Prevention of crime, tort and epidemy: The use of criminal procedure for preventive purposes in Poland during Covid-19
| Published date | 01 July 2023 |
| DOI | http://doi.org/10.1177/17488958211056775 |
| Author | Arkadiusz Lach |
| Date | 01 July 2023 |
| Subject Matter | Articles |
https://doi.org/10.1177/17488958211056775
Criminology & Criminal Justice
2023, Vol. 23(3) 450 –467
© The Author(s) 2021
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DOI: 10.1177/17488958211056775
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Prevention of crime, tort and
epidemy: The use of criminal
procedure for preventive
purposes in Poland during
Covid-19
Arkadiusz Lach
Nicolaus Copernicus University in Toruń, Poland
Abstract
Criminal procedure is increasingly becoming an important instrument of prevention. This is a
globally observed tendency, and Poland is not an exception. There are several regulations in the
Polish Code of Criminal Procedure that allow the preventive use of coercive measures. In 2020,
a new and controversial regulation was introduced, authorising the public prosecutor or court to
prohibit the publication of content interfering with the legally protected goods of the victim. The
author criticises the new preventive measure as duplicating civil law injunctions and expresses
the opinion that, in criminal procedure, preventive measures should be used to prevent crime,
not every illegal activity. In addition, the article describes the criminal procedure for isolating
persons obliged to quarantine themselves because they have tested positive for Covid-19 or had
contact with infected persons. This raises the question of the limits of the preventive function
of provisional arrest and possible abuse of the criminal process using it for aims unrelated to the
traditional goal of the criminal process: determining the question of guilt of the accused.
Keywords
Covid-19, criminal procedure, illegal content, prevention, provisional detention
Introduction
Today, many legal systems allow for using criminal procedure and its measures for vari-
ous purposes, sometimes unrelated to the main goal of the procedure – determining the
question of the guilt of the accused. Preventing future crime and protecting victims are
Corresponding author:
Arkadiusz Lach, Faculty of Law and Administration, Nicolaus Copernicus University in Toruń, Bojarskiego 3,
87-100 Torun, Poland.
Email: arkadl@umk.pl
1056775CRJ0010.1177/17488958211056775Criminology & Criminal JusticeLach
research-article2021
Article
Lach 451
the most common examples. The trend to use criminal procedure for different more or
less collateral goals seems to be extending. In the Covid-19 era, state authorities tried to
use every possibility to limit the spread and the negative impact of the epidemy. One of
the instruments is criminal procedure. It is worth observing how this instrument has been
used in Poland, owing to recent legislative changes and practice. It is a good starting
point for wider reflection on the changing role of criminal procedure and its preventive
function.
Prevention of crime in the Polish criminal procedure
In the Polish legal system, using the measures of criminal procedure for preventive pur-
poses has been formally allowed since 1995, when the possibility of using preventive
measures1 for preventing crime was introduced into the previous Code of Criminal
Procedure 1969. The regulation was also adopted in the new Code of Criminal Procedure
1997 (CCP). According to Article 249 § of the CCP, preventive measures may be used to
ensure the correct course of proceedings and, exceptionally, to prevent the accused2 from
committing a new serious offence. The term ‘serious offence’ is interpreted as crime with
a maximum penalty of deprivation of liberty of at least 8 years (Stefanski, 2019: 585–
586). Article 258 § 3 of the CCP provides that a preventive measure may also be applied
exceptionally if a justified concern that the accused charged with a felony (i.e. a crime
punishable with a penalty of at least 3 years of deprivation of liberty) or charged with an
intentional misdemeanour will commit a serious offence against life, health or public
safety, especially if he or she has threatened to do so.
Since the adoption of CCP, the number of preventive measures and other coercive
measures used for preventive purposes have increased. This may be treated as sign of a
global tendency (Carvalho, 2017: 1–16; Vervaele, 2009: 75–123; Zedner, 2009: 35–58)
– a preventive turn in criminal justice. The most important measures are arrest, which
was introduced for domestic violence cases, and an order to leave premises shared with
the victim. The arrest of a person suspected of domestic violence by the police is possible
when there is a risk of a new violent crime against the victim, especially if the suspected
person threatens to commit such crime (Article 244 § 1a of the CCP). Arrest is manda-
tory if the alleged crime was committed using a firearm, a knife or other dangerous
object (Article 244 § 1b of the CCP). Such arrest may last up to 48 hours; afterwards, the
arrested person must be released or transferred to a court with the motion of the public
prosecutor for provisional detention. The order to leave premises shared with the victim
(Article 275a of the CCP) makes possible the separation of the suspect and the victim
and therefore decreases, by situational prevention, the possibility of committing a new
crime. The regulations concerning domestic violence were introduced as a fulfilment of
the obligation under international law to prevent such kinds of violence and protect
victims.
Notably, the instruments of criminal procedure sometimes overlap with instruments
of police law, civil law and administrative law. Article 15a (1) of the Police Act 1990
provides for the arrest of a person suspected of domestic violence if there is a risk of a
new crime, which is also the subject of the above-mentioned Article 244 § 1a and 1b of
the CCP. From November 2020, the police are also empowered to order the person using
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