Summary The study of political crime leads to the conclusion that this is a complex issue which requires definite answers to the following four basic questions: What are the mechanisms which determined that for two hundred years some perpetrators of criminal deeds have been called political criminals? On the ground of what criteria - free from any ideological sympathies and affiliations of either part: those who evaluate and those who are to be evaluated - are we able to select so labelled category of criminals? What are the legal reactions to that feature of criminal? What are the legal and social consequences of it? Last but not least, what functions in social life does the institutionalised in that way practice play and why and how it has been changing through the history? The matter of the inquire - although the study is to contribute to the development of legal sciences and especially of the penal law science - locates the researches in the interdisciplinary field as both the subject and the methods applied are also related to history and sociology. On the level of legal analyses I examine what determined - in changing circumstances and different legal cultures - the political character of crime. So doing I refer my study to the traditional stream of inquiries, in which scholars tried to define the essence of political crime. However, I came to the conclusion that the studies shaped in this way would fall into the scheme searching for a quasi metaphysical essence of political crime detached from the real needs of penal law. To avoid this undesirable consequence I decided to complete dogmatic analyses with the approach refering more to history and sociology. In other words, I put the legal studies into the context of processes of social construction - to use the sociological wording - of what further the penal law science might call the political crime. It assumes the recognition of the mechanisms of social institutionalisation of political crime and a macro-structural stipulations of the birth and historical 257
evolution of that notion and also the discovery of the social structural interests which are served by the phenomenon of political crime. This approach is relatively close to the history of law. However, a historian is interested in the interpretation of facts of a limited period of time. Yet, in order to explain the problems mentioned above it is necessary to reach out for the comparative materials of different periods and different legal cultures. For this purpose the historic-comparative method, which is based on the materials already worked out and rendered accessible by historians is here used to compare the social phenomena of the times remote to each other and of the distant places in social environment. It enables to observe from a broader perspective the processes of continuation and change of the institutionalised patterns of living. It creates the basis for my research work, for analyses of the history of political crime in the Western culture of XIX th and XX t h centuries. The choice of the basic term - politically of crime (political aspect of crime) is of course not accidental. Indeed, a different term could come to mind - the offence of political character - but it would be misfortune as it could be associated with the political offence exception to extradition and especially the wording of this exception in the British Extradition Act. The name 'politicality of crime' has been used so far neither in the science nor in the legal or common language. So it won't be misleading and moreover it will follow the traces of Carl Schmitt, Max Weber, Helmut Plessner, Julien Freund, Jean Francois Kervégan, Franciszek Ryszka and some others who used and use the term politicality {das Politische, le politique, polityczność) in the field of politics, philosophical anthropology, the philosophy of law, sociology to express the essence of the struggle for power. The works of these authors contributed to the construction of the notion of politicality of crime that I undertake in the first chapter, which does not mean however that this notion is a mere sum of notions of crime and politicality. The politicality of crime consists of the following elements: - The conviction of the perpetrator-hero, - Political conflict, - Political hostility, - The criminal act, 258
- Standards of civilisation. The elements were withdrawn from the extant concepts of political crime. The presentation of the difference between the notion of political crime and the crimes against State was very helpful here. The correctness of the selection of the elements was also confirmed by the comparative-historical inquiries. So conceived politicality of crime enables on the one hand to avoid the constructing of its definition on political aspirations and beliefs and on the other hand it binds its meaning and sense with the scientifically established knowledge in the field of penal law, extradition and criminology. In the first chapter I deal also with another issue which is complementary to the notion of politicality of crime and directly related to the social construction of what the theory of penal law takes for a material ground, substance of political crime. To examine these processes I use the category of the myth as a way to the understanding of social construction of reality, to use the words of Berger and Luckmann. The myth - a category which is still alien to the legal researchers and for this reason may be a little irritating when refering to traditional dogmatic methods; nevertheless it has been already well worked out and commonly used in social sciences. In my book it is used to complete the historic-comparative analyses, which are to discover the processes of social institutionalisation of the political perpetrator-hero. To present the myth as a category of political life I refer to the events of the Polish history of XIX th and the beginning of XX t h centuries. I take for the theoretical basis of these analyses the concept of the myth of political hero worked out by Stefan Czarnowski, Florian Znaniecki, Raoul Girardet and Mircea Eliade. In the second chapter I present that criminology pays special attention to the element of politicality of crime which is called here the convictions of perpetrator-hero. It is especially emphasized by scholars of so different streams as C. Lombroso, R. Garofalo, E. Ferri, M. Parmelee, F. Znaniecki, R. K. Merton, E. Lemert, L. Pinatel and above all by G. Radbruch and S. S chafer. Although other elements of the syndrome of politicality of crime were not of such a great concern of criminologists they were more or less taken into account. The concepts of radical criminology of the 70s and partly the stream of the new theory of deviation referred to the elements of political conflict and political hostility. The element called standards of civilisation was 259
