Probacja (Nov 2023)
Disciplinary custodial penalty under Article 49 1 of the act of 27th July 2001 law on the common courts system as an isolation coercive measure used in the criminal process
Abstract
Legal coercion is framed by certain norms. It takes an institutionalized form, while its use is legal and under social control. Unlawful coercion, on the other hand, is characterized by illegality (it is not based on the existing legal order). Legal coercion can be reduced to physical (physical coercion) or psychological (mental coercion) influence. The disciplinary custodial penalty is a means of legal coercion and is the most severe. This measure is classically isolationist, depriving the punished person of personal (locomotive) freedom. The behavior for which it is possible to impose the indicated disciplinary penalty boils down to a violation by the guilty person of the solemnity, peace or order of court activities. Its application serves the realization of procedural functions, which, on the grounds of criminal proceedings, should be reduced primarily to the realization of the conditions for a substantively correct (Article 2 1 point 1 of the Code of Criminal Procedure) and time-focused (Article 2 1 point 4 of the Code of Criminal Procedure, Article 45 paragraph 1 of the Constitution of the Republic of Poland) final resolution of the case being tried. Since the disciplinary penalty of Article 49 1 of the Act of 27th July 2001 Law on the common courts system, in its isolation form, is a measure that harms such a fundamental good as personal freedom, its adjudication should be carried out with due moderation and caution. In contrast, the very size of this extraordinarily troublesome disciplinary penalty must consider the nature of the offense (which, as a rule, has a significant burden of social harmfulness), the personal conditions of the punished person and the degree of guilt.
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