Draft Amendments to the Criminal Code

On 6 and 7 July 2022, the Sejm of the Republic of Poland considered draft amendments to the Criminal Code, which included, inter alia, the introduction of provisions for the confiscation of a motor vehicle or its equivalent in the event of a traffic offense committed.

In the cases specified in the law, with regard to the perpetrator of the act pursuant to art. 173 of the Criminal Code (disaster in land traffic), Art. 174 of the Criminal Code (creating the immediate danger of a disaster in land traffic) or art. 177 of the Criminal Code (road traffic accident), if he was drunk or under the influence of intoxicants or had escaped from the crime scene, the court would be obliged to confiscate the vehicle or its equivalent. On the other hand, in the case of committing an act under Art. 178a § 1 or § 4 of the Criminal Code (driving under the influence of alcohol), the court would order the confiscation of the vehicle or its equivalent if the alcohol content in the body exceeds the threshold of 1.5 or 0.75 mg /dm3 would exceed .

The forfeiture of a motor vehicle occurs when the offender is the sole owner of the vehicle. In other cases, i.e. if the confiscated vehicle would not be the exclusive property of the offender, or if confiscation of the motor vehicle was impossible or meaningless because of its sale, loss, destruction or significant damage, the court would the equivalent value of the vehicle.

The equivalent is the value of the vehicle specified in the insurance policy for the year in which the crime was committed, and in the absence of the policy – the average market value of the vehicle, corresponding to the make, model, year of production body type, powertrain type and engine, cylinder capacity or power and the estimated mileage, the vehicle driven by the offender on the basis of the available data, without the appointment of an expert. If due to the specificities of the vehicle it would not be possible to establish the market value of the vehicle, expert advice would be required.

The draft provisions exclude the possibility of confiscation of the vehicle or its equivalent in the event that the offender drives a motor vehicle that is not his property or co-owned, if the offender simultaneously engages in professional or official activities that include from driving the vehicle on behalf of the employer. In this case, the court must award an interest of not less than PLN 5,000. PLN for the Victim Support and Post-penitentiary Assistance Fund. The concept initiator states that the fact that drivers, as part of their profession, drive vehicles with a value often so important that forfeiture of the countervalue would make it an illusion for the offender to pay or enforce it, and grossly are unfair and disproportionate (e.g. drivers, train drivers, truck drivers).

The proposed changes are undoubtedly partly populist, not substantive. The policy of stricter penalties (after all, confiscation of the vehicle or its equivalent is a kind of punishment for the offender) is not an effective means of eliminating or reducing the number of traffic offenses, just as it has not been limited by a sharp increase in the number of traffic violations. the fines. Nevertheless, from the point of view of the financial condition, namely the forfeiture of the vehicle or its equivalent, it can be assumed that at least some potential offenders will stop driving while intoxicated. However, whether the intended preventive objective is fully achieved can only be assessed after these provisions have been in force for some time.

Notwithstanding the above, it should be noted that the proposed solutions are inconsistent in terms of confiscation of the vehicle when committing an act under Art. 178a of the Criminal Code According to the proposed regulation, the forfeiture only applies to the situation of “more drunk” drivers (ie more than 1.5 ), those with a lower alcohol concentration will avoid forfeiture. Against this background, it should be noted that this is a flawed solution which will introduce an artificial separation of the confiscation of a vehicle or its equivalent in relation to drunk drivers.
At present, the draft amendments to the Penal Code have been passed by the Sejm, which means that by handing over to the Senate, the Upper House of the Parliament will start working on the bill passed by the Sejm.

Author: adw. Jacek Jaruchowski, law firm Chałas i Wspólnicy

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