A Few Comments on Persistent Harassment in the Context of the Supreme Court Judgement of 2 December 2020 (III KK 266/20, LEX no. 2508786)

Abstract

The subject of the commentary are issues related to the crime of persistent harassment (Article 190a § 1 of the Criminal Code), in particular, its subjective side. The essential issue referred to by the Supreme Court in the justification of the judgement were the motives of the perpetrator of persistent harassment. The Supreme Court held that the elements of the act from § 1 of Article 190a of the Criminal Code do not include the purpose of the perpetrator’s action, i.e. the fact that the subjective side of this type of crime is not directional. The motivation of the perpetrator is irrelevant from the point of view of the elements of this act, its perpetrator may act for different purposes. Since the harassment must be persistent and must lead to a specific result, the perpetrator should include these elements of the factual elements both in his/her consciousness and will. The realization of an aim, which in itself does not deserve a negative assessment, by means that could be considered as persistent harassment of another person, and that could lead a person to a sense of threat, humiliation or anguish, or violating the privacy, may fulfil the elements of the crime of Article 190a of the Criminal Code. The author referred to the problem of intention and motivation of the perpetrator of persistent harassment, sharing the view formulated by the Supreme Court in both theses of the judgement.

Keywords

• uporczywe nękanie
• strona podmiotowa
• zamiar, motywacja
• sprawca