Self Defense Law in Poland - what you need to know?
On average, the electronic media and the press provide us with information several times a year, according to which a person defending himself against a physical assault or trying to prevent a theft is accused of breaking the law and treated on a par with a criminal.
This information and the accompanying public outcry, perpetuated the mistaken view that Polish law imposes such restrictions on the person defending himself that there is practically no point in using the institution of necessary defense - in defense of himself, other persons or property. Such a view is not only wrong, but also socially harmful, as it promotes attitudes of passivity in the face of lawlessness and contributes to the prevalence of the phenomenon known as social desensitization.
The prosecutor's office is neither a court nor a lawmaker in Poland, and it happens to be wrong, as evidenced by the numerous acquittals that have been handed down despite the prosecutor's sometimes strenuous efforts to sentence the violator of the aggressor's property to years in prison.
It is worth citing at this point the results of Piotra Bachmata research presented in the publication The Institution of Necessary Defense in Prosecutorial and Judicial Practice. The author examined more than 100 cases of necessary defense. In 86% of the cases, the prosecutor's office charged the defending person with a pure offense, and in 13.6% with an offense in excess of the limits of necessary defense. Of these charges, the pure charge of committing a crime was dismissed by the courts in 99% of cases, while the much rarer charge of exceeding the limits of indispensable defense was completely dismissed by the courts in 36% of cases, with the remainder applying the leniency or waiver of punishment provided for in Article.25 §2.
So let's try to separate the sometimes completely incomprehensible, appalling attitudes and actions of the Polish prosecutor's office from the legal norms in force in Poland and their interpretation established in the case law of the higher instances of the Polish judiciary. As we will show below, necessary defense is an action within a rather strictly defined scope, but it is a really wide scope, guaranteeing the person using this institution to defend himself effectively and without any negative legal consequences.
Watch a video on necessary defense on our YouTube channel:
Current legal status
Necessary defense is one of the so-called "counter-types", i.e. circumstances that exclude the unlawfulness of a criminal act. A person acting under the conditions of necessary defense formally exhausts the elements of some crime (e.g., causes injury to the attacker), but his action is not unlawful and as such does not constitute a crime.
The basic Polish legal act that defines the essence of necessary defense and regulates issues related to it is the Criminal Code:
Article 25.
§ 1. He does not commit a crime who, in necessary defense, repels a direct, unlawful attack on any good protected by law.
§ 2. If the limits of a necessary defense have been exceeded, particularly when the offender has used a mode of defense that is disproportionate to the danger of the attack, the court may apply extraordinary leniency or even waive punishment.
§ 2a. Whoever exceeds the limits of necessary defense by repelling an attack consisting of breaking into an apartment, premises, house or adjacent fenced area, or by repelling an attack preceded by breaking into such places, shall not be subject to punishment, unless the exceeding of the limits of necessary defense was gross.
§ 3. Whoever exceeds the limits of necessary defense under the influence of fear or agitation justified by the circumstances of the attack shall not be subject to punishment.
The right to repel an attack is also regulated by the Civil Code, which is important in case of possible claims by the "injured" aggressor:
Article 423
Whoever acts in necessary defense, repelling a direct and unlawful attack on any good of his own or another person, shall not be liable for the damage caused to the attacker.
Thus, a necessary defense is a legitimate retaliation against an attack, a violent bargain by an attacker against some legal good, someone's life, health, property or other goods. This may be the good of the defending person or any other. The condition for the admissibility of a necessary defense is that the attack must be direct, that is, it must threaten some good with a danger that is real and immediate, and not anticipated in the future. In addition, it must be an unlawful attack, that is, a manifestation of behavior that violates the law, behavior that qualifies as a crime or misdemeanor.
The necessary defense must be within the permissible limits, in particular, it must be commensurate with the attack. If the perpetrator applies a defense that is too strong, more intense than was necessary to repel the attack, there is a so-called intense excess, which is one form of exceeding the limits of necessary defense. We will return to the problem of proportionality of defense later in the article. The second form of exceeding these limits is the so-called extensive excess, which is considered to be a defense that is excessively extended in time, undertaken too quickly, when the attack has not yet assumed the characteristics of immediacy - or too late, when the immediate danger of the attack has already passed.
Excesses do not take away the characteristics of necessary defense from the perpetrator's actions, but they make the perpetrator no longer completely irresponsible. He bears responsibility, but the court may treat him more leniently and apply extraordinary leniency, and in some situations even not impose punishment at all or waive punishment, and thus drop the case.
The legal formula of indispensable defense is quite laconic, and the concepts contained therein, such as the directness of the attack or the disproportionality of the defense, are evaluative in nature. Besides, it is difficult to imagine an abstract definition of these concepts, made in isolation from the realities of specific events. That is why the interpretation of necessary defense in judicial jurisprudence is so important.
