Ewolucja przepisów o bójce i pobiciu w polskim prawie karnym
Evolution of the provisions on brawl and assault in Polish criminal law

Summary/Abstract: The liability for a brawl or an assault is characterised mainly by the fact that it includes all the participants, regardless of their contribution to the consequence, as well as the proof indicating that another, specific participant has caused a specific consequence, and independently on how they participated, as the participation can be both physical and psychological in nature. The discussed construction includes objective elements, thus being a deviation from the rule of guilt individualisation and a relic of group liability of the past.It should be therefore expected that the statutory changes made over time will be aimed at mitigating such a liability and limiting this construction until it is completely eliminated. Meanwhile, a historical analysis of regulations effective in Poland indicates that a completely reverse process actually took place and included progressive expansion of both the subject scope of the construction and increasing the level of sanctions during individual amendments introduced both in the occupier legislation (excluding the completely different regulation included in the Russian Criminal Code of 1903), as well as in the Criminal Code of 1932, was generally based on the consequences caused. It was not until the Code of Criminal Proceeding of 1969, which made the punishability conditional on a specific danger being caused during the incident, that responsibility for a brawl shifted to an earlier stage, which resulted in an expansion of the subject circle of the perpetrators. Sanctions evolved similarly and reached the highest, unprecedented in past regulations, level in the Criminal Code of 1969. The extent of this evolution since independence was regained is best illustrated by the example of a brawl which resulted in death of one of the participants, with a known, specific perpetrator. In this case, until the Criminal Code of 1932 corresponding in terms of its basis to the German Criminal Code became effective, a penalty of up to 3 years in prison could be sentenced, in the former Austrian region the perpetrator did not bear any consequences of participation in a brawl with such an effect, as according to the Austrian Penal Act of 1852, the liability was limited just to the known perpetrator who caused death. On the other hand, other participants of a brawl taking place within the former Austrian partition region, bore the responsibility according to the Criminal Code of 1903 only if a crowd participated in a brawl resulting in death, and depending on their participation in the events, they could receive a prison penalty between a year and 3 months. In the same situation, once the Criminal Code of 1932 became effective, the upper limit of the statutory sanction was 5 years in prison and 10 years after the 1958 amendment, further raised to 15 years in prison once the Criminal Code of 1969 became effective.From the above considerations it may be concluded that the past evolution of criminal liability for participation in a brawl or an assault is heading towards increasing severity towards the perpetrators of such a crime. This trend seems inappropriate given the general principle of liability provided for in Article 158 of the Criminal Code. This conviction is exacerbated by the fact that the criminal legislation of the former partitioning powers evolved in a completely different directions, according to which the basis rules of liability for a brawl and assault accepted in our criminal law were formed. A brawl as a crime sui generis was not included in the criminal codes of the Soviet Republics and in the legal acts of East Germany. A provision related to brawls was left, however, in the German Criminal Code, 1974 Edition. §227(2) providing for qualified liability of all participants if no specific perpetrator of the consequence could be identified or if the consequence was a result of a joint action of all the participants was repealed, however. The liability for brawl and assault in Austrian law underwent a deep transformation compared to the regulation of the Austrian Penal Act of 1852 after the introduction of the new Criminal Code of 1974. The condition for liability of several people for the purported, active participation in a brawl or assault (§ 92) is conditional on the occurrence of grievous bodily harm (Article 84(1)) or the death of another person. Criminal sanctions have also been significantly mitigated. In the case of involvement in a brawl or an assault causing grievous bodily harm, the participant is liable to a prison sentence of up to one year or a fine of up to 360 daily rates and, in the case of the death of another person, a prison sentence of up to two years.According to the author, it is this direction of regulatory evolution that seems more appropriate. Given the nature of the brawl structure, largely based on group liability, it would be most appropriate to limit its application in criminal acts only to incidents resulting in serious consequences. With regard to the other cases, on the other hand, the grounds for the criminal liability of the participants (perpetrators) should be formed on general principles based on the dispositions of other provisions provided for in the Criminal Code and the Petty Offence Code.

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