The social harm of a prohibited act and the principles of penalties and criminal measures
The Court of First Instance shall pay the conviction at its discretion, within the limits provided for by the law, ensuring that its ailment does not exceed the degree of guilt, taking into account the degree of social harm of the act and taking into account the preventive and educational objectives to be achieved in relation to the convicted person, as well as the request to form the legal awareness of the public (Art. 53 §1 kk).
Assessment of the degree of social harm of the act
In assessing the degree of social harm of the action (Article 115(2) kk), the court shall consider:
- the nature and nature of the damaged good,
- the degree of the harm caused or threatened,
- the manner and circumstances of the act,
- the weight of the duties affected by the perpetrator,
- the form of intention,
- motivation of the perpetrator,
- the nature and degree of infringement of the precautionary rules infringed
Method of assessing the degree of social harm of the act
The assessment of the degree of social harmfulness of a peculiar behaviour should be an overall assessment, taking into account the circumstances mentioned in Article 115(2) of the Code, and not the sum, whether the derivative of the partial assessment of specified or another "negativeness" in peculiar circumstances, and therefore, if Article 1(2) of the Code refers to the negligible social harmfulness of the act, the request of negligibleness concerns the social harmfulness assessed comprehensively, not its individual facts (so: judgement of the ultimate Court of 10 February 2009, WA 1/09, OSNwSK 2009, item 343).
In any event, this assessment cannot be brought into general terms, but circumstantial criteria must be specified, with peculiar respect to the harm suffered by the victim (yes: judgement of the Court of Appeal in Krakow of 20 June 2000, II AKa 99/00, KZS 2000, of 7-8, item 39).
The ultimate Court in its judgement of 23 May 2019, Ref. Act III KK 110/18 He noted that the Board of Appeal could not only address the question of the motivation of the perpetrator, which is just 1 of respective factors determining the social harm of the act. However, this assessment should be comprehensive and mention to an act which the Board of Appeal has attributed to the suspect (in the case under examination by the ultimate Court, qualified as a insignificant injury to wellness under Article 157(2) of the Code), and not limited to the division of an assessment carried out by the territory Court in respect of an act otherwise described and qualified by that Court (as a violation of physical immunity from Article 217(1) of the Law).
The ultimate Court stressed that, in accordance with Article 115(2) of the Code, it is essential to take into account, inter alia, the nature and nature of the infringement of the legal good erstwhile assessing the degree of social harm. However, the subject substance of the protection of the offence under Article 217(1) of the Code is different from that in which it reconciled the act attributed to the suspect in the judgement of the Court of Appeal.
Infringement by the court of the principles of assessing the degree of social harm
According to settled case-law of the ultimate Court, a violation of Article 115(2) of the Code (and so a violation of substantive law) may take place where the court in its judgement omits any of these quantifiers or takes into account the fact that it is not mentioned in Article 115(2) of the Code and gives it weight by assessing the social harm of the act (yes: order of the ultimate Court of 5 January 2017, IV KK 260/16; similarly: judgement of the ultimate Court of 19 October 2016, V KK 250/16; order of the ultimate Court of 20 January 2017, IV KK 451/16).
In the absence of an assessment of the degree of social harm attributed to the suspect by the prism of all quantifiers referred to in Article 115(2) of the Code, the court is grossly violating that provision, which can undoubtedly have a crucial impact on the content of the judgement (yes: ultimate Court judgement of 23 May 2019, Ref. Act III KK 110/18).
Small social harm
Pursuant to Article 1(2) of the Criminal Code, a criminal offence is not a criminal offence whose social harm is negligible.
It should be stressed that a specified formal infringement of a provision is not adequate to attribute criminal liability. In order to view a crime as a crime, it is essential to show that it violates crucial social values. The minimal social harm of the act is simply a highly rated category. The consequence of this is that it is impossible to specify precisely in the bill erstwhile specified insignificantness occurs. The provision of Article 115(2) K.K., which contains a closed catalogue of criteria for assessing the degree of social harm of the act, leaves no uncertainty that the dominant parties have crucial circumstances in the scope of the organization concerned, to which only 2 conditions of the subject organization (the character and motivation of the perpetrator) are attached, and the circumstances relating to the subject of the act, i.e. the perpetrator, specified as age, opinion, characteristics and individual conditions which affect the punishment (so: judgement of the ultimate Court of 25 June 2008, V KK 1/08, OSNKW 2008, No 9, item 75).
