Ius Novum https://iusnovum.lazarski.pl/iusnovum <p>Ius Novum (ISSN 1897-5577, online ISSN 2545-0271) is a peer-reviewed scientfic quarterly of the Faculty of Law and Administration of Lazarski University in Warsaw. It has been published since 2007.</p> en-US iusnovum@lazarski.pl (Jacek Dąbrowski, Ph.D.) iusnovum@lazarski.pl (Jacek Dąbrowski) Tue, 25 May 2021 21:02:31 +0200 OJS http://blogs.law.harvard.edu/tech/rss 60 Revival of the penalty of short-term deprivation of liberty https://iusnovum.lazarski.pl/iusnovum/article/view/1213 <p>The article discusses the issue of the revival of short-term deprivation of liberty in the Polish criminal law and justice system practice, the penalty, which was extensively applied in the interwar period. at the beginning of the paper the author presents widespread criticism of short-term penalties in the doctrine of the interwar period. at the same time she notices the approval of short-term penalties by the authors of the 1932 Criminal Code and an extensive scope of the imposition of the penalty of short-term deprivation of liberty. analysing the legal state and practice in the People’s republic of Poland, she presents the standpoint of the jurisprudence on the issue of short-term imprisonment, which challenged the role of this penalty as an adequate means of combating crime. the article also indicates scientists’ positive opinions about advantageous features of the penalty of short-term deprivation of liberty and its preventive function. Particular attention is drawn to the perception of a short-term penalty as an alternative to a long-term one and not an alternative to non-custodial penalties. the article also indicates the criticism of short-term imprisonment worldwide. Further comments characterise the idea of crime stratification and criminal liability polarisation that was laid down in the regulations of the 1969 Criminal Code, which raised the minimum length of a short-term penalty from one week to three months. it is established that in practice the idea of applying the penalty of short-term deprivation of liberty was implemented in the 1960s and after the introduction of the 1969 Criminal Code it was only strengthened. the analysis of the 1970s highlights the criticism of the penalty of deprivation of liberty in world jurisprudence and the collapse of the social rehabilitation model of that penalty execution. attention is drawn to the change in the standpoint of the doctrine on the issue of short-term imprisonment and acknowledgement that such penalties are less harmful than long-term penalties and may be useful for the purpose of the so-called shock therapy. Further deliberations focus on the presentation of the lawmaker’s stand and legal solutions of the 1997 Criminal Code, the establishment of the one-month minimum length of imprisonment and the adoption of regulations extensively promoting non-custodial penalties and measures. at the same time, the author presents the standpoint of the contemporary jurisprudence, which approves of the decrease in the minimum length of the penalty of deprivation of liberty and sees the need to return to the one-week imprisonment penalty as laid down in the 1932 Criminal Code. there is also an analysis of the practice of applying short-term imprisonment penalties in the period when the new Criminal Code came into force, which made it possible to establish that the actual return to short-term imprisonment penalties was accompanied by considerable decrease in one-year or two-year penalties in particular. it is also highlighted that the observed revival of the penalty of short-term deprivation of liberty and the abandonment of the opinion that such penalties are completely useless have demonstrated themselves in a new institution in the form of a mixed penalty combining the penalty of short-term deprivation of liberty and the penalty of limitation of liberty, which constitutes a form of legal response mainly to the so-called medium-weight crime and makes it possible to limit the scope of application of long-term imprisonment penalties. the article presents positive assessment of the revival of the penalty of short-term deprivation of liberty in the legislation and justice system practice.