Law must not give way to lawlessness
Many rulings on necessary defense, both older and more modern, have expressed the principle that the law should not give way to lawlessness. This rule was explicitly expressed by the Supreme Court in its judgment of 27.7.1973, stating that:
"The institution of indispensable defense aims not only to protect the good of the unlawfully and directly attacked, but also to shape the principle that the law should not give way to lawlessness."
This means that no one should be required to flee from an attacker, even if the possibility of fleeing and thus avoiding the danger of an attack is real or even certain. In turn, in its judgment of 4.2.1972, the Supreme Court stated, among other things, that:
"(...) An assaulted person is not obliged either to save himself by fleeing, or to hide from his assailant in a closed room, or to endure an assault that restricts his freedom, but has the right to repel the assault by all available means that are necessary to force the assailant to abandon the assault (...)".
Of the more recent rulings, it is also worth citing the judgment of the SA in Krakow of 20.3.1996, which expressed the following thesis:
"A person entitled to defend himself against an unlawful direct attack on any good has no obligation to yield to the attack, including fleeing from the attacker. It is therefore up to the attacked person whether he wishes to defend himself using the means necessary to repel the attack."It is clear from the cited rulings that the institution of indispensable defense is self-contained, i.e., under indispensable defense, the attacked person always has the right not to give way to the attacker and fight him - even when he could have avoided the attack by other means.
This thesis was explicitly expressed in the Supreme Court's April 9, 2002 ruling:
"The view of the subsidiarity of necessary defense contradicts the very wording of the provision of Article 25 § 1 of the CC. Indeed, the right to necessary defense is not subsidiary but self-contained."
A broad interpretation of the immediacy of the attack
The permissible limits of necessary defense depend largely on the interpretation of the concept of immediacy of the attack. In case law, there is an apparent tendency to interpret this concept broadly, without limiting it only to a strictly construed attack by the attacker. In its judgment of 11.12.1978, the Supreme Court expressed the following thesis:
"Immediacy of threat also comes into play when there is a high degree of probability that the good threatened by the attack will be attacked immediately, in the near future."
Even more strongly this interpretation of the immediacy of the attack, which is favorable to the assaulted person, was articulated in the justification of the Supreme Court judgment of February 4, 2002:
"The immediacy of the attack also comes into play when there is a high degree of probability that the good threatened by the attack will be attacked in the near future. Such an attack begins as early as the moment when the perpetrator's behavior aimed at violating the legal good is so advanced that failure to counter it will lead to a significant danger to the legal good. Therefore, it is rightly emphasized in the doctrine that necessary defense is permissible also when the threat to the legal good, although it has not yet occurred, but is imminent, and a delay in taking defensive action may have negative consequences for the effectiveness of the defense."
Also in a later ruling on 1.2.2006. The Supreme Court affirms our right to advance the attack:
"Necessary defense (Article 25 § 1 of the Penal Code) includes not only repelling an attack in the stage of its implementation, but also the stage of objectively existing direct threat of an attack, as well as in the event of its imminence, unless an immediate defensive action is taken."
In a detailed statement of reasons, the court explains these issues as follows:
"It should be emphasized that it is not a prerequisite for taking defensive action to wait until the attacker proceeds to carry out the attack. Such a requirement would put the attacker in a more favorable situation than the victim, since the necessity of its fulfillment would thwart the effectiveness of the defense in many cases, and, as a result, would misappropriate the very axiological basis on which the counterattribute of necessary defense is based. The meaning of the directness of the attack must therefore be understood in such a way that, in accordance with the intent of the law, the protection of the person at whom the attack is aimed is not only legally guaranteed, but also effective, and in the case of a collision of goods, that the good of the attacker does not enjoy priority at the expense of the good of the person attacked. Thus, it should be accepted that the right of necessary defense includes not only the repulsion of an unlawful attack at the stage of its implementation, but also at the stage of the objectively existing direct threat of an unlawful attack on a legal good. It does not go beyond the limits of necessary defense to thwart an expected act of aggression, if in concreto it appears to be inevitable in the event of failure to take immediate defensive action."
As can be seen from the above rulings, necessary defense is not limited only to the direct repulsion of an attack, but is also allowed in advance of an expected attack by the attacker.
Allowed any means
Another important issue is the scope of means that can be used by a person acting in necessary defense. On this issue, case law seems to favor the person repelling the attack.
In its judgment of 11.7.1974, the Supreme Court expressed the view that:
"A person acting in necessary defense is allowed to use such means as are necessary to repel the attack. The use, especially in moderation, of a dangerous tool shall not be considered to exceed the limits of necessary defense if the person repelling the attack did not then dispose of another, less dangerous but equally effective means of defense, and from the circumstances of the incident, especially from the preponderance on the part of the attackers and the manner in which they acted, it appears that the attack endangered the life or health of the attacked person."
