of the Act on the Exercise of the Mandate of a Deputy or Senator at the time of deprivation of liberty the Deputy is not entitled to receive parliamentary per diem allowance or a salary. The period of preliminary custody is calculated from the date of detention. An expiry of the period of preliminary custody or repealing of the decision by a court restores to the Deputy a full enjoyment of rights and obligations, and thus enables to receive a parliamentary per diem allowance and a Deputy’s salary.

3

Detention as an isolation coercive measure

75%

Jędruch J.

Zamojskie Studia i Materiały – Seria Pedagogika

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2014

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vol. 16

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issue 1

101-105

EN

Detaining a person, both in the course of pending proceedings and in other situations, is one of most crucial activities which fall within the competence of enforcement agencies. On the one hand detention exerts a significant impact on the pending proceedings or other actions undertaken by authorized organs, and on the other hand, regardless of its form, it affects the citizens’ rights guaranteed by the Constitution.

PL

Zatrzymanie osoby, zarówno w ramach toczącego się procesu, jak i poza nim, stanowi jedną z najbardziej newralgicznych czynności znajdujących się w kompetencji organów ścigania. Z jednej bowiem strony wywiera ono wymierne skutki dla toczącego się postępowania czy innych działań podejmowanych przez uprawnione organy, z drugiej zaś, niezależnie od formy, wkracza w konstytucyjnie gwarantowane praw obywateli. Autor opisuje samą istotę zatrzymania jak również zwraca uwagę na zatrzymanie procesowe i jego rodzaje.

4

Trójstronność przestępstwa wzięcia zakładnika. O niemożności kumulowania roli zakładnika oraz podmiotu szantażowanego

75%

Giezek J., Lipiński K.

Prawo w Działaniu

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2022

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issue 49

EN

The authors raise the issue of the structure of the offense of taking a hostage, trying to answer the question of whether it is possible to conclude that the offense under Art. 252 CC would be committed in a situation where the subject compelled to behave in a certain manner is the hostage itself. Using linguistic and systemic arguments, they answer the question in the negative way. This is mainly due to the dictionary definition of the term “hostage”, as well as the international legal context which imposed the introduction of Art. 252 (offense of taking a hostage) to the Criminal Code.

PL

Autorzy poruszają kwestię konstrukcji przestępstwa wzięcia zakładnika, próbując udzielić odpowiedzi na pytanie, czy możliwe jest stwierdzenie realizacji znamion typu czynu zabronionego z art. 252 k.k. w sytuacji, w której podmiotem zmuszanym do określonego zachowania się miałby być sam zakładnik. Posługując się argumentami o charakterze językowym oraz systemowym, formułują odpowiedź przeczącą. Wynika ona przede wszystkim ze słownikowej definicji terminu „zakładnik”, jak również z kontekstu prawnomiędzynarodowego, który narzucił wprowadzenie konstrukcji ujętej w art. 252 do Kodeksu karnego.

5

Izolacja od społeczeństwa po odbyciu w pełni kary pozbawienia wolności

65%

Dawidziuk E.

Archiwum Kryminologii

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2019

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issue XLI/1

219-260

EN

The article describes the functioning of the National Centre for the Prevention of Antisocial Behaviour in Gostynin on the basis of interviews that the author conducted with patients there during three visits to the Centre as an employee of the Office of the Commissioner for Human Rights. It is a detention centre described as a medical facility where therapy is provided for people with mental disorders such as mental retardation, personality disorder, or sexual preferences disorder. The author describes examples of patients’ legal situations and the observance of their constitutional rights. It was organised in 2014 on the basis of legislation from 22 November 2013. That act states that the civil court shall decide whether a person who has served their entire criminal sentence a danger to society because of his/her disorders. The Constitutional Tribunal has stated in its judgements that the act, apart from one article, is consistent with the Polish Constitution. In practice, we can observe many legislative gaps or a need to change a binding law. The number of patients at Gostynin is increasing rapidly whilst the existing problems have not been solved by the legislature, who do not wish to consider the problems pointed out many times by the Commissioner for Human Rights.