</p> Mirosława Melezini Copyright (c) 2021 https://iusnovum.lazarski.pl/iusnovum/article/view/1213 Tue, 25 May 2021 00:00:00 +0200 Polish criminal regulations towards the “sixth” Anti-Money Laundering directive https://iusnovum.lazarski.pl/iusnovum/article/view/1219 <p>The subject of this study are the provisions provided for in Directive (EU) 2018/1673 of the European Parliament and of the Council of 23.10.2018 on combating money laundering by means of criminal law measures (called the VI AML Directive). Its primary goal is to assess the compliance of Polish criminal regulations with EU regulations. It takes on particular significance in the face of expiring on the December 3, 2020 the deadline for the implementation of its provisions. The conclusions resulting from the in-depth analysis of the Sixth AML Directive allow for the assessment of the state of alignment of the provisions penalizing money laundering in force in Poland with the EU provisions, as well as for emphasizing these provisions that require special attention in terms of their possible amendment. They also lead to some reflections connected with frequently changed EU regulations on combating of money laundering crime.</p> Anna Golonka Copyright (c) 2021 Ius Novum https://iusnovum.lazarski.pl/iusnovum/article/view/1219 Tue, 25 May 2021 00:00:00 +0200 Opinions on article 62 act on the prevention of drug addiction in the light of criminal law and the Constitution https://iusnovum.lazarski.pl/iusnovum/article/view/1220 <p>The article presents a few critical comments on the regulations laid down in Articles 62-62b Act on the prevention of drug addiction of 2005. The paper aims to draw attention to some doubts that the regulation raises not only because of the subject matter referred to in Article 62 but also due to the context of the constitutional provisions. It is an attempt to answer the question about the legal reason for criminalising the possession of psychotropic substances. The author presents a thesis that drug ‘use’ and ‘possession’ should be treated by law similarly and more as a social or medical problem than a criminal one, although it is not so in the present legal state, which is confirmed by the case law and literature referred to in the article. Penalisation of drug possession constitutes excessive entry in the forefield of prohibited acts and, as a result, leads to repressing consumers of psychoactive drugs by creating a separate category of offenders and offences. In the author’s opinion, the possession of small amounts of drugs for one’s own use should be rather treated in terms of social pathology (like prostitution or suicide), which should not generate criminal liability. The article also presents an analysis of Article 62 Act on the prevention of drug addiction from the perspective of Article 31 and Article 47 of the Constitution of the Republic of Poland. As a result, the author draws a conclusion that the provision of Article 62 referred to herein does not pass the so-called proportionality test and is unconstitutional.</p> Katarzyna Tkaczyk-Rymanowska Copyright (c) 2021 https://iusnovum.lazarski.pl/iusnovum/article/view/1220 Tue, 25 May 2021 00:00:00 +0200 Review of the 2019 resolutions of the Supreme Court Criminal Chamber concerning substantive criminal law https://iusnovum.lazarski.pl/iusnovum/article/view/1221 <p>The article carries out an analysis of resolutions and rulings of the supreme Court Criminal Chamber passed as a result of appellate courts’ requests for fundamental interpretation of a statute within the scope of substantive criminal law. the analysis covers: the method of extraordinary mitigation of a penalty for felonies carrying cumulative deprivation of liberty and a fine (article 60 § 2 CC); a conditionally suspended cumulative penalty of deprivation of liberty and a penalty of limitation of liberty (article 87 § 1 CC), and admissibility of cumulating the penalty of deprivation of liberty and the penalty of limitation of liberty that substitutes for a conditionally suspended penalty of deprivation of liberty (article 75a § 1 CC); liability for an offence of failing to pay alimony (article 209 § 1 CC) connected with the modification of its statutory features laid down in act of 23 March 2017; the issue of parents’ liability for the offence of kidnapping or detaining a minor under the age of 15 or a physically or mentally disabled person against the will of a person granted the rights of their caretaker or guardian (article 211 CC).