Archiwum Kryminologii (Archives of Criminology)

41-79

Authors: Krzysztof Krajewski

The present policy of all countries of the world towards narcotic and psychotropic drugs is in fact prohibitionIST. This means that all circulation of such drugs ‒ their manufacture, transport, import, export, introduction into trade, giving, and sometimes also possession – is illegal and carries most severe penal sanctions in some cases. It should be borne in mind, though, that this prohibition is ONLY about eighty years old now. Before, despite a large numer of addicts (not at all smaller than today according to some estimations), purely medical approach to such persons prevailed, and the drugs were subject only (if at all) to some administrative control and rationing at most. The drug prohibition emerged immediately after World War I, chiefly in United Stetes. As can be judged today, the criminalization of drugs and addicts introduced in those days was highly emotional. For this reason, by no means the harmfulness of narcotic and psychotropic drugs on both the individual and the social scale, one should consider the use and reasons of prohibitive policy from the viewpoint of today’s standards of rational criminalization. It is unquestionable that any social policy with respect to drugs should aim first and foremost at reduction of their consumption. The question remains, though, about the extent to which prohibition and penal law can actually serve towards this aim. Universal in the world of today as it is, the prohibitive approach to drugs assumes a variety of forms. There are different models of prohibition which base on different penal law regulations. They can be classified in two dimensions: restrictiveness vs. permissiveness, and repressiveness vs. treatment. Te first of the above dimensions pertains to the extent of criminalization; the other one – to treatment by the law of addicted offenders. Restrictive systems are those which provide for absolute prohibition with no exceptions whatever and ban all circulation of drugs, possession included. Instead, permissive systems provide for an extent of decriminalization of that circulation, chiefly with respect to possession of drugs. Involved here is usually decriminalization, or even total depenalization of possession of specific amounts of drugs or drugs possessed for a specific purpose as e.g. own consumption. This depenalization can be introduced not only by substantive law but also by procedural provisions law. In this latter case, elements of expediency are introduced, offering the prosecutor or court the possibility to discontinue proceedings or to drop the charge. Repressive systems treat addicted offenders like all the other offenders, applying to them regular penal sanctions both for traditional criminal offenses (as e.g.. theft), and for the “prohibitive” ones (such as possession of drugs). Treatment-oriented systems, instead, reflect a belief as to futility of punishing addicts: within tchem, attempts are made at implementing a principle “tratment instead of punishment”. In most cases, this means that an addict can avoid penal sanction if he submits to withdrawal treatment. The actual application of such provisions on conditional stay of proceedings usually depends on the seriousness of the offense committed. It can be stated that most of today’s European legislations try more or less consistently to combine elements of permissiveness with the treatment orientation. Particularly useful in the analysis of the reason and sense of prohibition are specific economic notions and categories used successfully within so-called economic approach in criminology: demand and supply. Therefore, to what extent are prohibition and penal law capable of reducing the demand for narcotic and psychotropic drugs? First, the demand for those substances is created by a great variety of categories of individuals. The first such category are the consumers. This group, however, is by no means uniform as it consists of both addicted persons, occasional users, and experimenters. Another group which is of great importance in terms of the aims of prohibition are potential consumers, that is practically the whole of socjety if we take the extreme approach. Penal law can influence those groups through its instruments of special and general prevention. The possibilities of applying individual prevention to addicts or occasional users are minimal, though, which results from the very essence of addiction. It is a general opinion today that punishment cannot force an addict to give up his addiction. Only therapy can potentially be successful here; but – an extremely important issue – therapy to which a person submits voluntarily. Today’s spread of this opinion is expressed in the above-mentioned principle of “treatment instead of punishment”. It means that, the very principle