PL

Artykuł opisuje funkcjonowanie Krajowego Ośrodka Zapobiegania Zachowaniom Dyssocjalnym w Gostynie na podstawie rozmów, jakie autorka przeprowadziła z pacjentami Ośrodka w czasie trzech jego wizytacji jako pracownik Biura Rzecznika Praw Obywatelskich. Ośrodek ten jest miejscem pozbawienia wolności oznaczonym jako podmiot medyczny, w którym prowadzona jest terapia dla osób z zaburzeniami psychicznymi w postaci upośledzenia umysłowego, zaburzenia osobowości lub zaburzenia preferencji seksualnych. Ośrodek został stworzony w 2014 r. na podstawie ustawy z 22 listopada 2013 r. Autorka opisuje przykłady dotyczące sytuacji prawnej kilku pacjentów Ośrodka i problemów z respektowaniem ich praw konstytucyjnych. Ustawa przewiduje, że sąd cywilny podejmuje decyzję, czy uznać osobę, która w pełni odbyła karę pozbawienia wolności, za stwarzającą zagrożenie dla społeczeństwa ze względu na zaburzenia i w dalszym ciągu pozbawiać ją wolności poprzez umieszczenie w KOZZD albo zastosować nadzór prewencyjny. Trybunał Konstytucyjny uznał przepisy ustawy, z wyjątkiem jednego, za zgodne z Konstytucją RP. W praktyce ustawa zawiera szereg luk prawnych bądź wymaga nowelizacji w zakresie obowiązujących uregulowań. Liczba pacjentów wzrasta bardzo szybko, a problemy pozostają nierozwiązane przez ustawodawcę, który nie chce się pochylić nad zgłaszanymi wielokrotnie przez Rzecznika Praw Obywatelskich zagadnieniami.

6

Glosa do uchwały Sądu Najwyższego z dnia 14 października 2015 roku – I KZP 7/15

63%

Słotwińska K.

Acta Iuris Stetinensis

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2016

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issue Acta Iuris nr 13

PL

Podjęty w glosie problem dotyczy możliwości uznania za „zbrodnię przeciwko ludzkości” (a w konsekwencji również wyłączenia biegu przedawnienia karalności) czynu zabronionego, który nie spełnia ustawowych przesłanek wskazanych w art. 118a § 2 pkt 2 k.k. Na potrzeby przeprowadzonych analiz, nakreślono niezbędny kontekst związany z ustaleniem skutków niezgodności zachodzącej pomiędzy ratyfikowaną umową międzynarodową a ustawą karną.

EN

Gloss to the resolution of the Supreme Court of 14 October 2015 of file ref. no. I KZP 7/15. Main problem of a gloss is the possibility of recognition for the „crime against humanity” and, as a result – the exclusion of the limitation period, of an offense that does not meet the statutory conditions laid down in art. 118a § 2 pt. 2 Polish Penal Code. Second problem is relations between the incompatibility of a ratified international agreement and criminal law.

7

Krótkotrwałe formy pozbawienia wolności w ujęciu konstytucyjnym i ustawowym

63%

Laskowski B.

Przegląd Prawa Konstytucyjnego

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2024

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issue 2(78)

91-101

PL

Praca jest poświęcona tematyce pozbawienia wolności i zawiera przegląd form zatrzymania jako krótkotrwałych środków przymusu przy jednoczesnym wskazaniu ograniczeń ich stosowania wynikających z uwarunkowań funkcjonalnych, praktycznych i prawnych. Wyróżnione zostało tymczasowe aresztowania jako jedyna możliwa forma pozbawienia wolności, z założenia krótkotrwała, która może przekształcić się w długotrwałą. Autor posługując się metodą badawczą analizy aktów prawnych oraz orzecznictwa dokonuje systematyki istniejących rodzajów pozbawienia wolności na tle przepisów różnych aktów prawnych oraz ich umiejscowienia w porządku konstytucyjnym. W pracy stawiane są pytania badawcze o możliwość ograniczenia wolności osobistej, wielość takich ograniczeń oraz ich celowość. Autor dochodzi do przekonania, że możliwości pozbawienia wolności człowieka na gruncie prawa polskiego są bardzo szerokie i przyznane znacznej liczbie podmiotów.

EN

The thesis is devoted to the subject of deprivation of liberty and contains an overview of forms of detention as the short-term coercive measures while indicating the limitations of their use resulting from functional, practical and legal conditions. The author, using the research method of analyzing legal acts and case law, systematically presents the existing types of deprivation of liberty against the background of the provisions of various legal acts and their location in the constitutional order. The work asks research questions about the possibility of limiting personal freedom, the multiplicity of such restrictions and their purposefulness. The author presents a conclusion that the possibilities of depriving a person of liberty under Polish law are very broad and granted to a significant number of entities.

