The suspension of the reform of the criminal code pleases prosecutors

The Ministry of Justice's decision to proceed with criminal law reform using a two-speed approach (first introducing changes to criminal procedure and then postponing 95% of the penal code reform indefinitely) has worried members of the codification commission. However, prosecutors from the Trade Union of Prosecutors and Employees of the Prosecutor's Office of the Republic of Poland are not hiding their satisfaction with this turn of events.

"For the past few months, we have been working to defend the Penal Code against unfavorable changes prepared by the Criminal Law Codification Commission and submitted for legislation by the Minister of Justice. These were largely unjustified solutions that, contrary to public interest, promoted leniency for perpetrators of the most serious crimes: multi-recidivism offenders, individuals committing crimes, or economic crimes that expose the State Treasury to losses in the millions, with victims often numbering in the hundreds," says Jacek Skała, president of the ZZPiPP. "Influenced by our arguments, but likely also for political reasons, as leniency is not socially popular, the draft was modified, abandoning some of the proposals. Hence the dissatisfaction from lobbyists promoting these changes," he adds.

More lenient treatment for repeat offenders?

Prosecutor Skała is primarily referring to changes to Article 37a of the Penal Code. This provision allows, in the case of offenses punishable by up to 8 years' imprisonment, to impose a non-custodial sentence—a fine or restriction of liberty—even if no specific provision provides for them. At the same time, § 2 of Article 37a states that the leniency does not apply to perpetrators specified in Article 64 § 1 (recidivism), those who commit an offense acting in an organized group or association aimed at committing an offense or a fiscal offense, perpetrators of terrorist offenses, or perpetrators of the offense specified in Article 178a § 4 (repeated drunk driving). The Ministry of Justice's draft provided, among other things, for the repeal of Article 37a § 2.

During consultations, this was criticized not only by the ZZPiPP (Polish Association of People's and Entrepreneurs), but also by the Regional Prosecutor's Offices in Katowice and Lublin, for example. However, not everyone shares the concerns that repealing Article 37a § 2 will result in the imposition of non-custodial sentences on repeat offenders. The Commissioner for Human Rights, for example, did not perceive such a threat, strongly praising these solutions.

"The repeal of Article 37a § 2 of the Penal Code does not mean that judges will automatically impose penalties of restriction of liberty or fines on perpetrators of serious crimes or members of organized crime groups. Even if such a verdict were ever issued, the prosecutor's office has the right to appeal, and such a decision would be immediately reversed through appellate review," says Judge Piotr Mgłosiek of the District Court for Wrocław-Krzyków. "Article 37a, however, is a loophole through which a decision can be tailored to a specific situation. Limiting judicial discretion is a road to nowhere. Therefore, I believe the concerns expressed by some prosecutors are unfounded," adds Judge Mgłosiek.

Objections to the procedure

Although the latest version of the bill was limited to changes in the Code of Criminal Procedure and only a few provisions of the Penal Code, prosecutors also have reservations about them.

"Now we face a battle to protect the Code of Criminal Procedure from unfavorable provisions, most of which remain in the current draft version. The potential introduction of these changes would not only threaten the efficient conduct of investigations and prosecutions, but would also worsen the working conditions of administrative employees of the prosecutor's office by imposing new duties on them that do not translate into effective prosecution," says Paweł Opitek, director of the Legal Office of the Trade Union of Prosecutors and Employees of the Prosecutor's Office of the Republic of Poland.

This concerns, for example, extending the right to translation for foreigners (which results from EU regulations) not only of basic procedural decisions such as the decision to bring charges, the indictment and other decisions concluding the proceedings, but also of any other document if it is of significant importance for the exercise of the right to defence.

Although the proposed Article 72 § 4 of the Code of Criminal Procedure states that sometimes an oral translation of documents or an oral summary thereof is sufficient, prosecutors believe that this will not only increase the costs for law enforcement agencies but, above all, will slow down the proceedings.