The Jeffrey Epstein files have electrified media worldwide. Surprise? But about what? That depraved elites, feeling impunity thanks to connections and enormous wealth, between spouting platitudes about caring for humanity’s well-being, flew on private jets to the island of a fellow multimillionaire already convicted of pedophilia? Not for me.
Interestingly, this scandal plays out in the puritanical and devout United States, and its essence is not the use of sexual services for money, but the conscious exploitation of those weaker than oneself with a sense of impunity and acceptance in one’s „society” (multimillionaires, aristocracy, celebrities, politicians). Where exploiting those weaker than oneself is apparently the norm. This is always the case in legal systems that, due to the prevailing moral order, avoid confronting socially difficult topics, pushing them into the taboo zone. And such a difficult issue is people’s sexual freedom. Then hypocrisy, double moral standards, and evasion rule. This creates ideal conditions for the privileged to exploit the weaker with impunity, with very slow reaction from the justice system.
But let us return to domestic matters. Polish names were also found in these files, and the head of government announced the establishment of a team in the Prosecutor’s Office to examine whether any of these persons should bear responsibility for their actions under Polish criminal law. Even if these acts took place abroad.
This raises a fundamental question: can a Polish citizen be held criminally liable for prohibited acts defined in Art. 204 of the Criminal Code (so-called prostitution exploitation offenses) committed abroad? And if so, on what terms?
The answer is yes, criminal liability for such prohibited acts committed abroad is possible, but the legal basis and specific circumstances are not so simple and clear. To provide an understandable answer, we must first explain certain basic principles of criminal law regarding the territorial scope of criminal provisions. Especially in cross-border cases.
The principle of territoriality of criminal law
One of the foundations of Polish criminal law and the criminal law systems of other sovereign states is the principle of territoriality. It is defined in Article 5 of the Criminal Code and reads: „Polish criminal law shall apply to the perpetrator who committed a prohibited act on the territory of the Republic of Poland (…).” It is a logical consequence of one of the basic principles of international law, i.e., the principle of respect for state sovereignty. Criminal law is a manifestation of social order in a given area. Its violation involves encroaching on the most important human right: freedom. It is therefore understandable that law created and applicable on the territory of a given state should apply only to members of that state and to persons present on its territory.
There are several exceptions to this fundamental principle. I will describe only two of them here, the most important ones. It should be noted that each of these exceptions, especially the second one, should be interpreted narrowly and precisely. The point is that criminal law provisions also have a guarantee function. Their violation may trigger interference by the justice system with such fundamental rights as freedom or property, so they should be clear and understandable to the addressees of these provisions. In other words, a person who, after familiarizing themselves with a given provision, directs their behavior so as not to violate its content, cannot then be surprised by some different interpretation. The guarantee function means that a criminal law norm not only specifies what is prohibited, but protects against arbitrary, unjustified state interference with fundamental human rights. The interpretation of criminal law should therefore always be as narrow and precise as possible.
The principle of double criminality – Exception #1
One of the basic exceptions to the principle of territoriality of criminal law is the principle of double criminality, defined in Art. 109 and Art. 111 of the Criminal Code. In simplified terms, it reads as follows:
Polish criminal law shall apply to a Polish citizen who committed a crime abroad. However, the condition for liability for an act committed abroad is that such act is also recognized as a crime by the law in force at the place of its commission.
The ratio legis (justification) of the principle of double criminality is based on the fact that a Polish citizen is obliged to comply with the domestic legal order even when abroad. However, the principle of double criminality has an important limitation: the condition for liability for an act committed abroad is that it is also recognized as a crime at the place of commission. This is also a kind of guarantee mechanism. A Polish citizen abroad should primarily – in connection with the principle of territoriality of criminal law, also applicable in the state where they are staying – orient themselves to the legal order of that country. Therefore, in case of differences between individual systems regarding criminal law norms, priority is given to foreign law. The country on whose territory the Polish citizen is staying.
In this specific case, to apply the principle of double criminality, it will be necessary to establish on the territory of which state the prohibited acts were committed by Polish citizens named in the Epstein files and to determine the criminal law norms in force on the territory of that state.
The principle of universal repression, i.e., Art. 113 of the Criminal Code – Exception #2
The second exception to the principle of territoriality of criminal law is the principle of universal repression defined in Art. 113 of the Criminal Code. This provision reads as follows:
Art. 113. [Prosecution of a crime under international agreements]
Regardless of the provisions in force at the place of commission of the crime, Polish criminal law shall apply to a Polish citizen and a foreigner who has not been ordered to be extradited, in the event of committing abroad a crime which the Republic of Poland is obliged to prosecute under an international agreement, or a crime defined in the Rome Statute of the International Criminal Court, drawn up in Rome on July 17, 1998.
The content of this article of the Criminal Code implements the principle of international law stating that the entire international community should be interested in combating the most dangerous and serious crimes. In particular, those that harm its common interests, and the effective prosecution of their perpetrators requires solidarity cooperation between states.
On this foundation, the international community, through the conclusion of various international agreements (conventions, agreements, treaties), defined certain acts and events as crimes of international significance and introduced there authorizations to exercise universal criminal jurisdiction, designed to ensure that perpetrators of such crimes do not escape responsibility. Regardless of differences in the legal systems of individual countries.
The above legal solutions in the international field are the result of the consolidation of the view that the punishment of the most serious crimes against humanity (so-called delicta iuris gentium), also called in criminal practice convention crimes, cannot be considered as remaining within the internal affairs of the state on whose territory they were committed. Because due to obvious legal differences between individual states, perpetrators could avoid criminal liability, e.g., by taking shelter on the territory of countries that do not provide for the criminality of a given act, do not provide for extradition, or whose legal system is simply inefficient.
In theory, this sounds reasonable, but let us see how it looks in practice.
Prerequisites for applying the principle of universal repression under Art. 113 of the Criminal Code
The principle of universal repression applies to both Polish citizens and foreigners. In principle, it therefore applies to everyone. However, the key prerequisite for applying this far-reaching basis for criminal liability reads as follows:
„(…) in the event of committing abroad a crime which the Republic of Poland is obliged to prosecute under an international agreement (…)”
And here we encounter the first problem. To activate the principle of universal repression, Poland must be a party to an international convention that explicitly requires the prosecution of the specific crime in question. This is where the legal analysis becomes particularly complex and requires careful examination of applicable international instruments.
Paweł Osiński
Attorney, practicing in criminal cases involving economic crime, money laundering, and new technologies (crypto assets)
Contact us:
E-mail: pawel@osinski-legal.com
Tel. +48 698 765 048