Burglary, theft & life threat
Home defence in Poland is a follow up from my previous articles about police detention (Part I & Part II). Therefore, I would like to present to you the official 3rd episode related to legal cases for regular citizens living in Poland. This time, I would like to stay focused on “home defence” and “intrusion upon seclusion” which are part of necessary defence. Last part of the article will give you an overview about “citizen arrest”. So, without further ado, let me start with the table of content below:
- Intrusion upon seclusion – home defence
- Examples of intrusion
- Examples of Self-defence
- Citizen arrest
- 3 conditions
Firstly, as the name implies, necessary defence may be used only when it is essential to repel an attack threatening you, your direct family or the possessions of your property. Knowing this, let’s start with a little bit of a theory.
Intrusion upon seclusion – home defence in Poland
On December 8, 2017, the Sejm of the Republic of Poland voted in favour of amending the Criminal Code with regard to necessary defence. Amendment to the Code of crossing the border of defence, the necessary border of punishment for crossing it in a situation of defence against a burglar.Source: Infor.pl
This change as the Penal Code aims to ensure the you have the full spectrum of the right to self-defence, in particular when ” your home / area” is violated. Let’s give an example. You can protect yourself, if you would be assaulted in your own home or in an adjacent fenced area which protects not only goods belonging to you, but often also the life, health or property of your relatives. Unfortunately, there is a belief in society that in the event of an attack, the attacker breaking into the house is in a better position than the defender. The Minister of Justice, through the amendment of the Penal Code wants to change that.
As Minister Ziobro emphasized back then, the extension of the limits of necessary defence (home defence) in the proposed scope is an emanation of the Anglo-Saxon principle “my home – my fortress“. In the current legal order, the penalty is not imposed on anyone who exceeds the limits of necessary defence under the influence of fear or agitation justified by the circumstances of the attack. This provision will continue to function in the Penal Code.
Examples – home defence in Poland
I will provide two examples to give you a contrast of the situation and interpretation.
- Mr. Y breaks into Mr. X’s house and loots his apartment. X caught the burglar red-handed and, using a baseball bat, stuns the burglar. Mr. X will not be punished and his emotional state is irrelevant. The same rule would be implemented, if Mr. X would have caught a burglar “tampering” with the lock on his door. This “tampering” is an attack preceded by breaking into the indicated place.
It would be possible to be held criminally responsible only when exceeding the limits of necessary defence would be disproportionate to the threat resulting from the attacker’s behaviour. This way we get to example number 2:
- Mr. Y, who is only 17 years old and a very frail teenager, breaks into X’s house, who is a professional soldier. X caught the burglar red-handed, reached for a knife and dealt many blows to Mr. Y, who dies as a result from the injuries. In this case, it can be said that the boundaries of self-defence have been grossly exceeded. Mr. X could easily and equally effectively, defended himself against the attack by Mr. Y during the burglary.
These examples are pretty drastic, but I wanted to give you relatively high contrast between both situations. One more thing worth mentioning here. Not being punished, does not mean that the case will not be brought to court. Each case of exceeding the limits of necessary defence will be dealt with by the prosecutor, who will determine whether it was gross or not. If the prosecutor decides that the border crossing was not gross, he will be able to discontinue the proceedings already at the preparatory stage. The prosecutor will have the right to appeal against this decision. The court will therefore only deal with cases where exceeding the limits of necessary defence will be gross in nature, and therefore will be a crime. This brings us to the next example of necessary defence.
§ 1. Person does not commit a crime if in self-defence, repels a direct, unlawful attack on any property protected by law.
§ 2. In the event of exceeding the limits of necessary defence, in particular when the perpetrator used a method of defence disproportionate to the danger of an attack, the court may apply extraordinary leniency, and even withdraw from its assessment.
§ 2a. Person is not punishable by anyone who exceeds the limits of necessary defence if he or she fending off an attack consisting in breaking into an apartment, flat, house or an adjacent fenced area or repelling an attack preceded by breaking into these places, unless exceeding the limits of necessary defence was gross.
§ 3. Person will not be subject to punishment, in the case when he or she exceeds the limits of necessary defence under the influence of fear or agitation justified by the circumstances of an attack.Art. 25. From Criminal Code
Summarizing the main thought behind these paragraphs: “The law cannot yield to lawlessness”. Also, there are three conditions which must be met, in order to qualify an action as self-defence:
- there must be an attack on a property or a person protected by law,
- the attack must be direct,
- the attack must be unlawful.
