Kara konfiskaty mienia w prawie polskim i obowiązującym na ziemiach polskich oraz w praktyce jego stosowania
Authors: Irena Rzeplińska  
Published: July 2024

Forfeiture of property is one of the oldest penalties in Polish law. Its origins can be traced in pre-state law, in the penalty of exclusion from tribe. Anybody could kill a person thus punished and destroy his property, and would suffer no penalty for such acts. Later on, in early Middle Ages, the penalty of plunder was introduced: the offender’s possessions were looted, and his house burned. Destruction of the offender’s property as a penal sanction resulted from the conception of crime and punishment of that time. Crime was an offence against God, and punishment was seen as God’s revenge for crime – that offender’s house was destroyed as the place that had become unchaste, inhabited by an enemy of God. The penalties imposed in Poland in the 12th and 13th centuries were personal, material, and mixed penalties. There were two material penalties: forfeiture of the whole or part of property and pecuniary penalties. The utmost penalty was being outlawed which consisted of banishment of the convicted person from the country and forfeiture of his property by the ruler. Being outlawed was imposed for the most serious offences; with time, it became an exceptional penalty. In those days, forfeiture of property was a self-standing, as well as an additional penalty, imposed together with death, banishment, or imprisonment. As shown by the sources of law, forfeiture of property (as an additional penalty) could be imposed for “conspiracy against state” rape of a nun forgery of coins, cheating at games, and profiteering. Other offences punishable in this way included murder, raid with armed troops and theft of Church property, murder of a Jew committed by a Christian, and raid of a Jewish cemetery. Data on the extent of the imposition of that penalty in the early feudal period are scarce; as follows from available sources, it was applied but seldom. The consequences of forfeiture were serious in those days. Deprived of property, the convicted person and his family inevitably lost their social and political status which made forfeiture one of the most severe penalties. From the viewpoint of the punishing authority (duke), forfeiture was clearly advantageous due to its universal feasibility; to the duke’s officials, it was profitable as they were entitled to plunder the convicted persons’s movables. In the laws of the 16th and 17th centuries, forfeiture was provided for: serious political crimes (crimen leaesae maiestatis – laese-majesty; perduelio – desertion to the enemy), offences against currency and against the armed forces. As an additional penalty, it accompanied capital punishment and being outlawed. The law also provided for situations where forfeiture could be imposed as a self-standing penalty. In 1573, the Warsaw Confederacy Act which guaranteed equality to confessors of different religions banned the inposition of forfeiture for conversion to another faith. Initially absolute – the whole of property being forfeited and taken over by the Treasury where it was at the king’s free disposal – forfeiture of property was limited already in the 14th century. To begin with, in consideration of the rights of the family and third to forfeited property, the wife’s dowry was excluded from forfeiture. Later on, in the 16th century, the limitations concerned the king’s freedom of disposal of forfeited property. A nobleman’s property could no longer remain in the king’s hands but had to be granted to another nobleman. Forfeiture of property can also be found in the practice of Polish village courts; as follows from court registers, though, it was actually seldom imposed. European Enlightenment was the period of emergence of ideas which radically changed the conceptions of the essence and aims of punishment, types of penalties, and the policy of their imposition. In their writings, penologists of those days formulated the principle of the offender’s individual responsibility. This standpoint led to a declaration against forfeiture of property as a penalty which affected not only the offender but also his family and therefore expressed collective responsibility. The above ideas were known in Poland as well. They are reflected in the numerous drafts of penal law reform, prepared in 18th century Poland. The first such draft, so-called Collection of Jidicial Laws by Andrzej Zamojski, still provided for forfeiture. A later one (draft code of King Stanislaw August of the late 18th century) no longer contained this penalty. The athors argued that, affecting not only the offender, that penalty was at variance with the principles of justice. The drafts were never to become the law. In 1794, after the second partition of Poland, an insurrection broke out commanded by Tadeusz Kościuszko. The rebel authorities repealed the former legal system and created a new system of provisions regulating the structure of state authorities, administration of justice, and law applied in courts. In the sphere of substantive penal law and the law of criminal proceedings, an insurgent code was introduced, with severe sanctions included in the catalog of penalties. Forfeiture of property was restored which had a double purpose: first, acutely to punish traitors, and second – to replenish the insurgent funds. When imposing forfeiture, property rights of the convicted person’s spouse and his children’s