Fofeiture of property is the most severe of all penalties affecting property that have ever been imposed in hisiory. It consists in the convicted offender’s property being taken over – wholly or in part – by the treasury. The paper deals with the history of this particular penalty in the criminal policy of Polish People’s Republic in the years 1944–1990.
The penalty of forfeiture of property was not provided for in the 1932 penal code (which remained in force till December 31, 1969). It appeared in the legislation shortly before World War II, in the act of June 23, 1939 on special criminal responsibility for desertion to the enemy or abroad. Before the passing of the 1932 penal code, the codes of the partitioning powers had been in force in the Polish territories (as until the regaining of independence in 1918, Poland was partitioned by Russia, Austria and Germany). Also those codes did not provide for forfeiture of property.
It was only the legislator of People’s Poland who introduced forfeiture of property as an additionar penalty and provided for its broad adjudication.
The history of forfeiture of property in postwar Poland is analyzed divided into four stages which differ from one another due to significant changes in the legislation. The changes reflected re-orientation of criminal policy in connection with a succession of political crises. The first such stage in the history of forfeiture of property were the years 1944–1958. The data discussed in the paper that concern this period are statistics of civilians convicted by military courts from the spring of l944 till April 30, 1955 (till which date in special cases provided for in statutes, civilians fell under the jurisdiction of military courts), and statistics of convictions by common courts till 1949. The second stage began with the passing of the act of June 18, 1959 on protection of social property. Stage three was initiated by the entering into force, on January 1, 1970, of the new penal code of April 19, 1969. The fourth and last stage began with the passing of the act of May 10, 1985 on special criminal responsability and ended with the act of February 23, 1990 which derogated the penalty of forfeiture of property.
The introduction of forfeiture of property as an additional penalty is characteristic of the earliest legislative acts of the new authorities of People’s Poland, imposed from without. Its broad application and obligatory character demonstrate the importance attached by those authorities to forfeiture as an element of political game against society. The first legal acts of the Polish Committee for National Liberaltion provided for that penalty: the decree of August 31, 1944 on statutory penalties for the Nazi was criminals, the decree of September 23, 1944 – Penal Code of the Polish Army, and the decree of October 30, 1944 on protection of State.
One year later, the decree of November 11,1945 was passed on offences of particular danger in the period of reconstruction of State (which quashed the former wartime decree on protection of State). It was in turn replaced with a new one under the same title, passed on June 13, 1946. The Council of Ministers justified the new decree with the need for aggravation of penalties for all activities that disturbed internal peace, order, and safety, and impaired Poland’s international position. The decree piovided for particularly severe penalties for perpetration of, incitement to, and approval of fratricide; for membership of illegal organizations and terrorist groups; for distribution of illegal literature; for illegal possession of firearms; for helping the members of terrorist groups; and in some cases of failure to inform on an offence. (The decree was generally known as the small penal code – s.p.c.). As provided for in the decree, the additional penalty of forfeiture of property was obfigatory in two cases: sentence to death or to life imprisonment, and conviction for attempt with violence or membership of an armed union. It was optional in the case of sentence to a prison term (Art. 49 para 1 and 2 of the decree). The provisions of s.p.c. extended the application of forfeiture: the court could at ail times adjudicate forfeiture of the property not only of the convicted person himself but also of his spouse or familly members (this did not concern, though, the property such persons attained themselves, inherited, or acquired gift not donated by the convicted persons). Thus forfeiture could affect a very large group of actually innocent persons. Here the decree introduced group responsability for crime.
In 1953, four decrees were passed; according to the people’s legislator, they aimed at protecting social property and the interests of buyers in commercial trade. Two of them, the decree of March 4, 1953 on protection of buyers in commercial trade and another one passed on that same date on increased protection of social property, provided for the possibility of forfeiture of the offender’s property wholly or in part. In that case, forfeiture was optional.
Statistical data concerning the adjudication of forfeiture were gathered since 1949. Beginning from August 15, 1944, though, forfeiture of property was also adjudicated in cases of civilians convicted by military courts which had civilians in their jurisdiction by force of the decree of October 30, 1944 on protection of State. Military courts were competent to decide in cases of persons accused of offences specified in Art. Art. 85–88 and 101 – 103 of penal code of the Polish Army, in the decree on protection of State, and – the latter quashed – in s.p.c.
The jurisdiction of military courts in cases of civilians was abolished in the act of April 5, 1955 on transfer to common courts of the former competence of military courts in cases of civilians, functionaries of public security agencies, the Civic Militaria and Prison Staff. Military courts retained their competence in cases of the specified categories of civilians accused of espionage (Art. 7 s.p.c.). The passing of that act was the first manifestation of a gradual abolition of the legal and judiciary terror.
Convictions of civilians tried by military courts were two or three times more frequent than convictions of military service men. Starting from as early as the latter half of 1944, civilians were convicted for membership of illegal or delegalized organizations (mainly the former Home Army) and for illegal possession of firearms (70 per cent of all convictions). Aftcr 1952, the number of persons convicted for the latter went down; instead, more persons were convicted for banditry and failure to inform on an offence.
