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Mitigating, Aggravating, and Exempting Circumstances in Criminal Law: Differences between Spain and Poland

Criminal law is governed by a series of principles that determine the defendant’s responsibility and the penalty imposed. Both in Spain and Poland, mitigating, aggravating, and exempting circumstances play a crucial role in the judicial process, as they can reduce, increase, or even eliminate criminal liability depending on the situation.

At our law firm specializing in criminal law for Spanish and Polish clients, we offer comprehensive and tailored legal advice in both countries, guiding our clients throughout the entire criminal process and ensuring that their rights are protected.

What are Mitigating Circumstances in Criminal Law?

Mitigating circumstances allow for a reduced sentence if certain conditions are met. In Spain, the Penal Code provides that the penalty can be reduced if the defendant confesses to the crime, compensates the victim before the trial, or if the offense was committed under the influence of addiction to drugs or alcohol. Another common mitigating factor is when the crime is committed under the impact of strong emotions, such as rage or obsession.

In Poland, there are also various mitigating circumstances. The Polish Penal Code recognizes the defendant’s cooperation with authorities or voluntary confession as mitigating factors. Additionally, personal and family circumstances, such as social pressure or the defendant’s psychological problems, can influence a sentence reduction. If the defendant compensates the victim or repairs the damage before the trial, this can also lead to a lighter sentence.

What are Aggravating Circumstances in Criminal Law?

On the other hand, aggravating circumstances increase the severity of the penalty if the crime was committed under conditions that make the act more blameworthy. In Spain, some common aggravating factors include recidivism (committing the same crime more than once), abuse of superiority (when the defendant has an advantage over the victim), or committing the crime with cruelty or premeditation. Crimes motivated by racial, ethnic, religious, or gender discrimination are also considered more serious.

In Poland, recidivism is also a key aggravating factor. Furthermore, crimes committed with particular cruelty, those affecting vulnerable individuals such as children or the elderly, or crimes committed by someone in a position of authority can significantly increase the severity of the penalty. The Polish Penal Code also includes aggravating circumstances for crimes committed in a state of intoxication, especially if the intoxication was induced voluntarily by the defendant.

What are Exempting Circumstances in Criminal Law?

Finally, exempting circumstances can relieve a person of criminal liability if certain conditions are met. In Spain, one of the most important exemptions is insanity, which applies when the defendant suffers from severe mental illness that prevents them from understanding the illegality of their actions. Self-defense is also an exempting circumstance when the defendant acts to protect themselves or others from immediate harm, provided that the response is proportional.

In Poland, the legal system also recognizes insanity as an exempting circumstance, as well as self-defense. Additionally, if the crime was committed under irresistible duress or in a situation of force majeure, such as a natural disaster or imminent danger that forced the defendant to act, they may be exempt from criminal liability.

Both in Spain and Poland, mitigating, aggravating, and exempting circumstances are essential in determining criminal liability and the penalty imposed. Understanding the differences and similarities between the legal systems of these two countries is crucial for those facing criminal proceedings in either country.

Our law firm specializing in Spanish and Polish criminal law has extensive experience in handling cross-border cases, and we are prepared to offer personalized legal assistance to clients who need to defend their rights in either of these countries. If you need legal advice in a criminal case, contact us for expert and professional assistance.

Varés & Asociados. For communication, efficiency and price, your reliable lawyers between Poland and Spain.

In recent years, both Spain and Poland have experienced a series of institutional challenges that have affected the functioning of their respective democracies and legal systems. In both cases, government actions have called into question fundamental principles such as judicial independence, freedom of the press and the separation of powers. However, the ways in which these attacks have manifested themselves and the responses they have elicited both domestically and internationally vary significantly between the two countries. This comparative analysis seeks to expose these differences and similarities, focusing on the legal implications for citizens and businesses in both countries.

Judicial independence: a matter of state

The independence of the judiciary is one of the fundamental pillars of any democratic state. In both Spain and Poland, this principle has been the subject of controversy in recent years, albeit for different reasons and circumstances.
In Poland, the government's judicial reforms have provoked a wave of international criticism. Among the most controversial is the creation of a disciplinary chamber within the Supreme Court, the purpose of which is to sanction judges whose decisions do not align with the government's expectations. This has been seen as an attempt to control the judiciary, eroding its independence and undermining the democratic principles that should govern the rule of law.

