Kształt normatywny środków karnych na tle Kodeksu karnego: uwagi krytyczne
The Normative Shape of Penal Measures under the Criminal Code: Critical Remarks

Summary/Abstract: An analysis of the current provisions of the Criminal Code demonstrates that most of the changes concerning penal measures are inconsistent with the criminal-policy assumptions of the 1997 Criminal Code. Over the 28 years the Criminal Code has been in force, the role and function of penal measures have changed significantly. Numerous amendments to the Criminal Code have substantially broadened the scope of mandatory application of penal measures, while simultaneously creating a risk of irrational decisions being made within the administration of justice. The article demonstrates that the amendments introduced to the Criminal Code have increased the repressiveness of Polish criminal law, drastically limited judicial discretion in sentencing, and remain inconsistent with the principle of individualizing criminal sanctions and the prohibition on imposing a penal measure exceeding the degree of guilt. The author points out that the high punitiveness of the Polish legal system, together with politicians' reluctance to withdraw from unconstitutional changes concerning penal measures, should prompt a search for solutions limiting the effects of imposing lifetime penal measures. In the circumstances of a specific case, it may turn out that imposing a mandatory penal measure (particularly one specified in Article 41 § 1b or Article 42 § 4 of the Criminal Code) would result in exceeding the degree of guilt. In such a situation, the penal measure should be shaped while disregarding the provision that establishes its mandatory character. Under Article 178 of the Polish Constitution, a judge is obliged to obey not only statutes but also the Constitution. Upon recognizing a substantive inconsistency between statutory norms and the Constitution, a judge is obliged to disregard the provision that conflicts with the Constitution, invoking the rule lex superior derogat legi inferiori.

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