Bialystok Legal Studies vol. 26 nr 6 (Special issue)
Henning Lorenz, Engin Turhan
The Pandemic and Criminal Law – A Look at Theory and Practice in Germany
Abstract: This article provides an overview of the topic of the pandemic from the perspective of criminal law theory and practice in Germany. First of all, the major criminal offences of bodily injury and murder are discussed in the context of infecting a person with the Coronavirus and the (possible) consequences of having Covid-19, such as risk of death. The dilemmatic situation of triage, i.e., allocating limited intensive care resources, is illustrated in relation to the same offences. Then, the more specific crimes that came to the fore in the course of the pandemic are addressed. Subsidy fraud due to the state aids intended to compensate for the financial damage in the marketplace because of pandemic-related measures, and issuance or use of incorrect health certificates for exemption from the obligation to wear a face mask fall within this scope. Finally, the administrative offences law of the German Infection Protection Act was discussed, primarily with regard to regulations that violate the principle of legal certainty.
Keywords: Infection Protection Act (IfSG), non-difference of the worth of life, pandemic, SARS-CoV–2, subsidy fraud, triage
Page range: 9-26
Ewa M. Guzik-Makaruk
Some Remarks on the Changes in the Polish Penal Code During the Pandemic
Abstract: The study indicates the solutions introduced by the amendment to the Penal Code during the pandemic. These are the so-called anti-crisis shields – shield 1.0, shield 3.0 and shield 4.0. The primary role of these laws was to respond to the crises related to the COVID-19 epidemic. Amendments to the Penal Code were introduced in a manner inconsistent with the Constitution of the Republic of Poland and the Regulations of the Sejm of the Republic of Poland. The mere legislative change and increasing punitiveness of the criminal law system and penal policy will not significantly reduce crime. The work is of a presentative and systematising character. The assumed hypothesis boils down to the assertion that the changes to the penal code made pursuant to the so-called anti-Covid laws are irrational and introduced without the required legislative procedure. The study mainly used the formal-dogmatic method.
Keywords: amendment, criminal law, pandemic, penal code, penal populism
Page range: 27-38
Grażyna B. Szczygieł
Prisoners During the Pandemic
Abstract: In connection with the COVID-19 pandemic, all countries of the world are taking actions to minimize the spread of the virus. These actions interfere with civil rights and liberties. They particularly affect convicts who serve prison sentences, as such sentences deprive them many of their rights or significantly restrict them. Recognizing the situation of prisoners at this difficult time, in March 2020, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) issued the Statement of principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (COVID-19)1, while the Subcommittee on Prevention of Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment prepared Advice to States parties and national preventive mechanisms to the coronavirus disease (COVID-19) pandemic. The purpose of this paper is to determine whether our country, while taking certain actions, takes into account the recommendations contained in both aforementioned documents.
Keywords: COVID-19 pandemic, prison, prisoner safety measures
Page range: 39-54
Karol Karski, Bartłomiej Oręziak
Selected Considerations Regarding the Digitalisation of Criminal Proceedings in Light of the Standards of the Council of Europe: Analysis Taking into Account the Experience of the Current Pandemic
Abstract: The aim of the article is to prepare an analysis in order to formulate propositions regarding the digitalisation of Polish criminal proceedings as regards the administration of justice. These hypotheses would have merited consideration even pre-pandemic, but they demand even more attention as a result of the pandemic. The pandemic has served to highlight the pre-existing necessity to adapt criminal law to the latest observable technical and technological advances. In light of the above, the first issue to be analysed concerns the conditions, procedures, and possibilities surrounding the collection of evidence electronically, taking into account the most recent relevant guidelines of the Council of Europe. The second issue to be examined will be the adaptation of criminal procedures, including Polish, to the standards stipulated in the Convention of the Council of Europe on Cybercrime of 23 November 2001, in light of national norms regarding evidence gathering. The third issue that will be assessed in this study will be the benefits, risks, or potential of the application of artificial intelligence algorithms in criminal procedure. The consideration of each of the three areas will have regard to the present global pandemic. The article concludes with a concise summary containing the authors’ conclusions and propositions de lege ferenda.