8

Karnoprawne aspekty odzyskania wolności przez osobę prawnie jej pozbawioną w Wielkiej Brytanii i Irlandii

51%

Poniatowski P.

Ius Novum

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2020

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vol. 14

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issue 4

80-99

EN

The article presents an analysis of legal solutions that are in force in England, Wales, Scotland, Northern Ireland and the Republic of Ireland concerning an offence of self-liberation (escape) from lawful custody, an offence of unlawfully being at large after the conditional release expired or was recalled and an offence of facilitating escape from lawful custody, liberating or allowing a person to escape. The article aims to present the regulations and compare them with each other and the solutions adopted in the Polish Criminal Code. The research conducted made it possible to establish many similarities between regulations that are in force in the British Isles and between them and Articles 242 and 243 of the Polish Criminal Code.

PL

Artykuł zawiera analizę rozwiązań prawnych obowiązujących w Anglii, Walii, Szkocji, Irlandii Północnej i Republice Irlandii dotyczących przestępstwa samouwolnienia (ucieczki) osoby prawnie pozbawionej wolności, przestępstwa bezprawnego pozostawania na wolności po odwołaniu lub wygaśnięciu zezwolenia na opuszczenie miejsca izolacji oraz przestępstwa ułatwienia ucieczki osobie prawnie pozbawionej wolności, uwolnienia jej lub pozwolenia na ucieczkę. Celem opracowania jest przedstawienie omawianych regulacji i porównanie ich między sobą oraz z rozwiązaniami przewidzianymi w polskim Kodeksie karnym. Przeprowadzone badania pozwoliły ustalić wiele podobieństw między regulacjami obowiązującymi w krajach położonych na Wyspach Brytyjskich oraz między nimi a art. 242 i 243 polskiego k.k.

9

Przestępczość i polityka karna sądów w Węgierskiej Republice Ludowej

44%

Kubiak J. R.

Archiwum Kryminologii

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1987

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issue XIV

43-95

EN

There is in Hungary a many years tradition. of gathering and publishing criminal statistics and its theoretical analysis. This tradition dates back to the early 19th century. In the modern days, it was discontinued in the years 1944-1956 only. However, in 1957, the publication of the basic data of criminal statistics in Statistical Yearbooks published by the central statistical Office was started anew. As shown by an analysis of the trends of the number of convictions of adults in the years 1944-1984 based on official sources, there is a high substantial changes in these trends with changes in the provisions of the penal law and to some extent in the socio-political climate. The following can thus be noticed: A very big number of convictions in the late fourties and early fifties (with the culminating point in 1952), accompanied by rapid drops in the years when amnesty laws were passed or new provisions of the penal law were introduced. A great drop in the number of convictions in 1956 and, 1957 which was related directly first of all to the course of events before and after October 23, 1956, and to the fact that a part of the jurisdiction of common courts of law was taken over by special courts of law was taken over by special courts the activity of which is not reflected in the analysed statistical data. A relative stabilization of the number of convictions in the years of gradual socio-political consolidation ( 1958-1962). A gradual increase in the number of convictions after the entering into force of the Penal Code of 1961 and its amendment of 1971. Accompanied by intermittent drops in the amnesty years and in the years when provisions that modified the Penal Code entered into force. An increase in the number of convictions after the entering into force of the Penal Code of 1978. The rate of convictions per 100,000 of the population in 1984 was 2'5 times higher than in 1952, but not much lower than the 1961 rate. The rise in crime in the recent years is also evident in the available data from the police and public prosecutor's statistics. The number of reported offences went up by one-third in the period 1965-1985 and has a constant upward trend. Among the offences reported most numerous are offences against property (about 60 per cent of all reported offences), traffic offences (about 12-13 per cent), offences against public order (hooliganism and parasitism in particular), and offences against person (about 7-8 per cent). As compared with 1965, the number of burglaries was 3.5 times as big in the eighties, and the number of robberies - 7 . times. The number of traffic offences increased by over one-third as well. Also offences against person reveal a small upward trend, with the number of homicides being stable. However, the number of homicides in Hungary has for many years been considerably larger than the mean European figure (mean homicide rate per 100,000 of the population amounting to 3.8 in the years 1979--1983). The rise in crime concerned financial offences also (offences against the foreign currency exchange regulations, against customs regulations, tax offences) which are included in ,the group of offences against the national economy. The penal policy of the Hungarian courts has rather frequently been subject to spectacular transformations. In the early seventies, stabilization was achieved in this policy which manifested itself by a limited application of unconditional deprivation of liberty and by a broad use of fine and other measures not involving deprivation of liberty. However, the rise in crime in the eighties influenced a more frequent application of unconditional deprivation of liberty, which resulted in the growth of prison population. In 1979, the number of persons deprived of liberty amounted to 16,764 (157 per 100,000 of the population), while in 1984 the respective number was 21,884 (205 per 100.000 of the population). In Hungary, conditional suspension of the execution of the penalty of deprivation- of liberty is not as popular as in other European socialist countries. For every fifth convicted person, the execution of penalty is suspended. In 1973, the courts for the- first time passed a greater number of fines (48.8 per cent) than prison sentences (43.9 per cent). In the-following years, the share of fines in the structure of penalties even exceeded 50 per cent. However, after entering into force of the new Penal code, an unexpected drop in the number of fines took place things to the which was due among other fact that some of the petty offences were removed from the Penal Code , and that a new penal measure without deprivation of liberty, i.e. probation, was introduced. In 1983, the share of fines dropped to 40 per cent of all sentences. The Hungarian courts were most reluctant to apply the penalty of corrective and educational work as soon as the penalty was introduced in 1950. For a dozen-odd years the share of this penalty in all penalties imposed never exceeded 10 per cent. After the 1961 Penal Code was introduced the penalty of corrective and educational work showed an upward trend (up to 15,8 per cent in 1964), but later on started to fall up, to 4 per cent in 1983. In the years 1962 -1983. common courts sentenced 105 persons to death penalty, for qualified homicide in the vast majority of cases. Since 1968, this penalty has been applied exlusively towards the perpetrators of homicide. In 1984, the extent of reported crime in Hungary was similar to that found in Poland (1, 470 per 100,000 o0f the population); however, in Hungary the response to the rise in crime has been in general much more balanced and quiet.