The Supreme Court also formulated a similar thesis in its judgment of 23.7.1980:
"...the institution of necessary defense allows the use of any necessary means of defense to repel a direct and unlawful attack on life or health, and the type of tool used cannot prejudge the overstepping of this defense if the one repelling the attack did not dispose of another, less dangerous tool."
It follows from the above rulings that in defense of life or health it is permissible to be "indiscriminate," including the use of dangerous tools. Of course, this does not exclude the basic principle that the defense must always be commensurate with the danger of the attack. This, in turn, does not mean at all that the defense must be carried out on a balance of power basis. On the contrary - the one repelling the attack has the right to defend himself in such a way as to gain an advantage over the attacker.
This was emphatically expressed by the Supreme Court, among others, in its judgment of June 14, 1984 (I KR 123/84):
"[...] the defensive action of the perpetrator acting in necessary defense must exceed by its intensity the intensity of the attack in order to be effective."
Thus, proportionality does not mean a balance between the forces and methods used by the attacker and the person undertaking the necessary defense. Commensurability only means the intensity of the defense no more than is necessary to effectively and safely repel the attack. Moreover, it is not only the right to defend ourselves more intensely than the attack itself in the sense of greater intensity of defensive actions at the time of receiving the attack, but also the right to use tools that will give us an advantage.
This is brilliantly illustrated by the Supreme Court ruling of 9.3.1976:
"No one can be denied the right to hold an attacker at a distance with such an object as comes along, even if the attacker attacks with his bare hands. For the attacked person is not obliged to get into a brawl with the assailant and expose himself to blows in order to give the defense undertaken by him against a direct unlawful attack the form of an even-handed duel."
So we don't have to take the risk of a direct, physical confrontation with an aggressor, which, after all, always risks serious injury, not to mention the risk of transmitting infectious diseases. We have the right to defend ourselves from a certain distance - with firearms, an unlicensed gas gun, defensive batons, pepper spray or sharp tools.
From more recent rulings, it is worth quoting in this context the judgment of the Court of Appeals in Katowice of 15.10.1998 (II AKa 53/98):
"The defendant's grabbing of the knife, which was the only object that could stop the attacker, cannot be treated as the use of a disproportionate means of defense. Indeed, it follows from the essence of the necessary defense itself that the countermeasure with which a real, unlawful attack is repelled must be effective in order to achieve its purpose. Such effectiveness occurs when the counteraction contains an element of advantage over the unlawful action in question."
Excess only culpable
The interpretation of exceeding the limits of necessary defense is also favorable to the person repelling the attack. In the judgment of 11.8.1972, the Supreme Court expressed the view that for the acceptance of exceeding the limits of necessary defense, it is required to establish that it occurred due to the willful fault of the person defending himself.
The thesis of the aforementioned ruling reads as follows:
"Exceeding a necessary defense must be culpable, so the perpetrator must be aware and at least accept that he is using an excessive means of defense to repel a direct unlawful attack on any social good or any individual good, or that his action is disproportionate to the attack."
Assassination provoked
An attack by an assailant is sometimes provoked to a greater or lesser degree or caused by the misbehavior of another person toward the subsequent assailant. However, even in such a case, case law seems to be tolerant of the party who defends himself. In a judgment of 16.2.1995, the SA in Bialystok articulated its view on the matter:
"The fact that the attack was provoked by the improper behavior of the attacked person (e.g., rudeness, malice) does not by itself take away the character of unlawfulness from the attack, even if the person making the attack considered himself subjectively provoked."
Case law has also recognized the right of necessary defense on the part of a person who first voluntarily participated in a fight and then definitively withdrew from it. Such a person, if subsequently attacked, can repel the attack as a necessary defense.13
Necessary defense, on the other hand, does not include "pure provocation," that is, a situation where someone brings about the fact that he is being attacked himself.
The Supreme Court in its judgment of 31.8.1979 articulated its view on this issue as follows:
"However, the right of indispensable defense cannot be invoked by one who, foreseeing the possibility of an attack and being able to avoid it, brings about a situation that makes it possible to carry it out, goes "in front" of it, provoking, as it were, the attacker to attack."