Keywords: artificial intelligence, COVID-19, cyber convention, digitalisation of criminal proceedings, electronic evidence
Page range: 55-69
The Impact of the Pandemic on Economic Crime
Abstract: This paper aims to outline possible directions of criminal activity that are part of both state and global economic crime. It is not a novelty that periods of economic crises carry particular criminogenic potential, affecting the scale and dynamics of specific crime categories. The ongoing pandemic makes precise data collection or statistical calculations, in the context of the problems described in this paper, difficult. Nevertheless, at this stage, it is possible to indicate certain areas which, from the perspective of criminal law, should be of interest for criminal law specialists, but also criminologists aiming to develop tools to combat the most serious pathologies in business trading.
Keywords: COVID, criminal law, criminology, economic crime, pandemic
Page range: 71-84
Wojciech Zalewski, Piotr Majewski
The Dark Number of Insurance Crimes
Abstract: Insurance crime makes is difficult to interpret and measure the scale of undisclosed crime. In the insurance industry, the perpetrator can easily craft a false claim by simulating, for example a traffic accident, injury, or property damage. This causes difficulties in the evidential process and measuring the scale of the phenomenon. The aim of the article is to analyse the phenomenon of the dark number of insurance crimes. This paper includes the analysis of the definition of the term ‘dark number’ and other factors, such the degree of market development, the effectiveness of detection, the level of insurance awareness, and the dimension of social consent in Poland and selected European countries. Defeating the problem of insurance crime and estimating the dark number of insurance crimes requires taking into account the specificity of individual markets and types of insurance. We prove that effective measurement and reduction of a dark number of insurance crime is not possible without the constant updating of knowledge about the phenomenon of insurance crime and the use of advanced IT tools.
Keywords: dark number of crime, insurance crimes, insurance fraud, undisclosed crime
Page range: 85-107
The Unclear Picture of Child Sexual Abuse Material (CSAM) Online Volumes During the COVID-19 Pandemic
Abstract: The COVID-19 global pandemic altered the social lives of people around the globe and centred our activities around the internet and new technologies even more than before. As countries around the world responded with lockdowns and social restrictions in order to prevent spreading the virus, concerns about the effects of those measures on child sexual abuse materials (CSAM) volumes on the internet and CSAM related offending online arose. While it is impossible to measure the entire volume of CSAM available online and CSAM related offending, there are some indicators that can be used to assess the scale of online CSAM and whether there was an upward or downward trend in CSAM related activity online and reporting over the pandemic time. Such indicators include the number of reports to hotlines combating CSAM, the number of criminal investigations and cases, and the measurements of the offenders’ online activity monitored by law enforcement and other entities. The aim of this paper is to analyse the data available in these areas and see how they picture the CSAM online problem during the COVID-19 pandemic.
Keywords: child exploitation material, child online victimization, child pornography, cybercrime, online sexual offences
Page range: 109-125
Anne Hobbs, Marta Dzieniszewska
The Juvenile Reentry Mentoring Project: Adaptations During COVID-19
Abstract: Delinquent youths often do not receive the opportunity to be mentored. This is especially true for youths who have committed serious law violations or are detained for multiple law violations. In the United States, youths with the most serious offenses are often committed to detention, or rehabilitation, or treatment centers. Since 2011, the Juvenile Reentry Mentoring Project (JRMP) has matched mentors to youths detained in Nebraska Detention, and Treatment Facilities. The Nebraska Youth Rehabilitation, and Treatment Centers (YRTCs), specifically, are for youths with the highest level of needs and who have exhausted all other programs available in the community. From 2011 through February 2020, the JRMP developed as an evidence informed model for mentoring juveniles with the highest level of need and the most serious law violations. The onset of the COVID-19 pandemic disproportionately impacted youths in detention and treatment centers, and mentoring programs such as the JRMP adapted to continue to meet existing and emerging needs of youths. The aim of this article is to report on the evidence-based development of the JRMP and the adaptations that were necessary for it to continue to operate during COVID-19. We close with recommendations and lessons learned from the pandemic and ways that programs can resist a return to the status quo.
