On the absurdities of Article 57b of the Penal Code after the amendment to a continuous act

Introduction

It would seem that living in a democratic state ruled by law such as Poland will avoid discussions similar to those taking place around the controversial amendment to the Penal Code proposed in May 2019. In particular, the amendment of Article 57b of the Criminal Code should be carefully examined. Article 57b has become an independent basis for extraordinary tightening of the penalty for a continuous act according to Article 12 § 1 of the Criminal Code.

Many opinions have already been written on this subject. However, few texts are directed to the man on the street. It seems to be fully justified to edit a work intended for those less initiated, interested in the shape and level of the law enacted in Poland.

Selected articles of the current Polish Criminal Code

Art.  12.

  • 1. Two or more actions, performed in short time-intervals, pursuant to a premeditated intent, are deemed to constitute a single prohibited act; if a personal interest is the subject of an attack, the multiple actions are deemed to constitute a single prohibited act only in case of identicalness of a harmed party.
  • 2. Whoever commits, by taking advantage of the same opportunity or in a similar manner, in short time-intervals two or more intentional contraventions against property, if the combined value of the property justifies liability for a crime, is liable as for one prohibited act fulfilling the elements of a crime.

Art.  57b.

While sentencing for a crime referred to in art. 12 § 1 the court imposes a penalty that exceeds the lowest statutory penalty provided for a crime attributed to the perpetrator, and may impose a penalty exceeding the upper limit of the statutory penalty two-fold.

Art.  91.

  • 1. If the perpetrator has committed, in short time intervals, two or more crimes by taking advantage of the same opportunity before the first sentence, even a non-final one, regarding any of these crimes has been issued, the court imposes a single penalty provided for in a provision prescribing penalty for each of these crimes, in the extent that may exceed the upper limit of the statutory penalty by half.
  • 2. If the perpetrator has committed, under the conditions provided in art. 85, two or more sequences of crimes referred to in § 1, or has committed a sequence of crimes and other crime, the court imposes an aggregate penalty by applying the provisions of this chapter accordingly.
  • 3. If the perpetrator has been sentenced in two or more sentences for the crimes constituting the sequence of crimes provided for in § 1, the imposed aggregate penalty may not exceed more than by half the upper limit of the statutory penalty provided for in a provision prescribing penalty for each of these crimes.

 

Briefly about the history of the amendment itself and a few institutions of criminal law

Each act leads its way in the legislative process through the Sejm (legislative body). Then the Senate. Below is the table that outlines the differences between the provisions related to Article 57b. Changes held place both over the years and in May 2019.

Criminal Code of 1968
Article 58 In the event of a conviction for a continuing crime (which no longer exists, as discussed in more detail below), the court may impose a penalty up to the highest statutory risk increased by half, but not exceeding the limit given type of penalty.
Criminal Code of 1997
No regulation
2019 amendment
Article 57b While sentencing for a crime referred to in art. 12 § 1 the court imposes a penalty that exceeds the lowest statutory penalty provided for a crime attributed to the perpetrator, and may impose a penalty exceeding the upper limit of the statutory penalty two-fold.

 

The first issue that should be clarified at the outset is the definition of a “continuous act” defined in Article 12 § 1 of the Penal Code. This institution derives from the previously used structure of a continuous offence in the 1968 Penal Code, divided in the 1997 Penal Code into a continuous act and a sequence of crimes (Article 91 of the current Penal Code). A “continuous act” allows classifying a series of more minor behaviours carried out over time, locked with a predetermined intention, as one crime. On the other hand, a “sequence of offences” is a structure that allows imposing one penalty for all crimes of the same kind committed in quick succession using the same opportunity. Article 57b of the amendment to the Penal Code concerns only the first case, which raises the problems discussed in more detail below. Since the institution under Article 12 § 1 of the Criminal Code in principle was introduced to allow for the punishment of many small behaviours that do not fulfil a prohibited act’s features on their own. They only together constitute the implementation of all the features of a crime. The question arises: why carrying out an offence in this way should be the basis for an extraordinary tightening of the penalty provided for in Article 57b of the amendment?

The source of Article 57b is a criminal and political reason, which has been raised many times in both jurisprudence and doctrine. The higher social harmfulness of a continuous act is indicated, among other things. Are these arguments valid? Not necessarily. Why a three-time theft of PLN 200 should be more harmful than a single theft of PLN 3000. These arguments show a lack of understanding of the institution of a continuous act based on entirely different reasons than those presented when justifying the amendment.

Moreover, Article 91 of the Criminal Code’s omission governing the “sequence of crimes” raises even more doubts. It leads to entirely absurd situations. A person who performs the features of theft under the conditions of a “continuous act” is treated much more severely than a person who carries the theft offence features as a “sequence of crimes” three times. The person does not have to be a criminalist to notice the paradox and disturbance of the principle of equality before the law, which is brought about by introducing Article 57b of the Criminal Code. Paradoxically, it is now more “profitable” for criminals to steal more, but in one go, than to carry out a few small thefts. It would also be more “profitable” to prove that the same crimes were committed not “as a result of a predetermined intention” but only “using” the same opportunity. Referring to a series of crimes under Article 91 of the Penal Code, Article 57b of the Penal Code does not apply.