of prohibition preserved, penal repression with respect to addicts is avoided. In this interpretation, the individual preventive action of punishment is reserved for the group of persons who experiment with drugs (as it would be simply impossible to criminalize a mere wish to take drugs). The question still remains, though, whether punishment as a form of shock therapy makes any sense here. The general preventive effect of penal law assumes the forms of either deterrence or so-called positive prevention. Deterrence is entirely out of the question in the case of addicted drug consumers due to the considerable rigidity of their demand. Yet deterrence is just as inefficient with respect to potential consumers. This is caused by a huge dark number of “prohibition”, resulting from their specific nature of offenses without no victims: the police encounter immense difficulties trying to disclose such acts. Most legislators try to make up for these weak points introducing severe statutory penalties. This is ineffective in the light of the long-discovered truth that it is rather inevitability than severity of punishment that determines the effectiveness of deterrence. A similar problem arises with respect to potential integrative function of penal law. The question is whether this kind of function – consisting in reinforcement of specific values with the aim to integrate a group – can really be performed by relatively seldom euforced provisions such as no doubt the penal law provisions designed to safeguard prohibition. What remains, therefore, is just the argument, classically used when discussing the problem of decriminalization, that this step might be interpreted as a consent to a specific behavior (here, the taking of drugs) which, in turn, might have disastrous consequences. In this interpretation, prohibition is the last outpost to curb completely unrestrained spread of drug addiction. Penal law's inability to exert any crucial influence on demand considered, it is assumed more and more often today that prohibition aims basically at reducing the supply of drugs. The application of penal law to this area is justified to the extent that its addressees are not addicts but manufacturers, smugglers, dealers and other such persons most of whom are not drugs consumers themselves but only derive profit from the addiction of others. No doubt, penal law sometimes succeeds to eliminate such persons by means of incapacitation or deterrence. Generally, though, there is a specific and important internal contradiction involved in prohibition: delegalization of drugs in a situation of continued demand makes the provision of supply a most attractive activity since it yields immense profits. As a result, not even the most severe penalties can either deter those involved in this activity or prevent the recruitment of their successors, the less so as the risks they run are actually rather small for reasons that have been mentioned above. It might perhaps prove possible to eliminate all supply of drugs, but not without the use of universal terror. This option, however, is out of the question in a democratic state governed by the ruled by law. Therefore, are there any alternatives to prohibition? The answer seems to be yes. First and foremost, one should realize the crucial problem of today’s drug addiction is demand. Admittedly, the demand for drugs can be seen as a apecific cultural constant, something we have to put up with. One should bear in mind, however, the attempts at influencing that phenomenon with constructive and creative rather than destructive methods. Quite obviously, this is an extremely difficult and entangled task – as difficult and entangled as any struggle against the couses and not just the synptoms of a social problem. It seems, however, that work on developing constructive strategies to fight the demand for drugs is the basic challenge of modern civilization. Namely, if we manage to gain any influence over the couses that make so many young people of today reach for drugs – if we manage to cause a reduction of that demand – departure from prohibition and resumption of the purely medical approach to drugs might perhaps become possible. For this reason, decriminalization or legalization of drugs should be seen today as a long-term strategic aim; before it can actually be achieved, prolonged preparations, experiments, small steps strategies, and chiefly efforts towards reduction of demand by methods other than repression are necessary. I believe it would be too risky if we tried to run this operation straight away and to leave the matter to be regulated by nothing but the forces of the free market. Finally, the fact has to be borne in mind that decriminalization can only be sensible if it is done globally; this means that such decision require close international co-operation and co-ordination.

