Bialystok Legal Studies vol. 28 no. 1
Penetration of Cultures, Penetration of Crimes: Who Do Borders Protect?
Abstract: The purpose of this paper is to highlight some implications of the creation of closed, culturally alien communities and the possible consequences of their functioning from a criminological and victimological perspective. Various processes emerging since about the second half of the 20th century, in Europe as well as in the United States of America, have caused cultural transformations leading to the emergence of cultural pluralism (polyculturalism, multiculturalism) in various forms. This represents one of the greatest challenges of the modern world on many levels, including prophylaxis and crime prevention. Of particular concern is the issue of assessing the behaviour of an offender belonging to a closed, culturally different group. variants of such a situation can be considered – when the perpetrator and the victim belong to culturally different communities or the same one, and depending on whether the perpetrator’s behaviour constitutes an act judged negatively in the closed group to which they belong or whether it fulfils the characteristics of a crime in the legal system of the external community.
Keywords: borders, crime, multiculturalism
Page range: 7-22
The New Pact on Migration and Asylum: Another Step in the EU Migration-Security Continuum or Preservation of the Status Quo?
Abstract: In 2020 the New Pact on Migration and Asylum was presented as a normalization of EU migration, asylum and border management policies in the EU, a much-needed reform which is supposed to strike a balance between security, solidarity and protection of human lives. The aim of this article is to investigate to what extent the proposed reform is changing the modes and trajectories of the securitization of migration in the EU. In doing so, it focuses on specific security logics promoted in the text, discussing how different iterations of security are strengthened and/or marginalized in the EU securitizing framework. Building on the approach of ‘securitization as the work of framing’, the article indicates that the pact has strengthened the risk-management and resilience-centred security logics while at the same time downplaying the role of humanitarianism. It also reveals a strong role for ‘exceptionality’ as a security logic, which has gained prominence especially in relation to crisis management and a wider application of militarized and robust measures.
Keywords: European Union, migration management, migration-security nexus, securitization
Page range: 23-37
Elżbieta Kużelewska, Agnieszka Piekutowska
Belarus’ Violation of International Obligations in Connection with Artificial Migration Pressure on the Belarus–European Union Border
Abstract: This paper attempts to assess events related to the huge scale of the influx of migrants in the summer of 2021 at the Belarusian borders with Lithuania, Poland and Latvia. The involvement of the Belarusian government had a key impact on the nature of the events and led to Belarus’ violation of its international obligations. In particular, Belarus has violated the Geneva Convention Relating to the Status of Refugees (1951), the 1967 additional Protocol Relating to the Status of Refugees, the 1966 UN International Covenant on Civil and Political Rights and the United Nations Convention against Transnational Organized Crime of 2000 and the Protocols Thereto (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and Protocol against the Smuggling of Migrants by Land, Sea and Air). The illegal actions taken by Belarus were described as a hybrid attack aimed at destabilizing Europe. Minsk’s creation of an engineered migration pressure on the border with the EU can be considered part of a hybrid strategy – one of the dominant methods in geopolitical confrontation and the struggle for influence in international relations. The present paper verifies the research hypothesis that Belarus has deliberately violated international law by inducing engineered migration at the border with the EU in order to paralyse the migration situation in the neighbouring EU Member States. The violation of international law has not resulted in any major international consequences.
Keywords: Belarus, coercive engineered migration, migration pressure, refugees, weaponizing migration, violation of international law
Page range: 39-55
Adam Bodnar, Agnieszka Grzelak
The Polish–Belarusian Border Crisis and the (Lack of) European Union Response
Abstract: This article addresses the migration crisis on the Polish–Belarusian border. The authors believe that the actions of the Polish authorities violated the requirements set by human rights standards, including the obligations arising from Poland’s membership of the EU and the Council of Europe. This is confirmed not only by legal doctrine and the reports of non-governmental organisations, present on the ground despite all the restrictions, but also by interim-measure orders issued by the ECtHR against the Polish government. In the first part of the text, the authors summarise the situation, recalling the most important events that took place on the Polish–Belarusian border. The second part discusses the most important obligations of the EU arising both from the treaties creating it and also from the secondary legislation adopted on their basis. The juxtaposition of the EU’s actual response and the obligations written on paper may lead to the conclusion that the EU’s actions are insufficient under EU law. Relying on the texts of legal acts and other available information, the authors argue that the EU’s actions, in a certain amount of compromise with political interests, even detract from its credibility as an organisation that also aims to protect human rights externally.