</p> Ryszard A. Stefański Copyright (c) 2021 https://iusnovum.lazarski.pl/iusnovum/article/view/1221 Tue, 25 May 2021 00:00:00 +0200 On the normative content of Article 18 § 1–3 Criminal Code https://iusnovum.lazarski.pl/iusnovum/article/view/1222 <p>The&nbsp; paper&nbsp; addresses&nbsp; the&nbsp; issue&nbsp; of&nbsp; normative&nbsp; character&nbsp; of&nbsp; the&nbsp; provisions&nbsp; of&nbsp;Article&nbsp; 18&nbsp; §&nbsp; 1–3&nbsp; of&nbsp; the Penal Code. An attempt has been made - from the standpoint of the determinants of the derivational concept of interpretation of the law and the theory of legislation and rules of legislative technique&nbsp; –&nbsp; to&nbsp; resolve&nbsp; a&nbsp; dispute&nbsp; existing&nbsp; in&nbsp; the&nbsp; science&nbsp; of&nbsp; criminal&nbsp; law&nbsp; concerning&nbsp; whether,&nbsp; in&nbsp; respect of directing the commission of an offence and solicitation of the commission of an offence the&nbsp; provisions&nbsp; of&nbsp;Article&nbsp; 18&nbsp; §&nbsp; 1&nbsp; of&nbsp; the&nbsp; Penal&nbsp; Code&nbsp; are&nbsp; provisions&nbsp; supplementing&nbsp; the&nbsp; provision&nbsp; typifying the detailed part of the Penal Code, or whether they express a norm which prohibits directing the commission of an offence or solicitation of the commission of an offence. The first variant of interpretation has been favoured. It was also assumed in the paper that the provisions of&nbsp;Article&nbsp; 18&nbsp; §&nbsp; 2&nbsp; and&nbsp; 3&nbsp; of&nbsp; the&nbsp; Penal&nbsp; Code&nbsp; are&nbsp; not&nbsp; peripheral&nbsp; regulations,&nbsp; but&nbsp; modifiers&nbsp; of&nbsp; the&nbsp; regulations defining the generic type of a prohibited act. Consequently, incitement and aiding and abetting are not separate types of commission of a prohibited act characterised by their own set of statutory traits and they do not supplement the generic description of the type of prohibited act with an additional functional trait. Thus, in any form of criminal complicity, the subjective traits of a generic type of a prohibited act may be identified, including the traits of an executive action.</p> Kamil Siwek Copyright (c) 2021 https://iusnovum.lazarski.pl/iusnovum/article/view/1222 Tue, 25 May 2021 00:00:00 +0200 Scene of crime as basis of national jurisdiction https://iusnovum.lazarski.pl/iusnovum/article/view/1223 <p>The article verifies the meaning of a scene of crime and the division into territorial and exterritorial conduct when determining the scope of Polish jurisdiction in criminal cases. The deliberations are theoretical and dogmatic in nature. They are based on the proposals put forward in the doctrine of international public law within its broad sense, in particular international criminal law, and take into account Criminal Code regulations in force. The analysis leads to a conclusion that in the current reality, in the face of the development of the world wide web, the tendency to redefine the concept of national borders and their role as a factor limiting the freedom of cross-border activities and the development of supranational societies, there are grounds to challenge the function of a scene of crime as a factor determining the scope of Polish jurisdiction in criminal cases. It is proposed to consider the introduction of additional substantive criteria allowing determination of ius puniendi that Poland should be entitled to regardless of the territory where a given act has been committed.</p> Anna Demenko Copyright (c) 2021 Ius Novum https://iusnovum.lazarski.pl/iusnovum/article/view/1223 Tue, 25 May 2021 00:00:00 +0200 Motion to develop justification of a sentence lodged before a sentence has been passed https://iusnovum.lazarski.pl/iusnovum/article/view/1224 <p>The article presents the assessment of the court practice of dealing with a motion to develop justification of a sentence lodged before a sentence has been passed. To that end, the normative material and the Supreme Court case law have been subject to critical interpretation. On the other&nbsp; hand,&nbsp; what&nbsp; provided&nbsp; the&nbsp; impulse&nbsp; to&nbsp; write&nbsp; this&nbsp; article&nbsp; was&nbsp; that&nbsp; the&nbsp; problem,&nbsp; which&nbsp; seemed to have been solved a long time ago, was referred to in the judgement of the European Court&nbsp; of&nbsp; Justice&nbsp; of&nbsp; 20&nbsp; november&nbsp; 2018&nbsp; in&nbsp; the&nbsp; case&nbsp; Witkowski&nbsp; v.