Forfeiture of property was adjudicated in about 40 to 50 per cent of cases of civilians; it accompanied sentences to long prison terms or to death, as well as another additional penalty: deprivation of public rights. It was imposed first of all on those who opposed the newly introduced political system, but also on chance perpetrators of what was called anti-State propagande.
Common courts adjudicated forfeiture of property mainly for offences specified in two decrees: the one of August 31, 1944 on statutory penalties for Nazi war criminals, and the decree of June 28,1946 on criminal responsability for repudiation of Polish nationality during the 1939-1945 war. Over 90 per cent of all forfeiture were adjudicated in such cases.
During the 1959–1969 decade, the additional penalty of forfeiture of property was imposed basing on special statutes. Two statutes were passed as a novelty which provided for forfeiture while aiming at special protection of the social property. They were: the act of January 21, 1958 on increased protection of social property, and the act of June 18, 1959 on criminal responsability for offences against social property. Nearly all forfeitures in that period were adjudicated for offences specified in the act of June 18, 1959, and the actual offence concerned was appropriation of social property in practically all cases. Convictions for the offences specified in the discussed statut constituted one-fifth of all convictions; most cases, however, concerned petty or not too serious offences where forfeiture was optional only. This is why that penalty was imposed rather seldom; there were realatively few acts for which it was obligatory. Forfeiture was also most seldom adjudicated by force of ther statutes. It amounted to 1,5–2,2 per cent of all additional penalties imposed.
The new penal code passed on April 19, 1969 introduced forfeiture of property to its catalogue of additional penalties. Forfeiture of the whole or part of property was obligatory on the case of conviction for the following crimes: 1) against the basic political or economic interests of Polish People’s Republic: betrayal of the fatherland, conspiracy against Polish People’s Republic, espionage, terrorism, sabotage, abuse of confidence in foreign relations, misinformation, participation in organized crime against the economy or foreign currency regulations; and 2) appropriation of social property of considerable value. Besides, the court could adjudicate forfeiture of property wholly or in part in the case of conviction of another crime committed for material profit. The code’s regulation of application of forfeiture was clearly copied from the earlier legislation: the s.p.c. and the acts that increased the protection of social property.
During the fifteen years 1970–1984, forfeiture of property was among the least frequently imposed penalties and constituted from 1,2 to 3,3 per cent of all additional penalties. It accompagnied nearly exlusively the convictions for two types of offences: appropriation of social property of considerable value, and that same offence committed by a person who availed himself of the activity of a unit of socialized economy, and acted in conspiracy with others to the detriment of that unit, its customers or contractors. Convictions for these offences constituted about 1 per cent of all convictions for offences against property.
The fourth and last period discussed are the years 1985–1990 when forfeiture was again adjudicated very often, as in the 1940’s – 1950’s, to be abolished completely in the end. The entire five-year period was characterized by changes in penal law, one completely opposing another: from extension of penalization and increase of repressiveness introduced by the acts of 1985 to liberalization in 1990.
Two acts were passed bearing the same date – may 10, 1985: on changing some provisions of penal law and the law on transgressions, and on special criminal responsability (the so-called provisional act in force till June 30, 1988). They introduced significant changes in the range of application of forfeiture of property, making its adjudication possible, and for some time even obligatory, for common offences. In the discussed period, that penalty was imposed mainly for offences against property. Nearly a half of them were burglaries, and the victims were usually – in two-thirds of cases – natural persons. In the period of particular intensity of convictions – 1986–1987 – forfeiture accompanied 11–12 per cent of ail convictions, the proportion going down to a mere 0,1 per cent in 1989. The imposition of that penalty was extremely broad: consequently, forfeiture was adjudicated in cases of quite petty offences where it was inappropriate and out of all proportion to the seriousness of the act and the guilt of the offender. This made the execution of forfeiture actually ineffective as it usually proved objectless in the case of petty common offenders.
Forfeiture of property evolved in a way from was practically non-existence to emergence in special statutes and then in the penal code, to its special use in the criminal policy of the eighties when grounds well known from the past were given for its broader imposition: the need for severe penal repression towards offenders against property, to a complete abolition of that penalty in 1990.
Forfeiture was extensively applied in the years 1949–1958 (when common courts adjudicated 1044, and military courts – 1538 forfeitures a year on the average). The next two periods were similar as to the number of forfeitures (503 and 513 respectively). The use of forfeiture was the broadest under the provisional statute (10,345 cases a year on the average).
Forfeiture is no doubt one of the most severe penalties affecting property, or penalties in general, which is why it should have been adjudicated in exceptional cases only. Its use under the provisional statute in cases of ,,ordinary” offenders violated the principle of just punishment. On the other hand, forfeiture can hardly be called a just penalty anyway as it always affects not only the offender himself but also his family. The political changes in Poland made it possible to liberalize penal law and to remove the most unjust solutions it contained, the penalty of forfeiture of property included.