reflected in different approaches varying from C. Lombroso, R. Garofalo, E. Ferri, through R. K. Merton, R. Quinney, M. Clinard to L. Falandysz. The review of concepts and theories of criminology proves that this discipline may only play an auxiliary role in the researches concerning the problem of political crime. This result of the analysis is not a surprise in the light of the main assumption of my book that in the analyses of political crime one should not focus on the crime but on the factor that gives it the political tinge - and this question overcomes the field and methodological abilities of that discipline. The third chapter concerns the question of political crime in the domestic law of the State. The modern notion of political crime was shaped in Roman countries, first of all in France, in the period dating from the Great French Revolution to the revolutionary movements of the 30s of the XIX th century and subsequently was adopted by Central Europe. England followed a different way. The domestic law and doctrine of this country have never recognised this term. I present in my book some hypotheses concerning this divergency between continental Europe and the Anglo-Saxon legal tradition. The same elements that have built the syndrome of politicality of crime played essential role in the historical development of the political crime. Europe was trembling in the XIX th century with serious political conflicts emerging from the coexistence of two principles of legitimation of status quo: liberal and traditional and further from the development of radical social and national liberation movements. The participants of political conflicts who very often were saturated with great hostility were also in most cases politically engaged and convinced of the importance and correctness of their social and political ideas and identified themselves with the broader reference group. Some of them committed different offences during these conflicts while others happened to be the victims of politically motivated repression by hostile regimes. We can observe then a very clear tendency to eliminate the arbitrary forms of repression of political opposition from the public life - especially well seen in France - and to acknowledge that the commission of crime is a sine qua non condition of using the coercion against hostile political groups. However, very important changes in the perception of political crime by the public 260
opinion occurred already in the second half of the XIX th century. The notion of political crime referred more and more often to the element called here standards of civilisation. It was related to the end of the era of the struggle of middle class (bourgeoisie) for power and the new phenomena very dangerous to the European political order: the growth of radical workers' movements, especially of anarchist orientation and the strengthening of nationalism, further the emergence of modern communism. The tendency to limit the repression against political adversaries to the situation when they commit crimes (although never completed in reality) led to the efforts to institutionalise the reaction to the politicality of crime by surrounding it to the control of penal law. However, there are many methodological difficulties with the construction of statutory definition of political crime that were very early realised by legislators and scholars. The impossibility of constructing a theoretically and practically convenient definition of political crime is presented in the chapter on the example of dogmatic analyses of the contemporary Polish penal law. This situation determined that quite paradoxically it is said rather about the status of the political prisoner than about the political crime or criminal. Thus the attention slid to the status of political prisoner which led to the institutionalisation of the reaction to the politicality of crime in the penitentiary law and to leaving it to the control of the prison authorities. The story of political crime might seem to come to its end. Nowadays the Western countries try rather to enlarge the scope and intensity of different social agencies which i. a. enables controlling political status quo in a much more lenient way and to prevent the emergence of more drastic events formerly related to the problem of political crime. However, it should not lead to negligence of the problem of the politicality of crime. Regarding the problem from the perspective of human rights and humanitarian law we can see that now the struggle for the protection of dignity, life and freedom of human being takes especially important meaning. In the fourth chapter I examine the issue of politicality of crime from the point of view of extradition law, it means from the perspective of the principle of political offence exception to extradition. This rule was shaped at the same time as the notion of political crime in the domestic law and although 261
independent from it, the development of this rule was determined by similar factors and it played similar political and cultural roles in international law. All elements that have built the syndrome of politicality of crime are well seen in the rationalisations of that rule and in the different concepts of political crime worked out in order to be applied in extradition law. In the past it was hoped that the theory of political crime might be worked out in relation to the aspect of the offence as to the deed (so-called objective approach mostly referring to the object of criminal attempt in defining the political character of crime), or the aspect of the offence as to the doer (so-called subjective approach in which special attention was paid to motives, purposes and incentives of the perpetrator), or to the mixed approach typical for Polish doctrine which tried to combine both aspects mentioned above. However, they occurred to be too narrow to fit the needs of practice of extradition. This conclusion is drawn from the study of judicial cases and from the analyses of the evolution of modern doctrine in that respect. Nowadays, the element of politicality of crime called here standards of civilisation is rather put in relief. This conclusion corresponds with the results of the formerly presented dogmatic analyses of domestic law. Once again the endeavour of constructing the notion of political crime in relation to the aspect of the offence as to the deed and the aspect of the offence as to the doer failed. It inclines