|
Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume VII, London, HMSO, 1948 [Some sections have been highlighted provisionally until hyperlinks can be added to appropriate files. Page numbers precede text] A N N E X POLISH LAW CONCERNING
1. THE BASIC PROVISIONS The first legal measures concerning the responsibility for crimes cominitted in connection with the war, i.e., for war crimes, war-treason and collaboration with the enemy, were enacted in Poland at the time when the war-battles between the Russian and German forces were at their peak, and only a small part of the Polish territory had been liberated from the enemy. These measures were contained in a Decree promulgated by the Polish Committee of National Liberation on the 31st August, 1944, concerning the punishment of Fascist-Hitlerite criminals guilty of murder and ill-treatment of the civilian population and of prisoners of war, and the punishment of traitors to the Polish nation. (Official Gazette No. 4, of 13th September, 1944.) (Footnote: At an earlier stage of the war the Polish Government in London enacted on 30th March, 1943, a Decree concerning the responsibility for war crimes (Official Gazette, No. 3). This Decree, which could be regarded as a comparatively good codification of offences committed " in contravention of International Law ", was not, however, put into operation after the liberation of Poland and is not applicable to war crimes trials held by Polish courts. This Decree, which was of a general nature provided, in a few articles, measures for the punishment of war crimes, and of offences against the civilian population in contravention of international law committed by Polish nationals and aliens. The offences which came within the scope of this Decree were the following :
For all crimes mentioned under (a) and (b) the death penalty was provided, loss of public and civic rights, forfeiture of property being incidental to it ; for crimes indicated under (c) imprisonment up to 15 years or for life. According to further provisions of this Decree, service with the occupying authority, obedience to superior orders or compulsion did not exempt from responsibility. The latter rested also upon persons who attempted, abetted or assisted in the commission of the crimes. The jurisdiction over crimes mentioned above was exercised by Special Criminal Courts consisting of one professional judge and two lay-judges. The judgments of the Courts were final ; the procedure applied was, with some exceptions, that laid down in the Code of Criminal Procedure. The defendant had to appear with counsel of his own choice or one appointed ex officio by the Court (Decree of 12th September, 1944, concerning Special Criminal Courts, Official Gazette, No. 4). It is to be noted that the provisions of the above Decree had in many respects a restricted application, such as, for instance, that in regard to some of the acts they were applicable only to crimes and offences on Polish territory. By the subsequent Decrees of 16th February, 1945 (Official Gazette, No. 7) and of 10th December, 1946 (Official Gazette, No. 69)(Footnote: These Decrees have been enacted by the Council of Ministers of the Polish Provisional Government, and approved by the National State Council.) certain important changes were made in the text of the Decree of 31st August, 1944, which have finally been embodied in the consolidated text of that Decree contained in the. Schedule to the Proclamation of the Minister of Justice dated 11th December, 1946 (Official Gazette, No. 69, item 377). The provisions of this Decree are now applicable to criminal acts committed between 1st September, 1939 and 9th May, 1945. At the same time the Special Criminal Courts have been abolished by the Decree of 17th October, 1946 (Official Gazette, No. 59), and the jurisdiction over all crimes committed in connection with the war, except those for the trial of which the Supreme National Tribunal was set up, has been entrusted to ordinary criminal courts. The Supreme National Tribunal was established by the Decree of 22nd January, 1946 (Official Gazette, No. 5), inter alia, for the trial of persons who, in accordance with the Moscow Declaration of 1st November, 1943, will be surrendered to the Polish prosecuting authorities for crimes committed on Polish territory during enemy occupation. By the Decree of 17th October, 1946 (Official Gazette, No. 59), the jurisdiction of this Tribunal has been extended to all war criminals who are handed over to Poland for trial, and over all war crimes irrespective of the place of’ their commission. Finally, certain changes concerning the procedure and evidence have been made by the Decree of 11th April, 1947 (Official Gazette, No. 32). It should also be noted that on 25th September, 1945, the Polish Government expressed its adherence to the London Agreement of 8th August, 1945, for the Prosecution and Punishment of the Major War Criminals of the European Axis.