CRIMINAL LAW
1. Monitoring bracelet (house arrest).
2. A court-appointed attorney in a criminal case.
3. What kinds of punishment are there according to the Polish Criminal Code?
4. How does the judge decide about the punishment?
5. Drink driving under Polish Law (DUI in Poland).
1. Monitoring bracelet (house arrest)
If you've been sentenced by a Polish court to imprisonment not exceeding one year you can apply for electronically monitroed curfew (also known as house arrest), which means that you can serve your sentence at home, wearing an electronic device (a plastic bracelet) on your wrist or your ankle. Obviously this method of serving a sentence is very popular as it prevents you from going to jail and lets you live your life (almost) normally.
However, in order to get the court's permission to serve your sentence at home, you need to fulfill a few requirements:
- your sentence of imprisonment does not exceed one year (and the court hasn't declared you a multiple offender),
- the court decides that serving your sentence at home will fulfill the purpose of your punishment
- you have a permanent place of residence
- any adults living with you have agreed (in writing) to your serving a sentence at home
- all the technical requirements for the proper functioning of the electronic device in your home are met (if your mobile phone works in your house/flat, i.e. the reception is fine, the band will most likely work as well).
What's important, if you've already started serving your sentence in prison (and the term of the sentence is no more than one year), you can still apply for electronically monitored curfew. If the court accepts your application, you'll leave jail and continue serving the remainder of your sentence at home (obviously, the judge will find out how you behaved in prison, if you were a 'difficult' prisoner, you'll most likely be denied the permission).
2. A court-appointed attorney in a criminal case
A rule of thumb is: everyone charged with a crime has the right to be represented by a defense counsel, the Polish Code of Criminal Procedure even allows having 3 attorneys at the same time (which is very rare, I have to say). Obviously if you feel like you need a defense counsel you can hire one (or all three ;) ) by yourself or, if you can't afford it, you can apply for a court-appointed attorney who will represent you for free as long as you can prove to the court, that your financial situation prevents you from hiring an attorney.
However, according to Polish law, there are a few situations, when the court will appoint a defense counsel even if you could afford one, but, for whatever reason, have decided not to do it:
- you're younger than 17
- you're deaf, blind or mute
- there are justified doubts as to your sanity
- you've been charged with a felony or you've been detained and your case will be handled by the regional court as the court of first instance (which basically means you've been charged with something really serious)
Also, when the court decides that there are circumstances in your case making your defense difficult, you'll be appointed an attorney (as long as you don't hire one yourself). However, it's a rare situation that the court does it without your request, so if you believe there are such circumstances in your case, you should ask the court for a defense counsel in writing.
And what happens when you've been appointed an attorney but you and him/her disagree about the way your case should be conducted? If that is the case, you should write a letter to the court and explain what the problem is, stressing that there are trust issues between you and your court-appointed attorney, which makes it impossible to cooperate. If the court decides that your reasons for the replacement of an attorney are valid, you'll be appointed a new one.
Your court-appointed attorney is obliged to represent you throughout the proceedings in the court of first and second instance (up until the moment, when the judgment becomes final.
If you've been appointed an attorney, he/she will represent you for free. However, when the court decides in the final judgement that you are guilty of your charges, it may make you pay for your attorney's fees (the court will consider your financial situation and decide whether you should pay the fees or not). If the court makes you pay, the fees will be calculated on the basis of a Regulation by the Minister of Justice of 22nd October 2015 on advocate's fees in criminal cases, which is usually less than you would pay on arm's length principle.
On a final note, if you've been detained, you have the right to contact your counsel - you can meet in person in prison or you can contact him/her by letter (your correspondence may not be checked) or by phone (if you want to be able to call your attorney, you need to obtain the prosecutor's consent first).
3. What kinds of punishment are there according to the Polish Criminal Code?
Under Polish law, if you've been found guilty of a crime, you can expect one (or cumulatively a few) of the following penalties:
- a fine
- a restriction of freedom (community work or a deduction from your earnigns)
- a deprivation of freedom (jail time)
- 25 years of deprivation of freedom
- life sentence.
1) A fine is imposed in daily rates of a certain value. Daily rates can vary from 10 to 540 and the amount of one rate ranges from PLN 10 to PLN 2000. If a sentence has been passed in your case, it will most likely read as follows: "a fine of 100 daily rates of PLN 20 each" (that's an example, of course). When the judge decides about the number of daily rates, she/he takes into account the gravity of the committed crime and the degree of guilt. The amount of one rate is determined on the basis of your income, earning opportunities, your personal, family and material conditions.
2) The penalty of restriction of freedom may take either of two forms: it can be community work (it's a free-of-charge, controlled work in places such as hospitals, welfare care centres, charities or other institutions) which is performed for the period of at least a month, up to 2 years (20-40 hours a month) or it can be a deduction of a certain amount from your earnings (it can be a deduction of 10%-25% of your monthly earnings, the money will be paid into a charity or some public benefit institution).
3) The penalty of deprivation of freedom is simply going to jail for a specific period of time ranging from a month to 15 years.
4) The penalty of 25 years of deprivation of freedom is simply going to jail for 25 years, not more, not less.