The case law rightly emphasises that for the intent of recognising that the degree of social harm of the act is negligible, it is not essential that this negligible amount is bilateral, i.e. that it concerns both the organization afraid and the organization concerned. This is due to the fact that it concerns any accident elements which constitute the social harm of a peculiar prohibited act (yes: the justification of the judgement of the Court of Appeal in Łódź of 18 March 2014 the mention of Act II AKa 28/14, for Lex).
Consequences of the insignificant social harm of the act
The rule of nullum crimen sine periculo sociali shows that a crime should be a socially harmful act; social harm is the alleged material content of the crime; it means the social right to penalise certain behaviours. Social harm is simply a gradual category; its smallness leads to the abolition of the criminality of the act and obliges the annulment of the initiated proceedings (yes: ultimate Court judgement of 10.02.2009, WA 1/09, OSNwSK 2009/1, item 343).
The degree of social harm and the kind of intent of the perpetrator
It is accepted in jurisprudence and doctrine that a higher degree of social harmfulness is demonstrated by direct intent (and directional), then successively—the intention possible, recklessness; the comparatively lowest degree of social harmfulness is assumed in the case of negligence. The lower degree of social harm is besides the actions committed in a state of limited capacity (yes: ultimate Court judgement of 21 February 1972, IV KR 324/71, OSNPG 1972, No 5, item 86). It is besides assumed that, as a rule, more social harmfulness is determined by the intention to be thoughtful and little sudden.
The legislator does not supply any guidance on how to measure the motivation of the perpetrator. In practice, motivation is not so much assessed as the dominant motive for the perpetrator's behaviour. There is no directory of ‘good’ and ‘bad’ themes. The same recital, depending on the circumstantial circumstances, may be assessed as a spokesperson in favour of the perpetrator, affecting the simplification of the degree of social harm or disadvantage, affecting its increase. For example, an act of profit is considered reprimanded (yes: Gdańsk territory Court in its judgement of 26 February 2018. Ref. Act II K 1423/16).
Small Social Harm and Crime
A specified formal violation of a provision is not adequate to attribute criminal liability. In order to be regarded as a criminal offence, it is essential to show that it violates crucial social values by thus becoming a criminal act (yes: order of the ultimate Court of 20 June 2006, act No. II KK 242/05, LEX No. 193048).
However, the deficiency of the characteristics of the crime, due to the negligible degree of social harm, is not excluded besides in the case of the crime from Article 310(1) of the Code (yes: judgement of the Court of Appeal in Gdańsk of 14 March 2012 No. II Aka 54/12, judgement of the ultimate Court of 15 February 1991, (...) 195/90).
Social Harm of Action a withdrawal after punishment
If the offence is punishable by a conviction of imprisonment of up to 3 years or by a finer kind and The social harm of the act it is not significant, the court may waive the punishment if it decides at the same time a criminal measure, a forfeiture or a compensatory measurement and the objectives of the punishment are thus met (Article 59 kk).
The court shall waive the conviction if, no later than 30 days after the date of the first proceeding as a suspected offender of the offence of absconding from the maintenance obligation, the act of which exposes the individual entitled to the inability to meet the basic needs of life, has full paid the outstanding alimony, unless the wine and The social harm of the act they object to waiving the punishment (Article 209(5)).
Social harm of the act and conditional remission of criminal proceedings
The court may conditionally dismiss the criminal proceedings if the wine and The social harm of the act are not significant, the circumstances of his commission are clear and the attitude of the unpunished offender for the intentional offence, his qualities and individual conditions, and the way of life to date justify the presumption that, despite the termination of proceedings, he will follow the legal order, in peculiar not commit a crime (Article 66(1) kk).
Conditional remission shall not apply to the perpetrator of a criminal offence in excess of 5 years imprisonment (§ 2).
Social harm of the act and a protective measurement – stay in a intellectual institution
The court may order a safeguard measure, where necessary, to prevent the offender from repeating a prohibited act, and the another legal measures set out in that code or given under another laws are not sufficient. The safeguard measurement referred to in Article 93a(1)(4)(k) (being in a psychiatric institution) may only be ordered to prevent the offender from re-imposing a prohibited act significant social harm (Article 93b § 1 kk).
