Modifications to the Polish Criminal Code Tightening Up Criminal Liability – White-Collar Crime

The criminal activity of people of high economic and social status – the well-educated, lawyers, economists and managers – related to exploiting their positions in the world of business and politics (known as white-collar crime) comes in many different forms. It is an area of crime that, by its nature, is frequently associated with organised criminal groups or structures.

On 1 October 2023, material changes were introduced to the Polish Criminal Code of 6 June 1997 (CC). On this date, the amending act of 7 July 2022 (the “CC Amendment”) entered into force. An analysis of the CC Amendment leaves no doubt that the main purpose of the introduced modifications is to significantly tighten up criminal liability for many types of offences. The authors of the CC Amendment are quite open about this, explicitly pointing out in the explanatory memorandum to the CC Amendment that the main objective was to strengthen criminal law protection against the most severe categories of offences. One area where criminal liability has been tightened up is organised crime.

Tightening up criminal liability, as introduced by the CC Amendment, takes place on three different levels:

• tightening up penalties for specific crimes and expanding the scope of criminalisation;
• broadening the grounds for applying institution of an extraordinary aggravation of penalty; and
• modifying the general directives of judicial sentencing.

Tightening Up Penalties for Specific Crimes and Expanding the Scope of Criminalisation

Changes to isolation penalties

So far, the CC has provided for four types of isolation penalties:

• an “ordinary” imprisonment of one month to 15 years (in the event of an extraordinary aggravation of penalty and cumulative penalty – up to 20 years);
• a penalty of 25 years’ imprisonment;
• life imprisonment; and
• military detention for soldiers.

The CC Amendment will remove the penalty of 25 years’ imprisonment as an independent type of penalty, instead raising the maximum level of “ordinary” imprisonment from 15 years to 30 years (amended Article 37 of the CC). This amendment, combined with amendments introduced in provisions defining specific types of crimes, often leads to stricter penalties for specific types of offences, including white-collar crimes. This can best be illustrated using the following three examples.

Organised crime

Criminal liability for participating in an organised criminal group, or in an association whose purpose is to carry out criminal offences or fiscal offences, will become much more severe. The CC Amendment increases the penalties for all forms of this crime (amended Article 258 of the CC). The basic form of this crime is currently imprisonment for three months to five years, but will become imprisonment for six months to eight years.

Bribery

The CC Amendment provides for two material modifications to the provisions of the CC, criminalising bribery of both Polish public officials and public officials of foreign countries or international organisations.

First of all, when the object of a bribe is a “benefit of substantial value”, the CC Amendment increases the upper limit of imprisonment from the current 12 years to 15 years (amended Article 228 Section 5 and Article 229 Section 4 of the CC).

The second, and more significant change is that the CC Amendment excludes situations when the object of the bribe is a “benefit of great value” from the current Article 228 Section 5 and Article 229 Section 4 of the CC, and makes them subject to newly added provisions of law – Article 228 Section 5a and Article 229 Section 4a of the CC, respectively. This modification aims to tighten up criminal liability. The provisions of Article 228 Section 5a and Article 229 Section 4a provide for a sentence of imprisonment from three years to 20 years. When these provisions of law enter into force, perpetrators of such offences will face a sentence almost twice as high as it is currently. The rather loosely specified term “benefit of great value” has not yet been defined in the CC. The drafters assume that a “benefit of great value” would be understood in the same way as “property of great value”, which is defined in Article 115 Section 7 of the CC – ie, a benefit valued in excess of PLN1 million (approximately EUR215,000).

Forging or falsifying an invoice

The current provisions provide for imprisonment for three years to 15 years for forging an invoice or falsifying it as to facts material from the point of view of taxation for using it as an authentic invoice, as well for using such an invoice as authentic when the total value of one or more forged or falsified invoices exceeds PLN1 million (approximately EUR215,000), or where the perpetrator has made the criminal offence their permanent source of income. The CC Amendment increases the upper limit of imprisonment in this case from the current 15 years to 20 years (amended Article 270a Section 2 of the CC).