The European Union has intervened on several occasions, issuing resolutions urging Poland to reverse these reforms, which it considers to be in violation of fundamental EU values. In addition, the European Court of Justice has issued several rulings condemning these reforms, and economic sanctions have been imposed on Poland for its refusal to comply with these rulings.
In contrast, Spain has experienced problems related to the renewal of its General Council of the Judiciary (CGPJ). This body is responsible for ensuring the proper functioning of the judicial system and its independence from the executive and legislative branches. However, the inability of the main political parties to reach an agreement on the renewal of its members has led to a deadlock that has lasted several years. This lack of consensus has generated uncertainty in the judiciary and has been the subject of criticism from both inside and outside Spain. Although the problem in Spain has not reached the gravity of the Polish situation, it highlights the importance of keeping politics out of judicial appointments to avoid compromising the independence of the judiciary.

Press freedom: another contested front

Freedom of the press is another fundamental right that has come under attack in both countries, albeit in different ways.
In Poland, government control over public media has been increasing in recent years. Critical voices have been silenced, and public media have been used as tools of government propaganda. This has generated growing concern both domestically and internationally. Organisations such as Reporters Without Borders and the Committee to Protect Journalists have denounced the growing censorship and lack of media pluralism. These attacks on press freedom have caused Poland to fall several places in the world press freedom rankings.

In Spain, the situation is different, although not without problems. Over the last few years, political polarisation has led to cross-accusations about the influence of the major parties on the media. Although Spain is still considered a democracy with high levels of press freedom, debates about the independence of certain media and the use of the press to influence public opinion have raised concerns. The recent proliferation of digital media and social networks has added a new challenge to freedom of information, with the spread of fake news and manipulation of information.

European Union: an arbiter in the defence of the rule of law

Both Spain and Poland, as members of the European Union, are subject to the principles of the rule of law that govern the Union. However, Poland has been one of the countries that has most tested the EU's mechanisms for upholding these principles.
In the Polish case, tensions between the government and EU institutions have been constant since the judicial reforms began. The European Commission has invoked Article 7 of the Treaty on European Union, which provides for the possibility of sanctions in case of serious violations of EU values. In addition, the Court of Justice of the European Union has intervened on multiple occasions, issuing rulings obliging Poland to reverse judicial reforms that compromise the independence of the judiciary. Poland has faced significant economic sanctions for its refusal to comply with the Court's rulings, exacerbating tensions between Warsaw and Brussels.

In Spain, relations with the EU have been smoother. Despite domestic challenges, Spain has maintained a firm commitment to EU principles. Nevertheless, the EU remains a relevant actor in Spanish domestic politics, especially with regard to the protection of fundamental rights and the monitoring of democratic processes. The European Union acts as a guarantor of democratic values, reminding Member States of the importance of maintaining a legal framework that respects the rights of all citizens.
Implications for Polish and Spanish clients

For Polish clients seeking legal services in Spain, it is important to take into account the political and legal context affecting the institutions of both countries. Challenges to judicial independence and institutional tensions can have direct repercussions on cases brought before the courts, especially in matters involving fundamental rights or disputes with government entities. It is therefore essential to have a team of lawyers specialised in both the Spanish legal system and European regulations who can intervene in these types of matters.

Similarly, for Spanish clients who need to resolve legal issues in Poland, it is essential to understand the internal dynamics of the Polish legal system and the tensions that exist with the European Union. The political situation in Poland may influence the resolution of cases, especially those involving foreign companies or related to human rights or fundamental freedoms. Having a law firm that understands these complexities and offers advice tailored to the Polish legal framework is vital to ensure the best outcome in any litigation or proceedings.

Spain and Poland share significant challenges in terms of preserving the independence of their institutions and upholding democratic principles. Although the problems have manifested themselves in different ways in each country, the implications for the rule of law are clear. For Polish clients seeking legal advice in Spain, and Spanish clients with legal interests in Poland, it is crucial to have a law firm that understands these contexts and offers legal solutions adapted to each case.

Varés & Asociados, for communication, efficiency and price, your reliable lawyers between Spain and Poland.

Over the last few decades, the number of marriages between Polish and foreign citizens has increased significantly. For those who have taken this step, it may be interesting to know that there is a possibility to acquire Polish citizenship by marriage.

