Fighting terrorism as an objective of criminal law – remarks concerning the introduction of Article 259(a) to the Polish Penal Code

Abstract

By virtue of the Anti-Terrorist Act of 10 June 2016, the provisions of the Additional Protocol to the Council of Europe Convention on the Prevention of terrorism have been incorporated into to the Polish legal system. As the result, a new Article 259a has been added to the Polish Penal Code. A short analysis of this new regulation conducted within this paper has revealed a number of profound doubts about its wording and its possible interpretations. The legislator appears to be clearly violating the basic principles of good criminal law by valuing twice the same the intent of a perpetrator: primarily as the very ratio legis of criminalization and secondly as the basis for the
obligatorily increased severity of punishment. Consequently, the perpetrator is being punished for a normally legal act yet committed with a special intent and because of this special intent is being punished more severely (sic!). Those doubts constitute the starting point for more general considerations about the choice of a proper method of criminal reaction to prohibited acts committed by the perpetrators, whose the motifs are considered to have been especially noxious, like in the case of the terrorists. The analysis has led to a conclusion that the current shape of the regulations in Poland aimed at combating the growing phenomena of terrorism gives rise to serious
doubts about their inner coherence and congruence with the constitutional norms. It is to be hoped that as soon as the full democratic procedures in Poland are restored they will be verified by a competent and independent constitutional court.