Amendment to the Criminal Code – October 2023

Amendment of the Penal Code, i.e. greater judicial discretion in sentencing.

The government, which is the author of the project, is claiming that the amendment to the penal law in Poland will finally bring about a fundamental change in penal policy towards the most dangerous offenders.

Representatives of the Ministry of Justice emphasise that Polish courts are among the mildest in Europe, handing down the lowest possible penalties for crimes committed.

As proof of the above, they point out that for homicide as much as 23 per cent of sentences in Poland are sentences of up to eight years, and as much as over 44 per cent of all sentences in criminal cases are suspended sentences.

What changes to the Penal Code are introduced by the Amendment?

According to the new act, among other things, the upper limit of term imprisonment has been raised from 15 to 30 years, the so-called absolute life imprisonment has been introduced, penalties for paedophilia, rape and a number of other offences have been increased.

The institution of confiscation of cars for drunk drivers has also appeared.

Representatives of the Ministry of Justice point out that the change in the law will increase the judge’s discretion in sentencing.

Until now, a judge, for serious offences, had to impose a sentence of up to 15 years’ imprisonment or a separate sentence of 25 years’ imprisonment or life imprisonment – he or she could not impose sentences ‘in between’ these thresholds.

The amendment to the Penal Code is intended to introduce flexibility: the upper threshold is henceforth to be simply 30 years or, alternatively, life imprisonment.

Are the changes introduced a manifestation of penal populism?

The amendments to the Penal Code were criticised by various circles, including the Supreme Bar Council, which asked the President of the Republic of Poland to veto it.

It was argued that the adopted amendment radically tightens criminal repression, diminishes the scope of judicial discretion in determining an adequate criminal sanction and is a manifestation of penal populism, excessive casuistry and nonchalance towards the social and economic consequences of the adopted solution.

It was explained that repressive criminal policy is not a manifestation of modernity, but a tried and tested tool used by totalitarian states.

Listening to the various sides of the ongoing discussion, I have the impression that it overlooks at least two important issues.

Is the tightening of term penalties enough?

Firstly, in the amending act, apart from tightening the penalties themselves and the rules for their imposition, the act introduces new types of offences and broadens the characteristics of some existing offences – especially in the area of so-called economic or property crime.

The fact that the number of offences defined as economic has been significantly increasing in recent years is nothing new.

Hence, the legislator’s reaction to this phenomenon and the introduction of new types of offences on the one hand, and the broadening of the scope of the elements of these offences on the other hand, all while making the penalties more severe.

Secondly, if the aim was to tighten the threat of penalties for certain crimes, it should be obvious that the mere amendment of the law does not yet improve the issue of crime in Poland.

More far-reaching changes in the activities of law enforcement agencies are necessary.

New types of offences

As far as the new types of offences are concerned, in addition to stiffer penalties for the most serious criminal offences, particularly noteworthy is the offence of criminal damage evasion, punishable by 3 months to 5 years in prison, which is already referred to as “debt bonding” and is, of course, controversial.

Obviously, this construction of the criminal act raises many doubts, which will have to be resolved by case law.

Nevertheless, in view of the frequent imposition of this compensatory measure (compensation for the damage inflicted) when sentencing for crimes against property or economic turnover, the introduction of criminalisation of behaviour aiming at evading its execution seems justified.

Although, on the other hand, completely by the way, in the current legal state, there were also instruments to safeguard the interests of victims.

A new type of extortion has also been introduced, i.e. an offence consisting in coercing, inter alia, by violence, threats, but also by means of blackmail, another person to take an action leading to the disposal of one’s own or another person’s property, or even to the cessation or limitation of business activity.

This is an offence punishable by imprisonment of between one and 10 years. Thus, the use of blackmail (pressure), with the characteristics defined in the law, aimed, for example, at the desire to restrict another person’s economic activity, will be able to be seen in terms of a criminal act.

Modification of penalties for economic offences

Finally, it is worth emphasising that with regard to certain economic offences, which have been present in the Criminal Code for many years, their punishability has been modified.

This applies, inter alia, to the criminalisation of acting to the detriment of a company, causing a threat of damage or money laundering.

