ACCORDO N° 2013 -1-IT2-ERA10-52933
The provisions of Polish criminal law
regarding organized crime – is it useful?
dr Janusz Bojarski
Chair of Criminal Law and Criminal Policy
Nicolaus Copernicus University
Torun, Poland
bojarski@umk.pl
A short history of Poland
In the end of XVIII century Poland lost its
independence (the country was divided
among Austria, Germany and Russia)
 1918 – Poland is independent state again
 1939 – 1945 under German and Soviet
occupation
 1945 – 1989 – period of communism
 since 1.05.2004 Poland is a member of the
EU

Origins of contemporary Polish
organized crime
late 1980: Sluzba Bezpieczenstwa (Security
Service – Polish equivalent of Soviet KGB),
Milicja Obywatelska (Civic Militia – existing in
communist period instead of ordinary police)
were isolated in the society and wanted to
gather information from criminal circles.
 Informants, in order to function properly, had to
commit crimes and often they used information
presented to militia or other state agency to
fight other criminal groups.

Origins of Polish organized crime
On the turn of years 1980s and 1990s
militia lost control over their pseudo –
informants and they were building they
own criminal organizations.
 The first wave of organized crime in
Poland was possible because of such
informant – policeman connections and a
wide scale corruption

According to prof. E. W.
Pływaczewski

in the beginning of the 1990s expansion of
the criminal activity in Poland was to a
large extent due to the fact that the Polish
law lacked a relevant legal framework ...
Models for new Polish criminal law
Criminal Code of 1932
 criminal law of other states
 international agreements

Article 258
§ 1. Whoever participates in an organized group or association having
for its purpose the commission of offence or fiscal offence shall be
subject to the penalty of deprivation of liberty for a term of between
3 months and 5 years.
§ 2. If the group or association specified in § 1 has the characteristics
of an armed organization or its purpose is the commission of
terrorist offence, the perpetrator shall be subject to the penalty of
deprivation of liberty for a term of between 6 months and 8 years.
§ 3. Whoever sets up the group or association specified in § 1 or an
armed organization or leads such a group or association shall be
subject to the penalty of deprivation of liberty for a term of between
1 and 10 years.
§ 4. Whoever sets up the group or association which purpose is the
commission of terrorist offence or leads such a group or association
shall be subject to the penalty of deprivation of liberty for a
minimum term of 3 years
Article 16.
§ 1. Preparation only occurs when the perpetrator,
in order to commit a prohibited act, undertakes
activities aimed at creating the conditions for
effecting an act leading directly to commission of
the prohibited act, particularly when, for this
purpose, he enters into an arrangement
with another person, acquires or makes ready
the means, gathers information or concludes a
plan of action.
§ 2. Preparation is subject to a penalty only when
the law so provides.
Police statistic of art. 258
70
60
50
40
258
30
20
10
0
1999
2001
2003
2005
2007
2009
Article 64§2
If a perpetrator previously sentenced in under the
conditions specified in §1, who has served the total of at
least one year's deprivation of liberty and in the period
of 5 years after the serving of the last penalty in full or
in part, again commits an intentional offence against life
or health, or rape, robbery, housebreaking or burglary,
or other offence against property, committed with the
use of violence or the threat of violence, the court
shall impose the penalty of deprivation of liberty,
prescribed for the offence committed, exceeding
the lower statutory limit, or may impose a penalty
up to the highest statutory penalty further
increased by a half.
Article 65
§1. The provisions regarding the level of the penalty, penal
measures and the measures connected with the placing
the perpetrator under probation envisaged with respect
to the perpetrator referred to in Article 64 § 2, shall be
also applied to the perpetrator who made commission of
offences his permanent source of income, or who
commits offences acting in an organized group or in a an
association whose purpose is to commit offence or who
commits a terrorist offence.
§2. The provisions regarding the perpetrator referred to in
Article 64 § 2 shall be also applied to the perpetrator of
offence of Article 258, without the provisions regarding
the level of the penalty
Criminal Code – Chapter VIII: Measures connected with the
placing the perpetrator under probation
Article 70
§ 1. Suspension of the execution of a penalty shall be
granted for a probation period, which runs from the time
the sentence becomes valid and final and is for:
1) from 2 to 5 years - in the case of a conditional
suspension of the execution of a penalty of deprivation
of liberty,
2) from one year to 3 years - in the case of a
conditional suspension of the execution of a fine or a
penalty of restriction of liberty.
§ 2. In the case of the conditional suspension of the
execution of a penalty with respect to a perpetrator who
is a young offender or the one specified in Article 64 § 2,
the probation period is from 3 to 5 years.
Criminal Code – Chapter VIII: Measures connected with the
placing the perpetrator under probation
Article 78
§ 1. The sentenced person may be conditionally
released after serving at least half of the
sentence, albeit with a minimum of 6 months.
§ 2. The sentenced person specified in .... Article
64 § 2, may be conditionally released after
serving three-quarters of the sentence; the
conditional release may not occur before the
lapse of one year.
Forfeiture of criminal assets
Under the present (since 2003)
formulation of section 45 of the Criminal
Code it is presumed that the entire gains
of the perpetrator since the moment of
committing an offence, is regarded as
material benefit from that crime.
 This presumption is rebutable, meaning
that the burden of proof has shifted to the
side of the convicted person.

Forfeiture of criminal assets
The provision also includes the presumption that
property obtained from the perpetrator is
considered to belong to the perpetrator, even if
it was legally the independent possession of
another natural person, legal entity or an
organisational unit not having the status of a
legal entity.
 This presupposition can be contradicted by the
person or unit that claims possession, provided
there is evidence to sustain this claim.

Crown witness and incognito
witness

Both witness types are heavily associated
with undercover policing: the witnesses
are primarily to be recruited from criminal
groups infiltrated by undercover police
officers.
Incognito witness
The introduction of the incognito witness was
strongly advocated by a group of determined
politicians and had the support of a number of
academics.
 The use of anonymous testimonies must be
consistent with the European Convention on
Human Rights and Basic Liberties and with the
court rulings of the European Court of Human
Rights.
 The evidence resulting from an anonymous
testimony should be evaluated in the same way
and with the same caution as other „difficult
evidence”, such as the testimony of minors or
mentally handicapped people.

Crown witness
Since 1st September 1998 the Act on
Crown Witnesses has come into force.
 The crown witness is obliged to make a
statement that incriminates other
members of the crime group
 In case of a valid conviction of the other
members, charges against the crown
witness will be dropped and prosecution
waived.

Fight against organized crime in
Poland
On 1st April 2000 has been founded Central
Investigation Bureau, as result of fusion of
Organized Crime Control Bureau and Narcotics
Bureau.
 Local units of CIB are placed in 16 regional
police quarters of police.
 They use comparatively better equipment and
technical resources than other police units. Their
internal structure and independence from
general police structures make them mobile and
efficient

Main institutions focused on
serious (organized) crime:

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Central Investigative Bureau (police)
Agency of Internal Security
Central Anticorruption Bureau
Military Police
Fiscal Control
Border Guard
Custom Service
General Inspector of Financial Information
Commission of Financial Supervision
2003
Testimony of „Masa” – the most known
crown witness
 Sentence in the case of „Old Pruszków”

Crown witness
justice or efficiency
 protection of criminals or victims?