105-134

Authors: Antoni Bielewicz

In Poland, the level of social confidence in a profession results mainly from: qualifications necessary for the pursuit of that procession; respect for the values to which the profession is particularly related, which it is to serve and to protect; the social usefulness of that profession; the degree of responsibility involved in the tasks performed; the arduousness of work; the level of material profits derived; the extent of power involved in the profession; tradition; social respect for the institutions in which persons pursuing that profession are employed; those persons’ professional, social and moral attitudes. From a comparative analysis of many research findings it follows that the legal professions rank relatively low in the hierarchy of prestige. Certain changes have been taking place in this respect during the las 50 years; yet the legal profession still enjoys a rather low level of social acceptance which is rather astonishing: a lawyer has all the traits valued by Polish society. In the period of Polish People’s Republic, the relatively low prestige of the legal profession resulted from the then valid doctrine, state policy, the system of administration of justice, and the attitudes and conduct of judges, public prosecutors, and barristers, In Polish People’s Republic, the law was not an independent value. It was to support the “historical process” and serve not justice itself but rather “historical justice”. It became the tool of social engineering which was to create a new society. Statutory law was transformed into a comprehensively_ oriented instrument of political action ‒ a utilitarian means of government. The legislation was to implement a political, social and economic program imposed from above. There was a dramatic drop in the importance of law as the exponent of values. This was due to a loosening of its natural relation to the sense of morality and justice. A number of decrees and statutes were passed, usually according to the valid procedure but lacking inner justness; they were called law but were essentially utterly lawless in many cases. For this reason, the social sense of justness seldom followed from statutory law; instead, it existed outside of the law so to say. The law-citizen relation included pathological elements. Most of the social experiences of contacts with law and its representatives were negative. The law seldom defended the citizen, especially against arbitrary decisions of the authorities; it usually punished him. The regulatory functions of law yielded precedence to its repressive functions. The conception of unity of state pover ruled out all independence of the judiciary in Polish People’s Republic. The courts were subordinated to the executive authority not only in terms of administration but also to a large extent in their jurisdiction. This resulted from the very procedure of appointing and removing judges; the wide discretion to remove judges; the organization of supervision over judicial decisions; the terms of office of the Supreme Court; the practice of guiding principles for the judiciary, issued by the Supreme Court and binding for all courts. Appointment of desired benches and selection of cases, changes of the benches during proceedings, requests for court files during proceedings, summons of judges to one Ministry or another, individual and organized pressure – all of these were by no means exceptional situations in the courts of Polish People’s Republic. Judicial independence ultimately depends on the judge himself. A part of judges compromised on the norms of professional ethics and on common morality. The actual numer of “obedient” judges is difficult to estimate today. Even if they were few, that was certainly enough for the people’s confidence in courts to be shaken. It would be wrong to believe that the above processes, phenomena and facts remained unnoticed by the people. Society were fully aware of the functions assigned to the law and tasks of the institutions of administration of justice. The opinion knew many examples of public prosecutors, judges and barristers departing from the basic norms of the code of professional ethics. The authorities themselves saw to it, publishing resolutions of the Supreme Court and providing extensive coverage of many trials. Thus social attitudes towards the law, institutions of administration of justice and their representatives eroded continuously. Society had no confidence in the effectiveness of recourse to the law in vindication of one’s claims; they fully realized whose interests the public prosecutor’s oflices and courts actually guarded. The prosecutors and judges were perceived chiefly as functionaries of state. Paradoxically, in a totalitarian system where violations of individual rights were a common everyday practice, the lawyer hardly helped the citizens. The social usefulness of the lawyers’ professional roles grew smaller, and so did their prestige. In coming years the prestige of the legal professions will no doubt go up. This will be a result of: a general consolidation of the role of law in the life of state and society; development of a new law-citizen relation; an increased regulatory function of the law; financial promotion of the legal professions; and improved social image of institutions of administration of justice. There is much to indicate that social regard for the legal professions will eventually reach the Western level. The proces of the Polish hierarchy of prestige of individual professions becoming “European” will inevitably result in its losing its former “proletarian” nature; this will be expressed in a drop in social regard for workers. Already going down today is the pristige of miners, and also of teachers. From 1987 till 1993, the proportion of respondents who declared the greatest regard for miners and teachers dropped by 14 and 4 points respectively. Thus the distance between a judge and a miner dropped by 26, and that between a judge and a teacher – by 16 points. The social image of judges and institutions of administration of justice is shaped by the Poles’ twofold experience: the still fresh memory of “the past” and the not yet really known “present day”. The past meant obedient judges; courts as an extension of the arm of power; sentences clashing with the sense of justice etc. The present day means rampant corruption; frustration: inner dysfunction of the system; lack of skill in resolving matters which the people see as self-evident. The public opinion have not yet fully developed a view on judges and the institutions of administration of justice. A half of respondents believe that courts do good service to society, one-fifth think the opposite, and another one-fifth have no standpoint on the matter. Thus actually two parallel images of courts operate in the social consciousness. Groups which perceive the reality through glasses of the past, so to say, seek yesterday in today’s courts. The future-oriented groups, instead, tend to define those institutions in the categories of the still distant tomorrow. For this reason, even a relatively not too controversial decision taken by the judicial authority brings about an avalanche of the gravest accusations, that of attempting to restore the past included. The psychological conflict is hardly to the court’s advantage: an image still lingers in the social subconscious which prevents society from honestly appraising their work. Also political circumstances are not too favorable for institutions of administration of justice. The active involvement of representatives of the law in resolution of disputes which the opinion define as political makes them party to the conflict in the eyes of society. Past experiences have shown how convenient a tool the court can be in political struggle. Also the Government’s activity bears on the social image of administration of justice. For one year now, the most vehemently criticized area of the Government’s work is its policy of “crime control”. It has been called ineffective by a half of society. An average citizen is convinced that the police, prosecutors, and courts are equally responsible for this situation. The condition of courts with which a large portion of society have contacts is hardly helpful in the building of those institutions’ prestige: dilapidated buildings in desperate need of repair; old worn out furniture; small, underqualified and underpaid and thus frustrated office staff. Added to this should be excessive bureaucracy, obscure procedures, distant time limits, high court fees, excessive fees charged by barristers. The courts have already started regaining social trust but the process is bound to be a slow one. Practically each and every slip of the judicial authority, eagerly pointed out by the media, may well reverse the emerging favorable trend in the attitude of public opinion. Social attitudes towards the courts are incomplete and based largely on emotions which is what makes them unstable. The emerging trend can be consolidated by e.g. closer contacts of the judicial community with society, established chiefly through the media. Yet the new image of Polish courts depends first and foremost on the success of the process of building of state ruled by law.