The Constitution of the Republic of Poland safeguards many guarantees of the fundamental rights of the citizen. Above mentioned violation of the principle of equality before the law and the principle of proportionality, which more or less boils down to the statement that: “human rights and freedoms may be limited only when it is necessary and indispensable in a democratic state ruled by law, for its security or public order, or protection of the environment, health and public morals, or the freedoms and rights of other persons (Article 31 (3) of the Constitution)”. The principle of judicial discretion was also significantly violated by the amendment’s mechanisms, including Article 57b of the Criminal Code, which is striking with its severity and automatism. The judge was significantly limited by imposing on him several obligations to tighten the sentence, including recidivists, hooligan crimes, or just a continuous act. In each of the provisions mentioned above, requirements were introduced concerning mandatory higher thresholds of a penalty’s lower risk. The doubling of the upper limit of the penalty is also controversial. Such a severe restriction has not been known to the Penal Code so far but was only provided for in the Fiscal Penal Code in strictly defined types of prohibited acts.

The Senate of the Republic of Poland withdrew from the idea of increasing the lower limit by half but still left it higher than initially. The Senate amendment was undoubtedly a step in the right direction but did not solve the significant problems.

The absurd solution’s source may be the incorrect interpretation of Article 12 of the Criminal Code, which representatives of the amendment’s originators promoted during legislative work. It is evidenced by the public prosecutor’s statement of the National Public Prosecutor’s Office, who said during a press conference on May 22, 2019, that: “referring to Article 12 nota bene of the Penal Code, i.e. the so-called continuous act, concerning which the draft act defines in Article 57b the rules of the penalty, raised as something that will be much more severe treatment of a one-time thief for an immense amount than, for example, a thief who steals in a short time. An interval of two times 300 zlotys (…) and then Article 57b will apply to this thief, which slightly raises the limits of the penalty “. Unfortunately, such a translation of the amendment was flawed because the described situation is not referred to in Article 12 § 1 of the Penal Code. The amended of Article 57b applies, but only to Article 12 § 2. The latter provision may only be applied in situations where § 1 does not apply. Thus, Article 57b will never apply to the above statement’s situations by a representative of the National Public Prosecutor’s Office. When enacting the amendment, senators and deputies did not know about the law’s negative consequences being passed.

Description of the problem using examples

In order to better understand the effects of the amendment, three exemplary facts are presented below.

In the first situation, the perpetrator, acting in “preconceived intent”, steals PLN 1,000 at short intervals three times, thus fulfilling the prohibited act’s features under Article 278 § 1 of the Criminal Code in connection with Article 12§1 of the Criminal Code (under the conditions of “continuous act”).

In the second situation, the theft is made in one act, and the thief steals PLN 180,000 at a time.

In the third situation, the perpetrator commits two completely independent thefts, each of PLN 10,000 “using the same opportunity”  at short intervals (“sequence of crimes”).

Application of the amended provisions will cause in the first case that the perpetrator will be liable for between 4 months and 10 years, in the second – from 3 months to 5 years, and in the third – from 3 months to 7 years and 6 months.

At first glance, it is clear that the differentiation of these penalties is irrational and disproportionate. It has far-reaching consequences. The accused will want to prove that committing a crime was created twice (the intention is a matter of the subjective party much more difficult to prove in a criminal trial). Simultaneously, it will be more profitable to steal a large amount once than to steal lower amounts more than once. Considering Article 12 § 2 of the Criminal Code, the most “profitable” will be to commit several offences not covered by one intention: five thefts of 200 zlotys, but not three for 500 zlotys. Additionally, it should be noted that the same circumstance affecting the penalty will be taken into account twice. Both when creating a few offences as a crime committed under the conditions of a “continuous act” and later with the penalty itself, which seems unacceptable under the Penal Code and assuming the existence of a “rational legislator”.

Summary

The problems mentioned earlier lead to the conclusion that the amended Article 57b of the Criminal Code is an irrational solution, leading to the violation of the principle of equality, which is upheld not only by the Penal Code but also by the Constitution itself. When reading the amendments and understanding the nature of the problem, one should consider whether there are limits that the ordinary legislator cannot exceed when passing laws.

All the values ​​that have been fought for so long should not be forgotten, and amendments to such essential laws as the Penal Code should never be introduced in a hurry and without appropriate expert preparation. One should only express hope that shortly, legal circles will become interested in the resulting problem, as the consequences of such changes apply to each of us. It remains with concern and attention to observe the further fate of subsequent amendments to the Penal Code.

Author: Wiktoria Forystek

Bibliography

  1. Opinia RPO dla Senaty ws zmian w prawie karnym, 20 maja 2019
  2. Opinia prof.dr.hab. Mirosłała Wykrzykowskiego ws zmian w prawie karnym, 23 maja 2019
  3. Opinia dr hab. Teresy Gardockiej ws zmian w prawie karnym, 22 maja 2019
  4. Opinia Krakowskiego Instytutu Prawa Karnego, 20 maja 2019
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