(Footnote 2: H.M. Stationery Office, Miscellaneous No. 10 (1945), Cmd. 6668.) The Proclamation of the Government concerning this adherence has been ratified by the Polish Parliament on 25th June, 1947, and the texts of the Agreement and the Charter of the International Military Tribunal published in the Official Gazette on 14th October, 1947 (No. 63). As to the legal effect of the London Agreement on the Polish system of criminal law, it should be pointed out at once that in accordance with the view expressed formally by Polish judicial authorities and with the prevailing opinion of Polish legal writers, this Agreement is now binding in Poland as a part of the law of the land, as is the case with all international treaties and conventions concluded and/or ratified by Poland, provided they have been promulgated in the Official Gazette. p.84 2. OFFENCES AND THEIR PUNISHMENT Articles 1 and 2 of the consolidated text of the Decree of 1944 read as follows : " Any person who, assisting the authorities of the German State or of a State allied with it :
Article 2. " Any person who, assisting the authorities of the German State, or of a State allied with it, acted in any other manner or in any other circumstances than those indicated in Article 1 to the detriment of the Polish State, of a Polish corporate body, or of civilians, members of the armed forces and prisoners of war-is liable to imprisonment for a period of not less than three years, or for life, or to the death penalty." The provisions of these two articles, as is also the case in regard to other provisions of the Decree, should be read in conjunction with the terms of the Criminal Code of 1932 (Official Gazette, No. 60), but only in so far as this Decree which is a lex posterior specialis does not provide otherwise (Article 92 of the Criminal Code). (Footnote: Article 92 reads : " The provisions of the general part of the*pTesent Code are applicable to crimes and offences, as well as to penalties and protective measures envisaged in other laws, if the latter do not provide otherwise.") Inasmuch as the jurisdiction of Polish Courts over crimes committed by foreigners and stateless persons is concerned, the following provisions of the Civil Criminal Code should be quoted :
p.85
There is, of course, no need to elaborate here the fact that Polish Criminal Law is applicable to all Polish citizens who committed crimes abroad (Article 4).(Footnote 2: It is also applicable to persons who since the commission of a crime have changed their Polish nationality, or who after the criminal fact acquired Polish citizenship. (Article 4, para. 3.)) However, it is to be pointed out at once that of the provisions of the Criminal Code quoted above, only Article 6 has not been made applicable to criminal acts defined in the Decree of 1944 (Article 8 of the Decree). And this for obvious reasons. It is true that the majority of the crimes enumerated in this Decree were recognized as criminal acts also by the law of the German State, and of the States allied with it, but in the circumstances in which they have been committed and in view of the interests they served, in most of the cases they would not have been considered by the authorities of those States as illegal and punishable. Article 1 of the Decree should be interpreted to the effect that the responsibility lies not only with persons who committed the criminal acts, but also with those who were accomplices to, or attempted and abetted, their commission. On the other hand, a restrictive interpretation is to be placed upon para (2) of this article. This follows from Article 6 of the Decree which provides :
p. 86 From the wording of Articles 1 and 2, and in particular from the words " civilian population " " civilians " and " persons " it appears that these provisions envisage responsibility for acts which have been committed not only against Polish citizens, but also against all other persons irrespective of their nationality, including German nationals who were wanted or persecuted on political, religious or racial grounds. It will be observed that Article 2 of the Decree has a very wide application as within its provision would come all acts considered as criminal by municipal and international law, other than those enumerated in Paras. (1) and (2) of Article 1. As to the punishment envisaged in Article 1, it is to be noted that this provision is the only one of all the Polish legislative acts, now in force, which gives the courts no other choice but to inflict the death penalty. While Articles 1 and 2 of the Decree are concerned with crimes committed in the interest of the enemy states by " assisting " the authorities of those states in the commission of the crimes, Article 3 deals with criminal acts which are free from such qualification. It reads : " Any person who, taking advantage of the conditions created by the war, compelled persons to act under threat of persecution by the authorities of the German State, or by a State allied with it, or acted in any other manner to the detriment of persons wanted or persecuted by the said authorities -is liable to imprisonment for a period of not less than three years, or for life." From the above it is clear that contrary to the position created by the law as contained in Articles 1 and 2, within the provision of Article 3 would come mostly, but not exclusively, criminal acts committed by Polish citizens and on Polish