10

Stosowanie środków specjalnych – nadzoru ochronnego i ośrodka przystosowania społecznego – wobec recydywistów skazanych w warunkach art. 60 k.k.

44%

Rzeplińska I., Szamota B.

Archiwum Kryminologii

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1982

|

issue VIII-IX

151-190

EN

The Penal Code of 1969 introduced in Chapter VIII a complex of regulations defining the criminal liability tfor offences committed in the conditions of special recidivism. Two categories of special recidivism were introduced: basic recidivism (Art. 60 § 1 of the Penal Code) and multiple recidivism (Art. 60 § 2 of the Penal Code). To assume the first category, the following criteria are required: 1) commission of an intentional offence similar to the previous one, 2) execution of at least 6 months of imprisonment, 3) commission of a new offence within 5 years after discharge from prison. To impute the offender the commission of an offence coming under the second category of recidivism, the following conditions are necessary: 1) conviction for at least the fourth time, in this twice under the conditions of basic special recidivism, 2) repeated commision of an intentional offence to profit financially or of hooligan character, 3) total imprisonment of at least one year, 4) commission of a new offence within 5 years after the last imprisonment. For each of those two categories of recidivism, the principles of aggravated criminal liability are fixed by the Code, and they refer to less - serious - offences only. Towards persons coming under Art. 60 § 1 and 2, imprisonment within the raised limits is adjudicated. Towards such persons, absolute suppression of suspension of the execution of penalty was formulated. The strictness of these regulations is partly diminished by Art. 61 of the Penal Code, which created the possibility to depart from the aggravation of penalty as expressed in Art. 60, in "particularly justified cases, when even the lowest penalty inflicted on the basis of Art. 60 § 1 and 2 of the Penal Code, would be incommensurably severe". The Code fights special recidivism also by providing special measures against special recidivists coming under Art. 69 § 1 and 2: protective supervision (called "supervision" further on) and social readaptation centre (called "centre" further on). The first of them - supervision - is a non isolating measure, consisting in the control of behavior of the supervised person in the conditions of liberty. It is adjudicated for a period of 3 to 5 years (Art. 63 § 1 of the Penal Code). The second measure - centre - is of isolating character. The duration of stay in the centre is not appointed beforehand in the sentence: it is at least 2 years, at most 5 years long. After 2 years, the recidivist may be discharged by the execution of penalty court if there are good reasons to presume that he will not commit any offence after discharge (Art. 65 of the Penal Code). Special measures are executed after the sentence has been served. The principles of application of the special measures differ as regards both categories of recidivists: those coming under Art. 60 § 1 of the Penal Code (called "common recidivists" further on) and those coming under Art. 60 § 2 (called further "multiple recidivists"). The organs authorized to adjudge these measures are the criminal and execution of penalty courts. Their decision as to adjudgement of them may be taken at various stages of legal and executive proceedings: in the sentence (criminal court), in the latter part of imprisonment (execution of penalty court), and during the supervision (execution of penalty court). The principles of application of the special measures by the court which is to pass judgement in the case are stated in Art. 62 of the Penal Code. According to § 1, the application of supervision is optional towards the offenders coming under Art. 60 § 1. The court is here at liberty to decide as to the possible measures, as no premises to adjudge supervision are specified by the regulation. As to the recidivists coming under Art. 60 § 2, the adjudgement of one of the two special measures is obligatory, that of supervision as a rule. The adjudgement of the centre takes place only if the court recognizes supervision insufficient to prevent recidivism (Art. 62 § 2 of the Penal Code). The second instance when decisions are taken as to the application of the special measures is the close of imprisonment of the recidivists. The rulings of the execution of penalty taken at this stage of the proceedings modify those taken previously - that is, in the sentence - as regards the application of the special measures. In the case of common recidivists, these modifications may consist in adjudgement of supervision if it was not adjudicated in the sentence (Art. 91 of the Code