THE OFFENCE OF IDENTITY THEFT IN THE POLISH CRIMINAL LAW (ARTICLE 190A § 2 OF THE PENAL CODE). (PART TWO)
DOI:
https://doi.org/10.18372/2307-9061.51.13795Keywords:
impersonating, identity theft, personal data, damage, concurrence of provisionsAbstract
Purpose: the main purpose of the paper is to analyse the problem of provision concurrence of Art. 190a § 2 with other articles of the Penal Code, as well as to present the issues of imposing punishment for this offence and the statistical picture of the phenomenon of identity theft. Methods: to obtain these aims the dogmatic method was used as well as analysis of statistical data. Results: the offence under Art. 190a § 2 may be in real concurrence with the provisions describing offences against the protection of information (art. 265-268a, 269a of the Penal Code), against the credibility of documents (art. 270, art. 272, art. 273, art. 275 of the Penal Code) as well as with provisions describing offences against property (e.g.: art. 284 § 1, 285, 287, 288 § 1 or 2 of the Penal Code). Analysis of data referring to final convictions for the offence of identity theft shows that the punishment most often imposed is deprivation of liberty, almost always applied with the conditional suspension of its execution. Discussion: the number of discovered offences of theft identity is growing dynamically, unfortunately, however, there is no such dynamics in the case of detection of the offence. Therefore the question arises about the causes of the detection results becoming poorer every year.
References
Article 265 – disclosure or use of classified information; Article 266 – disclosure of information in connection with one's position; Article 267 – unlawful acquisition of information; Article 268 – hindering access to information; Article 268a – destroying IT data. https://doi.org/10.5771/9783845279893-711
Corrupting IT data.
And of course, respectively (with the value of the property below ¼ of the minimum remuneration) – a single-deed concurrence of crimes under Article 190a of the Penal Code with the petty offence under Article 124 of the Code of Infractions.
Mozgawa M. Przestępstwa przeciwko wolności, in: System prawa karnego, vol. 10, Przestępstwa przeciwko dobrom indywidualnym, ed. J. Warylewski, Warszawa, 2016. P. 476.
Lach A. Kradzież tożsamości. Prokuratura i Prawo. 2012. No. 3. P. 38.
Art. 148 § 1. Whoever kills a human being shall be subject to the punishment of deprivation of liberty for a minimum term of 8 years, the punishment of deprivation of liberty for 25 years or the punishment of deprivation of liberty for life. § 2. Whoever kills a human being: 1) with particular cruelty, 2) in connection with hostage taking, rape or robbery, 3) for motives deserving particular reprobation, 4) with the use of explosives, shall be subject to the punishment of the deprivation of liberty for a minimum term of 12 years, the punishment of deprivation of liberty for 25 years or the punish-ment of deprivation of liberty for life. https://doi.org/10.1163/2210-7975_hrd-9945-003
Journal of Laws 2018.1000. Article 107: 1. A person, who processes personal data where such processing is forbidden or where he/she is not authorised to carry out such processing, shall be liable to a fine, restriction of liberty or deprivation of liberty for up to two years. 2. Where the offence mentioned in point 1 of this article relates to information on racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, genetic code, biometric data processed in order to unequivocally identify an individual, data on health condition, sexuality or sexual orientation, the person who processes the data shall be liable to a fine, restriction of liberty or deprivation of liberty for up to three years. https://doi.org/10.1093/he/9780198785163.003.0008
Budyn-Kulik M. Komentarz, teza 101 and 102. Lex el. 2016 (accessed: 7 September 2018).
Journal of Laws of 2018.1191 Article 115 paragraph 1: «Whoever usurps the authorship or misleads others as to the authorship of a whole or a part of another person's work or another person's artistic performance shall be liable to a fine, restriction of liberty or imprisonment for up to 3 years».
Article 37a: If the statute provides for a sentence of deprivation of liberty not exceeding 8 years, then a fine or restriction of liberty referred to in Article 34 § 1a paragraph 1 or 4 may be imposed instead.
Article 37b: In a case regarding a misde-meanour punishable by imprisonment, irrespective of the minimum of the statutory punishment limits provided for in the statute for the act in question, the court may impose at the same time a custodial sentence not exceeding three months, and if the maximum limit of punishment is at least 10 years - 6 months, and the restriction of liberty up to 2 years. Provisions of Articles 69-75 shall not apply. Then, the sentence of imprisonment is executed first, unless the statute provides for otherwise.
The condition in the form of sentencing the offender for at least 3 years of imprisonment leads to the conclusion that in practice, deprivation of public rights could be applied to the offence under Article 190a § 3 of the Penal Code.
https://isws.ms.gov.pl/pl/baza-statystyczna/ opracowania-wieloletnie/ (accessed: 7 September 2018).
The possibility of conditional suspension of the restriction of liberty (as well as fine imposed as the main punishment) was present in the Polish criminal law system between 1 September 1998 and 1 July 2015. In the original wording of the Penal Code, it was possible to conditionally suspend the execution of a sentence of imprisonment not exceeding 2 years, the punishment of restriction of liberty or the fine imposed as the main punishment (Article 69, paragraph 1). The Act of 20 February 2015 amending the Act - the Penal Code and certain other Acts (Journal of Laws of 2015.396), which entered into force on 1 July 2015, amended the provision by excluding the possibility of conditional suspension of the restriction of liberty and fine, while it kept the possibility of a conditional suspension of the execution of deprivation of liberty, provided that it does not exceed one year (and not 2 years as it had been previously). https://doi.org/10.21795/kcla.2015.27. 4.3
Article 60 § 6. The extraordinary mitigation of a punishment means the imposition of a punishment below the minimum statutory level, or the imposition of a punishment of lesser severity, in accordance with the following principles: - item 3) if the act in question constitutes a misdemeanour, and the minimum statutory level of punishment is less than one year's deprivation of liberty, the court shall impose either a fine or restriction of liberty.
Marczewski M. Przestępstwo uporczywego nękania (stalkingu) w świetle danych statystycznych, in: Stalking, ed. M. Mozgawa, Warszawa, 2018. P. 317.
Marczewski M. Przestępstwo. P. 315.
In 2012 - 105, while in 2013 - 100.
Marczewski M. Przestępstwo. P. 315.
Marczewski M. Przestępstwo. P. 316.