territory. As regards the " conditions created by the war ", two such conditions are to be taken into consideration. One is of a general nature and pertains to all Polish citizens, namely, the lack of legal protection of the national authorities and, partly, lack of the law itself inasmuch as it had been repealed by the German authorities, as well as the virtual elimination of the State as a conception of the community organized according to the law of the land ; the second condition relates to the factual situation in which the victims of the criminal acts have found themselves according to the circumstances of each individual case. 3. MEMBERSHIP OF CRIMINAL ORGANIZATIONS In this respect Article 4 of the Decree of 1944 contains the following provisions : 1. Any person who was a member of a criminal organization established or recognized by the authorities of the German State or of a State allied with it, or by a political association which acted in the interest of the German State or a State allied with it-is liable to imprisonment for a period of not less than three years, or for life, or to the death penalty," " Para. 2. A criminal organization in the meaning of para. 1 is a group or organization: p.87
The above provisions have been introduced in the consolidated text of the Decree in December, 1946, in order to bring Polish municipal law into line with the developments which, in the meantime, have taken place in international criminal law, in particular, in connection with the London Agreement of 8th August, 1945, and the Judgment of the Nuremberg Tribunal. Therefore, in interpreting the conceptions and notions referred to in Article 4, one would have recourse to these international documents. From the rule laid down by Article 10 of the Nuremberg Charter (Footnote) it follows that since the ratification of the London Agreement by Poland, whenever a person is tried on a charge of membership in a group or organization the criminal character of which was under examination of the Nuremberg Tribunal, the Polish Courts are in law bound by the findings of the Tribunal and cannot re-examine the question of the criminal character of the organization dealt with in the Judgment. Thus, the findings of the Tribunal create for the Polish court a presumptio iuris ac de iure which cannot be invalidated. On the other hand, it is clear from the law as laid down in Para. 2 of Article 4 of the Decree that Polish courts are not bound by the fact that certain other groups or organizations have not been indicted and adjudicated as criminal within the meaning of the Charter. In these cases the Polish court may declare such groups or organizations to be criminal within the Polish jurisdiction. Accordingly, the practice of Polish courts has declared to be criminal some other Nazi groups or organizations which displayed particular zeal in occupied Poland, such as the leadership of the German civil administration in the so-called General Government, members of the concentration camp staff at Auschwitz, officials of the administration of the Lodz ghetto, etc. This contention and practice is also based on the fact that para. 3 of Article 4 is not exhaustive and the organizations mentioned therein are enumerated only exempli causa. ________________________ (I) Article 10 of the Charter reads : " In cases where a group or organization is declared criminal by the Tribunal, the tompetent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.". p.88 4. NECESSITY AND SUPERIOR ORDERS The Decree contains in para. 1 of Article 5 the following provision : " The fact that an act or omission was caused by a threat or order, or arose out of obligation under municipal law, does not exempt from criminal responsibility." In accordance with para. 2 the Court in such a case may mitigate the sentence " taking into consideration the circumstances of the perpetrator and of the deed ". However, if the Court would decide to mitigate the sentence to the extent as to convict the accused to imprisonment not exceeding two years, the court will then not be in the position to avail itself of the power given to it by Article 61 of the Criminal Code, which provides that in such cases the Court may suspend, in certain circumstances, the execution of the sentence for a period from 2-5 years.’ This follows from Article 8 of the Decree which provides that Article 61 of the Criminal Code is not applicable to criminal acts defined in the Decree. 5. ADDITIONAL PENALTIES Apart from the penalties prescribed by Articles l-4 the Court is under obligation, in accordance with Article 7 of the Decree, to pronounce the following additional penalties in all instances when sentence is passed for a crime defined in this Decree :