Changes to non-isolation penalties

The CC provides for two types of non-isolation penalties:

• a fine, which has thus far been imposed in terms of daily units, from 10 daily units to 540 daily units; and
• the restriction of liberty from one month to two years.

The CC Amendment increases the minimum limits of statutory penalties whenever a criminal offence is subject to a choice of non-isolation penalty and imprisonment (new Article 33 Section 1a and 1b, new Article 33 Section 1aa). CC sanctions are typically structured in the above way, and instances when a criminal offence is only subject to non-isolation penalties are rare. Under the CC Amendment, unless stated otherwise, and when a criminal offence may be punishable both with a fine and with imprisonment, the fine will be no lower than:

• 50 daily units – for acts punishable by imprisonment of up to a year;
• 100 daily units – for acts punishable by imprisonment of a year to two years; and
• 150 daily units – for acts punishable by imprisonment of more than two years.

Respectively, if the act does not provide otherwise and a criminal offence is punishable by both restriction of liberty and imprisonment, the restriction of liberty will be no shorter than:

• two months – for acts punishable by imprisonment of up to a year;
• three months – for acts punishable by imprisonment of a year to two years; and
• four months – for acts punishable by imprisonment of more than two years.

Broadening the Grounds for Applying the Institution of an Extraordinary Aggravation of Penalty

The tightening of liability on the second level mentioned above is demonstrated by the CC Amendment broadening the grounds for applying the institution of the extraordinary aggravation of penalty, increasing the already existing restrictions. This is best illustrated by the following two examples.

Coincidence of grounds for an extraordinary aggravation and a mitigation of penalty

So far, if in a specific case there are grounds for both an extraordinary mitigation of penalty and an extraordinary aggravation of penalty, the court has always had to decide – irrespective of whether the grounds were mandatory or optional – whether to reduce or increase the penalty, or to impose an “ordinary” penalty (ie, to decide that the grounds for aggravation and mitigation cancel each other out). The CC Amendment introduces a general principle (with certain exceptions) that mandatory grounds must always be applied (amended Article 57 of the CC). This amendment will lead to the extraordinary aggravation of penalty being applied much more frequently, since the grounds for an extraordinary aggravation of penalty in the CC are usually mandatory, while the grounds for an extraordinary mitigation of penalty are almost always optional.

Making the existing restrictions more stringent

The CC Amendment increases the existing restrictions on sentencing where there are grounds for an extraordinary aggravation of penalty arising from Article 64 Section 2 of the CC. This provision applies to repeat offenders who have carried out a culpable criminal offence for at least the third time, where certain other conditions are satisfied (ie, one constitutes perpetrating the last criminal offence within five years after serving a sentence of at least one year of imprisonment). Under Article 65 of the CC, these restrictions also apply to other categories of perpetrators, namely:

• those whose regular source of income comes from criminal activity;
• those involved in organised crime; and
• terrorists. 

So far, courts were obliged to impose a penalty of imprisonment for such offences of at least the minimum statutory limit increased by one month. The CC Amendment provides for the obligation to impose a penalty of at least 150% of the minimum statutory limit.

Modification of the General Directives of Judicial Sentencing

The third level of changes by which the CC Amendment is tightening up criminal liability involves modifications to the general directives of judicial sentencing set out in Article 53 Section 1 of the CC. This provision establishes four general directives of judicial sentencing, namely:

• the directive of the degree of culpability;
• the directive of the degree of social harm;
• the directive of individual (specific) prevention; and
• the directive of general positive prevention.

The CC Amendment introduces material changes to the formulation of the directive of individual (specific) prevention and the directive of general prevention.