right to inheritance were taken into account. Yet compared to the administration of justice of the French Revolution with its mass imposition of forfeiture, the Polish insurgent courts were humane and indeed lenient in their practice of sentencing. After the fall of the Kościuszko Insurrection, Poland became a subjugated country, divided between three partitioning powers: Prussia, Russia, and Austria. The Duchy of Warsaw, made of the territories regained from the invaders, survived but a short time. In the sphere of penal law and the present subject of forfeiture of property, that penalty was abolished by a separate parliamentary statute of 1809. After the fall of the Duchy of Warsaw, Poland lost sovereignty and the law of the partitioning powers entered into force on its territories. In the Prussian sector, a succession of laws were introduced: the Common Criminal Law of Prussian States of 1794, followed by the 1851 penal code and the penal code of the German Reich of 1871. Only the first of them still provided for forfeiture: it was abolished in the Prussian State by a law of March 11, 1850. Much earlier, forfeiture disappeared from the legislation of Austria. lt was already absent from the Cpllection of Laws on Penalties for West Galicia of June 17,1796, valid on the Polish territories under Austrian administration. Nor was forfeiture provided for by the two Austrian penal codes of 1803 and 1852. Forfeiture survived the longest in the penal legisation of Russia. In 1815, the Kingdom of Poland was formed of the Polish territories under Russian administration. In its Constitution, conferred by the Tsar of Russia, a provision was included that abolished forfeiture of property. It was also left in the subsequent Penal Code of the Kingdom of Poland, passed in 1818. Forfeiture only returned as a penal sanction applied to participants of the anti-Russian November insurrection of 1831. The Organic Statute of 1832, conferred to the Kingdom of Poland by the Tsar, reintroduced the penalty of forfeiture of property. Moreover, it was to be imposed for offences committed before Organic Statute had entered into force which was an infringement of the ban on retroactive force of law. Of those sentenced to forfeiture in the Kingdom of Poland, Lithuania, and Russia as participants of the November insurrection, few had estates and capital. A part of forfeited estates were donated, the rest were sold to persons of Russian origin. The proces of forfeiting the property of the 1830–1831 insurgents only ended in 1860 (the Tsar’s decree of February 2/March 2,1860). After November insurrection, the Russian authorities aimed at making the penal legislation of the Kingdom of Poland similar to that of the Russian Empire. The code of Main Corrective Penalties of 1847 aimed first of all at a legal unification. It preserved the penalty of “forfeiture of the whole or part of the convicted persons’ possessions and property” as an additional penalty imposed in cases clearly specified by law. It was imposed for offences against the state: attempts against the life, health, freedom or dignity of the Emperor and the supreme rights of the heir to the throne, the Emperor’s wife or other members of the Royal House, and rebellion against the supreme authority. Forfeiture was preserved in the amended code of 1866; in 1876, its application was extended to include offences against official enactments. The penalty could soon be applied – towards the participants of January insurrection of 1863 which broke out in the Russian Partition. The insurgents were tried by Russian military courts. After the January insurrection, 6,491 persons were convicted in the Kingdom of Poland; 6,186 of tchem were sentenced to forfeiture of property. Of that group, as few as 28 owned the whole or a part of real estate; 60 owned mortgage capital and real estate. The imposition of forfeiture on January insurgents stopped in 1867 in the Kingdom of Poland and as late as 1873 in Lithuania. The penalty was only removed from the Russian penal legislation with the introduction a new penal code in 1903. As can be seen, the Russian penal law – as opposed to the law of Prussia and Austria retained forfeiture of property the longest. It was designet to perform special political and deterrent functions as the penalty imposed on opponents of the system for crimes against state. It was severe enough to annihilate the offender’s material existence. It was also intended to deter others, any future dare-devils who might plan to resist authority. It was an fitted element of the repressive criminal policy of the Russian Empire of those days. Forfeiture of the whole of property of the convicted person can be found once again in the Polish legislation, of independent Poland this time: in the Act of July 2, 1920 on controlling war usury where forfeiture was an optional additional penalty. At the same time, the act prohibited cumulation of repression affecting property (fine and forfeiture could not be imposed simultaneously). It originated from the special war conditions in Poland at the time. The ban on cumulation of repression affecting property is interesting from the viewpoint of criminal policy. The Polish penal code of 1932 did not provide for the penalty of forfeiture, and the Act on controlling war usury was quashed by that code’s introductory provisions. In the legislation of People’s Poland after World War II, forfeiture of property was re-established and had extensive application.