Społeczna szkodliwość — dziedzictwo komunizmu w polskim prawie karnym?

The introduction of social harmfulness (social danger) to Polish criminal law after the Second World War was politically motivated. For many, this circumstance was sufficient to formulate postulates about the necessity to remove this premise of criminal liability. Social harmfulness still remains controversial today. Before, criminal law was seen as a tool. Currently, it is to be an ultima ratio. It is clear that determining the essence of the crime and its nature, introducing into the law “what belongs to literature”, was necessary in the legal system of a totalitarian state, imposing its views and morals on society. In a legal system of a democratic state, a state ruled by law, a statutory ideological declaration regarding the essence of a crime seems redundant. However, changing the nomenclature is not enough here — there is a possibility of weakening the guaranteeing criminal law function. The social harmfulness premise contributes to the heterogeneity of jurisprudence, even in cases concerning serious crimes. The author is of the opinion that limiting the number of minor cases from the point of view of the state’s right to punish, which paralyzes the judiciary with their sheer number, should take place in a different way than introducing the social harmfulness of an act as a criterion determining the culpability. The currently adopted solution seems irrational and non-functional from the perspective of the legal certainty principle. A more appropriate move seems to be the assessing the advisability of prosecuting an act, i.e. by introducing and implementing the principle of opportunism in criminal proceedings.

Unconstitutionality of criminal liability for filing inaccurate information in Ukraine: сritical legal analyses

The investigation reveals shortcomings in the arguments of the Constitutional Court of Ukraine on the recognition of article 366-1 of the Criminal Code as not being in conformity with the Constitution, in terms of:(a) the court's lack of authority to criminalize socially dangerous acts; (b) lack of argumentation on the absence of social harm in the non-submission of a declaration and in the presentation of inaccurate information; (c) positive foreign experience; (d) conformity of article 366-1 of the Criminal Code of Ukraine with the principle of the rule of law. The article employs a set of legal research methods, including terminological, systemic-structural, formal-logical, and comparative-legal. It is stressed that:(a) the criminalization of a socially harmful act is a matter for the legislator, not the Constitutional Court of Ukraine, to decide; (b) the decision does not present or refute any argument on the element of social harmfulness relating to the non-submission of a declaration and the declaration of inaccurate information. On the basis of the investigation, it has been concluded that the decision of the Constitutional Court on the recognition of article 366-1 of the Criminal Code does not comply with the Constitution and has not been sufficiently substantiated.

HAS THE 2015 AMENDMENT TO THE CRIMINAL CODE CHANGED THE PRACTICE OF APPLYING PROTECTIVE MEASURES? RESEARCH REPORT

The article is the result of the research on the practice of applying a protective measure in the form of placement in a forensic psychiatric facility an insane perpetrator, before and after July 1st, 2015. The purpose of the research was to determine whether and how outpatient protective measures influenced the practice of applying psychiatric detention in case of insane persons, in particular, whether outpatient treatment is used instead of placement in a psychiatric facility in the case of committing offences with a lower degree of social harmfulness. The purpose of the research on the procedural law was to determine whether the judicature of the Supreme Court emphasizing the procedural standard in cases concerning the discontinuation of proceedings against an insane perpetrator affected the observance of procedural guarantees of insane perpetrators in criminal proceedings. The conclusions of the research are based on the statistical data of the Ministry of Justice, the General Prosecutor’s Office and the file research. The conclusions of the research are as follows: there was no significant change concerning the practice of imposing placement in a psychiatric facility on insane perpetrators after July 1st, 2015. The types of prohibited acts the commission of which justify placing the perpetrator in a psychiatric facility have not changed significantly. On the other hand, the procedural guarantees of the insane perpetrator are respected to a slightly higher degree at present. Therefore, it should be considered whether the conditions for the application of placement in a psychiatric facility should not be restricted only to a situation where the perpetrator poses a threat to selected, most important legal goods.

Glosa do wyroku Sądu Okręgowego w Poznaniu – IV Wydział Karny Odwoławczy z dnia 29 stycznia 2019 r. IV Ka 1173/18

The gloss is devoted to the issue of the degree of social harmfulness of acts consisting in placing indecent words in a public place (Article 141 of the Code on Petty Offences). It should be emphasised that not every behaviour that fulfils the statutory features of that petty offence should result in criminal liability, and this is due to the possible lack of social justification for a criminal response. At the same time, it is reasonable to keep this forbidden act in the Polish legal system, because public morality and the purity of the Polish language are legal values worthy of criminal protection.