Keywords: Council of Europe, ECtHR, European Union, interim measures, migration, NGOs, push- backs, refugees
Page range: 57-86
The State of Emergency in Poland as the Key to Curbing Unregulated Migration
Abstract:The purpose of this article is to analyse the Polish legislature’s activity during the state of emergency in the field of curbing illegal migration. The thesis of the article states that the introduction of the state of emergency on the Polish–Belarusian border facilitated the legal changes aimed at reducing the scale of illegal migration on the border and their implementation. The proposed changes brought about new solutions that provided, for example, for the obligation to immediately leave the territory of Poland, issuance of a decision obliging a foreigner to return when he/she crossed or attempted to cross the border illegally, or construction of a wall on the Polish–Belarusian border.
Keywords: foreigners, illegal migration, Polish–Belarusian border, state of emergency in Poland
Page range: 87-101
The Migration Crisis on the Polish–Belarusian Border/a>
Abstract: The crisis on the Polish–Belarusian border resulting in the unregulated migration of foreigners into the territory of Poland was inspired and supported by the Belarusian regime and was aimed at destabilizing the situation in the region. Poland was therefore forced to take action to protect the national border, which is also the external border of the European Union. However, some of the legal solutions that were adopted raise questions about their legality.
Keywords: migration crisis, migrant, Polish–Belarusian border, push-back, restriction of freedom of movement
Page range: 103-115
Magdalena Perkowska, Aurelijus Gutauskas
Were the Lithuanian and Polish Responses to the Refugee Influx Legal or Illegal?
Abstract: Since the summer of 2021, the Baltic Sea states of Latvia, Lithuania and Poland have been facing an influx of refugees from the territory of Belarus. This migration is fully controlled by the Belarusian authorities. Refugees, coming mainly from Middle Eastern countries, are forced to cross the border with neighbouring EU countries. The aim of this article is therefore to present the legal responses of the Lithuanian and Polish authorities to this influx, to compare the solutions adopted and to critically analyse them. Both states decided to use constitutional measures in the form of states of emergency introduced on a part of their territory, and adopted a number of solutions in laws and regulations. Therefore, the article critically analyses the legal basis for the introduction of a state of emergency in both states. It also analyses the solutions adopted at the statutory level, which enable border services to use push-back. The legal regulations introduced are also compared with international and European Union law binding on both Lithuania and Poland. Therefore examples of violations of international law in the field of refugees’ rights to seek international protection are indicated.
Keywords: human rights, migration, refugees, state of emergency
Page range: 117-136
Illegal Border Crossing and Associated Offences in the Light of the Criminal Code of the Republic of Belarus
Abstract: This paper addresses the important current problem of illegal crossing of a national border, which since autumn 2021 has been particularly intense on the Belarusian–Polish section of the border. It has been serious enough to pose a security threat not only to Poland, but also to the rest of Europe. This article contains a discussion of the solutions provided for in the 1999 Criminal Code of the Republic of Belarus that concern illegal border crossing and associated crimes, i.e. organization of illegal migration and violation of the period of prohibition of entry into the territory of the country. For the purposes of the article, it was assumed that the scope of the regulations in question is casuistic and restrictive, and provides little guarantee of protection of the national border of Belarus. The legal analyses that were conducted generally confirmed the assumed evaluation of these solutions.
