Przestępstwa uprowadzenia lub zatrzymania małoletniego lub osoby nieporadnej (art. 188 K.K.)
Authors: Helena Kołakowska-Przełomiec  
Published: July 2024

The present article contains a detailed description and results of analysis of cases of abduction and detention sentenced in Poland in 1979. The total of these cases was 9. Abduction or detention, specified in Art. 188 of the Polish Penal Code, belongs to the group of offences against the family. Art. 188 of the Penal Code provides, that "whoever contrary to the will of the person appointed to take care or to supervise, abducts or detains a minor or a person who is helpless by reason of this mental or physical condition, shall be subject to the penalty of deprivation of liberty for from 6 months to 5 years”. Theoretical studies and commentaries to the Penal Code stress the fact that the subject of legal protection in Art. 188 of the Penal Code is the institution of care and supervision. Art. 188 is turned against lawless one-sided alterations in the relation, directly determined or adjudicated by court, of care or supervision of a person specified in this Article. It is also indicated that this Article aims at protecting the child from the lawlessness of this quarrelling parents or other persons. It is also characteristic that the commentaries stress the fact that the motives from which the perpetrator acted are unessential as regards the existence of an offence specified in Art. 188. A small number of persons sentenced for abduction or detention does not mean that offences of this kind are of little social significance. The real extent of this phenomenon is much greater than indicated by the small number of sentenced persons. As the common knowledge shows, the cases of lawless taking away of the children by quarrelling parents or relatives are frequent. Thus it could have been expected that the cases of abduction or detention which had been investigated by court as offences might be particularly drastic of nature. Yet the analysis of all cases failed to confirm this supposition. Among the 9 cases, there were 4 cases of "abdcution" and 5 cases of "detention'' of minors. None of the cases concerned a helpless person. In as few as 2 cases the minors were strangers unrelated to the perpetrator. In four cases, the minors were sons of the perpetrators, in one case the minor was the perpetrator's daughter, in one case – granddaughter; also in one case, the minor was the perpetrator’s cousion. Among the perpetrators of „abduction" or „detention” there were six men and three women. The analysis of all criminal cases specified in Art. 188 reveals two sides of this type of offence: a) the aspect of family, care, and education, b) the criminal aspect. However, these two sides are not closely connected with one another. The cases of "abduction and detention" as represented in the paper reveal the background on which it comes to various forms of behaviour of parents towards children and towards each other. In the majority of cases, an intervention of guardianship authorities in the life of parents and children has already taken place and various provisions have been made. However, they failed to eliminate the existing conflicts, what is more, they increased them. The further execution of these decisions lacks additional supervision which would ensure a free contact with the child for the parent with whom the child does, not reside permanently, and, on the other hand, which would limit the lawlessness of mothers who do not allow the fathers to contact the children they care for. Therefore, in the examined cases we deal with "abduction'' or "detention'' of a child by his father who is faced with difficulties on the mother's part when he wants to see his child. The analysed cases are not drastic in character as regards the conduct of perpetrators and the circumstances of their offence. On the other hand, they are generally most drastic as regards legal proceedings in such cases and sentences. The examined fathers, mother, grandmother, and cousin are treated as offenders: persecuted, charged, tried, and sentenced for acts which, even if they disturbed the institution of care, could be treated as family and care cases. Generally it seems that the criminal character of the analysed cases is independent and separate, so to say, from the entire aspect of family, care, and education of these cases. It may be assumed that this situation is to a certain degree conditioned by the dogmatic and formalistic approach in the proceedings and sentencing in these cases, which is based on the formulation found in commentaries, that the perpetrator’s motives are unrelevant to the existence of the offence, and that the subject of legal protection in Art. 188 is the institution of care and supervision, not the interest of the abducted person. In the final part of the present paper it is stressed that while protecting the institution of care, one should still take into consideration first of all the interest of the child for whom this institution is to function. It is also in the child's interest that his parents and close relations do not become criminals because of him. The cases of „abduction and detention of a minor” should be examined as cases of family and care, penal law proceedings instituted only in cases of actual abduction of a minor, first of all that committed by strangers.