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Monday, May 20, 2024

Car confiscation. The Commissioner for Human Rights' objections to the draft amendment to the Penal Code

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Deputy Ombudsman Stanisław Trociuk submitted comments to the Ministry of Justice on the draft amendment to the Penal Code regarding the forfeiture of a drunk driver's car. “The project raises some substantive and legislative concerns,” says the Ombudsman.

This is a draft amendment to the Penal Code and other acts, which was published on the website of the Government Legislation Center in mid-April, intended to introduce modification of the provisions ordering the forfeiture of a motor vehicle driven by the perpetrator under the influence of alcohol.

The regulation was adopted on July 7, 2022, and entered into force on March 14, 2024. The amendment will concern in particular the validity of the mandatory forfeiture of vehicles, compliance with the constitutional principle of proportionality of criminal law response and the constitutional standard of equality before the law.

Driver under the influence of alcohol and drugs

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The document published by the Office of the Commissioner for Human Rights on Monday shows that, in the opinion of spokesman Stanisław Trociuk, the draft amendments to the Penal Code regarding the provisions regarding the forfeiture of a drunk driver's car require further legislative work.

The Commissioner for Human Rights draws attention to the inequality in the approach to drivers under the influence of alcohol and those under the influence of drugs. He argues that the Penal Code in its current form defines four thresholds for driving under the influence of alcohol:

condition after drinking alcohol (0.2 – 0.5 per mille of alcohol or the presence of 0.1 mg to 0.25 mg of alcohol in 1 dm3 in the exhaled air);

state of intoxication (above 0.5 per mille or leads to a concentration exceeding this value or the alcohol content in 1 dm3 of exhaled air exceeds 0.25 mg or leads to a concentration exceeding this value);

a condition constituting grounds for forfeiture of the vehicle (when above 1 per mille of alcohol in the blood or 0.5 mg/dm3 in the exhaled air or led to such a concentration);

a condition constituting grounds for forfeiture of the vehiclewhen the alcohol content (from 1.5 per mille in the blood or 0.75 mg/dm3 in the exhaled air or led to such a concentration).

Forfeiture of the vehicle is also possible in the event of: driving under the influence of drugs. But, as the Ombudsman points out, due to the principle of symmetry, the legislator did not attempt to specify the thresholds relating to other psychoactive substances. According to him, this may lead to “grossly different judicial practice in this area” and lead to a violation of the constitutional principle of equality before the law.

Therefore, the deputy Commissioner for Human Rights stated that the resignation from the obligatory forfeiture of a car in the draft amendment should be positively assessed if the alcohol content in the perpetrator's body was higher than 1 per mille in the blood or 0.5 mg/dm3 in the exhaled air or led to such a concentration. .

At the same time, he stated that the problem is not fully solved because the project maintains Art. art. 178a par. 5 of the Penal Code states that the court will order the forfeiture of the car unless the alcohol content in the body of the perpetrator of a specific offense was lower than 1.5 per mille in blood or 0.75 mg/dm3 in exhaled air or did not lead to such a concentration. The court may refrain from ordering forfeiture if there is an exceptional case justified by special circumstances.

“Mandatory car confiscation” to be changed

The project also shows that Ministry of Justice intends to abandon the “obligatory” imposition of car confiscation driven by a driver under the influence of alcohol to make it “optional.” This means that the courts will assess the validity of the confiscation penalty through proceedings, and will not have an “order from above” in this case.

Additionally, the Ministry of Justice wants to remove the possibility of ordering the forfeiture of a vehicle when it is impossible or pointless due to its sale, loss, destruction or significant damage. Also when the vehicle was not the exclusive property of the perpetrator at the time the crime was committed.

The deputy Ombudsman also positively assessed the change in the provisions on the forfeiture of the equivalent of a vehicle included in the project. In the earlier version of the regulations, “the legislator seems not to have noticed that the measure of the severity of the new measure is the value of the vehicle,” we read in the document.

“The obligatory nature of the penal measure (…) leads to situations in which the perpetrator may be obliged to pay several hundred thousand PLN just because he committed a crime using an expensive means of communication. (…) Therefore, the proposals for changes should be assessed positively described in the project, in which the legislator waived from determining the equivalent of the vehicle,” it was emphasized in the letter to the Ministry of Justice.

The deputy Ombudsman also raised the problem of not ordering forfeiture against the perpetrator who, during his professional activities, drove a car that was not his property.

In this context, he positively assessed the fact that the Ministry of Justice in the draft amendment waived the provision stating that the forfeiture of a car or its value is not imposed if the perpetrator drove a car that was not his property while performing professional or official activities involving driving a vehicle for the employer.

Main photo source: Shutterstock



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