Article 288 of the Criminal Code provides for criminal liability for harm to things, demolition of things or making it unfit for use. This offence is effective and common in nature – it can be committed by any individual able to bear criminal responsibility.
Depending on the value of the damage, the act may be a criminal offence or an offence.
Type of thing to defend a crime of harm or demolition of a thing
The nature of the protection of the offence provided for in Article 288 k.k. shall be property. In the context of this provision, property occurs in the broad sense of that term. The application of Article 44 of the civilian Code is property and another property rights (yes: ultimate Court judgement of 9 December 2003, III KK 165/03, Prok. and Pr. 2004, No. 3, item 7; M. Kulik, Offence and Offence of harm to Things, pp. 27 and n.).
The perpetrator of this crime straight violates both the right of the owner of the thing and the right of the holder of the thing in good faith. The provision of Article 288 § 1 k.k. so besides protects possession, which is an attribute of ownership, which may actually be transferred to another entity, for example to the user, tenant, tenant or legal holder of the property (so the ultimate Court judgement of 9 December 2003, III KK 165/03, LEX No 140098).
Marks of the offence referred to in Article 288 §1 k.k. do not restrict the subject substance of the offence to movable property only, and it should so be assumed that this provision protects both movable and immovable property (yes: judgement of the Gdańsk-South territory Court of Gdańsk II Criminal Division of 1 April 2016, ref. Act II K 490/15).
Form of intent
The subject organization of the crime is characterised by intent both in the form of direct and possible intent (yes: M. Szwarczyk, Commentary on Article 288 of the Criminal Code, LEX).
Therefore, there is no reflection in the consciousness of the perpetrator of any component of the kind of prohibited act described in Article 288(1) of the Code, i.e. not being aware by the perpetrator of at least the anticipation of its occurrence as a consequence of the conduct pursued, means not fulfilling the decisive elements on the subject-matter of the offence in question and, consequently, not being able to delegate it subjectively to the perpetrator (yes: judgement of the Kozl territory Court of Kędzierzyn, 15 July 2015, II K 1084/12).
The perpetrator must so include the deliberate determination of all types of prohibited activity, including the effect in the form of destruction, harm or making unusable the things in respect of which he undertakes his conduct (yes: Andrzej Zoll [ed.], Criminal Code. The peculiar part. Volume III. Commentary on Art. 278-363 k.k., Zakamycze, 2006).
Destruction of Things – Definition
The demolition shall mean specified an effect on the benefit of the offender which causes it to be completely destroyed or to alter its characteristics so that it is unfit for usage as intended.
harm to things – definition
The harm to things involves violating or partially destroying things that restrict their performance or purpose.
‘Creation of things’ means the physical impact on the benefit which results in a temporary or permanent change in its substance. This means that the harm may be reversible (Art. 288 kk, Konarska-Heath Violett (ed.), Criminal Code. Commentary, LexPolonica).
Making Things Unusable – Definition
Making things unfit is to deprive things of average functioning (yes: A. Marek, Criminal Code. Commentary, p. 520).
Property harm as part of a crime of harm or demolition of things
The liability for the offence referred to in Article 288 k.k. must be attributed to the offender. In the case of an act referred to in Article 288 k.k., the harm to property shall be understood as the sum of damnum ergens (real loss) and lucrum cessans (lost profit) (yes: M. K., From the legal problems of graffiti, Prok. and Pr. of 2001 No. 2, p. 78).
Circumstances affecting the punishment
On the bench of the case of the harm to the entrance door to the elevator in the residential block, by carving on them the symbol of the football club, territory Court for Warsaw Prague – North in Warsaw in judgement of 22 July 2016, act mention IV K 268/16it considered the aggravating condition to be the material degree of the harm caused, as well as the action for highly low motives, of an unwarranted vandalism, antisocial action. The court besides found that the suspect had damaged a common property that is utilized by a number of persons, which affects the assessment of the social harm of the act.
Damage or demolition of your own property
An crucial component for attributing liability to the offender under Article 288(1) of the Code is the fact that the thing on which the perpetrator acts, was not its property. Nevertheless, the subject of the implementing act may be a thing of joint ownership of the perpetrator and another individual (yes: ultimate Court judgement of 9 April 1997, III KKN 241/96, OS 1998, of 5, item 95; M. K., Offence and misdemeanor of harm to things, p. 93).
Meaning of motivation of the perpetrator
The intent and motivation of the perpetrator are irrelevant to the characteristics of the subject party.
(judgment of the Bishop's Court of 6 October 2017 No. II K 158/17)
The ability to fix things and the existence of crime
The fact that a thing can be corrected is not a condition that excludes the illegality of the act.
Penalties
The punishment for the crime of damaging things, destroying things or making them unfit is imprisonment from 3 months to 5 years.
In a insignificant case, the offender is subject to fines, imprisonment or imprisonment for a year.
Procedure for criminal prosecution
The prosecution of this crime follows at the request of the victim (The exception is the act of breaking or damaging the submarine cable, and the violation of the rules applicable to the installation or repair of specified cable, as defined in § 3 of Article 288 k. ).
Damage or demolition of things as an offence
Following the amendment of the Criminal Code, which entered into force on 1 October 2023, the deliberate damage, demolition or non-useable conduct is simply a violation of Article 124(1) of the Code of Offence for which detention, restrictions on liberty or fine is to be imposed. However, the condition for the act to be considered an offence is that the harm does not exceed PLN 800.
This offence is an act of division, thus forming work under Article 124(1) of the Code, if the value of the harm shall not exceed PLN 800. If, on the another hand, it exceeds that amount, the offender is guilty of the offences referred to in Article 288 (yes: ultimate Court resolution of 19 October 1972, VI KZP 41/72, OSNKW 1973, No 1, item 4).
According to the ultimate Court, Article 124(1) of the General Court clearly indicates what is the limit of the offence; it defines it injuryNot the value of the damaged thing.
The above provision operates not with the concept of the value of "a better thing", but with the concept of damage. The amount of damage, not the value of the damaged thing, depends on whether the act of deliberate destruction, The harm or failure of another person's work is an offence provided for in Article 124(1) of the Code, or an offence with Article 288(1) of the Code (yes: judgement of the ultimate Court of 22 October 1998, III KKN 146/97, Proc. and Pr-ed. 1999, No 2, item 16).
Definition of injury under Article 124(1) of the Code of Offence
The harm in the sense resulting from Article 124(1) of the Code is simply a harm to the goods in the performance of the perpetrator.
The harm caused to things may be greater than the value of the thing, since the concept of harm should be understood to mean both harm to the property, including the actual failure (damnum ergens), consisting of a decrease in the assets' assets by loss, failure or demolition of their individual components or an increase in liabilities, as well as failure of profit (lucrum cessans), expressed in the failure to increase the assets (yes: ultimate Court resolution of 21 June 1995, I KZP 22/95, OSNKW 1995, No. 9-10, item 58).
Punishment for wrongdoing of harm or demolition of things
A court may decide to pay the equivalent of the harm caused or the work to return to the erstwhile condition if it commits a violation of damage, harm to or harm to a thing or to do it unfit for use.
The prosecution of an offence shall take place at the request of the victim.
Attempting, inciting, and abetting to commit this offense are criminal.
