Unlawful imprisonment

What is the crime of unlawful imprisonment?

Unlawful imprisonment is simply a crime against the physical freedom of man, as defined in Article 189 of the Criminal Code. It consists in preventing a individual from changing his or her place of residence as he or she wishes. It does not should be locked up in a room, it is adequate to make a situation in which the victim subjectively feels that he cannot free himself, for example by utilizing threats or violence.

I frequently encounter the misconception of clients that the duration of imprisonment does not substance to the existence of this crime. Even a short-term detention of individual against his will, e.g. in a car or apartment, fills in the signs of a forbidden act, if the perpetrator acted deliberately.

Key aspects of the definition:

• The essence of the action: Depriving the ability to decision freely.
• Methods: Physical force (binding), indoor closure, Threat, as well as another means of paralyzing the will to leave.
• Victim's feeling: According to Judgment of the Court of Appeal of 26 February 2016, Case II AKa 3/16It is adequate that, in the legitimate sense of a prisoner, freedom is impossible.

Important: If the victim gives informed, voluntary and concrete consent to his imprisonment (e.g. for the intent of final settlement), the behaviour of the perpetrators is not a crime. This is confirmed by the case law (e.g. judgment of the Court of Appeal in Katowice of 8 December 2005 II AKa 68/05).

What punishment is there for unlawful imprisonment?

The punishment for an offence under Article 189 k.k. varies depending on the duration of the imprisonment and the degree of drasticity of the act. In the primary type, the perpetrator is facing 3 months to 5 years in prison. However, if imprisonment lasted longer than 7 days, the punishment increases and falls within the scope of 1 to 10 years of imprisonment.

When examining the provisions of the Criminal Code, 4 degrees of criminal work can be distinguished:

• Basic kind (§ 1): The deprivation of liberty lasts for up to 7 days – here there is simply a punishment from 3 months to 5 years.
• Time-qualified kind (§ 2): The deprivation of liberty lasting more than 7 days – a punishment from 1 year to 10 years.
• Type qualified by the victim (§ 2a): It applies to the inept individual (age, mental/physical state) – a punishment from 2 to 15 years.
• Type qualified by torture (§ 3): Consistent with peculiar torment – punishment from 5 to 25 years (crime).

What is simply a peculiar torment within the meaning of Article 189 k.k.?

Special torment is the actions of the perpetrator, which go beyond the framework essential for the imprisonment itself, causing drastic physical or intellectual suffering of the victim. The assessment of the perpetrator’s actions, and not just the effect of wellness disorders, is simply a peculiar torment. It's sadism and deliberate pain.

In court practice I meet situations where the boundary between "ordinary" imprisonment and peculiar torment is thin. However, case law (e.g. Judgment of the Court of Appeal in Łódź of 16 July 2014 No. II AKa 104/14) makes it clear that beatings that are retaliatory and not aggravating imprisonment ailments does not always should be qualified as peculiar torment.

Examples of actions considered to be a peculiar distress:

• Tie your hands and legs with a tape in a way that stops your circulation.
• Applying foil bags to the head (suffocation).
• Death threats or acid spills.
• Starving or keeping in inhuman conditions (e.g. in cold, without toilet access).

What is the difference between imprisonment and taking a hostage?

The difference is the intent of the perpetrator. With the crime of Art. 189 k.k., the mark is indifferent – the perpetrator simply wants to trap the victim. However, taking a hostage (Article 252 k.k.) is intended to force a state authority, institution or another individual to behave in a circumstantial way.

From the point of view of the defence strategy, this discrimination is crucial due to the fact that taking a hostage is simply a crime threatened by a much stricter punishment (3 to 20 years).

Key Differences (Article 189 vs. Article 252):

• Article 189 (Deprivation of liberty): The perpetrator restricts the freedom of the victim, but does not make demands to 3rd parties or institutions as a condition for its release.
• Article 252 k.k. (taken hostage): The perpetrator uses the victim as “a bargaining card”, blackmailing the environment or authorities to force a circumstantial action or omission.

Practical note: If the debtor's debtor's bond is to force the recovery of the debt (even resulting from criminal activity), that act may be qualified as extortion or forced recovery, which changes the legal qualification of the act (according to By order of the ultimate Court of 27 January 2016, ref. Act V KK 252/15).

Can imprisonment be linked to another crimes?

Yes, illegal imprisonment frequently occurs in a fugitive with another crimes specified as rape (Article 197 k.k.). If the victim's imprisonment lasted longer or was more intense than essential for the act of sexual force itself, the perpetrator is liable for both crimes together. Cumulative qualifications are justified erstwhile restrictions on freedom go beyond the framework of rape itself.

Note that:

• Short-term hold: If it serves only to break the victim's opposition during rape, it is usually consumed by Art. 197 k.k.
• Long-term imprisonment: If the victim is imprisoned for hours before or after the act, the court will apply the cumulative qualification under Article 189 k.k., which importantly increases the penalty.

Faq – frequently asked questions about illegal imprisonment