In order to implement the rule of criminal justice in practice, it is essential to take into account the preventive functions of the penalty, i.e. the general and individual preventive. General prevention is intended to prevent any possible criminal offence from being committed in the future by any possible criminal offence perpetrator, while individual prevention is intended to prevent a individual from returning to the crime who has already violated the law in his behaviour, causing a penal reaction of the state.
Stets or unfortunately present many people seem to deny the judicial character of a state apparatus, for what is state is identified a priori with the sphere of government power, which besides results in the rejection of the concept of justice as a direct typical of the Polish State in the application of the rule of justice by them.
Just like the last part. quite a few attention has been paid to insignificant crimes, so here we request to look forward to crimes causing justified outrage – murder, genocide, betrayal of the state during armed conflict. Each 1 of these acts, already through its pronunciation, causes little or more disgust toward the perpetrator, for whom there is simply a sense of having to exclude him from society forever.
Death punishment and right to life
The Constitution of the Republic of Poland remains in charge of human life, which is confirmed by the settled case law of the Constitutional Court, which treats the protection of unborn life. It is clear that the protection of human life is simply a essential condition for the protection of the national community and for its interests to be pursued Largo sense.
It should be stressed, however, that abortion and the death punishment are completely different situations and should not be combined with each another – in the case of the death penalty, the subject of discussion is the deprivation of the life of a individual guilty of gross violations of the standards declared by the community, while abortion is always the deprivation of the life of an objectively innocent person. There is so no "hypocrisis" erstwhile supporters of the protection of unborn life support the final punishment as a solution to the most serious crimes.
The right to life is restricted erstwhile the right to the life of an individual who violates the law with the right to the life of an individual who defends it comes to weighing. In specified a situation, the right to the life of the individual attacking the legal order with the same order behind which the safety of the community lies is placed against each other.
If deprivation of life in an emergency is allowed, it is all the more crucial not to reject a situation where the death conviction is judged by a typical of a judicial authority with all the cognition and tools needed to find whether the application of the punishment in question will be fair.
Life imprisonment and death punishment
The failure of a sense of community with a man who violates basic standards, mentioned in the introduction, gives emergence to the request for an adequate consequence to the violation – the exclusion of the perpetrator from society forever. This function is carried out by 2 penalties – the death punishment and the life sentence.
The alleged absolute variation of the latter, and so without the anticipation of conditional early dismissal, deserves attention. specified punishment was introduced in the last October revision of the Criminal Code.
The introduction of a life conviction of absolute imprisonment was met with a massive criticism of any of the judicial circles and legal doctrine. In particular, arguments from authority were raised, with the Polish Constitution, Polish legal traditions, the achievements of the case law of the ultimate Court or the social reception of justice, but above all the case law of the European Court of Human Rights (ECHR).
The ETPC jurisprudence by 2013 consistently maintained that the alleged absolute punishment for life imprisonment does not prejudice the guarantees under Article 3 of the European Convention on Human Rights[1] (ECHR) that no 1 may be subjected to torture or to inhuman or degrading treatment or punishment. ETPCz left the parties to the Convention legislative freedom to apply penalties that respond to the most serious offences.
That position was amended in the judgement of 9 July 2013 in Vinter and others v. large Britain by an arbitrary, abrupt change in explanation which, from now on, the legal circles, which they respect in ETPCz as nothing in a picture, consider revealed truth. In this judgment, ETPCz stated that the imprisonment of respective men, 1 of whom killed his wife, the another of his family, and the 3rd of 4 abroad men, for a life without hope of a conditional early release meant inhuman and degrading treatment. The court has spoken, the case is over. You can go. But if individual thinks otherwise, he makes a deviation from the only righteous religion of human rights.
ETPCz made the basis of the ruling a liberal view of criminal law, where the individual is at the centre of attention and this individual is not the victim at all, but the perpetrator. specified an approach is on a collision course with a Community approach, paying peculiar attention to general prevention, punishment as a fair compensation and, equally important, as in doctrine and debate, is despised and ridiculed as penal populism, social sense of justice.
The dignity argument is based, among another things, on the doctrine of Immanuel Kant, who claimed that the treatment of punishing a man as a means of achieving any goal cannot be reconciled with his dignity[2]. This position cannot be accepted from the point of view of the function of the penalty, all the more so because, in the case of offences against the safety of the State, the intent of the death punishment would already be visible at first glance and an effort to show it more clearly would be a series of repetitions.