The directive of individual (specific) prevention is expressed differently in the amended provision. The purposes that are to guide the choice of the severity of the penalty under this directive are currently “the preventative and educational purposes that the imposed penalty should achieve in relation to the sentenced person”. Under the CC Amendment, the words “and educational” were removed. The explanation for this change, as provided by the authors of the government amending bill of 7 July 2022 in the explanatory memorandum to that bill, is not entirely coherent. They argue that the educational purposes of punishment are covered by the concept of the preventative purposes of a penalty, being a subcategory of the latter. On the other hand, an excerpt of a study is cited in which the “implementation of educational programmes” seems to be treated as an activity unrelated to the “fulfilment of preventative purposes by the penalty”. If the authors of the CC Amendment did not intend to disregard the educational purposes in the sentencing process at all, they surely meant to materially reduce their importance.

The most notable change in relation to the current pre-amendment version (at least prima facie) concerns the formulation of the directive of general prevention. The formula that centered on “the needs with regard to shaping the legal awareness of society” is to be replaced by the expression “the purposes of punishment in the scope of its social impact”, which the authors of the explanatory memorandum to the government bill of the amending act of 7 July 2022 explain is intended to convey a substantive modification of that directive of judicial sentencing. The direction of that change is underscored by the use (somewhat symbolically) of the expression “the purposes of punishment in the scope of its social impact”, borrowed from Article 50 Section 1 of the Criminal Code of 1969 (known as the Penal Code of Socialist Poland). At the drafting stage of the Criminal Code of 1997, that expression was abandoned in favour of “the needs with regard to shaping the legal awareness of society” precisely because, during the period when Article 50 Section 1 of the Criminal Code of 1969 remained in force, “the social impact of punishment” was understood to imply that the purpose of the penalty imposed on the perpetrator of a criminal offence also included deterring other members of the society from committing crimes. Typically, this was accompanied by the assumption that the more severe the penalty, the better it performs its deterrent function.

The previous wording of Article 53 Section 1 of the CC reflected a deliberate rejection of the idea of negative general prevention (deterrence through the severity of punishment) and an affirmation of the idea of positive general prevention (strengthening the belief of members of society that legal norms are binding, that compliance therewith is enforced by the State, and that crime does not pay). The authors of the explanatory memorandum criticise that decision and call it “a manifestation of purely idealistic axiology, not corresponding to reality”. In closely analysing the explanation provided in the explanatory memorandum for amending Article 53 Section 1 of the CC within the scope of the directive of general prevention, it is hard to resist the impression that the change in question was based on the assumption that the current expression of that directive hindered or even prevented the imposition of fair penalties having a preventative impact on members of society other than the sentenced person (other potential perpetrators). However, this assumption is obviously misguided.

The CC Amendment also reverses the order in which the prevention directives are listed in Article 53 Section 1 of the CC: the general prevention purposes are mentioned first, and only then those of individual prevention. This change in the sequence should be considered a purely editorial modification not causing any change in the legal situation. In the explanatory memorandum, the authors expressly admit that the aim of this change was exclusively “to underscore (…) the equivalent nature” of the directive of general prevention and the directive of individual (specific) prevention and “to eliminate the possibility of an interpretation attributing to the directive of individual prevention the decisive importance in determining the primacy of prerequisites for the imposition of a penalty (in the current wording of Article 53 Section 1 of the CC, the legislator lists the directive of individual prevention before that of general prevention).”

The amended version of Article 53 Section 1 of the CC differs from its former version by also stipulating that the court, when imposing the penalty, needs to take into account any aggravating or mitigating circumstances, an illustrative list of which is provided in the provisions of Article 53 Section 2a and 2b of the CC, both added by the CC Amendment.

Quo Vadis Poland?

The changes introduced to criminal law by the CC Amendment seem to be taking Poland in the wrong direction. Most experts in Poland are highly critical of the fundamental purpose of the CC Amendment, namely the tightening of criminal liability. There are no significant arguments that would justify the general tightening of criminal liability, especially as Polish criminal law is already quite strict, and nor is it justified by the level of crime in Poland.