Pursuant to Article 238 of the Criminal Code, who informs of a crime or of a taxation offence, the body called upon to prosecute knowing that the offence has not been committed shall be fined, sentenced to restrictions of liberty or imprisonment up to 2 years.
The protection of this regulation is the appropriate functioning of the judiciary.
Definition of the offence
A criminal offence is simply a criminal offence which is more serious and socially harmful than a insignificant offence, which is prohibited under the punishment of a criminal law which describes its characteristics.
Therefore, since Article 238 kk combines the offence in question with the criminal notice, it does not constitute a criminal offence of a false misdemeanor or a disciplinary offence.
No indication of the perpetrator
In the context of a criminal offence, the perpetrator states that a crime has been committed but does not indicate any person. If the perpetrator were to be identified, this would be exhausting. offences under Article 234 k.k.except if he pointed out himself as the culprit.
Moment of false notification of a crime not committed
Notice of an unfulfilled crime is simply a formal offence. This offence is so carried out at the time of the notification of the offence to the body designated to prosecute the offences. The criminality of the act requires that the false accusation be directed at law enforcement authorities (yes: Jarosław Golat in: Selected offences against justice and the reliability of documents).
CrimeUnaccompanied crime notices
Any individual may be the subject of an offence under Article 238 k.k., which is simply a common offence.
Form of intent
False criminal announcement is simply a deliberate crime. This is the nature of the crime, which is indicated by the request that the perpetrator should know that the crime was not committed.
A essential part of the implementation of the offence under Article 238 k.k. is the awareness of the applicant of the false study submitted. Therefore, it is assumed that deliberateness is expressed here only in direct intent alternatively than in eventual intent.
In its judgement of 24 February 1999, the ultimate Court of Justice of Act V KKN 362/97, Prok. and Pr. 1999, the Appendix ‘Court of Justice’, No. 7–8, item 6 indicated that, in addition to the intent of action, the Act included the defendant's awareness of the falseness of the notice, which is expressed in the words ‘knowing that the offence was not committed’. This mark is not fulfilled erstwhile the perpetrator only assumed that the crime had been committed, for example, he received specified information and gave it to law enforcement without checking. The perpetrator must so want procedural action to be taken on the basis of his report.
The regional court in Dzierżoniów likewise stated in its decision of 1 July 2016, Act No. II Kp 169/16 stating that an offence under Article 238 k.k. may only be committed with a direct intent and, consequently, the perpetrator must know that he informs of a crime not committed. Thus, it is simply a substance of being full aware of the misleading authorities.
Form of false notification
Notice may be made in any form in writing, orally or anonymously, including by post, fax, telephone, e-mail, text.
The notification of an unfulfilled crime is any effective way of providing information to authorities appointed to prosecute an unfulfilled offence (i.e. crime or offence). The form of action is optional – it may be an oral, written notice, besides anonymous (also via mail, fax, telephone, e-mail, text) (so: Jarosław Golat in: Selected offences against justice and the reliability of documents).
The territory Court of Dzierzoniów in its decision of 1 July 2016, Act No. II Kp 169/16 he pointed out that there is no uncertainty in the legal doctrine or in the judicial case-law that the criminal offence under Article 238 k.k. involves the notification of an unfulfilled crime (not an offence) which is carried out in all effective way to supply information to the authorities appointed to prosecute an unfulfilled crime. The Act does not supply for any peculiar form of conduct. The action will so be carried out by oral announcement (including telephone notice) as well as written or even anonymous.
For this reason, the fact that the notification was not made in a procedural form is of no importance to the organization to the offence in question.
The difference between false accusation (Article 234 k.k.) and unfulfilled crime notification (Article 238 k.k.)
False accusation, as referred to in Article 234 k.k., shall be made erstwhile the content of the accusation containing false allegations against the individual afraid has been reached to the body designated for prosecution or judgement in criminal matters, including a taxation offence, offence, taxation offence or disciplinary misconduct. The motives and motives of the perpetrator are indifferent to the existence of this crime.
In turn, the offence with Article 238 (notice of an unfulfilled crime) differs from the offence with Article 234 (k) that the offender, erstwhile notifying the body called for prosecution of offences or taxation offences of alleged crime, does not indicate the individual who was to commit them. It so informs of an event which was not or presents a real event as a more serious crime by adding false circumstances (yes: judgement of the ultimate Court of 14 September 2004, Act No IV KK 129/04).
Difference between the crime of making false statements(Article 233 k.k.)a announcement of unfulfilled crime (Article 238 k.k.)
Pursuant to Article 233 § 1 k.k., the individual who gives the evidence to service as evidence in judicial proceedings or in another proceedings conducted under the Act shall be liable, Testifies Untruth Or concealing the truth. At the same time, it is simply a condition of liability that the accepting witness, acting within the scope of his/her powers, inform the testifyor of the criminal liability for the false evidence or take his/her promise. In accordance with the case law of the ultimate Court, it is essential to show the existence of the identity of the party, in the event of a crime of false testimony, the intent of action or omission. In this case, willfulness can be an intention direct or resultant.
The minimum condition for compliance with the characteristics of the subject organization in relation to the offence is that the perpetrator anticipates the non-trueness of his statements of the facts examined in the proceedings and at the same time accepts this condition, expressing specified statements in the form provided for by the procedural law. The full nature of the offence of false evidence may be covered by the content of the evidence to which the facts of the subject organization relate (yes: ultimate Court judgement of 15 January 1999, act No. II KKN 129/97, Proc. and Pr. 1999/9/1).