&nbsp; Poland&nbsp; in&nbsp; the&nbsp; context&nbsp; of&nbsp; an&nbsp; individual’s&nbsp; right&nbsp; of&nbsp; access&nbsp; to&nbsp; a&nbsp; court&nbsp; protected&nbsp; by&nbsp; the&nbsp; Constitution&nbsp; and&nbsp; the&nbsp; Convention. The&nbsp; considerations&nbsp; presented&nbsp; in&nbsp; the&nbsp; article&nbsp; refer,&nbsp; inter&nbsp; alia,&nbsp; to&nbsp; irrelevance,&nbsp; inadmissibility&nbsp; and&nbsp; inefficiency&nbsp; of&nbsp; the&nbsp; application&nbsp; and,&nbsp; as&nbsp; a&nbsp; result,&nbsp; confirm&nbsp; the&nbsp; preliminary&nbsp; thesis&nbsp; that&nbsp; the court&nbsp; proceedings&nbsp; concerning&nbsp; a&nbsp; motion&nbsp; to&nbsp; develop&nbsp; justification&nbsp; of&nbsp; a&nbsp; sentence&nbsp; before&nbsp; it&nbsp; has&nbsp; been passed had been inappropriate. At the same time, the article provides a solution to the problem that consists in the assessment of the procedural step referred to in the title from the perspective of the moment when the decision on the matter is being taken and not the moment it was done. As a result, if at the time a motion to develop justification of a sentence lodged before a sentence has been passed is dealt with before a sentence has been passed, the step, as having no procedural significance, should only result in a technical activity of including the motion in the case files. However, in case a sentence subject to justification has been already passed, the issue of the moment when the motion was lodged is irrelevant to its admissibility. The above-mentioned solution is in conformity with the judgement of the European Court of Justice in the case Witkowski v. Poland. </p> Agnieszka Anna Wróbel Copyright (c) 2021 https://iusnovum.lazarski.pl/iusnovum/article/view/1224 Tue, 25 May 2021 00:00:00 +0200 Police participation in a jurisdictional fiscal-penal proceeding https://iusnovum.lazarski.pl/iusnovum/article/view/1227 <p>The article is an attempt to explain the participation of the Police, as a non-fiscal body involved in a preparatory proceeding, in the jurisdictional fiscal-penal proceeding. the main part of the paper is devoted to the entitlements of the Police in a jurisdictional proceeding in the fiscal-penal procedure that are limited to cases concerning fiscal misdemeanours because of granting the Police the status of a public prosecutor in this category of cases. the article also discusses the issue of prosecution measures that the Police have and their participation in an appellate proceeding. in addition, the article discusses the characteristics of other activities in a fiscal-penal proceeding that the Police can carry out. The paper ends with conclusions.</p> Marta Roma Tużnik Copyright (c) 2021 https://iusnovum.lazarski.pl/iusnovum/article/view/1227 Tue, 25 May 2021 00:00:00 +0200 Liability of operators of unmanned aerial vehicles for flight delays or cancellations https://iusnovum.lazarski.pl/iusnovum/article/view/1229 <p>Unmanned aircraft, including flying models, are widely available and can be used by almost everyone. Despite the ban on operations with the use of drones in the area of airports, there are situations in which the irresponsible behavior of drone operators may cause an air accident or paralyze the airport, causing multi-million losses related to the cancellation and delay of flights. Passengers of these flights suffer various types of damage, including, for example, loss of connection (ticket cost), hotel expenses, hotel transport, meals, or even non-pecuniary damage consisting in suffering from the inability to spend holidays with family, etc. The question is who should be liable and pay compensation? This article aims to answer this question and indicate whether the cancellation of a flight due to the appearance of a drone over an airport is a so-called an extraordinary circumstance which would exempt the air carrier from its obligation to pay compensation.</p> Anna Konert Copyright (c) 2021 https://iusnovum.lazarski.pl/iusnovum/article/view/1229 Tue, 25 May 2021 00:00:00 +0200 Gloss on the judgement of the Supreme Court of 28 June 2017, III KK 141/17. Liability for handling stolen goods unintentionally https://iusnovum.lazarski.pl/iusnovum/article/view/1231 <p>The paper presents the author’s opinion of approval of the judgement of the Supreme Court of 28 June 2017, III KK 141/17. The gloss tries to decode the statutory features of the subjective and objective aspects of an entity involved in the offence of handling stolen goods unintentionally referred to in the legal norm of Article 292 CC , i.e. a common<br />offence subject to public prosecution ex officio, through the prism of a perpetrator who is an entrepreneur involved in professional trade and who, as such, should be especially diligent in order to recognise that an object he/she buys originates from the commission of a prohibited act.</p> Patricia Różańska-Ungur Copyright (c) 2021 https://iusnovum.lazarski.pl/iusnovum/article/view/1231 Tue, 25 May 2021 00:00:00 +0200