Also from this perspective, the absolute imprisonment of life in line with the death punishment is besides repressive and inadequate. The adequacy of the punishment should not be measured by its nuisance in terms of physical pain and suffering, but by the relation of the effects of the reaction to the results of the infringement.
Life imprisonment can no uncertainty be linked to both the greater torment of the perpetrator (the moral perspective) and the burden on the public on the cost of keeping a prisoner spread over time (the utilitarian perspective). In addition, a individual who carries out specified a punishment may return to the crime after being incarcerated in a penitentiary – whether an adequate consequence to the execution of specified a individual will be... re-prisoning her for the same punishment? It would be a complete failure to punish the perpetrator.
In specified a situation, it is impossible to talk of the social satisfaction of justice, for society rightly requires that the criminal be punished. Is it fair, on the another hand, to have a crime without punishment?
Thus, the death punishment is more consistent with the state's criminal policy than the life conviction of imprisonment, if, of course, it is carried out in a manner that does not endanger the perpetrator of unnecessary suffering, and if it is aimed at responding to crimes of the highest degree of social harm.
In a debate dominated by the party, the abolitionist death punishment is, on the another hand, regarded as a final evil, which should not be discussed at all. I will usage an anecdote heard from a associate in the debate on the death punishment at 1 of the Polish universities, where 1 of the speakers stated explicitly, speaking as if ex cathedrathat "the death punishment is unworthy of criminal law".
Death punishment from a Catholic perspective
It should be punished both due to the fact that a crime has been committed and so that it is not committed in the future. In the case of the most serious crime, therefore, greater importance should be given to the repressive function of punishment, with little respect to humanism as part of its ruling, so as not to exposure mercy to ridicule.
For the Catholic thought is right, that without justice there is no mercy, and without mercy there is no justice. Each of us knows the communicative of a good villain—if he had not been sentenced to the death penalty, he would not have met Christ and most likely would not have come to his conversion. Is not the welfare of souls of the highest value from the position of mercy?
The above-mentioned argument ad misericordiam is utilized in the discussion of the death punishment and the absolute life imprisonment, since the vast majority of the retentialist side's discussions with abolitionist parties are yet broken down by arguments based on widely understood morality, on which these arguments end due to a deficiency of common knowing and a different degree of sensitivity.
This issue deserves to be raised. The teaching of the Catholic Church allows the death punishment against what seems to insinuate powerfully liberal Catholics, based on any statements made by Pope Francis and the literal wording changed by him in paragraph 2267 of the Catechism of the Catholic Church. Primohas never been expressed in form ex cathedrathat the Holy Church completely rejects the death punishment and deviates from this view is simply a departure from the Catholic faith. Secundo, specified a line is incompatible with the Church's teaching to date, expressed by post-consort popes. Tertio, the Pope's argument to justify the change of couples. 2267 contains many claims based on the dignity of the human individual and the anticipation of redemption of wines, treating the final punishment as an assassination of the inviolability and dignity of the "person", which, without surprise, is very akin to the argument cited above by the ETPCz.
Even in the time of John Paul II, catechism expressed the norm that teaching the Church did not exclude the application of the death penalty[4].
Saint Thomas of Aquinas, in the Church the authority of large importance, the death punishment besides justified and treated it as a natural part of the authority of the ruler. The acquittal compared the situation to the amputation. According to this view, society has the right to defend itself against who threatens it; just as a surgeon cuts off a gagged limb, so hardened villains should be expelled from society[5].
In fresh times, the issue of the death punishment among Catholics has become open in its own way and is subject to debate, although opposition to it in these environments primarily concerns people who effort to fit into liberal paradigms operating in the world, and much of it is marked by the pontificate of Pope Francis.
Death punishment and penal populism
Supporters of a liberal approach to criminal law frequently argue that the application of harsh penalties is never justified and that it affects the level of crime negatively[7]They are besides intended to lead to dehumanisation.
One can besides see the following view: “Life imprisonment is better due to the fact that it is more ailable to the perpetrator, which shows his superiority over the death penalty.” However, the intent of the criminal policy of the state is not to torment convicted people, but to respond quickly, efficiently and adequately to the violation of the law – even if it is to be the deprivation of life, it should come in a manner consistent with the moral-ethical pillars of our civilisation.
Often, the "penal populism" is utilized for the participants of the debate calling for the tightening of penalties for the worst crimes. It is besides claimed that the death punishment is “unbefit” to developed society, that it constitutes “barbarity”. This kind of argument is mostly based on emotions and belief in inevitable advancement dictated by certain environments and global tribunals. However, it is worth noting that this argument is not realistic. The death punishment is executed in countries specified as the USA, China and Japan. However, no 1 will say that the political and economical powers of this caliber are ‘resistent’, in peculiar those of the progressive novelties of the United States.