of Execution of Penalties), or - if the recidivist is released on probation - in the specific conditional simulation of the supervision adjudicated in the sentence (Art. 98 § 1 of the Penal Code). If the release on probation is not cancelled by the court, the adjudgement of supervision loses effect (Art. 98 § 2 of the Penal Code). In the case of multiple recidivists, the modifications which may take place in the latter part of imprisonment as regards the adjudication of the special measures always consist in substitution of a strict measure by a milder one: the penitentiary court may replace the adjudgement of the centre with supervision (Art. 103 of the Code of Execution of Penalties) or release multiple recidivists on probation. The third closing stage of proceedings when the decisions on application of special measures are taken is the execution of supervision. In this stage, the position of recidivists coming under Art. 60 § 1 and 2 of the Penal Code is identical: they can both be sent to the centre in consequence of failure of the supervision (Art. 64 of the Penal Code). Thus the adjudgement of the centre in consequence of failure of supervision serves here as a measure to discipline the execution of supervision. The present study was based on the data from criminal records of the Criminal Register and the Central Files of Convicted and Temporarily Arrested Persons. The material from these records enables one to notice the differences, as regards the data they include, between the groups of recidivists distinguished in respect of the special measure adjudicated towards them, and thus, to define initially the criteria for application of these measures. As a conclusion, an attempt was made to define the general range of adjudgement of the special measures towards recidivists regardless of the stage of proceedings in which it took place. The research was of cross-sectional character. The examined population consisted of recidivists (coming under Art. 60) from the entire country and selected to 3 random samples: the first sample included all recidivists whose sentences had become valid within the period from March 1 till April 30, 1979 (1181 persons), the second sample included all recidivists discharged from prison within the period from February 1 till March 31, 1979 (874 persons), and the third one - all recidivists whose supervision had been completed within the period from April 1 till May 31, 1979 (544 persons). There were the total of 2599 cases, from which 72 cases had been excluded because of the lack of complete data in the Criminal Register. The final populations of the separate samples were thus as follows: I - 1146 persons, II - 869 persons, III - 512 persons (the total of 2 527 persons). The collected material was then analysed, that is, the groups of persons were compared, distinguished on the grounds of the type of the special measure adjudicated towards them, for instance the group of multiple recidivists towards whom supervision had been adjudicated was compared with the group sent to the centre. The above comparisons were made for each sample separately, and within the sample - separately as regards the common and multiple recidivists. The method of representing the results reflects , the analysis scheme: each sample has been represented in a separate part of the present paper. The study is summed un by an attempt to estimate the general range of adjudgement of the special measures towards recidivists. The results of the estimation indicate that the application of the special measures towards recidivists is of a very broad range. As many an approximately a half of the common recidivists had been subjected to supervision; failure occurred as regards 40 per cent of the supervised persons, which makes about 1/5 of all common recidivists, and these persons came under the regulation providing the adjudgement of the centre in consequence of the failure of supervision. In 40 per cent of the cases the cause of the unsuccessful termination of supervision was the non-compliance with orders and duties by the supervised person, and in 60 per cent - commission of a new offence. As regards multiple recidivists, there were as few as 14 per cent of them towards whom no special measure whatever had been adjudicated, owing to adjudgements of the execution of penalty courts. Approximately 27 per cent of the multiple recidivists had been sent to the centre immediately from prison, while approximately 59 per cent had been subjected to supervision. In over a half of these cases supervision was unsuccessful, which makes about 1/3 of the multiple recidivists. The cause of the unsuccessful termination of supervision was in 2/3 of the cases commission of a new offence, and in 1/3 of the cases non-compliance with orders and duties.