Keywords: Criminal Code of the Republic of Belarus, illegal border crossing, illegal migration
Page range: 137-153
The Migration of Ukrainians to Poland: The Context of Border Criminology
Abstract: The phenomenon of migration is common in modern times. People move around the world for touristic, financial, educational, social and other reasons. One of the destination countries is Poland, in which Ukrainians, the largest contingent of all foreigners, have arrived for a number of years. Currently, the war is in progress in Poland’s neighbouring country. More than 3 million Ukrainian citizens have come to our country in search of temporary or long-term shelter. Considering the increased number of the Ukrainians, Polish people have posed the question as to whether greater delinquency where immigrants are perpetrators will constitute one of the negative outcomes. Accordingly, the decision was made to analyse the phenomenon of the migration of Ukrainians to Poland over the last few decades, as well as their engagement in delinquency, in the context of border criminology. It was also determined to review literature and statistical data concerning the phenomenon discussed. In view of the above, the prediction is made that in the immediate future, the rates in offences committed by these foreigners will increase proportionally to the number of Ukrainian immigrants.
Keywords: border criminology, delinquency, eastern border area, immigration
Page range: 155-172
Jurg Gerber, Di Jia
Chinese Immigrants’ Perceptions of Community Justice in the USA: An Exploratory Study
Abstract: An increasing body of research has highlighted the significance of collaboration between criminal justice practitioners and residents to enhance the quality of life in communities. As an innovative practice model, this collaborative concept maximizes the effectiveness of three core factors of community justice (community policing, community courts, and community corrections) by maintaining community order and enhancing neighbourhood quality of life. However, as many cities and municipalities have invested time and resources into developing positive relationships with immigrants, little research has been focused on the nexus between immigrant communities within the community justice movement model. Using data collected from Chinese immigrants in the US, the current study is the first pilot investigation on perceptions of the new pattern of Chinese immigrants toward their communities and their collaboration with the criminal justice system. This study suggests positive attitudes of immigrants toward community justice, but criminal justice agencies must tailor their interaction to the unique characteristics of each immigrant community. What constitutes good community justice practices in one community may not be effective in another.
Keywords: Chinese immigrants, community relations, police
Page range: 173-196
Criminal Prosecution and Punishment of Migrants in Spain: A Border Criminology Perspective
Abstract: The exceptional use of criminal law to achieve migration policy objectives has been a reality in Spain since the first Aliens Law was passed in 1985. Since then, academia has warned about the discriminatory and exclusionary effects of this confluence. This paper critically analyses a series of exceptional Spanish criminal and migration policy measures aimed at criminalising certain population movements. The aim is to show the mechanisms used by criminal justice in Spain to manage human mobility from the perspective of border criminology. Among other things, I will analyse (1) ‘hot returns’ and (2) racial profiling in police stops, both as police reactions. I will also study (3) the expulsion of convicted foreigners and (4) criminal records as a migration control strategy and, finally, the deprivation of liberty for migration control purposes, such as (5) detention centres for migrants and (6) prison release strategies. The aim is to show that Spanish penal policy, taken in a broad sense as all eminently criminal measures and those where criminal law and immigration law converge, has as its main objective to socially render harmless (innocuousation) foreign suspects, convicts and ex-convicts in Spain with different and exceptional measures that push them to the margins of society.
Keywords: border criminology, expulsion, migrants, prison, social exclusion
Page range: 197-212
From Gastarbeitersystem to Integration: Legal Aspects of Austrian Migration Policy
Abstract: The purpose of this article is to present the most important legal regulations in the field of Austrian migration policy, taking into account the changes in this field, the nature of these changes and their conditions. The research question is whether the successive legal regulations were the result of clearly defined goals (and if so, whether these goals were achieved) or rather a result of passive adaptation to changing conditions. In the context of the slogan of integration advocated in recent years, it also seems essential to ask whether the legal solutions adopted in Austria strengthen integration or constitute an assimilationist tool. The article discusses such issues as the development of the system for the recruitment of foreign workers, changes in the perception of the phenomenon of migration and the reform of legislation in the field of migration policy in Austria. Moreover, attention is drawn to the most important determinants underlying this reform.