On the side of the attacked
It is clear from the cited rulings that, on issues crucial to the scope of necessary defense, the case law quite unequivocally sides with the person repelling the attack, rightly assuming that the law cannot give way to lawlessness and that it is the attacker, not the attacked person, who should bear the risk of the consequences of the attack. This line of Supreme Court jurisprudence also translates into case law in specific cases. The case of the shooting of a man on a transformer, by the owner of a neighboring property, became widely known after it was publicized by the media. The court adopted the necessary defense, as it seems to have strongly "stretched" the construction of the immediacy of the attack, in a situation of danger not yet quite real and threatening not immediately, but at most in the future. In another high-profile case, the action of an offender who shot a fleeing perpetrator of a car radio theft was considered a necessary defense. In the latter case, there can be far-reaching doubts about necessary defense, since, according to the standard contained in Article 2 of the European Convention on Human Rights, the infliction of death in defense is considered necessary only in the case of repelling an unlawful rape of a person.
Amendment of indispensable defense
At the beginning of 2018, a new provision was introduced to Article 25 of the Criminal Code, which deals with repelling an attack on, among other things, a house or apartment:
§ 2a. Whoever exceeds the limits of indispensable defense by repelling an attack consisting in breaking into a dwelling, premises, house or adjacent fenced area, or by repelling an attack preceded by breaking into such places, shall not be punished, unless the exceeding of the limits of indispensable defense was gross.
In the intention of the legislator, the new provision is intended to protect those who repel an attack on domestic mirrors - a person who exceeds the limit of necessary defense is not to be punished, unless it was blatant. As you can read in the information on the president.pl website it is:
"a new provision to provide expanded protection for those individuals who, in repelling a direct attack in the conditions of a violation of "home turf," have committed a breach of the limits of necessary defense."
It is worth reading the opinion of the General Prosecutor's Office of the Republic of Poland, which is critical of these changes.
An unequivocal determination as to whether the amendment will indeed provide expanded protection under the "my home, my fortress" principle will require time and a look at the sentences handed down based on (or with the omission of) this provision. Only then will it be possible to determine whether the stated goal of the amendment to the necessary defense provisions has been achieved.
Summary
The belief that the law protects the criminal better than the victim of a crime is apparently not supported, neither by the provisions of Polish law nor by the well-established case law of the Supreme Court and SA. The problem of too narrow a scope of necessary defense does not exist. The boundaries of indispensable defense set by the regulations and case law provide us with a very wide field of defense, and even if we exceed them, we can count on extraordinary mitigation of punishment or waiver of punishment. On the other hand, the real problem on the part of the system are cases of overzealousness combined with incompetence - mainly in the practice of the Polish prosecutor's office, but sometimes also in the jurisprudence of the lower courts.
All the more reason to know your rights and be prepared not only to physically fend off an unlawful attack, but also to fight it out in court later. In both cases, we can defend ourselves effectively, as numerous acquitting judgments of the Courts of Appeals and the Supreme Court have convinced us.
The above text is based on an article by Janusz Wojciechowski (Polish politician, lawyer, former president of the Supreme Chamber of Control) published since 1998 in the pages of Monitor Prawniczy, among others. The editors of militaria.pl have taken into account more recent case law of the Supreme Court and changes in the Criminal Code, which have expanded the possibility of waiving punishment in cases of exceeding necessary defense.
Bibliography:
1. Wyrok SN z 27.7.1973 r., IV KRN 153/73, OSNKW Nr 1/1994, poz. 5.
2. Wyrok SN z 4.2.1972 r., IV KR 337/71, OSNKW Nr 5/1972, poz. 83.
3. Wyrok SA w Krakowie z 20.3.1996 r., II Aka 34/96, Prok.Pr. Nr 1/1997, poz.15.
4. Wyrok SN z dnia 9 kwietnia 2002 r., V KKN 266/00
5. Wyrok SN z 11.12.1978 r., II KR 266/79, OSNKW Nr 6/1979,poz. 66.
6. Wyrok SN z 4.2.2002 r., V KKN 507/99
7. Wyrok SN z 1.2.2006r., V KK 238/05, http://prawo.legeo.pl/prawo/v-kk-238-05
8. Wyrok SN z 11.7.1974 r., VI KRN 34/74, OSNKW Nr 11/1974, poz. 198.
9. Wyrok SN z 23.7.1980 r., V KRN 168/80, OSNPG Nr 6/1981,poz. 60.
10. Wyrok SN z 9.3.1976 r., III KR 21/76, OSNKW Nr 7-8/1976, poz. 89.
11. Wyrok SN z 11.8.1972 r., II KR 109/72, OSNKW Nr 2-3/1973, poz. 29.
12. Wyrok SA w Białymstoku z 16.2.1995 r., II Akr 190/94, OSA Nr 6/1995, poz. 30.
13. Wyrok SN z 20.12.1984 r., II KR 289/84, OSNKW Nr 7-8/1985, poz. 58.
14. Wyrok SN z 31.8.1979 r., II KR 257/79, OSNPG Nr 2/1980, poz. 12