If these offences relate to property worth more than PLN 5 million, the sentence of imprisonment under the new law may not be less than 3 years, while its upper limit is as much as 20 years.

On the other hand, if the value of the damage exceeds PLN 10 million, the penalty will be increased to between 5 and 25 years.

Thus, this type of crime will become one of the most severely treated by the legislator; with a stricter penalty threat than, for example, rape.

In principle, the cited changes seem to be the legislator’s reaction to the changed crime structure currently faced by law enforcement agencies and the justice system as a whole, namely a significant increase in economic crime and a decrease in so-called criminal crime.

Nevertheless, when analysing the hitherto structure of the Penal Code, it should be noted that in the case of certain economic crimes the upper threshold for imprisonment was not low: in the case of acting to the detriment of a company or fraud, it amounted to 10 years of imprisonment with regard to property of great value (over PLN 1 million).

Will the introduced changes improve court and pre-trial proceedings?

There is nothing revealing in stating that the fundamental problem of the justice system is not the level of penalties laid down in the Criminal Code, but the length of proceedings, the way in which evidence is gathered and the way in which the courts adjudicate.

It should be noted here that sometimes in classic criminal cases, proceedings are conducted extremely quickly – and for this, both the functioning of the law enforcement agencies, headed by the public prosecutor’s office, and the criminal justice division should be commended.

Of course, pre-trial detention is often used in criminal cases, which has an overwhelming effect on the priority given to these cases.

It also shows that the justice system can act quickly – but this depends on the category of the case.

And pre-trial detentions are, after all, also commonly used today in commercial criminal cases – and increasingly so.

However, one searches in vain for examples of efficient commercial criminal proceedings, which only in theory follow the same rules as any other criminal trial.

And I am not just talking about high-profile media cases.

From my own practice I can mention a number of proceedings with relatively uncomplicated facts and which are not complex investigations – with dozens or hundreds of victims – that somehow cannot find their happy ending.

The long duration of the above-mentioned proceedings, even at the pre-trial stage, shows that law enforcement agencies are not ready for this type of case, are not systemically prepared for it and, as a consequence, undertake it reluctantly.

Probably the most famous criminal economic cases of recent years, i.e. the Amber Gold trial lasted 7 years, while the Get Back trial has already lasted almost 5 years and is only at the stage of the court of first instance.

Of course, these are large and complicated trials, but, for example, less well-known and complicated cases paradoxically take even longer.

For example, the investigation of the Bielmlek cooperative, which was only covered by the local media, has been going on for four years and not even an indictment has been drawn up.

Similarly, investigations into VAT carousels or smaller-scale financial pyramids, which receive no media coverage, have dragged on for years.

According to official data provided by the Polish Police Headquarters, crime defined by investigators as economic is growing at a rapid pace (in 2016, over 150 000 crimes were detected with a detection rate of 82%, and in 2021 there were already over 224 000 crimes with a detection rate of 74%).

This also means an increase of more than 49% in just five years, with falling detection rates, which can be interpreted as a situation out of control.

Does the amendment mean a decrease in crime?

The outlined picture of law enforcement activity does not inspire optimism.

Strictness in terms of the legislation on the penalties imposed will not change one of the most important problems of our justice system, which is the efficiency of law enforcement agencies and, consequently, the inevitability of imposing punishment and recovering criminal assets.

Otherwise, committing crimes, particularly those of an economic nature, will simply be profitable, and harsh penalties imposed a decade after the act will not scare anyone, in line with a principle often referred to in common law systems:

” justice delayed is justice denied“.

In the discussion on the increase of penalties for various types of offences introduced by the discussed amendment to the Penal Code, it is worth bearing in mind all the functions of punishment and other mechanisms that actually result in a decrease in crime.

One of them is the improvement of the operation of the entire justice system, as the mere tightening of the rules of punishment and the amount of penalties does not necessarily translate into a decrease in the level of crime, especially in the context of the falling detection rate of economic crimes and the almost symbolic effectiveness in the recovery of criminal assets.

In my opinion, already with the current threat of penalties, prompt and effective investigators, who also have the appropriate instruments to investigate economic crime, including the recovery of assets, would significantly fulfil the so-called deterrent function of potential perpetrators, i.e. general prevention.