On the another hand, as has been said, Article 238 k.k. responds to the individual who informs of the crime, or of the taxation offence, a body called upon to be prosecuted knowing that the crime was not committed. This is simply a deliberate crime, committed in direct intent, with the motives of the perpetrator being irrelevant (it may be malice, the desire to force certain actions on law enforcement authorities, etc.) – so A. Marek in Commentary to Article 238 k.k., Lex Omega).
Cumulative fugitive of the crime of false prosecution and notification of an unfulfilled crime
The provision in the announcement of an unfulfilled crime of the perpetrator shall fulfil the characteristics of the offence under Article 234 k.k., which does not exhaust the perpetrator's conduct, and it is so appropriate to apply a cumulative combination of Articles 234 and 238 k.k. It is incorrect to believe that Article 234 k.k. consumes Article 238 k.k.; this second provision does not cover the fact that the offence was not committed at all (so: B. Kunicka-Michaelska, Criminal Code). Commentary, p. 204.
However, the doctrine besides expresses the view that if the announcement referred to in Article 238 k.k. contains at the same time a false accusation of a peculiar person, the perpetrator of the act will be solely liable for the false accusation, which is only for the offence of Article 234 k.k.
When interviewed as a witness, supply information on an unfulfilled crime
Article 304a kpk provides that a joint protocol shall be drawn up on the adoption of an oral notification of the offence and a proceeding as a witness of the notifying person.
The ultimate Court of 13 November 2002 Act No V KK 43/02 (LEX No 56858) concluded that the provision of information on an unfulfilled crime at the time of a witness proceeding does not consequence in Article 233(1) of the Code of Conduct absorbing Article 238 k.k. Indeed, Article 233 does not cover all the characteristics of the offence under Article 238 k.k., and only the qualification under Article 238 k.k. full reflects the conduct of the offender. The ultimate Court referred to the situation in which it was found that, in the same procedural action, carried out at the same place and time, it was in the framework of the acceptance of the notification of the offence and of the depositions submitted to the minutes of specified a notification, the perpetrator committed 2 crimes, that is, the offence of the notification of the actual theft of the car and the transgressions of false testimony.
According to the ultimate Court, treating the defendant's complaint of a crime which has been found not to have been committed, which the notifier knew was a manifest gross violation of material law as 2 separate crimes in a real fugitive. We are talking about a real coincidence erstwhile the same perpetrator commits 2 or more crimes. Therefore, it is not possible for a individual to notify a criminal offence to a law enforcement authority, knowing that the offence has not been committed, to treat specified notification as 2 separate offences – Article 238 k.k. and Article 233 §1 k.k..
Similarly, the typical of B.Kunicka-Michalska's doctrine stated that, given the additional applicable elements of the qualification with Article 233 §1 k.k. and the comparison of the limits of sanctions on both types, it would be appropriate to presume that "if the notification of the unfulfilled crime exhausts at the same time the mark of false testimony, the act of Article 233 k.k. will consume the act with Article 238 k.k. and the perpetrator will so be liable for the false statement" (yes: B.Kunicka-Michalska in: A.Wąsek ed.: Criminal Code. The peculiar part. Commentary on Articles 222-316, Volume II, Warsaw 2005, pp. 203, Nbl 13 to Art. 238.
If, on the another hand, the offence of false notification of the offence was committed earlier than the offence of giving false testimony, it was the consequence not only of 2 separate impulses of the will of the perpetrator, but besides of 2 separate behaviours which occurred on separate dates and circumstances, although subject to the same intent (yes: the ultimate Court order of 17 January 2013, Act No II KK 69/12).
The Court of Appeal in Katowice, in its judgement of 24 May 2013, ref. Act II AKa 563/12, stated that nothing precludes the assessment of the conduct consisting of the submission of a false notification of the offence and the submission of false evidence by the cumulative qualification prism of Articles 238 k.k. and 233 §1 k.k. in conjunction with Article 11 §2 k.k. The alleged conduct cannot be treated as 2 separate offences, and so it is essential to include in the legal qualification of the 2 provisions. The provision of Article 233 § 1 k.k. does not full reflect the full criminal content of the act.
Notification of an unaccompanied crime and an exceptional leniency
It is clear from the wording of Article 233(5) that the court may apply not only an exceptional leniency of the penalty, but even abrogation from it if, inter alia, the perpetrator voluntarily corrects his earlier false statements. The deficiency of a akin provision in Article 238 kk requires that a false notification of the offence is subject to a milder punishment than false testimony, and thus the legislator considered that the degree of social harm of specified acts was lower than the offence of Article 233(1) kk.
The Court of Justice of the European Union, in its opinion of 23 December 2014, is of the opinion that the Court of Justice of the European Union is not in a position to regulation on the application of Article 69(1) of the Treaty on the Functioning of the European Union. Act IV Ka 867/14).
Notification of an unfulfilled crime as part of a continuous action
The Court of Appeal in Katowice in its judgement of 23 March 2011, Act II AKa 468/10, “Krakov Judicial Sheets” 2011, No 9, item 80, concluded that the submission of a notification of the theft of cars which did not happen and, consequently, the submission of false evidence was intended solely to get undue compensation, hence it was a way and a means of bringing the insurer to an adverse property regulation. In specified actual configuration, all of these behaviors are 1 continuous action within the meaning of Article 12 kk.
The Court of First Instance argued that the alleged acts constitute 1 continuous act within the meaning of Article 12 kk, since the conduct of the accused persons with the full character of the offences under Article 233 1 kk and Article 238 kk were taken, as well as the conduct of the full character of the offence under Article 286 § 1 kk, with the same preemptive intent to get a property benefit by extorting undue compensation for alleged car theft.
On the crime of false evidence – read here
On the crime of false prosecution of a individual – read here