Keywords: COVID-19, evidence-based, juvenile justice, mentoring
Page range: 127-144
Dorcas A. Odunaike, Olalekan Moyosore Lalude, Temitope Omotola Odusanya
I Will Kill You and Nothing Will Happen: Extra-Judicial Killings in Nigeria and Public Interest Litigation
Abstract: Public interest litigation is a mechanism of intervention in a matter that concerns the public. It could be about human rights, government policy, or some other issue that could present a challenge to public life. Public interest litigation is important because it presents hope to the powerless and offers justice where there might not previously have been the opportunity. The aim of public interest litigation is to recognise injustice and give a voice to the concerns of members of society who might not have the means to articulate them. In Nigeria there is a high tendency for people of low socioeconomic status to experience police brutality, or even become victims of extra-judicial killing. In this article, it was argued that although public interest litigation is a good strategy to engage the injustice of extra-judicial killings, the recurrence shows that the solution lies more in addressing a systemic problem.
Keywords: extrajudicial killings, police, public interest litigation, security forces
Page range: 145-162
Conflicts of Doctor’s Duties in the Case of an Extreme Shortage of Intensive Care Beds and the Good Samaritan Clause from the Perspective of Criminal Law
Abstract: The Covid-19 pandemic has exposed many weaknesses of healthcare systems. An example of a crisis situation is the case of a doctor who has to make a decision about qualifying a patient with COVID-19 for an intensive care bed when there are not enough such beds and when, out of the many obligations to save lives, he can choose and fulfil only one. The aim of this paper is to analyse the criteria of establishing the priority in access to intensive care, to settle the conflict of obligations in regard to criminal liability, with respect to Art. 26 § 5 of the Polish penal code regarding the doctor’s decision to provide, or to not provide, healthcare services including intensive care given the extreme shortage of the beds, to determine the scope of legal safety guarantees laid down in the good Samaritan clause and the relationship between the conflict of duties and the clause. The work is theoretical with the use of a formal-dogmatic and functional analysis of Polish criminal law.
Keywords: criminal responsibility, intensive care, prioritising, rationing, triage
Page range: 163-183
Introduction of Art. 276a of the CCP as a Result of the Impact of the SARS-CoV–2 Pan- demic on the Criminal Trial
Abstract: One of the consequences of the coronavirus pandemic (SARS-CoV–2) in the context of the impact on the Polish criminal trial was the introduction to the Code of Criminal Procedure of a new preventive measure related to the protection of medical personnel, specified in the new editorial unit – Art. 276a of the CCP. This measure was introduced by the Act of March 31, 2020, amending the Act on special solutions related to the prevention, counteraction, and combating of COVID-19, other infectious diseases and the crisis situations caused by them, and some other acts, and is a novelty in the Polish criminal procedure. The purpose of this article is to investigate a new preventive measure defined in Art. 276a of the Code of Criminal Procedure in terms of the legitimacy of its introduction to the Polish Code of Criminal Procedure. Three research problems will be analysed. The first concerns the extent to which the introduction of the new preventive measure under Art. 276a of the Code of Criminal Procedure was necessary in terms of the need to provide special protection to medical personnel in Poland. The second research problem concerns the extent to which the application of the new preventive measure under Art. 276a of the Code of Criminal Procedure corresponds to the assumptions of the Polish legislator and what is the ratio legis of the analysed regulation. The third research problem boils down to the extent to which the amendment to Art. 276a of the Code of Criminal Procedure corresponds to the rules of legislative technique.
Keywords: criminal trial, medical staff, SARS-CoV–2 pandemic
Page range: 185-204
Anna Magdalena Kosińska
Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary to the Judgement in the Case of JZ in the Context of the COVID-19 Pandemic
Abstract: The paper presents a critical discussion of the CJEU judgment in the JZ case (C 806/18), in which the Court interpreted Article 11 of Directive 2008/115 that regulates entry ban issuance. The author asks a question of whether an entry ban as a measure limiting the right to free movement has a moral and legal ground in international law and EU law. Moreover, the author focuses on the problem of the criminalisation of irregular migration – both in the context of the established line of the Court’s case law and in the case of a vague national law standard that penalizes illegal stays – the possibility to apply the criminal law concept of error in law and thus exclusion of criminal liability of an illegal migrant.
Keywords: COVID-19 pandemic, criminalisation of migration, Directive 2008/115, entry ban, irregular migration, return policy
Page range: 207-224