Odpowiedzialność polityczno-prawna Prezydenta Ukrainy

One of the democratic mechanisms of state governance is to define the political and legal responsibilities of the supreme state bodies. The type and scope of responsibility also determines the legal and constitutional position of the head of state. In the article, the author analyzes legal norms regarding the political and legal responsibility of the President of Ukraine. The examination of problems related to these norms is based on Ukrainian and foreign constitutional and statutory solutions. Political (parliamentary) responsibility is related to the relevance, legitimacy and purposefulness of decisions made by the person holding the office of President. It is assessed by the appointing or controlling body. Although the current legal status in Ukraine does not provide for the institution of the President’s political responsibility, such solutions were present during the political changes after the collapse of the Union of Soviet Socialist Republics. Political responsibility of the Head of State in 1991–1993 was provided by the repeatedly amended Constitution of Soviet Ukraine (of 20 April 1978, as amended in Article 114-9(3)). The constitutional responsibility of the President in Ukraine is regulated in Article 111 of the Basic Law, which states that the Head of State is responsible for treason and other crimes, without however indicating the premises or grading the social harmfulness of these prohibited acts. The discussed problems related to the triple division of power, its exercise and legitimacy appear more and more often in Ukraine, Hungary, Poland and other countries of Central and Eastern Europe, affecting the security of the entire region.

Dyscyplinowanie społeczne w szpitalach elbląskich w XVII w.Dyscyplinowanie społeczne w szpitalach elbląskich w XVII w.

Social disciplining in Elbing hospitals in the 17th century The article undertakes the problematics of rules and range of social disciplining and forming a proper model of behaviour attempted by the city authorities in the instance of urban hospitals in Elbing (Elbląg) of the 17th century. The following ordinances for the 17th century Elblag hospitals have been analysed in that respect: St. Elisabeth’s from 1617, 1625 and 1651, the Holy Spirit’s from 1631 and 1651 (including the project from around the half of the 17th century), Corpus Christi’s from 1651 and St. George’s from 1657, as well as the ordinance of an orphanage established at St Elisabeth hospital (Kinder‑Haus) from 1698 and two memorial statements of the Hospital Office (Spital‑Amt) dated around the half of the 17th century containing postulates referring to the necessity of introducing changes in the current hospital ordinances. In effect, various forms of disciplining as well as mechanisms of maintaining social control have been discussed, which comprise the following aspects: 1. forming religious attitudes conforming with the spirit of Lutheran orthodoxy (doctrinal assumptions, religious education basics); 2. disciplining through compulsory religious practices; 3. disciplining through social hierarchy consolidation (prayers in the intention of the City Council, respect for principal authorities, ban on cursing on the authorities or reprimanding alms, complaining about hospital food); 4. disciplining through enforced work; 5. disciplining abnormal moral behaviour (drunkenness, fornication, theft, fraud, gambling); 6. controlling verbal, symbolic or physical aggression; 7. time rationing (strictly normalised day schedules) and space rationing (ban on leaving the hospital, maintaining cleanness in the occupied quarters); 8. shaping expected features of character (godliness, obedience, the ability of coexisting in a group); 9. disciplining verbal behaviour (ban on swearing, making noise, gossiping, disturbing religious practices by talking) and behavioural patterns (ban on dancing and binges). Also, the system of penalty sanctions issued by hospital authorities against people breaking the ordinance rules has been analysed; moreover, an attempt to reconstruct the hierarchy of social harmfulness of misdemeanours depending on the type of penalties has been undertaken.

