Diritto Criminologia e criminalistica

Polish laws and regulations concerning fighting against human trafficking

by Paweł Łabuz[i] and Irena Malinowska[ii]

Polish laws and regulations concerning fighting against human trafficking

(Key words: human trafficking, organ trafficking, prostitution, begging, crime, organized criminal group).

Summary:

The article was carried out to analyze the phenomenon of human trafficking as a problemof law and to the social aspect of organized crime. Article indicates human trafficking as a crime and organized crime. This phenomenon occurs in Poland and in the world ofmass participation of international organized groups. Handel human beings is a complex social process. Development believes that the intensified training ofofficers of the Police organizational units and non-governmental organizations who deal with the present problem in the identification of trafficking victims to their position, poverty and deprivation, it will affect much on the efficient and effective operation of these institutions and non-governmental organizations in reducing the scale of the phenomenon this practice.

Introduction

The notions of slavery and human trafficking accompany us since time immemorial. Nowadays human trafficking is known as a modern form of slavery. This very statement does not illustrate the whole essence of the phenomenon. One must realise the human trafficking is one of the most serious crimes which may result in the heaviest penalty in many countries all over the world.

The system of penalties illustrates the deep conviction that making a human being an object of trade is a great breach of basic human rights that constitute modern society[iii].

One of the results of the changes in Poland after 1989 was sharp increase in violent crime, including crimes against human rights and sexual liberty and decency. Opening the borders as well as fast-growing sex-business resulted in appearance of the human trafficking phenomenon in Poland.

At the very beginning, Poland was considered as the country of origin of the victims revealed in Western Europe and with the passage of time, it transformed into country of transfer and the country of destination for victims from the former Eastern Block[iv] such as Ukraine, Belarus and Bulgaria.

Human trafficking became the object of international regulations since the beginning of the 20th century, when the first international laws were introduced: The International Agreement for the Suppression of the White Slave Traffic signed on 18th May 1904 and International Convention of 4 May 1910 for the suppression of the white slave traffic[v]. Both laws understood human trafficking as: procuring, enticing or leading away, for purposes of prostitution, another person, even with the consent of that person; or exploiting the prostitution of another person, even with the consent of that person.

As years have passed, the international legislative bodies dealt with the problem repeatedly, at the same time gradually escaping from the original understanding of the notion mentioned above.

 

The origin and changes in law concerning human trafficking penalties

In Polish legislation the evidence of human trafficking crimes reach the year of 1932. That was the time when the first, after World War I, Polish Penal Code (Kodeks Karny – KK) was introduced[vi]. Article 211 of this document penalised leading away, for purposes of prostitution, another person. Recognised form of this crime was committing it against a person staying in close affinity with the offender or against a person under the age of 21.

Penal jurisdiction, stated on the grounds of this law, recognised the crime in the very  moment of commencing the journey. Moreover, the crime does not involve the fact of crossing the border by the victim accompanying the offender. The sufficient evidence was the lack of independence in organising the journey by a victim[vii].

Polish Penal Code was codified in 1969. New regulations concerning human trafficking were placed in the Introduction to the Code[viii].

Both Codes from 1932 and 1969 did not include the legal definition of „human trafficking”. New regulations from 19th April 1969 likewise the former ones, recognised penalising various forms of prostitution, including deriving profit from prostitution, i.e. pimping, facilitating third parties prostitution i.e. procuring and procuration i.e. the facilitation or provision of a prostitute or sex worker in the arrangement of a sex act with a customer.

Additionally, Article 174 section 1 of Polish Penal Code penalises inciting other person for purposes of prostitution. Apart from this, regulations included in the Introduction to Polish Penal Code anticipate penalising the acts of procuring, enticing or leading away, for purposes of prostitution, another person. (Article IX section 1 Introduction to Polish Penal Code, 1969)[ix].

Currently valid Polish Penal Code in force is the one from 1997. [x] The Code from 1997 in comparison with the one from 1969 vary, both in shape and content concerning penalising deriving financial profit from facilitation and organising prostitution, as well as from procuring and women and children trafficking.[xi].