6. POLISH LEGAL APPROACH TO WAR CRIMES From the foregoing it appears that the Polish attitude towards the treatment of war criminals follows the general continental practice that before punishment is inflicted, an individual offender must be shown to have offended against some specific provision of Polish municipal law. (Footnote: Cf. Vol. III of this series, pp. 81-83.) An additional characteristic of the Polish system is that the violation of any set of international rules or the laws and customs or war need not be shown. Consequently, the provisions of the Decree dealing with crimes committed in connection with the war as described in the preceding sections do not define the terms " war crime " and " war criminal ", but from the spirit of this law it seems to follow that the offences which have been made punishable are such infractions of Polish law as are not justified by the laws and customs of war. p.89 The scope of the term war crime which can be derived from the Polish special legislation seems, however, to be wide enough to include within this notion any violation of the laws and usages of war committed during the late war. This follows, in particular, from the wording of Article 2 of the Decree of 1944, by which any act other than those enumerated in Article 1 and committed to the detriment of the Polish State, Polish corporate body or of any individual persons, has been made punishable. This follows also, as will be shown later, from the scope of the jurisdiction which has been given to the Polish Supreme National Tribunal. The latter has the power to deal with all crimes committed by persons who, according to the Moscow Declaration, are handed over to Poland for trial. Neither has the Polish special legislation, in principle, separated the acts constituting crimes against humanity from the group of offences coming within the notion of war crimes proper. This has only partly been done in para. 2 of Article 1, in regard to some specific offences arising out of giving information on, or detaining of, persons wanted or persecuted on political, racial or religious grounds. Thus, all acts which because of the particular circumstances, personal or factual, connected with their commission come within the notion of crimes against humanity, have been absorbed by the general wording of Articles 1 to 3 and with only a few exceptions constitute simultaneously war crimes in the narrower sense. They are, of course, restricted to crimes committed during the war in view of the fact that the application of the law as contained in the Decree has been limited to acts committed between 1st September, 1939, and 9th May, 1945. In so far as victims of enemy nationality are concerned, they are further restricted to crimes committed on Polish territory in view of what has been said already in regard to the jurisdiction of Polish courts. (Footnote 1: See section 2 above, p. 84) At the same time, however, the notion of crimes against humanity which could be derived from the provisions of the Polish war crimes legislation, seems to be much wider than that implied in the Charters of the International Military Tribunals at Nuremberg and Tokyo. When interpreting the meaning of the relevant provisions of these documents, it has always been assumed that a large body of victims is essential in order to classify the acts as crimes against humanity. (Footnote 2: See : (a) E. Schwelb, Crimes Against Humanitv, The British Year Book of International Law, 1946, p. 191 ; (b) J. Litawski, The Development of the Concept of Crimes Against Humanity, The History of the United Nations War Crimes Commission and the Development of the Laws of War, London, 1948.) The analysis already made in Section 2, seems to indicate that according to Polish law this particular characteristic, which constitutes one of the differentia specifica between crimes against humanity and war crimes proper is not essential, although not unimportant. That is why a crime against humanity can also be perpetrated when the offence has been committed against an individual person. It would seem only essential in such cases that the offence was committed because the victim concerned belonged to a particular national, racial or religious group, or because of the victim’s political convictions. In other words, the existence of the dolus specialis on the part of the offender must be established. p.90 Yet the Polish special legislation dealing with the heritage of war has at great length dealt with the types of offences which come within the notion of crimes against humanity, though not in the technical sense of the term as it is understood by the international enactments. This has, however, been done on a different plane and in a manner somewhat independent from the main trend of international developments which have actually taken place in the sphere of the retributive action against war criminals. We have in mind here the special Decree of 13th June, 1946, concerning crimes particularly dangerous in the period of the reconstruction of the State (Official Gazette, No. 30), which contains a number of interesting provisions dealing with such types of acts as to a great extent correspond with crimes against humanity. The definition of those acts has, however, been completely separated from the notion of war crimes as they involve offences committed not in connection with, or during the war, but in peace-time, i.e. after the conclusion of hostilities. Therefore, any further elaboration of this particular type of crimes against humanity is considered to be outside the scope of this report. Nor does the Polish war crimes legislation contain a definition or