some authors to question the appropriateness of maintaining the political offence exception in extradition law and to propose to substitute it with the political asylum and discrimination clause which can, according to them protect well enough victims of despotic regimes. However, taking into account tensions in international relations and the still existing political and ideological conflicts between States, it does not seem that the reasons for which political offence exception was invented lost its value for extradition law. The abolition of this rule - notwithstanding the pronounced reasons given to it - would not serve the humanitarian purposes but would be related to the structural interests of stronger States for which this rule loses its instrumental value as a useful tool of international co-operation in criminal justice matters. Yet, the very fact of putting in relief in extradition law the standards of civilisation is the expression of the needs and ethical principles of modern world. This is why the English test of the politicality of crime - so-called inci- 262
dence theory and the Swiss test - so-called domination theory give the best chances to make in the extradition proceedings the right and lawful decision. These concepts encompass all elements which I use to construct the syndrome of politicality of crime. It can be said that also here the appropriateness of the term politicality of crime was positively verified. The fifth chapter deals with the most drastic political behaviours, which ostentatiously break all the rules of human decency and are commonly condemned. Namely, it concerns terrorism which violates brutally the standards of civilisation but nevertheless it is still a political phenomenon shaping the 'extremum' of politics. For this reason terroristic activities may very often fall into the sphere covered by the semantic field of politicality of crime. The study of genesis and the notion of terrorism leads to the conclusion that this phenomenon should not be so much examined from the perspective of the ideals of proper political conduct but rather in relation to a concrete political and legal system which set real limits to the use in political affairs of the fear, violence, hypocrisy and lies. Moreover, it is necessary because the unmeasurableness of the norms of an ideal of political life favours the obliteration of the differences between the liberation movements and terroristic groups, politician and bandit. For this reason it's better to examine the terrorism taking into account what structural interests and functions it serves and in relation to the whole cultural context; in other words to examine it not merely (as it is often done) from the perspective of global ethics the competencies of which are limited to the expression of moral judgements and condemnations. After all they do suffice neither to explain this phenomenon nor to its prevention including working out the legal basis for the counteraction against terroristic attempts. The development of the terrorism of modern times, it means the waging of political affairs in the way which is in our times impossible to accept, contributed to the re-evaluation of the attitude of Western public opinion to radical political activities that break the penal law. The politicality of crime is more and more related to the acts that threaten the principles of international order and so the peaceful life of peoples and peaceful international cooperation. Thus the international law and domestic laws of many western countries provide special provisions concerning terrorism. The analyses of these provisions contributed to putting forward and justifying the above mentioned conclusions. 263
International community, governments and especially nongovernmental organisations try to help the victims of politically of crime, they make efforts to appease and prevent results of tragedies caused by political chaos, struggle for power and crimes by governments. The results of these efforts are: the legal status of refugees, political asylum, discrimination clause, activities of many international humanitarian organisations, especially of the honourable Red Cross. Moreover, the efforts to establish the international permanent court with jurisdiction for natural persons accused of committing crimes against humanity have been repeated in vain so far.. The inquiry of the politicality of crime from the perspective of its victims reveals one of the most important problems related to it, namely the question of the limits to the power of punishment, the problem of this moment of organised social life, when the penal law ceases to act (for instance the civil war) or becomes the crime by itself although adorned by the legal form (for instance the capital punishment for the freedom of expression). I hope that my researches enable to study the problem of political crime in all its complexity, and that the achieved results justify the postulate of introduction to the terminology of penal law science the notion of politicality of crime. That approach to the problem of political crime may well serve both the gathering and systemizing of the acquirements of the doctrine in that respect and binding closer the penal law studies with the criminology and the theory and case law of extradition. Moreover, it may serve as a bridge between the penal law science and social sciences. Indeed, the construction of the syndrome of the politicality of crime grows up from the interdisciplinary researches in the field of penal law, extradition law, history, criminology, sociology and human rights. Only studies shaped so wide show the real dimension of what is called political crime in continental European doctrine of penal law and in extradition. The political crime occurs to be only a small part of a broader and especially delicate question of the infiltration of politics into the field of penal law. Syndrome of politicality of crime may serve as a point of departure to the studies of this highly undesirable but real process. The interference of politics with the rules of law in the way which threatens the basic human rights is unfortunately more and more painfully experienced by international law. 264
Independent from the explorative value of the syndrome of politically of crime, it might serve also the benefit of criminal justice system. Truly, no one frees judges from the duty of adjudgment of the cases which are strongly coloured with politics. The politicality of crime may not only make accessible the knowledge about the relationships between struggle for power and penal law, but also enables to use it in the process of making judicial decisions. 265