It has to be said that the major change in regulations concerning human trafficking crimes included in Polish Penal Code took place together with the amendment to the Penal Code in 2010, specifically – the changes of the following acts: the act of 20th May 2010 of the Penal Code, the Police Act, Introduction to Penal Code and The Code of Criminal Procedure [xii].

In the previous act, before 7th September 2010, human trafficking crime was described in Article 253 and it was included in the group of crimes against public policy: „Whoever conducts trade in humans even with their consent shall be subject to the penalty of deprivation of liberty for a minimum term of 3 years”.

Apart from the above mentioned article, there was another one in Penal Code: Article 204 section 4, which penalised the act of enticing or abducting another person with the aim of having him/her engaged in prostitution abroad. The act was punishable by a maximum of at least between one and ten years imprisonment. This way, until September 2010, there were three ways of imposing the penalty for human trafficking i.e. first: the Article 253 of Polish Penal Code stating the human trafficking with the aim of having him/her engaged in prostitution punishable by a minimum of 3 years imprisonment. Similar punishment for an offender who was charged with slave trade crime based on the Article 8 of the regulations included in Introduction to Penal Code. The last circumstance is Article 204 section 4 of Penal Code that introduces imprisonment of at least 3 years up to 10 years.

The diversity of punishment raised plenty of reservations of Polish law enforcement services. It was unclear why the legislator treated the offender breaching Article 204 section 4 of Penal Code less severe than the one who breached the Article 253 of Polish Penal Code. What is more, the first crime involves fulfilling additional criteria of a prohibited act. The latter, on the other hand, did not have to meet any extra criteria. What is more, the crime could be committed with the victim’s consent.

The two mentioned regulations: Article 204 section 4 and Article 253 of the Polish Penal Code were repealed by Article 189a. Newly introduced act penalised human trafficking as follows: „Section 1. Whoever conducts human trafficking is the subject to the penalty of deprivation of liberty for a minimum term of 3 years. Section 2. Whoever makes preparations for the offence specified in section 1, shall be the subject to the penalty of deprivation of liberty for a minimum term of 3 months and maximum of 5 years”.

Newly formulated regulation concerning human trafficking introduced several major changes in comparison to valid up to that day Article  253 of the Polish Penal Code.

Firstly, the order of the law was transformed as the expression ”to be engaged in human trafficking” was replaced by „to commit human trafficking”. „To be engaged in” stands for „busy with”, „involved in”, „be devoted to”[xiii].

Moreover, Article 253 of the Polish Penal Code stated that human trafficking is possible with or without victim’s consent. On the other hand, Article 189a of the Polish Penal Code says nothing about victim’s consent, as the definition of human trafficking was described in Article 115 section 22. The punishment remains without any changes as still human trafficking is punishable by a minimum of 3 years imprisonment. It proves it a crime. So is the act of preparation for the offence with the penalty of deprivation of liberty for a minimum term of 3 months and maximum of 5 years.

Secondly, the place of location has changed. Article 253 was included in the group of crimes against public policy (chapter 22), and Article 204 section 4 (enticing or abducting another person with the aim of having him/her engaged in prostitution abroad) was included in the group of crimes against sexual liberty and decency (chapter 25). Currently both articles were repealed and their place was taken by Article 189a of the Polish Penal Code and placed in the chapter 23 dealing with crimes against freedom. The concord of the regulation has changed as well: „Whoever makes one a slave or holds one in slavery or conducts trade in humans shall be subject to the penalty of deprivation of liberty for a minimum term of 3 years”.

New here is the statement ” holds one in slavery”. Formerly prohibited were the act of making one a slave and trade of humans. The main objective of the Article 189a is the freedom and dignity of human beings and the lack of acceptance of the state when human rights equal those of objects. The alteration of the law ordered one more important issue i.e. the problem of punishing offenders for human trafficking itself as well as for enticing or abducting another person with the aim of having him/her engaged in prostitution abroad. Till now, there were two separate prohibited actions punishable in two different ways, though both concerned human trafficking[xiv].

Legal regulations

Poland, as a party in numerous international acts concerning fighting with human trafficking, which specify both: the range of criminal actions as well as the range of crime victims’ rights, obliged to obey the standard laws and regulations of procedures in case of suspicion of human trafficking, including international regulations and course of action of proceedings carried out towards the victims[xv].