reference to crimes against peace (except for the case of criminal organizations). This has not, however, been an obstacle preventing the Polish courts from dealing with these types of crimes. In such cases the problem of criminal acts coming within the notion of crimes against peace can easily be solved within the framework of Polish municipal law which is satisfying the requirements of Polish retributive action. In this respect the Criminal Code of 1932 contains a set of provisions concerning offences against the security and integrity of the State which largely correspond to the essentialia of the notion of crimes against peace, and taken in conjunction with the law contained in the Decree of 1946 concerning the establishment of the Supreme National Tribunal have substantially provided a sufficient basis on which the Polish Courts can deal with this type of crimes. Some of the provisions of the Criminal Code referred to above read as follows : " He, who attempts to deprive the Polish State of its independence or to separate part of its territory-is liable to imprisonment for a period of not less than ten years, or for life, or to the death penalty." Para. 2. " He, who attempts to change by force the political structure of the Polish State-is liable to imprisonment for a period of not less than ten years or for life." Article 96. " He, who undertakes steps or action preparatory to the commission of crimes defined in Articles 93, 94 and 95-is liable to imprisonment up to ten years." Article 98. " He, who with the view to commit crimes defined in Articles 93, 94 and 95 :
p. 91
It may also be of interest to recall here that Poland in 1932 was one of the first countries to include in her municipal legislation a measure providing for the punishment of the instigators of the waging of a war of aggression. The relevant Article 113 of the Polish Criminal Code reads : 1. He, who publicly incites to wage a war of aggression-is liable to imprisonment up to five years. " Para. 2. Prosecution is initiated only if the act defined in Para. 1 is recognized as criminal by the laws of the States against which the incitement is directed." From the foregoing it will appear that the Polish special
legislation dealing with crimes committed in connection with the war
comprise in fact all the three categories of war crimes in the wider
sense of the term, as envisaged by the international enactments now in
force, namely, war crimes proper, crimes against humanity and crimes
against peace, although these specific types of crimes have not been
specifically defined by Polish law and have only been referred to in a
general way in those provisions of the Decree of 1944 which deal with
criminal organizations. (Footnote 1: As to the place of these international enactments in the Polish
municipal law, and. their binding force, reference has been made in
section 1 in fine, p: 83. ) II. COURTS AND PROCEDURE A. THE SUPREME NATIONAL TRIBUNAL(2) 1. THE JURISDICTION, COMPOSITION AND FUNCTIONS OF THE TRIBUNAL According to Article 6 of the Decree of 1946, the following crimes are within the jurisdiction of the Supreme National Tribunal :
Until 16th April, 1947, when the last changes in the Decree of 1946 came into force, the Prosecutor of the Supreme National Tribunal had the power to exercise discretion in transferring some of the cases within the Tribunal’s p.92 jurisdiction for trial before the common law courts (The District Courts). Since that date, however, this discretion can be exercised only as regards crimes indicated under (a) above. This means that henceforth all war criminals who have been surrendered to Poland for trial must be dealt with by the Supreme National Tribunal. From paragraph (b) it follows that the Tribunal is competent to try all offences for which war criminals are surrendered, i.e., offences which come within the notions of war crimes, crimes against humanity and crimes against peace. These offences have, of course, to be adjudicated in accordance with the law laid down in the Decree of 1944, which has been presented and discussed in Part I. Article 1 of the Decree 1946 provides that the seat of the Tribunal should be the same as that of the Supreme Court, i.e., Warsaw. This, however, is no bar to the Tribunal to hold trials in different parts of the country. In fact, and for obvious reasons, the Tribunal has tried many cases in various districts of Poland, thus pursuing the policy that the more notable war criminals should pay for their abominable deeds in places of their commission. Thus, for instance, the trial of Governor Fischer was held in Warsaw, of Gauleiter Greiser in Poznan, of Gauleiter Forster in Danzig, of the staff members of the Auschwitz concentration camp, in Cracow, and so forth. The First President of the Supreme Court acts as President of the Supreme National Tribunal. The judges and the prosecutors are appointed by the Presidium of the National Council on the recommendation of the Minister of Justice from among persons possessing judicial qualifications (Article 3). The Tribunal sits in public sessions with three professional judges and four lay-judges. The latter are chosen from the list of lay-judges compiled