The movie – necessary defence – obrona konieczna
So, before I continue giving you more examples, I will provide below a link of an interview made by Militaria.pl with Olgierd Rudak. A lawyer, who speaks about the law in simpler language.
This interview is in Polish, but you can enable the transcription for it and translate it to English from the browser. The result is not outstanding, but descent enough to understand what they are talking about.
The general rule in case of self-defence is the same as in case of intrusion on your property. There can be no gross disproportion between the value of attacked object (your property, but also a relative or close friend) and the measures taken against the attacker. On the other hand, the value of the protected object should affect the measures of the defence undertaken. The more valuable the protected property is, the more severe defences are permissible, including serious bodily harm or killing the attacker.
Uff… this legal language is really difficult. Allow me once again to give you two contrasting examples.
Examples – self-defence
- Mr. Y attacks Mr. X with a knife and threatens to kill him. Mr. Y attacks Mr. X and they begin to struggle, they fall on the ground, Mr. X in the heat of fight, strike’s Mr.Y’s head with a stone which he found on the ground, resulting in the death of Mr.Y. This is an example, in which Mr. X fought for his live and he used the proper measure to defend it. An attacker (Mr. Y) intended to kill him (Mr. X).
A contrasting example would be:
- Mr. Y, who is 19 years old, also a very frail and drunk teenager, spits on the face of Mr. X, who pointed out that Mr. Y’s behaviour was loud. Mr. X is a professional MMA fighter. Mr. X gets really angry and pacifies Mr. Y. As a result, Mr. Y lands in the hospital with multiple broken bones and lies in a coma. There was no real threat from Mr. Y, which would have permitted the use of such brutal force and/or techniques against Mr. Y. This is an example of gross disproportion between the value of attacked object and the measures taken against the attacker.
Once again, I am sorry for giving you such brutal examples, but it is hard to talk about self-defence without using “real life examples”. I hope, that you can see the point I’m aiming to get across. So, this brings us to the last part of this article, realted to “citizen arrest”.
Citizen arrest / civic detention
As a rule, law enforcement agencies have the right to legally arrest a person. In exceptional cases, Art. 243 of the Code of Criminal Procedure allows for arrest by a citizen. This is called civic detention.Source: infor.pl
As indicated above, any person who witnesses a crime (and therefore does not have to be the victim) can conduct civic detention. In such a case, the perpetrator may be detained on the so-called “In the act” (red-handed) or as a result of a pursuit immediately after the act. It is important to note that the arrest may concern not only the main perpetrator, but also his assistant, instigator or accomplice. Thus, from the legal point of view, it concerns all possible stage forms of the act.
Example again. You can stop a car thief when he breaks your car window and tries to pull out the radio. Also, You can stop him after he took out the radio, but when he was noticed by you, he started to run away. You can also detain the person who assisted him in this theft. It is also natural that detention is associated with some inconvenience for the detained. Which means, that you can for example use violence (of course only if it is necessary), e.g. twisting an arm. It is worth emphasizing that the perpetrator, is not protected in such situations by self-defence law. But! There are conditions to be met, in order to perform citizen arrest in respect with the law.
- As we said a moment ago, the condition for recognizing a given detention as a civil arrest, is to catch the perpetrator red-handed or as a result of an immediate pursuit.
- The second, no less important condition for detaining the perpetrator is that the perpetrator’s identity cannot be established or there is a fear of his escape. Naturally, the second condition will almost always take place, if you had to pursue the perpetrator.
- The third condition is the immediate transfer of the detainee to the police or law enforcement agencies. The point is that detention is only temporary, and may only last as long as it takes to hand over the perpetrator to the police. Otherwise, i.e. in the event of excessive detention of a given person, deliberate extension of their detention and failure to notify the police, the perpetrator of such detention may be charged with the crime of depriving another person of liberty.
Summary of self defence and home defence in Poland
Actually, this is all, that I wanted to share with you as we discussed the 3rd subject related with legal cases. As someone said at the very beginning, it is important that we (regular people) are aware of our laws and rights, especially in basic legal cases. I do hope, that this series of articles have taught you something about your rights and possibilites for home defence in Poland.
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Special thanks to Eamon Gosney, who has helped with proofreading of this article.
infor.pl; prawo.pl; militaria.plSource