A Few Notes on Arousing a Well-Founded Fear as an Element of the Offence of Criminal Threat

Abstract

The paper is of a scientific and research nature. The aim is to analyse and assess the reasonableness of the changes made to Article 190 § 1 of the Polish Criminal Code, which were introduced by the Act of 7 July 2022 amending the Criminal Code and certain other acts. It consisted in raising the upper limit of penalty range (from two to three years of imprisonment) and replacing the phrase “to the detriment of the closest person” with the phrase “to the detriment of the person closest to that person”. The most important in the context of the study was the introduction of the phrase “if the threat gives rise to a justified fear in the person to whom it is addressed or to whom it relates, that the threat will be fulfilled”, instead of “if the threat gives rise to a well-founded fear in the person being threatened, that the threat will be fulfilled”. For a proper understanding of the ratio legis, the analysis of the changes was preceded by remarks of a historical nature and pointing to doubts regarding the interpretation of the elements “threatened” and “gives rise to a justified fear in the person”. Reference was also made to the procedure for prosecuting the offence of criminal threat (Article 12 § 4 of the Criminal Procedure Code), modified by the amendment of 7 July 2022. The basic research method used in the paper is formal-dogmatic analysis. The practice of applying the law is also taken into account using the analysis of judicial decisions.