Prof. Andrzej Zoll, 1 of the largest legal authorities in the left-liberal part of the political dispute, stated: “The death punishment is the denunciation of European values, a step towards Russia. [...] Enforcement is not the execution of a penalty, which is simply a compensation for an offence, but is besides intended to work for the future. It's to be survived by the perpetrator of the crime. punishment is besides intended, alongside the reimbursement, to rehabilitate the convicted[8]It’s okay. ” This is simply a conviction worthy of analysis.
Mr. Professor's appeal to Russia is an apparent manipulation and procedure aimed at demonizing opponents. In Russia, the death punishment has not been enforced since 1999 due to the introduction of a moratorium, linked to the accession of that country to the Council of Europe and the acceptance of regulations included in the ECHR. Despite the speech from the Council of Europe, the Russian Federation has not returned to the death penalty. This argument is so a typical ‘who does not agree with us is pro-Russian’ procedure.
The abolitionist side, in peculiar its authorities, frequently overlooks the aspect of general prevention which the punishment is intended to implement. Prof. Zoll's claim that the death punishment did not execute its preventive function is so straight contrary to its functional nature.
The "survival of punishment by the offender" is an argument per individual and its subjective feelings, which should not apply to those individuals who, by their attitude, express obedience and respect to the state's key standards for its safety.
The last aspect raised by Prof. Zoll, i.e. the issue of rehabilitation, in the case of death punishment and life imprisonment, is of no purpose. Resocialisation is simply a process aimed at restoring to the social life of an individual who has not yet functioned decently in it. In ruling on the punishment of excluding the perpetrator from society forever, the aspect of rehabilitation is self-absorbed.
A social sense of justice has been 1 of the main arguments of the death punishment supporters for years, which requires it to be described as a more Community than abolitionist, which makes the center of its communicative an individual. The place of the unit is in the community. If an entity goes beyond the legal order of the community to guarantee its safety and sometimes and the existence of smaller communities in its membership (e.g. family), the interest of the community should take precedence in assessing the situation afraid over the interests of the individual, which does not mean that its rights are completely disregarded.
At present, the discourse on criminal policy of the state is mostly owned by the communities associated with left-wing liberal mainstream. If you don't discuss the death punishment by rejecting it a priori as an utmost evil that must not be discussed, due to the fact that it is "penal populism unworthy of criminal law", which naturally besides departs from the discussion of the criteria for the application of the word of life imprisonment, including this punishment at a further phase relativising and softening.
Summary
The death punishment deserves as much as possible to be placed in the debate, given the function it could execute in a country seeking the most effective implementation of criminal policy. Providing interior and social safety with a sense of justice, which besides reveals itself in public assurance to judicial authorities and a feeling of pursuing a single objective, are undoubtedly values from a national position more crucial than seeking compliance with the case law of global courts or indications of transnational organisations.
Even if the final punishment is not to be reinstated in Polish legislation, there is no uncertainty that the reasonably functioning state authority should never categorically reject the anticipation of returning to the application of that penalty. A strong economical and political Poland would be needed for the broadly understood “West” regardless of whether the death punishment would be executed or not. It can so be said that this option should always be on the table, in peculiar the anticipation of an armed conflict.
[1] W. Hermelinski, B. Nita-Ślądowska, Life imprisonment without access to conditional early release – reflections in the context of guarantees under the European Convention on Human Rights, ‘Palestra’ 2018, No 10, p. 21.
[2] The president Criminal law, Warsaw 2022. p. 169.
[3] T. Plum, Death punishment – For or Against, Kraków 2010, p. 137.
[4] See paragraph 2266 of the Catholic Church Catechism of 1992.
[5] Jacek Salij, Church to Death Penalty, Christianity – planet – Politics 2015, No 19, 10–16.
[6] T. Snail, pp., p. 83.
[7] There are even claims that severe penalties increase the level of crime, but there is no evidence to support this kind of thesis.
[8] A. Lukaszevich, Andrzej Zoll: The death punishment is the denunciation of European values, a step towards Russia [online], 8.01.2023, https://www.rp.pl/law-carne/art37741241-andrzej-soll-kara-death-to-denunciation-European-value-to-step-in-direction-Russia [accessed: 11.11.2023].
