Practice Relating to Rule 101. The Principle of Legality
Poland’s Constitution (1997) states: “Only a person who has committed an act prohibited by a statute in force at the moment of commission thereof, and which is subject to a penalty, shall be held criminally responsible.”
Poland’s Penal Code (1997) states: “Criminal liability shall be incurred only by a person who commits an act prohibited under penalty, by a law in force at the time of its commission.”
In 2004, in its fifth periodic report to the Human Rights Committee, Poland stated:
In the judgement of 26 July 1991 the Supreme Court indicated that standards of a democratic state of law require that the principle nullum crimen sine lege,
arising from article 15 of the [1966 International Covenant on Civil and Political Rights (ICCPR)], should be used in all penal measures (not only in those of criminal law). At present it is one of the constitutional guarantees, according to which “Penal liability shall be incurred only by a person who commits an act prohibited under penalty, by a law in force at the time of its commission”. This principle is likewise contained in article 1 § 1 of the Penal Code. The Constitution specifies that, analogously to article 15.2 of the ICCPR, the above principle does not preclude penalisation for an act which at the time of its commission constituted an offence under international law. It is also guaranteed that war crimes and crimes against humanity are non-prescriptible. A provision to this effect was furthermore contained in the Law on the National Remembrance Institute – Commission for the Prosecution of Crimes Against the Polish Nation
. Prosecution of Communist crimes perpetrated in Poland in the period 1944–1989 on the strength of this law takes place with the observance of the principle lex retro non agit
in the sense that currently prosecuted are only those acts of functionaries of the Communist state which constituted offences under the criminal law in force at the time of their commission.