Keywords: Austria, Gastarbeiter, integration, migration, migration policy
Page range: 213-226
Occupation: Petty Smuggler. On the Effectiveness of Carrying Out Selected Non-Custodial Penalties against Smugglers
Abstract: This article presents the results of a study on the effectiveness of carrying out community service (a penalty for committing a crime or misdemeanour which entails performing work for social purposes) and social work (where a fine can be converted into such work if the obligated person cannot pay it) by perpetrators of criminal acts related to the smuggling of goods. For the purposes of the current study, punishments consisting of work were defined as effective when they remained unchanged and were carried out as community service. The study found that if punishment in the form of work was applied to them, perpetrators of smuggling-related crimes or offences performed such work far more often than perpetrators of other criminal acts who were subjected to the same punishment (93.8% v. 65.1%). Moreover, it was established that criminal acts related to the smuggling of goods are committed equally often by women and by men (in this category of criminal acts, women comprised 46.2% of perpetrators, with the mean for all criminal acts and petty offences taken into account in the current study being 15%). The article concludes that the present results may suggest that perpetrators of such criminal acts or petty offences treat them as a way to gain additional income. This is evidenced, for example, by the fact that many people had more than one sentence to serve for committing a criminal act related to smuggling.
Keywords: community service, fines, national borders, non-custodial penalties, penalty effectiveness, smuggling
Page range: 227-239
Edyta Rutkowska-Tomaszewska, Marta Stanisławska, Iwona Dorota Czechowska, Sofiya Lobozynska, Le Bich Thuy
The Rationale for Economic Migration in Selected Countries of Eurasia with Particular Reference to the Taxation of Individuals (Self-Employed and Non-Business) with Income Tax: An Overview Approach
Abstract: The analysis undertaken in this article is of the migration of natural persons, self-employed and not self-employed, for economic (including tax) reasons, which has been recorded among the citizens of Belarus, Ukraine, Poland, and Vietnam. Tax migration, which is a type of economic migration of individuals, including those engaged in business, is one of the forms of reaction to taxes and tax reforms introduced in a country and the shape of the system of tax preferences. This study aims to examine the conditions of income taxation of individuals in the countries studied (Poland, Belarus, Ukraine, and Vietnam). The shape of the tax system has been or could be a premise for the migration of individuals from Poland to other countries, as well as from the countries studied to Poland. The reason for choosing these countries for the analysis of this phenomenon was the well-established scholarly cooperation of the Polish authors with authors representing public universities in Vietnam, Ukraine, and Belarus, as well as the available statistical data confirming the fact that residents of these countries account for the largest number of permanent and temporary residence permits given in Poland. It was considered that a comparison of legal solutions to the income taxation of taxpayers in the indicated countries, given the significant level of migration to Poland, can lead to exciting conclusions due to the differences in their legal systems, economic development, and tax systems.
Keywords: economic migration, income tax, taxation, tax competition, tax system
Page range: 241-267
Mariusz Jabłoński, Anna Młynarska-Sobaczewska, Artur Olechno, Konrad Składowski, Jacek Zaleśny
The Constitution of the Republic of Poland and confiscation of assets
Abstract: Sanctions, including individual sanctions, relating to property usually apply with war conflicts. Their imposition by international subjects in domestic law raises the question of whether the Constitution of the Republic of Poland allows for the expropriation considered to be related to the attacking state, since, regardless of external circumstances, Poland remains a constitutional state which protected a property. In the article we argue that on the basis of the current Constitution of the Republic of Poland, it is not permissible to seizure the property of private entities considered to be related to the attacking state, under conditions analogous to the currently applied measures of targeted sanctions like freezing of assets. If the expropriaton were to take place, it would require an amendment to the Constitution of the Republic of Poland. In order to solve the research task, the dogmatic method and legal interpretation appropriate to the Polish science of constitutional law were used in the work.
Keywords: Constitution of Poland, legal sanctions, rule of law, seizure
Page range: 269-280