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Reflection on the Penal Code reform in Poland

On 7 July 2022, the Sejm (the lower chamber of the Polish parliament) adopted the amendment to the penal code. The bill provides, among others, a significant increase in penalties for crimes against health and life. The tightening of penalties applies to financial crimes and corruption too. The amendment also extends the period after which a person sentenced to imprisonment may be conditionally released. This raised many controversies among scholars and human rights advocates. Their main concerns are that the bill serves mainly the purposes of penal populism and does not take into account convicts' rights.

The amendments may be considered further steps toward penal populism, which was very noticeable in the legislative changes introduced from 2019 onwards. Judicial populism appeals to the fears in society and the common sense of justice, which often relies on the eye for an eye logic. Similarly, these amendments are fuelled by the fright of violent crimes rather than being backed by statistics. In fact, across the last 20 years, the number of crimes in Poland has decreased significantly. Although some fluctuations remain (especially the increase in 2020), it does not constitute a sufficient justification for the tightening of penalties envisioned by the amendments.

The phenomenon of penal populism is best illustrated by the amendment to Article 77 of the Polish Penal Code, which codifies the possibility for judges to order a ban on conditional release when imposing a sentence of life imprisonment or a penalty of deprivation of liberty for not less than 20 years, for an offence against life and health, freedom, sexual freedom, common security. Life imprisonment with no possibility of parole means civil death. As it ensures that the convicted person will never return to society. By making this amendment Polish authorities hoped to satisfy the numerous supporters of capital punishment and at the same not to breach Poland’s obligations under human rights law. However, it is not possible as life imprisonment with no parole is considered a violation of the right not to be subjected an inhuman treatment.

In the light of the European Court of Human Rights, imposing a life sentence with no possibility of parole violates Article 3 of the Convention. The Grand Chamber’s ruling in the Vinter case emphasises that there has to be a prospect of the prisoner’s release and the possibility of a review of the sentence. While the Court does not recognize the unconditional right to be released after the period stated in the national legislation (usually 25 years). Whether or not convicts should be released may depend on whether there are still legitimate penological grounds for their continued detention and whether they should continue to be detained on the grounds of dangerousness.

As the Polish Ombudsman points out, to maintain the minimum standard in line with the jurisprudence of the ECtHR, it should be ensured that a release is possible de jure and de facto, even if in practice the prisoner will have to serve it in full. While expressing this, the Ombudsman also stressed the importance of respecting a person’s inherent dignity in the context of criminal justice. He states that the amendment fully takes away convicts' influence over their fate. When the potential possibility of changing the manner of execution from imprisonment to a probation system is not dependent on a convict’s attitude to the legal order, on their decisions regarding submission to penitentiary influences it turns a convict from the subject to the object of the penal law.

Therefore, the Polish Penal Code’s reform is very concerning, especially the introduction of life imprisonment with no parole which goes against Article 3 of the European Convention on Human Rights and the Court’s jurisprudence as according to the Court such a manner of executing imprisonment constitutes degrading or inhuman treatment. It is especially harmful as it does not take into account a convict’s agency and inherent dignity as a person.

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