by the Presidium of the National Council from among members of Parliament. In discharging their functions, the lay-judges are independent and subordinate only to the laws ; at the trial, they have the same rights and duties as professional judges of the Tribunal (Articles 3 to 5). The sessions of the Tribunal are presided over by the President or by a judge assigned by him. The votes are ascertained by the presiding judge who starts with the youngest in age, and casts the last vote himself (Article 4). Article 8 of the Decree 1946 lays down the rule that trials before the Supreme National Tribunal are conducted in accordance with the provisions of the Code of Criminal Procedure of 19th March, 1928, subject to the special regulations provided by the Decree. The special regulations governing the pre-trial procedure contained in Articles 9 and 10 of the Decree read as follows : " 1, In cases coming within the jurisdiction of the Supreme National Tribunal, the Prosecutor of the Supreme National Tribunal p. 93
The articles of the Code of Criminal Procedure mentioned in Article 9 para. 4 above, the application of which has been thus waived in dealing with war criminals, provide that a provisional arrest of a person suspected of a crime or offence can only be made upon the Court’s warrant ; they also provide for certain limitations of time in conducting preliminary investigations and inquiries by the Prosecution. A typical trial before the Polish Courts would be made up of the following parts which would take place in the order indicated :
p. 94 As a rule, all trials are held in public. The Court may, however, order that the whole trial or part of it be held in camera if the proceedings in open court would offend against good morals, cause public disturbance or disclose circumstances which should be kept in secrecy from the point of view of the security of the state or other important public interest. In such cases only a restricted number of persons indicated by the Prosecution and the accused, other than those taking part in the trial, can be present at the proceedings. In any case, the pronouncement of the sentence must be made in open court (Code of Criminal Procedure, Articles 316, 317, 320 and 321). 3. THE POSITION AND RIGHTS OF THE ACCUSED The Decree of 1946 contains the following provisions : 12. " 1. At the trial, the defendant must appear with counsel. If he does not choose one, the President of the Supreme National Tribunal is to appoint a counsel ex officio from among the advocates residing in Poland. 2. Any Polish citizen may be appointed counsel by the defendant ; if, however, the latter seeks to appoint counsel from among persons not mentioned in Article 86 of the Code of Criminal Procedure, such an appointment must be authorized by the President of the Supreme National Tribunal. 3. Any person appointed counsel ex officio is entitled to a remuneration for the duties performed and the loss of time involved ; the amount is to be fixed according to the discretion of the Supreme National Tribunal." Article 13. " 1. The fact that the person to be indicted has not been apprehended is no bar to loding the indictment and to holding the trial in his absence. The judgment will not be regarded as having been given in absentia. (Footnote: The latter sentence should be understood in the sense that the provisions of the Code of Criminal Procedure as to conditions and limitations under which such verdicts can be pronounced, are not applicable in war crimes trials.)
Article 86 of the Code of Criminal Procedure, mentioned above, lays down the rule that only the following persons can act as Counsel before any court exercising its jurisdiction within the frontiers of the Polish State : (a) persons appearing on the list of advocates in Poland ; (b) professors and lecturers in laws at one of the Polish universities or academic schools approved by the State. p. 95 As to other safeguards of the rights of the accused, it is to be noted that the accused has the right to be present during all stages of the taking of evidence and to make any observations and give any explanations desired by him (Code of Criminal Procedure, Articles 335 and 337). In the event of a conflict between the interests of several accused charged in the same case, a corresponding number of Counsels for the Defence are appointed (Code of Criminal Procedure, Article 92). In any case the accused cannot have more than three defending Counsels (Article 84). The accused is, of course, considered innocent until proved guilty. The burden of proof lies entirely with the prosecution. Moreover, it is the duty of the Court to ensure that the case in hand is fully examined. 