The safeguard measurement and the way it is implemented should be appropriate to the degree of social harm of a prohibited actwhich the offender may commit, and the likelihood of committing, and take into account the needs and advancement of treatment or therapy of addictions (§ 3).
The court shall decide whether to stay in an appropriate psychiatric establishment with respect to the individual for whom the criminal offence has been dismissed in the state of insanity referred to in Article 31(1) kk if there is simply a advanced likelihood that he will commit again Prohibited action with crucial social harm in connection with intellectual illness or intellectual impairment (Art. 93g §1 kk).
In the event of conviction of the offender for a criminal offence committed in the state of reduced capacity as referred to in Article 31(2) for imprisonment without conditional suspension of his or her performance, the conviction of 25 years of imprisonment or life imprisonment, the court shall decide to stay in the applicable psychiatric establishment if there is simply a advanced likelihood that he or she will commit an act prohibited with crucial social harm due to intellectual illness or intellectual impairment.
Minor social harm to a criminal offence and to a criminal offence
Pursuant to Article 45(1) kk, if the offender has obtained from the offence, at least indirectly, a property advantage not subject to the forfeiture of the items referred to in Article 44(1) (the forfeiture of items straight derived from the offence) or 6, the court shall regulation on the forfeiture of specified a benefit or its equivalent. The transfer shall not be made in full or in part if the benefit or equivalent is recoverable to the victim or to another entity. The property benefit obtained from the offence is besides considered to be the benefit of the things or rights which constitute the benefit (§ 1a).
The court may regulation on the forfeiture if The social harm of the act is negligible (Article 45a. § 1 kk).
Social harm of a prohibited act – examples from the case law
- The territory Court of Radom, in its judgement of 7 June 2018, Case No. II K 143/17, in examining the defendant's criminal liability, which committed to forging 1 hundred-gold banknote, indicated that in the case at issue with a negligible degree of social harm, the combined occurrence of different circumstances in the form of the manner and circumstances of the act, the degree of the harm caused, the intent and motivation of the perpetrator was determined. First of all, the Court of First Instance stressed that the defendant's action was to forge 1 hundred-gold banknote. The occurrences were of an incidental nature. The defendant's actions were not previously planned, they were the consequence of a youthful impulse, the immaturity of the accused, the inability to foretell consequences. The accused did so in an unprofessional way, utilizing a home printer, for amusement purposes. The circulation of the banknote served only a single, ad hoc, trivial purpose, and in no way led to a crucial economical disturbance. The harm done in this way was minor. The defendant's motivation, the intent of his action, as well as the degree of guilt, did not origin almost any harm to the goods protected by Article 310 k.k. Clearly, his conduct had to be regarded as a tiny part of the economical strategy and assurance in the authenticity of money, given the social harm he had done. As regards the act of Art.286 §1 (fraud) the harm caused was negligible and reversible due to the fact that it was possible to remedy it, which the accused did.
- Płock territory Court in a resolution of 6 July 2016. Act No: IV Ca 422/16 He argued that under no circumstances can it be concluded that the defendant's actions are of negligible social harm. In the present case, the suspect forcibly snatched the victim's telephone from his hand, and then, with the aid of a specialist company, obtained access to the information recorded on his spouse's phone, which he submitted to the civilian court for divorce. The circumstances justifying the accused cannot be that he intends to prove treason to his spouse. Proving your right doesn't justify committing a crime. However, even if it were considered that the motive for the perpetrator's action was a deep sense of harm and a willingness to prove the incorrect conduct of the spouse, it should be stressed, as indicated above, that only a comprehensive, cumulative, alternatively than a unitary assessment of all pre-mandatory and subjective premises, could prejudge the designation of the act as socially harmful to a negligible extent. However, in the present case, the combined assessment of the nature and nature of the breached good is to defend information from access by unauthorised persons, the degree of the harm caused by the failure of the injured person's access to the telephone and the disclosure of private and intimate information in a court case, the manner and circumstances of the act, i.e. the violent removal of the telephone by the accused during the conflict with the spouse, clearly requires that the defendant's conduct was socially harmful to a higher degree than insignificant, even if he accepted the emotional motives of the defendant's action. In view of the above, there was no basis to consider that there was a negative procedural condition under Article 17(1)(3) of the Court of First Instance in favour of the dismissal of the proceedings, since the defendant's actions were of social harm to a degree higher than negligible.
