Table Of Contents
- Title Page
- Copyright Page
- About the author
- About the book
- Citability of the eBook
- Series Information
- 1: Scope and purpose of study
- 2: Self-defence
- 2.1 Assault on an interest protected by law
- 2.1.1 Assault as human behaviour (form of assault)
- 2.1.2 Unlawfulness of assault
- 2.1.3 Imminence of assault
- 2.2 Defence: resisting an assault
- 2.2.1 Defence as human behaviour (form of defence)
- 2.2.2 Defence as the commission of the actus reus of a prohibited act type
- 2.2.3 Defence as behaviour driven by the will to resist an assault
- 2.2.4 Necessity of defence: effectiveness, imperativeness and commensurateness
- 2.2.5 The range of interests protected by the right to self-defence
- 2.3 Substantive-law function of self-defence
- 3: Transgressing the limits of self-defence
- 3.1 Manners
- 3.1.1 Intensive excess
- 3.1.2 Extensive excess
- 3.2 Transgression of the limits of self-defence: personal aspects
- 3.3 Substantive-law consequences of a transgression of the limits of self-defence
- 4: Error as to self-defence
- 5: Judicial work methodology in cases involving self-defence
LEX ET RES PUBLICA
Polish Legal and Political Studies
Edited by Anna Jaroń
Zur Qualitätssicherung und Peer
Notes on the quality assurance
Review der vorliegenden Publikation
and peer review of this publication
Die Qualität der in dieser Reihe
Prior to publication, the
erscheinenden Arbeiten wird
quality of the work published
vor der Publikation durch den
in this series is reviewed
Herausgeber der Reihe geprüft.
by the editors of the series.
In contemporary Polish criminal law—in spite of the fact that three criminal codes have been in force in Poland since the early 1930s—the approach to self-defence, defence of another1 and the transgression of their limits has not changed much.
In the first of the three, i.e. the Criminal Code of 11 July 1932,2 self-defence and related issues were dealt with in Article 21(1 & 2). They read—to remind—as follows: (§1) ‘No criminal offence is committed by any person who acts in self-defence, resisting an imminent unlawful assault on any interest of his/her own or that of another person’, (§2) ‘In the event the limits of self-defence are transgressed, the court may extraordinarily mitigate punishment or even release the defendant from punishment’.
In the next Criminal Code that was in force in Poland, i.e. in the Criminal Code of 19 April 1969,3 self-defence and related issues were dealt with in Article 22(1, 2 & 3). These provisions, in turn, proclaimed that: (§1) ‘No criminal offence is committed by any person who in self-defence resists an imminent unlawful assault on any public interest or an interest of an individual’, (§2) ‘In particular, he/she acts in self-defence who acts in order to restore public order or peace even if this were not in his/her line of duty’, (§3) ‘In the event the limits of self-defence are transgressed, in particular when the defendant has used a manner of defence disproportionate to the danger of assault, the court may extraordinarily mitigate punishment or even refrain from its imposition’.
Finally, the Criminal Code currently in force in Poland, i.e. the Criminal Code of 6 June 1997,4 devotes to self-defence and the transgression of its limits Article 25(1, 2 & 3). Under it: (§1) ‘No criminal offence is committed by any person who in self-defence resists an imminent unlawful assault on any interest protected by law,’ (§2) ‘In the event the limits of self-defence are transgressed, in particular when the defendant has used a manner of defence disproportionate to the danger of assault, the court may extraordinarily mitigate punishment or even refrain from its imposition’, (§3) ‘No person shall be subject to punishment who transgresses the limits of self-defence in fear and/or indignation justified by the circumstances of the assault’.
In a word, these provisions, albeit significantly differing no doubt in several details, show the legislator’s in principle consistent approach to self-defence and the transgression of its limits, as can be seen from the language of the law. With matters being as they are, the study of the law as it stands now both benefits greatly and cannot in fact be conducted without recourse to monographic findings made in the authoritative juristic literature on criminal law concerning the provisions of the now defunct Criminal Codes of 19325 and 19696. This is particularly true when it comes to judging the correctness of judicial interpretations of the provisions on self-defence and the transgression of its limits currently in force. Hence, we will refer to these findings almost continually in this discussion, verifying if they are right or if judicial decisions, contravening them, are right. This declaration—naturally—does not mean that we will disregard opinions formulated with regard to the Criminal Code currently in force.7 They too—although, in our opinion, far more modest in terms of substance and quite often unoriginal—contain pertinent and often very significant interpretative observations.8
Here, as suggested by the title, we will present and, more importantly, give our own assessment of judicial decisions interpreting the Criminal Code provisions currently in force on self-defence and the transgression of its limits. We have critically verified the empirical material of 88 Supreme Court, 194 Court of Appeal and 34 District Court decisions in which an adjudicating body ruled on the merits with reference to the components and functions of self-defence or the transgression of its limits. The ultimate aim of this study is to answer the question if the present wording of relevant provisions is optimal, especially as judicial decisions are dominated by certain interpretative directions of these provisions that have an overwhelming impact on positions taken by courts in matters of detail. The present study, therefore, will not only reflect on legal dogmatics, by analysing the law as it stands now and the way it works in practice, but will also attempt to suggest amendments to the law.
The study will focus first on the conditions that must be fulfilled for the defendant’s behaviour to be recognised as self-defence or the transgression of its limits. Hence the discussion in this respect will centre on the presentation and assessment of the interpretation of the two central components of self-defence, as viewed by the courts, i.e. assault and defence. Once they are analysed, the discussion will move to the question as to how the courts see the substantive-law functions of self-defence and the transgression of its limits. Further, some space will be devoted to an error perpetrated in self-defence and a proposal for a methodology of judicial proof and presumption will be made in matters involving assertions of self-defence. Every section of the study will end in a practical conclusion addressed to both adjudicating bodies and the legislator. In short, it is our intention to make our study as practicable as possible and distinct from purely semi-pragmatic texts of a merely informative or descriptive character.
We wish to offer our cordial thanks to Professor Przemysław Palka, at the University of Warmia and Mazury in Olsztyn for an insightful and valuable publication review of our study. We would also like to thank Mr Żebrowski for his excellent and brilliant translation of our work.
- ISBN (PDF)
- ISBN (ePUB)
- ISBN (MOBI)
- ISBN (Hardcover)
- Publication date
- 2019 (February)
- criminal law criminal code self-defence assault unlawfulness error
- Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien. 136 p.