Polityka karna w sprawach o wykroczenia w początkach lat dziewięćdziesiątych
Authors: Jerzy Szumski  
Published: July 2024

The paper describes and appraises the policy of prosecution and punishment in cases of transgressions in the years 1990‒1994, i.e. after the systemic transformations in Poland. It is a continuation of a study of penal policy carried out while the former Code of Transgressions was still in force; the aim now is to draw a comparison between the old and new tendencies in the practice of prosecution and punishment. The comparison, however, encounters specific difficulties. The first reason for this is that a full judicial control over decisions of transgression boards was introduced and the boards were submitted to the Ministry of Justice supervision. The second reason is that the statistical data gathered now by that department are much scantier as compared to those formerly gathered by the Ministry of Internal Affairs while the transgression boards were still subordinated to it. In the seventies, a systematic aggravation of the penal policy took place. Admittedly, that policy was then temporarily mitigated with the birth of Solidarity; yet after the imposition of martial law in 1982, followed by the passing of the 1985 act, penal policy once again grew repressive, this time much more so. Then, at the close of the past decade, as a result of social pressure, penal policy was quite distinctly liberalized. To show the transformations of that policy in the nineties, it has usually been compared to the tendencies found in both a “repressive” year of 1987 and a “liberal” one of 1988. As follows from analysis of the prosecution policy measured by the number of motions for punishment submitted to transgression boards, the number of such motions was greatly reduced in the years 1990-1994 as compared to preceding decades. The fact considered that recorded crime went up distinctly in that period, as probably did also the number of petty infringements of the law – that is, transgressions – this reduction can be interpreted as a limitation of the scope of prosecution with respect to such acts. On the one hand, this resulted from a lowered activity of the police, on the other hand – from the force’s aim towards improving their image in society. A similar trend could be found in the case of police orders the number of which was also reduced. Characteristically, the average fine imposed by police order amounted to not even a half of the statutory upper limit. This notwithstanding, a draft amendment of the code of transgressions was published in the Spring of 1994 which suggested that the limit be raised tenfold; the draft also provided for an identical raise in the upper limit of fine as a main penalty, This solution was sharply criticized by the present author as its actual implanentation would result in a general aggravation of economic repression. The structure of transgressions for which the boards imposed punishment in the nineties underwent a rather significant change: the number of persons brought before the boards for traffic transgressions went up considerably (to about 70%) while that of persons guilty of disturbance of public order went down. This latter trend should be seen as advantageous since the formerly mass-scale prosecution of perpetrators of such acts, most of them alcohol dependent, was generally considered futile. Also liberalized was the structure of penal measures imposed on all perpetrators of transgressions. Admittedly, fine remained the prevalent response (about 95% of decisions); yet the proportion of the strictest measures (arrest and limitation of liberty) went down distinctly, and that of the most lenient ones (reprimand and renouncement of inflicting punishment) went up. The fact considered that the penalty of arrest was limited to the minimum and imposed chiefly on persons guilty of the acts that are to be classified as offenses under the draft of the Penal Code, the proposed preservation of that penalty in the future Code of Transgressions cannot be praised. This same conclusion is also true for conditional suspention the execution of arrest which is nearly a dead institution in practice. As clearly follows from statistical data used in the present analysis, changes in the structure of penal measures imposed reflected a mitigation of penal policy. Instead, no data are gathered as to the severity load of those measures. This situation is bound to provoke criticism, chiefly because of the lack of data on the amounts of fines. Fines being the most frequently imposed measures, their amounts constitute the basic index of punitiveness of the boards’ decisions. The fact considered that the statutory amount of fine was last raised in 1992 while nominal wages showed a regular upwards trend, the conclusion is justified that we in fact dealt with what was perhaps an unintended mitigation of the actual severity of economic repression. As follows from the principles of rational penal policy, the provions legal in force have to be to be amended. Due, however, to pauperization of society, the raise in the maximum statutory fine cannot be as drastic as suggested in the above-mentioned draft amendment of 1994. This might well lead to revival of the once pursued practice of using fines as an instrument of adding to the budget. The statistical data under analysis also provide no information on the imposition of additional penal measures, the sole exception being prohibition of operating motor driven vehicles. All that can be observed is a very serious growth in the proportion of this latter penalty which was due to a mass prosecution of perpetrators of petty traffic offenses. Characteristically, though, the incidence of imposition of this measure on such persons (those additionally guilty of drunken driving included) has been on a regular decrease. Also astonishing is the fact that despite the introduction of judicial review of the boards’ decisions (which had been postulated for many decades by the scientific circles), no statistical data are gathered showing the extent to which penal policy pursued by those boards is actually corrected by courts. Admittedly, it follows from the findings of the solo relevant research project conducted in the nineties that today as in the past, courts usually tend to reduce the penalties imposed by transgression boards (the penalty of prohibition of operating motor driven vehicles in particular). What remains unknown, though, is both the general number of persons who demand that their cases be examined by courts and the actual decisions of those courts. Although penal policy in cases of transgressions grew slightly more severe in 1990‒1994, its present liberalization as compared to the two preceding decades is generally seen as favorable. What probably accounts for this liberalization is the exclusion of transgression boards from under the supervision of Ministry of Internal Affairs and the resulting deprivation of the head of that particular Ministry of the right to issue instructions as to the sentencing policy which invariably increased its punitiveness. Thus an instrument of pressure was abolished which limited the discretion of members of transgression boards. This shows that respect for the independence of those appointed to apply tbe law may result in a reduction of repressiveness even with no legislative changes in the system of penal measures. This is not to say, though, that – still based on rigorous provisions as it is – the system does not require a possibly prompt amendment.