5) Life sentence means going to jail for the rest of your life.
Apart from the penalties listed above, a person who was found guilty of a crime, may also be sentenced to penal measures:
- deprivations of public rights (=of voting rights, of the right to be elected for public bodies etc.)
- a ban on holding certain positions at work, practising certain professions or running specific business
- a ban on conducting activities connected with the upbringing, treatment, education of minors or taking care of them,
- a duty to refrain from staying in specific places, a ban on getting in touch with specific persons or a ban on leaving a specific place of stay without the court's consent,
- a ban on attending mass events (usually it's a ban on going to events like football matches)
- a ban on entering gambling centres and participating in gambling
- a duty to temporarily leave the premises shared with the wronged person (most often it means that a convicted person has to move out of the house he/she shared with their spouse and/or children, if they were the victims of abuse),
- a ban from driving,
- pecuniary performance (= you have to pay a certain amount of money determined by the court)
- public announcement of a sentence.
4. How does the judge decide about the punishment?
If you've been found guilty of a crime, your sentence will read as follows: 'Mr/Ms X has been found guilty of a crime under Article...of the Criminal Code'. If you then look it up in the Polish Criminal Code, you'll find out what options of punishment the judge had while deciding about your penalty. For instance, under Article 206, any person who concludes marriage despite being already married, is subject to a fine, a penalty of restriction of freedom or deprivation of freedom of up to 2 years. This means, that the judge can choose from these 3 forms of punishment and if he/she decides you should go to prison, it cannot be for longer than 2 years. In turn, under Article 150 par. 1, any person who commits an act of euthanasia, is subject to a penalty of deprivation of freedom ranging from 3 months to 5 years. This means that the minimum jail time the judge may impose is 3 months and it can't be any less than that.
As you can guess from the above, the judge doesn't impose penalties according to the way he/she feels about you and your crime, but is limited by what the Criminal Code says. However, there is always some leeway in sentencing (within the limits provided for by law), especially if a given Article allows to choose from a few types of penalties, just like in the example of Article 206 above, when the judge could decide that the sentenced person only pays a fine, does some community work or goes to prison (or does two out of these 3 things, e.g. pays a fine and does community work). While deciding about the punishment, the judge has to follow the guidelines listed below:
- the suffering of the sentenced person cannot exceed their degree of guilt (every case is different and you shouldn't suffer more than you deserve for what you've done)
- the degree of damage to society has to be considered (the judge should think about the harmfulness of your crime in a broader perspective - some crimes are harmful the society as a whole more than others)
- the penalty should fulfill preventive and educational purposes, as well as shape the legal awareness of society (the penalty should deter you from committing a crime again and teach others that wrongful acts like yours will always be punished).
As you've probably noticed, the criteria mentioned above are quite general and vague, but they are not the only things that have to be considered - the judge will also have to take into account: the motivation and manner of acting of the sentenced person, type and degree of breach of duties, type and size of negative consequences of the crime, features and personal conditions of the sentenced person. the manner of living before committing the crime and the behaviour afterwards, the attempts at redressing damage (making amends with the wronged person). All these things can be established based on the witnesses' testimonies, various documents and very often a pre-sentence report made by a probation officer, who visits the accused person at home, talks to their family and neighbours and describes that person's general conduct in the past and at present.
5. Drink driving under Polish Law (DUI in Poland)
I guess it doesn't matter where you live, but if you've be drinking & driving you'll face some serious consequences, when caught. According to Polish criminal law, driving under the influence can be either a misdemeanor (a minor offence) or a crime, depending on the level of alcohol in your blood or in your exhaled breath.
1. If the concentration of alcohol in your blood is in the range of 0,2-0,5 per mille or 0,1-0,25 mg/dm3 in the exhaled breath, you'll be guilty of a misdemeanor called condition indicating consumption of alcohol. If caught, the court may sentence you to arrest (5-30 days) or a fine (PLN 50-5000). In practice, I haven't heard about anybody being arrested for drink driving, if it's a midemeanor. Unfortunately, the court is obliged impose on you a ban on driving, which may last from 6 months to 3 years, there's no way you can avoid it.
2. If the alcohol content in your blood exceeds 0.5 per mille or 0.25 mg/dm3 in the exhaled breath, you'll be guilty of a crime called drunk driving (=the law assumes you were drunk when driving). If caught, you can expecct the following: a fine (theoretically it can be even a million zloty, but usually it's a few thousand zloty), the penalty of restriction of freedom of up to 2 years (usually community work) or up to 2 years in prison. The court will either choose on of those punishments or two of them (e.g. a fine and 6 months in prison suspended for 2 years), the severity of the punishment will depend on the content of alcohol and other circumstances of the drink driving (driving at night/during the day/in rush hours/ the distance driven etc.). Obviously, that's not it. The most painful consequence for most drivers is the ban on driving which, in case of a crime, is minimum 3 years. In Polish reality it means that when the ban is over, you'll need to take the driving test again. On top of that, anyone guilty od drink driving will have to pay a penalty payment of minimum PLN 5000 (it could be even PLN 6000, but in practice it's usually PLN 5000-10 000).