Penalisation of torture in Polish law
Date:
Under Secretary of State at the Ministry of Justice Łukasz Piebiak responded to a letter of the Commissioner for Human Rights dr. Adam Bodnar dated 27 October 2015 regarding the issue of penalisation of torture in Polish law (ref. II.071.4.2015.ED):
“ I kindly inform you that in the assessment of the Minister of Justice, the current penal regulations in this area are sufficient for the implementation of Poland's international commitments.
In Polish law crimes include: violation of bodily integrity (art. 217 §1 k.k.), illegal threats (art. 190 §1 k.k.), use of force or illegal threats to with the purpose of compelling another person to conduct himself in a specified manner (art. 191 §1 k.k.), abuse of power by a public official (art. 231 §1 k.k.), causing grievous bodily harm (art. 156 and 157 k.k.), mistreatment of person in state of dependence (art. 207 §1 k.k.).
Circumstances within the Conventional definition of torture may also be qualified under art. 245-247 k.k., i.e. as using violence or unlawful threats with a purpose of influencing a witness, expert witness, or the accused (art. 245), using force or unlawful threats for the purpose of obtaining specific testimony, explanations, information or a statement (art. 246) or tormenting either physically or psychologically a person deprived of liberty (art. 247).
Abuse of power by an official, possibly also a violation of bodily integrity, will include torture consisting in:
1) ineffectual physical influence (e.g. waterboarding),
2) psychological influence that does not constitute an unlawful threat (e.g. false information about the death of a loved one), if they do not apply to a person deprived of liberty (art.247 k.k.) or they are not used in order to obtain specific testimony, explanations, information or statements (art. 246 k.k.), or to influence sources of evidence (art. 245 k.k.), therefore when they are committed e.g. in order to punish a person remaining free, or to intimidate, exert pressure or for any other reason based on discrimination (torture can be committed under the conditions of art. 57a k.k.).
The definition of torture from art. 1 of the Convention is therefore fully reflected in Polish law, although, due to its extensiveness and complicated nature, the relevant provisions are located in different parts of the penal Code, depending on the type of infringed rights. Accordingly, the possible introduction into the Criminal Code of the definition of torture contained in the Convention would be of no significance for the protection of human rights in Poland – it would be a mere repetition of provision already existing in Polish law. In addition, the adoption of the full definition of torture as attributes of only one crime would violate the accepted principles of classification of Polish penal law, according to which criminal activities are categorised according to the types of violations of legally protected rights of an individual.”