The conditions for acquiring Polish citizenship are laid down in the Act of 2 April 2009 on Polish citizenship - hereinafter referred to as LCP. Marriage of a Polish citizen to a person who is not a Polish citizen does not cause any automatic change in the citizenship of the spouses (Article 5 of the LCP.). Therefore, the acquisition of such citizenship implies certain actions to be performed by the foreigner:

• It is a prerequisite that the foreigner has continuously resided in the territory of the Republic of Poland for at least 2 years on the basis of a permanent residence permit, a residence permit for long-term resident of the European Union (EU) or the right of permanent residence and has been married to a Polish citizen for at least 3 years (Article 30(1)(2)(a) of the Act). When determining whether a foreigner continuously resides in the territory of the Republic of Poland, the provisions of Article 195(4) of the Aliens Act of 12 December 2013 apply. Thus, the stay of an alien in the territory of the Republic of Poland which constitutes the basis for granting him a permanent residence permit shall be deemed to be uninterrupted if none of the interruptions thereof was longer than 6 months and all interruptions did not exceed a total of 10 months in the periods constituting the basis for granting him a permanent residence permit, unless the interruption was caused by: 1) the performance of professional duties by the alien or the provision of work by the alien outside the territory of the Republic of Poland on the basis of a contract concluded with an employer whose registered office is situated in the territory of the Republic of Poland, or 2) accompaniment of the alien referred to in point 1 by his/her spouse or a minor child, or 3) a specific personal situation which requires the presence of the alien outside the territory of the Republic of Poland and does not last longer than 6 months, or 4) travelling outside the territory of the Republic of Poland in order to participate in a traineeship or a course planned within the framework of studies at a Polish institution of higher education.
• In addition, a foreigner applying for recognition as a Polish citizen is obliged to have knowledge of the Polish language confirmed by an official certificate issued in accordance with Article 11a of the Act of 7 October 1999 on the Polish language at the proficiency level of at least B1, a certificate of graduation from a school in the Republic of Poland or a certificate of graduation from a school abroad with the Polish language as the language of instruction.

A foreigner is refused recognition of Polish citizenship if he/she does not meet the requirements set out in Article 30 of the LCP or if his/her acquisition of Polish citizenship poses a threat to the defence or security of the state or the protection of public safety and order.

Pursuant to Article 32(1) of the Act, a foreigner shall be recognised as a Polish citizen upon application.
The application for recognition as a Polish citizen includes:

• the foreigner's details
• address of residence
• data on the foreigner's sources of income in the Republic of Poland, the premises he/she occupies, his/her professional achievements, political and social activities;
• details of the foreigner's spouse
• information on whether the foreigner has applied for Polish citizenship in the past and whether he/she has Polish citizenship;
• justification.

The application must be accompanied by

• documents confirming the data and information contained in the application under points 1, 3 and 4 above;
• documents confirming the data and information contained in the application under point 5 above;
• official certificate of knowledge of the Polish language at the required level, certificate of completion of studies in the Republic of Poland or certificate of completion of studies at a school abroad with Polish as the language of instruction, if applicable;
• photographs of the persons concerned by the application.

Therefore, the application for recognition of a foreigner as a Polish citizen must be accompanied by, among other things, the original document issued by the Civil Registry Office confirming the civil status (a copy of the marriage certificate), an officially certified photocopy of a document confirming identity, e.g. a foreign identity card, a passport or a travel document. Foreign identity card, passport or travel document, photocopy of a document on the basis of which the foreigner is in Poland (permanent or temporary residence permit or long-term EU resident's residence permit) and documents confirming the foreigner's source of income (certificate of business activity, employment contract, mandate contract, etc.).

The application for recognition as a Polish citizen shall be submitted on the form, the model of which is set out in the Annex to the Regulation of the Minister of the Interior (MSW) of 3 August 2012 on the model of the application form for recognition as a Polish citizen and the photograph to be attached to the application.

The application must be accompanied by a recent, undamaged colour photograph of the person to whom the application relates, measuring 4,5 cm × 3,5 cm, taken within the last 6 months. The more detailed parameters of this photograph are set out in Article 3 of the Regulation of the Ministry of the Interior of 3 August 2012.

The application for recognition as a Polish citizen shall be submitted to a voivode.

If the application for recognition of a foreigner as a Polish citizen has been submitted while the procedure for granting Polish citizenship in respect of that foreigner is pending - the procedure for recognition as a Polish citizen shall be discontinued. If the procedure for the restitution of Polish citizenship is conducted with respect to that foreigner - the procedure for recognition as a Polish citizen is suspended until the procedure for the restitution of Polish citizenship is completed.

According to the wording of Article 36 para. 1 of the LCP, the competent body to issue a decision on the recognition of an alien as a Polish citizen is a Provincial Governor competent for the place of residence of the person who is the subject of the procedure. Before issuing the aforementioned decision, a voivode requests the Commander of the Voivodeship Police, the Director of the branch of the Internal Security Agency and, if necessary, other authorities to provide information as to whether the acquisition of Polish citizenship by the foreigner does not pose a threat to the defence or security of the state or the protection of public safety and order.

Varés & Asociados. For communication, efficiency and price, your reliable lawyers in Poland.