Institutions of Active Repentance and a Key Witness in Causa Sua The Council Framework Decision of 13 June 2002 on combating

ter-rorism does not impose an obligation, yet offers an option, of bringing in regulations allowing the alleviation of penalty in individual cases of acts of terrorism. Such legal institutions have been adopted in, for example, the United States, Germany, Italy, Spain, France, Turkey and Russia.¹³ Poland has not yet introduced any rules governing the alleviation of penalty or exclusion of liability of the perpetrator of a terrorist offence. However, in such cases, the Penal Code offers provisions that favour those withdrawing from the accomplishment of a terrorist act, renouncing the membership in criminal groups or entering cooperation with law enforcement authorities.

11 Act of 6 June 1997 the Executive Penal Code (JL No. 90, item 557 as amended).

12 Cf. Hołda, Z., Postulski, K. Kodeks karny wykonawczy. Komentarz, Gdańsk 2007, p. 365, Keller, K. „Skazani �niebezpieczni’ a wybrane problemy praktyki penitencjarnej,” in: Przestęp-czość zorganizowana, świadek koronny, terroryzm, Pływaczewski, E., ed., Kraków 2005, p. 327.

13 Cf. Indecki, K. Prawo karne, pp. 171-179, 195-197, 206, 210, Paśkiewicz, J. Instytucja świadka koronnego w ustawodawstwie amerykańskim, włoskim i niemieckim, Toruń 2006, pp. 11-54, Schmahl, S. Specific Methods, p. 99.

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The first measure inducing the offender to abandon the commission of the offence is the institution of the so-called active repentance. It helps avoid criminal liability in return for withdrawal from the offence. In this case, the perpetrator’s going unpunished is justified by political and crim-inal reasons manifested in the need for the safeguarding of legal inter-ests by drawing him or her away from the path of crime.¹⁴ Generally, the non-liability clause may apply provided for a person resigning from an attempted offence (Article 15 § 1 of the PC), preparation of an offence (Ar-ticle 17 § 1 of the PC), as well as a co-offender who prevented a prohibited act (Article 23 § 1 of the PC). Withdrawal from the performance of a pro-hibited act that may be regarded as the offence of a terrorist offence should be “voluntary,” as in any other case of active repentance. This condition is met when the offender realizes the possibility of continuing the activity directly conducive to the offence, but has no further intent to commit it.¹⁵ In other words, despite the circumstances favourable to the offence, he or she discontinues their criminal conduct.¹⁶

Prevention of terrorist offences can be motivated by numerous cases of active repentance addressed in the specific part of Penal Code. These are the clauses of non-liability or extraordinary mitigation of penalty for offences against the Republic of Poland (Article 131 of the PC), offences against public safety (Article 169 of the PC), causing a disaster in land, water or air traffic (Article 176 of the PC) and hostage-taking or detention (Article 252 § 4 of the PC). Their conditions differ from those set out in the general part of the Penal Code; for example, the provisions in Article 131 of the PC additionally require the disclosure to the prosecution of all the relevant circumstances of the committed offence, and the provision in Article 252 § 4 of the PC does not require the offender, who resigned from extortion and released the hostage, to do it voluntarily. The specific means of combating terrorist groups is the option of active repentance by the member of an organized criminal group or association under Article 259 of the PC. Non-liability, but only for taking part in a group or association

14 Cf. Marek, A. Kodeks karny, p. 148, Rejman, G. In: Kodeks karny, Rejman, G., ed., p. 577, Tkaczyk, K. Instytucja czynnego żalu w prawie karnym w aspekcie prawnoporównawczym, Przemyśl 2008, pp. 41-42, 324, Wąsek, A. Kodeks karny. Komentarz, t. I (art. 1-31), Gdańsk 2000, p. 211, Zoll, A. In: Kodeks karny, Zoll, A., ed., Warszawa 2007, pp. 221-222.

15 Cf. Gajdus, D. Czynny żal w polskim prawie karnym, Toruń 1984, p. 83, Zoll, A. In: Kodeks karny, Buchała, K., Zoll, A., eds., Kraków 1998, pp. 156-157.

16 Paśkiewicz, J. „Problematyka wybranych klauzul niepodlegania karze,” in: Zmia-ny w polskim prawie karZmia-nym po wejściu w życie kodeksu karnego z 1997 roku, Bojarski, T., Nazar, K., Nowosad, A., Szwarczyk, M., eds., Lublin 2006, p. 64.