The crime of human trafficking involves a range of activities[xvi]. On 8th September 2010 a new law from 20th May 2010 was introduced changing the previous version of the following regulations: the act of 20th May 2010 of the Penal Code, the Police Act, Introduction to Penal Code and The Code of Criminal Procedure (Dz. U. Nr 98, poz. 626). The new legislation introduced a definition of human trafficking to Polish Penal Code. Up to this date the crime itself was defined by Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organised Crime adopted by General Assembly of United Nations on 15th November 2005 (Dz. U. z 2005 Nr 18, poz. 160) and in the Council of Europe Convention Framework Decision (2002/629/WSiSW) from 19th July 2002. against Trafficking in Human Beings as well as in the Council of Europe Convention on Action against Trafficking in Human Beings (convention came into existence on 1st March 2009).

Poland is the signatory to numerous transnational agreements and acts protecting human rights[xvii]. The offender defined in Article 189a of Polish Penal Code can be any natural person having full capacity to perform acts in law i.e. in the moment of committing the crime was both aged 17 and not considered as mentally ill[xviii].

The offence of human trafficking is common and has to committed on purpose only with direct intention. It is the result of describing by the legislator the offence as an intentional purpose[xix]. The subject of the offence is a human being. Although the legislator used plural from a person i.e. people, it does not indicate two people or greater number of people to commit this particular offence[xx].

The offence of human trafficking described in Article 189a section 1 and according to the definition included in the Article 115 section 22 of Polish Penal Code is not only the act of transactional transferring the possession of a human being, but also all the organisational activities proceeding the transactions themselves in order to gain actual power over the human being i.e. recruitment and activities allowing maintaining the power over a human being within a particular period of time (storage, transport and delivery to final destination).

The understanding of notion “trade” to great extent corresponds to the notion used in trading activity, which consists in purchase to resale goods and their delivery to the location given by the buyer.

Contrary to the common understanding of a notion “trade”, which is the activity aimed at financial benefits, the article mentioned does not require from the person engaged in the activities of “trade” acting in order to gain final benefits. The trade described in Article 189a of Polish Penal Code is unpaid transferring the possession of a human being and so is obtaining and maintaining the possession of a person in order to transfer the possession to the third party[xxi].

Conclusion

The problem of human trafficking has reached the level never seen before. It is happening right next to us, although we do not realise it, as the phenomenon is not so evident and public as it was in the past. As a matter of fact, because of people’s indifference, an ordinary person does not notice the problem. All the known laws and regulations are not respected, although they were created by a human being, who fails to obey. Craving for money in the face of poverty, unemployment and depression is stronger than the law or the moral sense. The organisations combating human trafficking report the offence to be the most profitable of all.

****** 

[i] Dott. Paweł Łabuz, Phd, WSPiA Rzeszowska Szkoła Wyższa (Scuola Universitaria di Legge e di Amministrazione, Rzeszów-Polonia),

[ii] Dott.ssa Irena Malinowska, Phd, Wydział Nauk Społecznych w Gdańsku Wyższej Szkoły Bezpieczeństwa (Facoltà di Sienze Sociali, Scuola Universitaria di Sicurezza, Danzica-Polonia)

[iii] Lasocik Z., Handel ludźmi – zapobieganie i ściganie, Warszawa 2006, s. 16.

[iv] Romanowski M, Handel ludźmi w Polsce – rys historyczny i wyzwania stojące przed Polską, Kwartalnik Prawno – Kryminalistyczny, Piła nr 1-2 (6-7), s. 66.

[v] Dz. U. R.P. z 1922 r., Nr 87, poz. 783.

[vi] Dz. U. 1932 nr 60 poz. 571.

[vii] Z. Kloc, A. Popławska, Handel ludźmi i przestępstwa okołoprostytucyjne na szkodę małoletnich Raport z badań aktowych, Warszawa 2012, p.31.

[viii]DzU.1969 nr 13 poz.95.

[ix] M.J. Sokołowska-Walewska, Definicja handlu ludźmi na…, p.89-90.

