Stan wyższej konieczności przy przekraczaniu polskiej granicy
The state of necessity at the Polish border

Summary/Abstract: The paper addresses the criminal law issue of the exclusion of unlawfulness or culpability of behaviour in cases of illegal border crossing, as regulated in Polish law under Article 264 § 2 of the Criminal Code and Article 49a of the Petty Offenses Code, through the application of the state of necessity. The analysis is conducted in the context of the ongoing immigration crisis on the Polish-Belarusian border since 2021. The initial section provides a general discussion on the application of the state of necessity to situations involving border crossings without formal authorization, with particular consideration given to the object of protection of the relevant regulations and the balance between sacrificed and preserved goods. The paper favourably evaluates recent literature suggesting that individuals crossing the border from Belarus into Poland may have acted under a state of necessity, thereby excluding the unlawfulness of their behaviour. Subsequent sections consider more specific issues, including the problem of perpetrators contributing to the creation of the danger and the legalization of the threat through the Polish Government's decision to strengthen the border protection infrastructure along the Polish-Belarusian border, aimed at preventing its crossing at unauthorized points. The analysis concludes that these issues do not necessarily preclude the application of the state of necessity to various forms of illegal border crossing. However, it identifies a need to examine the differentiation – or lack thereof – between the internal and external borders of the European Union concerning their protection through criminal law measures.

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