 The Consequences of Committing an Offence of a Terrorist Nature referred to in Article 258 of the PC, is justified by the desire to disintegrate the solidarity within such structures. It applies to the perpetrator who has withdrawn from participation in such a group and has disclosed to the prosecution all the relevant circumstances of the perpetrated offence or has prevented the commission of the intended crime.

The perpetrator of a terrorist offence may be covered by the provisions of Article 60 § 3-5 of the PC establishing the institution of “a key witness in causa sua.” The purpose of these regulations is to frustrate the conspiracy of silence and loyalty within the criminal structures and to obtain informa-tion about committed offences and their perpetrators.¹⁷ Pursuant to Article 60 § 3 of the PC, the court applies the extraordinary mitigation of penalty, and may conditionally suspend its execution against the co-offender if he or she reveals to the persecution any information on individuals involved in the offence, along with the relevant circumstances of its commission.

Speaking of the rationale behind this institution, in its decision of 26 No-vember 2008, the Supreme Court ruled that the reward of Article 60 § 3 of the PC is “a kind of reward for dissolving criminal solidarity, which occurs regardless of possible retaliation. The next of kin are also exposed to the risk of threat and fear of its fulfilment.”¹⁸ As for the offender satisfying the criteria of Article 60 § 3 of the PC, the Penal Code introduces special grounds for the court’s refraining from punishment under Article 61 § 1 of the PC. However, additional requirements are there to be met that warrant such a far-reaching mitigation. In the wording of the regulation, the leg-islator points, for example, to one contributory factor. It occurs when the offender’s role in the offence was secondary, and the supplied information helped prevent the commission of another crime.

At the request of the prosecutor, the court may apply the extraordi-nary mitigation of penalty, or even, conditionally suspend its execution, if the perpetrator, regardless of the explanation before the court, revealed before the prosecution and presented the circumstances, relevant and not known to the judicial body, of the offence punishable by more than 5 years of deprivation of freedom (Article 60 § 4 of the PC). Such a scope fails to fit in all prohibited acts that may be of a terrorist nature having fulfilled the criteria set out in Article 115 § 20 of the PC. The provision of Article 60

17 Cf. Bojarski, T. In: Kodeks karny, Bojarski, T., ed., p. 130, Kamiński, C. „Mały świadek koronny (art. 60 § 3 k.k.),” in: Przestępczość zorganizowana, świadek koronny, terroryzm, Pływaczew- ski, E., ed., Kraków 2005, p. 311, Konarska-Wrzosek, V. „Prawnokarne środki walki z przestęp-czością zawodową i zorganizowaną przewidziane w kodeksie karnym,” ProkPr 3 (2000), p. 43.

18 Decision of SC of 26 November 2008, III KO 54/08, Orz. ProkPr 4 (2008), item 5.

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§ 4 of the PC does not apply in case of the disclosure of information on the assault against the President of the Republic of Poland or the head of a for-eign state (Article 135 § 1, 136 § 1 of the PC), or on placement on a water or aircraft of dangerous substances or a dangerous device (Article 167 § 1 of the PC), punishable by up to 5 years of deprivation of freedom.

The rewarding of a member of an organized criminal group or asso-ciation, and also the perpetrator of an offence of a terrorist nature, both in terms of allowing their active repentance, as well as turning “key wit-nesses in causa sua,” may understandably raise moral doubts. K. Indecki points to the existence of a “paradox” in the punishment policy. This para- dox involves the fact that, on the one hand, the terrorist nature of an of-fence determines the tightening of a sanction; on the other, there are rules designed allowing terrorists to avoid criminal liability in certain circum-stances.¹⁹ Justification for such solutions should be sought in the belief that preventing terrorism requires the measures that are able to motivate a per-son to refrain from criminal activity and cooperate with law enforcement authorities.

However, it should be stressed that the Polish legislator has not in-troduced any instruments aimed to mitigate criminal liability that would only be reserved for the perpetrators of terrorist offences. The individuals taking up terrorist activities in a broad sense may have recourse to both the general institutions under penal law and those that have been estab-lished as specific measures of suppressing organized criminal structures.