153-189

Authors: Grzegorz Wojciechowski

The study deals with the procedure and practice of granting pardons by the President of Republic of Poland Bolesław Bierut to persons convicted ty mortial courts. Analyzed have been the years 1947–1952, that is President Bierut’s term in office. Before, in the years 1944–1947, he was President of the National People’s Council, and afterwards, from 1952 till his death in 1956 – President of the Council of State. The 1947–1952 period has been selected for analysis not only for the above formal reason of President Bierut’s term in office. Bierut had the powers to grant pardons also as President of the National People’s Council (1944–1947) and, later on, as President of the Council of State (1952–1956). Thus the years 1947–1952 have been chosen for substantive reasons, too, as they were the period of particularly intense penal repression applied by courts mortial in Poland. It was directed chiefly against political opponents – real and alleged alike – of the new regime. Finally, the archival resources of the Civil Chancellery of President of Republic of Poland, kept in the Archives of New Files in Warsaw, make it possible in principle to fully reconstruct the procedure and practice of granting pardons. In the years 1947–1952, while holding the office of President of Republic of Poland, Bolesław Bierut was also leader (lst Secretary) of the ruling Colmmunist Party: first the Polish Workers’ Party and then, from December 1948 on, Polish United Workers’ Party. The author discusses the particularly repressive nature of law as applied by courts mortial to which also common courts reported. He also points out that the law was infringed quite freely by the investigating agencies, public prosecutors, and finally by courts mortial. Severe penalties were therefore imposed not only on the real but also on alleged opponents of the new regime. The investigating and prosecuting agencies concocted criminal cases of persons who were innocent under the law, and the courts sentenced those persons. This way, the Polish administration of justice was involved in political struggle. Its ideological justification was provided by Joseph Stalin’s theory of intensification of class struggle with progressing building of so-called “socialism” which found it legal expression in a theory, formulated by a Soviet politician and lawyer Andrei Vishinsky, on the defendant’s admission of guilt (forced by torture, of course) as the crown evidence in judicial proceedings. The author stresses that in his capacity as leader of the ruling Party and at the same time Head of State, Bolesław Bierut actually initiated many political trials based on faked investigation and often leading to the defendant being sentenced to death by a court mortial. According to the statutory procedure, such defendants then petitioned President Bierut for pardon which means that the case actually made a full circle. The author states that the middle level agencies of administration of justice notified the leaders of the ruling Party of glaring breaches of the law but the information never met with any response. The author points to numerous formal defects in the application of the pardon procedure; for example, some decisions refusing pardon do not even bear the President’s signature. The petitions, filed by the convicted person or his family or examined ex officio were in most cases accompanied by a negative opinion of the Supreme Military Court and Chief Military Prosecutor’s Office. There were cases in which a person sentenced to death in summary proceedings was actually executed without the obligatory pardon procedure. In one case, pardon was probably refused after the actual execution. The opposite also happened: convicted persons were not executed despite the fact that pardon had been refused to them. The reason was that they were needed in other penal proceedings. The duration of pardon proceedings – of special importance in the case of death sentences – was not regulated by law and ranged from three days to three months. The author analyzes petitions for pardon filed by persons convicted by courts mortial. There were the total of 2,591 such petitions, including 1,813 (about 70%) filed by persons sentenced to capital punishment. The President of Republic of Poland pardoned 589 persons or 32% of all those sentenced to death. There were among them both common criminals and political offenders. It is most difficult to guess the motives of the President (or his closest associates) which guided his decisions on pardon. In some cases, he simply followed the opinion of persons with whom he reckoned. The President’s discretion – the essence of the right of pardon – can be supposed to have played the smallest part. The procedure and practice of the exercise by President of Republic of Poland of his right of pardon was among the elements of the practice of lawbreaking in Poland in the years 1947–1952.