Polityka stosowania w latach 1970-1989 kary dodatkowej przepadku rzeczy

Abstract

The penalty of property forfeiture is an additional penalty, rather often used in practice. An analysis of judicial statistics shows that this penalty is mainly applied only to certain categories of offences. During the studied period, it was initially declared primarily in the case of offences related to economic relations, but from 1985, it was mostly applied in the case of acts covered the Drug Prevention Act, which provided for its mandatory application, and for public order offences - this involved the fight against political opposition also using the penalty of property forfeiture.

Regardless of which of the indicators considered in this study we take into account, the entire studied period can be divided into two fundamentally different phases, i.e. 1970-1981 and 1982-1989, both in terms of the extent of the penalty of property forfeiture and its place in relation to the penalty of property confiscation. The first period was characterised by considerable stability in the number of forfeiture and confiscation sentences imposed and their ratio to the total number convictions and total number of additional penalties, while during the second period, there was a significant change of the previous jurisprudential direction. During the first three years of the second stage, all indicators related to the penalty of property forfeiture were increasing, while on the contrary, the indicators were decreasing in the case of the penalty of property confiscation. A breakthrough came in 1985, when legislation obliging the courts to apply these measures to a number of selected categories of acts came into force. This has resulted in an unprecedented increase in the number of convictions for both penalties. This was a manifestation, firstly, of a very serious limitation of the principle of punishment individualisation and, secondly, of an intensification of the repressive nature of Polish criminal law and an increase in its fiscal character. The solutions adopted by the legislator with regard to the penalty of property confiscation have been very sharply criticised by some theoreticians and practitioners as having no theoretical or practical justification, being contrary to the principle of penalty proportionality to the gravity of the crime and the guilt of the perpetrator, and as targeting not only the perpetrator of the crime, but also completely innocent persons, i.e. his or her family. As a consequence, this led to the statutory abolition of the penalty of property confiscation. The increase in the repressive nature of our criminal law was caused not only by the exponential increase in the number of confiscation penalties imposed, but also to the much wider use of the forfeiture penalty. Contrary to the confiscation penalty, the codified scope of property forfeiture jurisprudence did not change, but the introduced obligation to apply this penalty in new special penal acts led to a situation, in which this measure was used much more often than before.

The presented considerations lead to an obvious conclusion: the enormous and detrimental impact on penal policy with regard to the penalty of property forfeiture and confiscation has been exerted by ad hoc legislation, episodic acts passed for a limited period of time or to achieve short-term goals, fundamentally altering the scope and nature of these additional penalties. At the same time, they undermined the principle of fair and reasonable penalty. This therefore justifies the need to precisely define the scope of application, the legal shape of the nature and the functions of the individual penal measures.