11

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

39%

Jasiński J.

Archiwum Kryminologii

|

1982

|

issue VIII-IX

25-150

EN

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.

12

Nowe technologie w komunikacji skazanych i tymczasowo aresztowanych ze światem zewnętrznym

38%

Dawidziuk E., Kotowska K.

Archiwum Kryminologii

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2021

|

issue XLIII/2

151-194

EN

The article describes the use of the Skype electronic communicator in maintaining contact between prisoners and their relatives. The data collected by the Office of the Polish Ombudsman shows that penitentiary units have appropriate the technical capabilities to use the discussed form of social communication. Online meetings of inmates with their families have gained particular importance during the ongoing COVID-19 pandemic. The publication indicates the possibility of using electronic means of communication by convicts, as well as the difficulties in accessing these tools by remand prisoners. Attention was also paid to general access to websites by prisoners.

PL

Artykuł opisuje wykorzystanie komunikatora internetowego Skype w podtrzymywaniu kontaktu osób pozbawionych wolności z bliskimi. Z analizy zgromadzonych w Biurze Rzecznika Praw Obywatelskich danych wynika, że jednostki penitencjarne dysponują odpowiednimi możliwościami technicznymi do korzystania z tej formy komunikacji społecznej. Spotkania on-line osadzonych z rodziną nabrały szczególnego znaczenia w czasie pandemii Covid-19. W publikacji wskazano na możliwość korzystania ze środków komunikacji elektronicznej przez skazanych, jak i trudności w dostępie do tych form ze strony tymczasowo aresztowanych. Zwrócono również uwagę na generalny dostęp więźniów do stron internetowych.

13

Modyfikacja kary w postępowaniu wykonawczym

38%

Wiciński G.

Nowa kodyfikacja prawa karnego

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2017

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vol. 46

83-106

EN

According to the Corrections Code, execution of penalty or penal measure is subject to fulfillment of corrective and preventive goals. Since the 18th century, progressive tendencies regarding imprisonment indicated the need to corrective influence — motivating the perpetrator to exhibit socially-acceptable behavior in order to prevent his relapse into crime. The system of execution of deprivation of liberty (imprisonment) is called a system of slow progression, which means that the penalty can be modified in case of progress in social adaptation or lack of such. The modification process is related to many procedures during execution of penalty. Based on diverse character of such procedures, one can classify them as incidental or autonomous, the latter leading to modification of penalty, e.g. external or internal, permanent, episodic, conditional or unconditional and others, all of which optimize the possibility of fulfillment of the primary goal of the penalty, that is preventing of relapse into crime.

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Warunkowe zawieszenie wykonania kary po nowelizacji k.k. i k.k.w. — z perspektywy zadań kuratora sądowego

Uprawnienie posła pozbawionego wolności do otrzymywania diety i uposażenia poselskiego

Detention as an isolation coercive measure

Trójstronność przestępstwa wzięcia zakładnika. O niemożności kumulowania roli zakładnika oraz podmiotu szantażowanego

Izolacja od społeczeństwa po odbyciu w pełni kary pozbawienia wolności

Glosa do uchwały Sądu Najwyższego z dnia 14 października 2015 roku – I KZP 7/15

Krótkotrwałe formy pozbawienia wolności w ujęciu konstytucyjnym i ustawowym

Karnoprawne aspekty odzyskania wolności przez osobę prawnie jej pozbawioną w Wielkiej Brytanii i Irlandii

Przestępczość i polityka karna sądów w Węgierskiej Republice Ludowej

Stosowanie środków specjalnych – nadzoru ochronnego i ośrodka przystosowania społecznego – wobec recydywistów skazanych w warunkach art. 60 k.k.

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

Nowe technologie w komunikacji skazanych i tymczasowo aresztowanych ze światem zewnętrznym

Modyfikacja kary w postępowaniu wykonawczym