Polskie prawo karne wobec problemów etycznych związanych z transplantologią

The purpose of this publication is to systematize the present ethical problems relating to transplantation and to confront them with penal legislation, from which norms prohibiting certain types of conduct with regard to transplantations may be derived. The starting point for the analysis is a consideration of the fundamental ethical values required both in the treatment process as such and in transplantation in particular (principle of respect for autonomy, nonmaleficence, benevolence, and justice). Therefore, the problem of admissibility of transplantology as such must be touched upon, along with its tenets and preconditions and, most importantly, with commercialization of the organs intended for transplantation. In the Polish legal system, transplantation is regulated by the 2005 Act on the Removal, Storage and Transplantation of Cells, Tissues and Organs. The Act is a specific Polish response to the doubts and dilemmas relating to transplantation. In this context, special significance attaches to the penal provisions which impose liability for transplantation-related crimes. It is noteworthy that criminalization of paid activities relating to transplantation has a rather complex and specific history. It follows from the evolving evaluation of the social harmfulness of prohibited acts, which in itself gives rise to certain controversies. There are also doubts as regards the object of protection of some crime definitions and the scope of criminalization.

Tendencje prywatyzacji prawa karnego a ujmowanie społecznej szkodliwości jako podstawy kryminalizacji

Tendencies to privatise criminal law and recognition of social harm as the basis of criminalisationIn the changing social reality, the classic scheme of criminal liability with its characteristic relationship between the state and the parties involved no longer meets the needs of effective but fair response to the criminal acts. Consequently, the object of the scientific and legislative debate becomes the phenomenon of privatisation also called in the literature the civilization phenomenon of criminal law. With the acceptance of the assumption that the basis for the criminalisation of any conduct must be its social harmfulness, the paper concerns the problem of the impact which re-evaluation of the role of the state and the concept of discourse and restorative justice have on the above mentioned criterion. The author tries to demonstrate that these phenomena and introduction to the criminal law elements of private law must be reflected also with respect to the understanding and evaluation of social harmfulness.

Wpływ osobowości sprawcy na ocenę podstaw i zakresu odpowiedzialności karnej

The wrong-doer’s personality influence on the assessment of criminal liability grounds and scopeA criminal act is done in certain circumstances, but it refl ects also the wrong-doer’s personality and his/her social dangerousness. The Criminal Code of 1997 replaced the term “social dangerousness” with “social harmfulness”. Art. 115 § 2 CC points out the circumstances that should be considered while assessing the level of social harmfulness; with no personality-like circumstance mentioned there. Such factor is indirectly hidden in the phenomena of motivation. While one considers acts that are done mostly because of some external situation-related factors, the wrong-doer’s personality does not matter. One’s personality should be considered as far as involuntary acts are concerned. The wrong-doer’s personality is interesting for criminal law purposes, because of some terms the Polish CC uses, like personal characteristics Art. 10 § 2, 10 § 4, Art. 21 § 1 i § 2, Art. 58 § 2a, Art. 66 § 1, Art. 69 § 2, Art. 77 § 1, Art. 53 § 2 and motivation Art. 40 § 2, Art. 53 § 2, Art. 115 § 2, Art. 148 § 2 point 3. The term “personal characteristics” is wider than “personality”. There are many psychological theories that try to explain what personality is Freud’s, factors, cognitive, social learning, humanistic and systematic theory. Personality is a fairly well-fixed regulation system that starts to function about the age of 21. It consists of many elements. Personality can change drastically during lifetime under certain traumatic circumstances, organic brain changes or addictions to psychoactive substances. The act of a wrongdoer may express his/her typical characteristics personality but it may not be so typical for him/ her, either. Usually, when it is typical the court treats it as an aggravating circumstance and when untypical — as a mitigating one. Personality issues need some specialist knowledge. Personal characteristics are important as far as criminal liability is concerned. Otherwise, their presence should be limited in the Criminal Code and used only in Art. 10 § 2 and Art. 53. They should be considered as far as the period of punishment execution and probation measures are concerned.

KANONICZNA OCHRONA KARNA RELIGII, JEDNOŚCI, AUTORYTETÓW KOŚCIELNYCH I WOLNOŚCI KOŚCIOŁA KATOLICKIEGO

The article presents the most important values criminally protected in the Catholic Churchby CIC/1983 and CCEO/1990. They are: the religion, the unity, the church authorities and thefreedom of the Church. About their prime position in the hierarchy of goods legally protected bythe provisions of penal canon law testifies that the crimes against them are put in the first and inthe second title of CIC/1983, also the threat of severe penal sanctions. These sanctions result fromthe exceptional social harmfulness of the crimes. In the degree of ailment they are analogical inthe canon law of the Latin rite and in the common law of Eastern Catholic Churches.