[x] Dz. U 1997 nr 88 poz. 553.

[xi] E. Pływaczewski, (w:) A. Wąsek (red.), Kodeks karny. Część szczególna. Komentarz do art. 222–316, t. II, Warszawa 2006, p. 399.

[xii] Dz. U. 2010 nr 98 poz. 626.

[xiii] Słownik języka polskiego, red. M. Szymczak, t. 3, Warszawa 1984, p. 611.

[xiv]   Z. Lasocik, Ł. Wieczorek, Polskie prawo karne…, p.23-25.

[xv] Problem handlu dziećmi w Polsce i na świecie. Charakterystyka zjawiska i regulacje prawne, pod red.

  1. Romańczuka, Warszawa 2011, p. 11.

[xvi] J. Jurewicz, Handel ludźmi w polskim prawie karnym i prawie ponadnarodowym, Łódź 2011, p. 119.

[xvii] Handel ludźmi. Informacje o zjawisku, op. cit., p. 4

[xviii] J. Jurewicz, Handel ludźmi w polskim prawie karnym i prawie ponadnarodowym, Łódź 2011, p. 56.

[xix] J. Bryk, Prawne instrumenty zwalczania handlu ludźmi, w: Bezpieczeństwo w administracji i biznesie we współczesnym świecie część II, red. M. Chrapkowski, C. Tatarczuk, J. Tomaszewski,  Gdynia 2011, p.196.

[xx]  J. Jurewicz, Handel ludźmi w polskim prawie…, p.46.

[xxi] Wyrok SA w Krakowie z dnia 3 września 2012 r., II Aka 43/12, KZS 2013, z. 2, poz. 49.

Download PDF
- Dottore Commercialista ed Esperto Contabile iscritto all’ODCEC di Milano. - Membro delle Commissioni “Fiscalità Internazionale” e “Contenzioso” dell’ODCEC di Milano. - Membro del Comitato Scientifico dell’Istituto Nazionale di Ragioneria (INR). - Owner presso “Studio Tributario Melillo” in Milano e Legnano. - Founder & Managing Partner presso Melillo & Partners Studio Legale Tributario. - Of Counsel (Tax Advisor) presso Studio AGFM – Alinovi, Guiotto, Ferrari & Mattioli (www.studioagfm.it) di Parma e Milano. - Of Counsel (Tax Advisor) presso Eurocons S.r.l. (www.eurocons.it) di Torino. - Dottore di Ricerca in Diritto Tributario presso la Seconda Università degli Studi di Napoli. - Direttore Scientifico del Centro Studi di Economia e Diritto – Ce.S.E.D.. - Direttore Editoriale del periodico digitale free ECONOMIAeDIRITTO.it, iscritto al Tribunale di Milano. - Co-responsabile scientifico (insieme al Prof. Ing. Antonio Nesticò) del progetto di ricerca in materia di valutazione dei beni intangibili a fini tributari, condotto dal Ce.S.E.D. di Milano in collaborazione con il Dipartimento di Ingegneria dell’Università di Fisciano (SA). - Docente e membro del Comitato Scientifico del Corso di Laurea in Scienze Criminologiche, dell’Investigazione e della Sicurezza presso l’Università L.U.de.S. di Lugano e Malta. - Collaboratore delle principali riviste specializzate in materia tributaria e societaria. - Cultore di Diritto Tributario. - Docente in materia tributaria in master, corsi, seminari e convegni in Italia e all’estero (es. Master in Diritto Tributario, Contabilità e Pianificazione Fiscale presso LUISS Guido Carli). - In attesa di iscrizione all’Albo dei CTU del Tribunale di Milano (Sezione Civile e Penale). - In procinto di conseguire la Laurea in Ingegneria Gestionale. - Idoneo all’insegnamento di Diritto Tributario, Scienza delle Finanze, Finanza Aziendale e Politica Economica presso l’Università LUISS di Roma. - Correlatore di tesi di laurea specialistica presso la cattedra del Prof. Alberto Nobolo dell’Università degli Studi di Milano-Bicocca.

NESSUN COMMENTO

Lascia un Commento