Offences Related to a Terrorist Activity

Among the pre-terrorist offences there are three further groups of wrongdoing:

1. abetting and public provocation to commit a terrorist offence, re-cruitment and training for terrorism,

2. aggravated theft, extortion and drawing up false official documents with the intent to commit a terrorist offence,

3. punishable acts related to illegal border crossing of the Republic of Poland.

The first group covers offences whose shared feature is that they ex-ert influence on limiting the scope of freedom of expression because of their connections to terrorism. The obligation to criminalize incitement and public provocation to commit a terrorist offence and recruitment and training for terrorism are introduced by UNSC resolution 1624 (2005), Ar-ticle 3(2)(a) to (c) of the framework decision and Articles 5-7 of the Warsaw Convention (I). The serious nature of these acts is unquestionable, since they are capable of presenting or increasing the threat of legal interests,

causing a risk of the occurrence of a terrorist offence. The use by the per-44 Cf. Radwański, Z. Prawo cywilne – część ogólna, Warszawa 1993, p. 78, Kawałko, A, Wit-czak, H. Prawo cywilne – część ogólna, Warszawa 2006, p. 54.

45 Cf. Górniok, O. In: Górniok, O., Hoc, S., Przyjemski, S. M. Kodeks karny, p. 408, Marek, A. Kodeks karny, p. 619, Wróbel, W. In: Kodeks karny, t. 3, Zoll, A., ed., Kraków 1999, p. 348.

46 Słownik, vol. III, Warszawa 1989, p. 205.

 Criminalization of “Pre-Terrorist” Acts petrators of global communication technologies, especially the Internet, is not without significance for the above assessment.⁴⁷ These modern means are used to distribute instructions and training content as well as expedit-ing recruitment.

When it comes to Polish penal law, such conduct as persuading an- other person to commit a terrorist offence or join a group in order to con-tribute to the commission of a terrorist offence are normally regarded as incitement (Article 18 § 2 of the PC) to a prohibited act as referred to in Article 115 § 20 of the PC, or to participate in an organized criminal group or association under Article 258 § 2 of the PC. However, aiding and abet-ting (Article 18 § 3 of the Penal Code) – mostly psychological – is referred to in Article 7(1) of the Warsaw Convention (I) as providing instruction in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of carrying out a terrorist offence. Any conduct involving the encouraging or inciting the commission of a terrorist offence, but made

“publicly,” that is targeted at a larger, unspecified number of people, may also violate the prohibition on public provocation to commit a misdemean-our (Article 255 § 1 of the PC) or crime (Article 255 § 2 of the PC). Public approval for a terrorist offence meets the criteria of a punishable act under Article 255 § 3 of the PC. Due to the previously mentioned international obligations, it seems de lege ferenda necessary to consider the introduction of new generic types of “public provocation to commit an offence of a ter-rorist nature” and “public approval of the commission of an offence of a terrorist nature.”

Due to the fact that the prosecution of conduct belonging to this group curtails the scope of freedom of expression, there is a well-grounded de-mand to ensure mechanisms safeguarding against unwarranted intru-sion into the sphere of fundamental rights and freedoms.⁴⁸ This need is filled by both constitutional and international standards on freedom of

47 Hołyst, B. „Internet jako miejsce zdarzenia,” ProkPr 4 (2009), pp. 6-7.

48 To illustrate the problems that arise on the borderline of the criminalization of such conduct and the protection of freedom of expression, see the decision of the ECHR in Leroy v. France of 2 October 2008 (Application no. 36109/03). The object of the proceedings was to evaluate a drawing published in a magazine and showing a terrorist attack captioned, “We all dreamed of that... Hamas did it;” in France, its author was fined for the approval of terrorism.

The ECHR held that the sentence did not violate the right to freedom of expression, because the published work could not be regarded as a manifestation of the author’s political commitment, but as a glorification of destruction through violence and an expression of solidarity with the perpetrators of the attack.

174

Measures of Suppressing and Preventing Offences  

expression and the declarations contained in Council Framework Deci-sion 2008/919/JHA of 28 November 2008 amending Council Framework Decision 2002/475/JHA on combating terrorism.⁴⁹ The mentioned frame- work decision of 28 November 2008 imposes an obligation on national leg-islatures to criminalize public provocation to commit a terrorist offence, recruitment and training for terrorism; at the same time, its preamble reads that nothing in this framework decision may be interpreted as be-ing intended to reduce or restrict fundamental rights or freedoms such as freedom of expression, assembly, or of association, the right to respect of private and family life, including the right to respect the confidentiality of correspondence, or to reduce or restrict the dissemination of information for scientific, academic or reporting purposes (paragraphs 13-14). These declarations should be proposed for inclusion in the “pro-Community”

interpretation of the provisions of Polish penal law.

The second group isolated from offences related to a terrorist activity should include acts defined in Article 3(2)(d) to (f) of the framework deci-sion, that is: aggravated theft, drawing up false administrative documents, if undertaken with a view to committing a terrorist offence, and, in the case of falsifying documents, also with a view to participating in a terrorist group. They constitute a sui generis form of preparation, since, in fact, they create conditions that can later be used to commit the “proper” terrorist offence.

Under Polish penal law, the listed offences can be considered classi-fiable as the preparation to commit an offence of a terrorist nature. The provision of Article 16 § 1 of the PC reads that the preparation takes place when, to commit a prohibited act, the offender engages in actions which are to create conditions to fulfil an act intended directly to commit the of- fence. Adoption of such a legal basis for the assessment of offences relat-ing to a terrorist activity has an important drawback: the preparation is punishable only in exceptional cases where the law so provides (Article 16

§ 2 of the PC). In the existing legal conditions, the Penal Code provides for the prosecution of the preparation of violent attempts against a unit of the Polish Armed Forces (Article 140 § 3 of the PC), bringing about a disaster, public threat, taking control of an aircraft or vessel, placing a dangerous device or substance on an aircraft or vessel (Article 168 of the PC) or taking a hostage (Article 252 § 3 of the PC). Yet, the cases of punishable prepara- tion listed in the act fail to include the preparation for the murder or assas-sination attempt on the president of the Republic of Poland, corresponding

49 OJ L 330, 9.12.2008.

 Criminalization of “Pre-Terrorist” Acts to one of the aims set out in Article 115 § 20 of the PC. In addition, none of these situations provides for the aggravation of the penalty on the per-petrators of terrorist crimes, as the sanction – from 1 month to 3 years of deprivation of freedom – does not satisfy the condition specified in Article 115 § 20 of the PC. Therefore, the new provision in Article 16 § 3 of the PC should factor in the principle of punishing the preparation to commit any offence of a terrorist nature.⁵⁰

The third group of terrorist-like offences are those conducive to the preparation of the “proper” offence of a terrorist nature and are related to illegal border crossing in the Republic of Poland. Amending the Penal Code, the legislator attached more attention to this issue in response to the EU regulations effective in Poland as of 1 May 2004.⁵¹ The penalty provid- ed for helping (organizing) other persons cross the Polish state border il-legally (Article 264 § 3 of the PC) was increased from 6 months to 8 years of deprivation of freedom. Also, a new type of offence was added of enabling or facilitating another person’s stay in the territory of Poland against the law in order to gain financial or personal benefit; the perpetrator of such an act is subject to deprivation of freedom from 3 months to 5 years (Ar-ticle 264a § 1 of the PC). In exceptional cases, but only if the offender has not enjoyed any financial benefits, the court may apply the extraordinary mitigation of the penalty, or even refrain from the imposition of the pen-alty (Article 264a § 2 of the PC).