New take on self-defence. The Office of the Attorney General in Poland criticises Minister Ziobro

According to the Government, special protection shall extend to citizens who will be defending themselves against offenders at their own home or on the fenced property. The new provision postulated by the Government reads as follows:

“The one who goes beyond the general concept of self-defence, but not with the glaring abuse thereof, repels the attack being a break into a flat, premises, house or a fenced property adjacent to a flat, premises, house or who repels the attack preceded with a break into the said places shall not be punished.”

This provision is to be added to the effective laws on self-defence. Legal provisions that are currently in force will not be repealed.

Currently, self-defence is not considered a criminal offence, provided that it is not abused.

The one who, due to being scared or agitated, goes beyond the general concept of self-defence, formally commits a criminal offence but is not punished. Someone like that cannot be sentenced. If the court rules that the self-defence was abused, but finds that no fear of agitation accompanied it, the judge may refrain from imposing a penalty or apply extraordinary mitigation. What constitutes self-defence and what does not?

The Minister for Justice has positively assessed the currently applied laws but he is of the opinion that addition of one more provision is indispensable.

“Good solutions provided for in the current Penal Code unfortunately do not translate, in judicial practice, into the understanding of the idea on which self-defence against attacks on one’s health, life and other legally protected good is based”, said Zbigniew Ziobro after the end of today’s Government session.

Using theoretical examples, he also explained who the new provision will protect, and to whom it will not apply.

“At night, a burglar breaks into a house with the intention to steal, and the person who is in the house, who is not totally aware of the burglar’s intention, reaches for a knife and inflicts injury on the burglar. We want to guarantee the person protecting themselves impunity. The person who has been attacked, particularly at their own home, where they should feel safe, needs to be sure that when effectively defending themselves, even if the attacker suffers serious consequences, they will not be persecuted by the State”, explained Ziobro.

He also made it clear that new provisions will not protect those who have evidently abused their right to self-defence and who, feeling that they are at their own place, have killed someone who was not a serious offender.

“A situation where a child trespasses someone’s property to steal an apple and someone shoots them with a rifle is not an example of self-defence. The provision does not apply here”, said the Minister for Justice.

The draft legislation passed by the Government includes the following reservation: “unless there was a glaring abuse of self-defence”.

The draft legislation has raised controversy among lawyers. It has been designed to protect individuals defending themselves against unlawful attacks at their home, but these kinds of attacks happen everywhere.

“Why should someone who went beyond the general concept of self-defence while protecting their family against an attack when camping be excluded from this provision? Why should a person who does not have fenced property but will want to protect their car parked in the street from being stolen not be given the option to benefit from this provision?”, asked Anna Lesiak-Grzywińska, attorney at law, during an interview for TVN24, at the time Zbigniew Ziobro presented his idea for the very first time. Ms. Lesiak-Grzywińska argued then that there are so many situations in life that call for the use of self-defence that any attempts to stipulate all of them in provisions of law is futile. In her opinion, they should be general and capacious enough to include all possible situations.

Similar reservations were made at the time Ziobro’s project was being consulted.

“Drafting casuistic laws with the writ to exonerate one from penal liability in the case of exceptional abundance and complexity of events does not seem right”, read a letter from the Court of Appeal in Szczecin to the Minister. In the letter, we also read that current laws as sufficient and they provide for the possibility not to sentence someone who justly defended themselves against the attacker even if doing so they abused their right of self-defence. The president of the District Court in Krosno Odrzańskie presented a similar opinion.

The documents that can be found in the Government Legislation Centre show that also the government itself was not unanimous as regards the provision being forced by Zbigniew Ziobro. Among those who voiced their reservations was, inter alia, the President of the Standing Committee to the Cabinet – Mr. Henryk Kowalczyk – who is responsible for maintaining accuracy of the government legislation.

However, the most severe criticism came from the Office of the Attorney General. This is an institution that was established to secure the interest of the State Treasury in a number of areas. The PM has formal oversight of it, but the Office is independent in its actions and legal opinions it passes. The Office’s opinion on the Minister’s project was univocally negative and the institution questioned the very point of the changes proposed by Minister Ziobro.

Speaking on behalf of the Office of the Attorney General, Dr Krzysztof Buczyński, pointed out that the Ministry’s criticism of the current judicial practice is based on very outdated materials. In support of its claims, the Ministry has cited, for example, two judgements of the Supreme Court dating back to... 1969, i.e. the times when the current Penal Code was not even in force (it became effective in 1997). “Therefore, they are not an objective or representative image of the current interpretation of the self-defence premises whatsoever”, reads the opinion of the Office of the Attorney General.

Dr Buczyński is also of the opinion that the theses presented in the scientific article referred to by the Ministry are also invalid under the current legislation. The said article analyses 22 judgements on self-defence; the latest of them date back to 1980s, while the oldest go as far as to 1930s, which means that none of them refer to the now effective Penal Code. “This analysis may not constitute a foundation for any conclusions on the current policy of the judicial authorities as regards the interpretation of the self-defence premises”, said Krzysztof Buczyński, the legal adviser.

The Office of the Attorney General questions the very point and relevance of the changes planned. According to its expert, the court judgements on self-defence and its possible abuse are passed properly under currently effective legislation. The opinion on the project reads as follows, for example:

“The authors of the project presented no analysis of the current court jurisdiction (...). A cursory reading (...) of judgements passed in the past 10 years by the common courts and the Supreme Court does not confirm that the self-defence premises have been interpreted in a way deemed improper by the project authors; on the contrary, their very wording shows that as a rule, these premises are interpreted in line with the project authors’ expectations.”

The analysis of the courts’ judgements performed by the Office of the Attorney General (specific reference numbers of judgements passed in the 21st century are given) shows that courts give the citizens the right to self-defence regardless of whether they had an option to run away or hide from the attacker, or call for help. “None of the judgements analysed stated otherwise”, writes the expert of the Office of the Attorney General.

He adds that current application of the self-defence provision by the courts is compliant with the image the Minister has in mind. “There seems to emerge from the court jurisdiction a thesis that the one defending themselves against the attacker may use any self-defence means and measures, including those as a result of which the attacker’s good of higher value than protected good suffers, provided that they are not of glaring and excessive disproportion to the attack itself.”

Once again, the draft legislation passed today by the Government bans imposition of penalties on those who defend themselves against at attack at their own home. This privilege has not been granted to those who grossly abuse their right to self-defence.

The Ministry for Justice deemed the remarks voiced at the time of project review and consultations unfounded. During today’s interview for TVN’s “Fakty”, when asked whether there is a need to amend the Penal Code with a new clause and whether proper application of the current laws does not suffice, Zbigniew Ziobro focused on the prosecutors.

“Attorneys General change. Today the Attorney General takes the side of the wronged persons. He really intervenes when the prosecutors are overzealous in pressing charges against those, who effectively defended themselves and hurt the attacker. It was not so in the past.” In the future however, the appointed Attorney General might not really care about the wronged persons. The guidelines for prosecutors may change but the law is fixed.” - the Minister defended his project.

In cases when a certain act is not considered penalised under the Penal Code, e.g. when the right to self-defence at one’s own home has been abused, prosecutors may discontinue proceedings against the one defending themselves. They do not need to bring the indictment before a court.

Źródło: tvn24.pl/tłumaczenie Intertext.com.pl