4. RULES OF EVIDENCE The accused is under no legal obligation to give evidence himself and if he does so he is not on oath (Code of Criminal Procedure, Article 81). If the statements made by the accused during the trial conflict with his statements during the preliminary investigations, or if he refuses to give any evidence or states that he does not remember certain points, the previous statements can be read before the Court (Code of Criminal Procedure, Art. 340 para. 4). If the accused pleads guilty and makes a confession, it is for the Court to decide whether, and if so to what extent, the evidence should be proceeded with (Code of Criminal Procedure, Article 336). Witnesses must, in principle, appear in person before the Court during the main hearing of the case. The reading of statements given before the trial is not as a general rule allowed. Some exceptions to this rule are provided in Article 340 of the Code of Criminal Procedure. However, in so far as trials of war criminals are concerned, the Decree of 1946 lays down in Article 11 the following special rules : 1. Any records taken during the preliminary investigation and any public or private documents may be read at the trial. " Para. 2. Any records taken during the preliminary investigation within or without the country by the Polish authorities or by any allied authorities, or made by any private persons acting on their own initiative, or any other evidence given with a view to establishing the crime or bringing the criminal to justice, may be read at the trial." Witnesses are usually under oath unless the Prosecution and Defence agree that the evidence need not be on oath and the Court considers it unnecessary. The oath is taken before the evidence has been given (Code of Criminal Procedure, Article 108). 5. JUDGMENTS AND APPEALS FOR MERCY The judgments and decisions of the Supreme National Tribunal are final (Decree of 1946, Article 15). The judgment must always be prepared in writing and the Tribunal must give the reasons on which it is based. The sentence can be pronounced only after the judgment and its reasons have been finally drafted, The time limit of three days envisaged in Article 367 of the Code of Criminal Procedure p. 96 for adjournment of the pronouncement of sentences in complicated cases has, as concerns trials of war criminals, been changed to seven days (Decree of 1946, Article 14). Persons sentenced in war crime trials have only the right to appeal for mercy to the President of the National Council. In cases where sentence to death has been passed the President of the Supreme National Tribunal shall transmit the files of the case immediately to the Minister of Justice who, in turn, shall submit them for decision, together with the opinion of the Supreme National Tribunal to the President of the National Council. (Decree 1946, Article 15, para. 2.) The pardon may be complete or partial in the sense that a death sentence may be commuted into imprisonment or a term of the latter diminished. Sentences and decisions of the Tribunal are carried out by the Prosecutor of the District Court upon request of the Prosecutor of the Supreme National Tribunal (Decree. 1946, Article 16). The death sentences can be carried out only after the President has decided that he does not avail himself of his prerogative of pardon (Code of Criminal Procedure, Article 541). Execution of the death sentence is carried out by hanging. In certain circumstances prescribed in the Code of Criminal Procedure the execution of a death sentence must be postponed (grave illness, mental cases, pregnant women, etc.). 6. RESUMPTION OF TRIALS Although the judgments of the Supreme National Tribunal are final in the sense that no appeal is allowed, either of the parties may apply for a resumption of the trial. The Decree of 1946 contains only one provision in regard to this matter, and this is to the effect that on the resumption the Supreme National Tribunal alone may decide (Article 17). Therefore, as to the conditions under which a resumption of the trial may be allowed, the provisions of the Code of Criminal Procedure come into operation. These are the following :
There is no limit for the submission of an application for a resumption ., of the case. p. 97 In view of the exclusive jurisdiction accorded to the Supreme National Tribunal, it is clear that if the leave for a resumption is granted, the same Tribunal will have to institute a new hearing of the case, but by different judges. The Code of Criminal Procedure contains specific provisions as to the circumstances in which, and to what extent, the new sentence can or cannot differ from the previous one (Article 612). B. OTHER COURTS Since the Special Criminal Courts for trial of war criminals have been abolished by the Decree of 17th October, 1946, all war criminals other than those dealt with by the Supreme National Tribunal are tried by the common law District Courts and Military Criminal Courts. As regards war crimes cases, all these courts apply the same substantive law as laid down in the Decree of 31st August, 1944. The persons who come under the jurisdiction of these courts are, in principle, war criminals of Polish nationality who committed crimes on Polish territory. The procedure in these courts is governed by the provisions of the Code of Criminal Procedure with the exceptions provided by special regulations, which are more or less similar in substance to those laid down for the Supreme National Tribunal. The special regulations are the same as those in force for the trial of crimes particularly dangerous in the period of the reconstruction of the Polish State (Decree of 13th June, 1946, and of 17th December, 1946). |