1. Introduction
The use of UAVs, like any human activity, involves risks. These can range from very trivial matters to violations of goods of particular value. The legal system reacts differently to different threats and violations of goods protected by them. Sometimes, a sufficient response to a violation of the law is tort liability under civil law or disciplinary liability under administrative law. Sometimes, however, the norms of civil and administrative law are insufficient and stronger measures are necessary.
Criminal law is the strongest legal means of state influence on society and should therefore be applied with great care and caution. Criminal sanctions strike at core values such as freedom and the right to dispose of one’s property. The application of criminal law in a democratic state governed by the rule of law requires mechanisms to objectively and precisely determine the extent of responsibility for the commission of a criminal act. It is therefore necessary to outline what criminal sanctions drone users may face for violating the law.
The first part of the article is devoted to the general principles for determining criminal liability. The second part contains a discussion of the types of offences from the Aviation Law and the Penal Code. The offences selected for analysis, may be particularly relevant from the point of view of those using unmanned aerial vehicles.
2. general principles for determining criminal liability
Determining the criminal liability of drone users for violations of the law, requires at least a point-by-point explanation of the most important institutions of criminal law. The principles underlying the correct understanding of the detailed criminal provisions derive from the general part of the Penal Code, namely Articles 1 – 31 of the Penal Code.
Structure of the crime
In order to establish the scope of criminal liability, it is necessary to determine to whom this liability applies. The Polish legislator in the provisions of the Criminal Code is guided by the principle of individual liability of the perpetrator. This principle limits liability for a criminal act (i.e. an offence) to the person who caused it. An act is considered to be an externalised, conscious behaviour of a human being, which may consist of an act or omission. It is necessary to establish the commission of an offence that the act is characterised by:
- unlawfulness – contrary to the legal order,
- punishability – a person’s behaviour must correspond to a specific type of criminal act as described in the criminal legislation,
- the social danger – the behaviour must adversely affect society to more than a negligible degree,
- fault – fault is an accusation towards the perpetrator that, at the time of the act, he or she could have acted in accordance with an order of the law and yet failed to comply with it.
Objective attribution of effect
For offences in which the commission of the act depends on the occurrence of an effect – a consequence in the external world caused by the offender’s conduct – it is necessary to objectively attribute the occurrence of that effect to the offender. This consists in demonstrating that the effect against which the legal standard was intended to protect occurred as a result of the offender’s act and not through some other circumstance or in a way that was objectively impossible to foresee.
Subject side
Determination of the subjective side involves demonstrating the perpetrator’s mental attitude towards the act at the time it was committed. The attitude of the perpetrator towards his/her behaviour is particularly important due to the fact that crimes – always felonies, and misdemeanours when the law does not indicate otherwise – can only be committed intentionally. However with offences, which, by definition, can be committed both intentionally and unintentionally, insofar as the law does not provide for intentionality. According to the provisions of the Penal Code, a criminal offence is an act punishable by imprisonment for a term of not less than three years or a more severe penalty, while a misdemeanour is an act punishable by a fine of more than 30 daily rates, a restriction of liberty or imprisonment of more than one month.
Intentionality consists in the fact that the perpetrator wants or agrees to commit the act that is prohibited. It is worth stating here what is meant by the concept of ‘condoning’, as it is a typically legal construct and can therefore be misunderstood. Agreeing is characterised by the perpetrator’s awareness of a high probability that he will commit an offence with his behaviour, but does nothing to prevent it.
Unintentionality, which consists of failing to take the care required in a given situation, is divided into conscious and unconscious. Conscious inadvertence is when the perpetrator was aware of the possibility of committing an offence, but described it as very low. Unconscious inadvertence is when the perpetrator was not aware of the consequences of his actions, when objectively he could and should have foreseen the danger.
It is also necessary to consider the situation where the perpetrator was not aware and objectively could not have foreseen that he was violating the precautionary rules. In the stated case, the subjective side of the offender cannot be attributed to him, resulting in the absence of criminal liability.
Forms of offence
It is also worth mentioning the various forms of committing an offence. Not only the commission of a criminal act is punishable. A distinction is made between preparation and attempt as specific forms of committing an offence. Preparation is only punishable where a law so provides. Attempts, on the other hand, are in principle punishable.
An attempt is defined as a direct aim to perform an act, which, however, does not take place. Criminal law scholars indicate that an attempt occurs at the moment of the last moment before the act is performed. The criminal behaviour is therefore not to be sought directly in what the offender wanted to do. It is not possible to punish for an act that has not materialised, such behaviour would be contrary to the principles of law. The basis for the criminalisation of attempt should be sought in the intention of the offender, the punishment is a reaction to the externalisation of the intention to do “something wrong”, which, after all, has almost been realised. This view of attempt makes it necessary to accuse the perpetrator of intentionality. It is worth mentioning that a person who voluntarily abandoned or prevented an effect that constituted the hallmark of a criminal act (so-called active repentance) is not subject to punishment.
Other types of forms of perpetration should be seen in the different ways in which the criminal act can be carried out. Attention should be paid to situations in which more than one person takes part in the offence. A fairly obvious form is co-perpetration, i.e. the realisation of a criminal act in agreement with another person or group of persons. There are other possibilities as well, as there is also referral and directing perpetration.
Referral perpetration is based on the referrer taking advantage of another person’s dependence on him or her and giving him or her a command, the execution of which leads to the commission of a criminal act. The form of directing perpetration, on the other hand, is characterised by the directing perpetrator directing the acts of the executor. The direct perpetrator is, as it were, a tool in the hands of the directing perpetrator, who is precisely in control of the situation.
The last group of forms of offence are incitement and assistance. These forms must be considered as separate types of offences, because they constitute a criminal act in themselves. However, encouraging and helping have a complex structure, the nature of these acts is supplemented by specific provisions, and a specific offence is always encouraged and aided.
Incitement is characterised by inducing another person to commit an offence. It is necessary to demonstrate direct intent; the perpetrator must want to induce in the potential perpetrator a desire to behave in a way that will cause the criminal act. The consciousness of the person committing the criminal act is irrelevant. It should also be emphasised that it is not possible to condone incitement, or to incite unintentionally.
Assistance is the objective facilitation of the perpetrator to commit a crime, possibly also in the form of psychological assistance (e.g. mental support). For assistance, intention is necessary, it does not matter what kind – so one can want as well as consent to assistance; one cannot aid the offender unintentionally, as unintentionality is characterised by the absence of intention.
Justification
A justification situation consists of the exclusion of responsibility for a criminal act due to circumstances that justify the offender’s behaviour. There are a number of different counter-narratives, particularly important ones include:
- State of necessity – an action intended to avert an imminent danger threatening any good protected by the law. A state of superior necessity is subsidiary, which means that it only occurs when the danger cannot be averted by any other means than by committing a criminal act. It must also be remembered that the good being sacrificed should have a lower value than the good being saved.
- Necessary defence – a situation in which a criminal act has been committed to repel a direct and unlawful attack on any good protected by law.
- Novelty risk – an action to carry out a cognitive, medical, technical or economic experiment if the expected benefit is significant. The advisability and method of conducting the experiment, taking into account current scientific knowledge, should also be indicated as a necessary premise.
3. selected types of offences
Special provisions, contain types of criminal acts. They thus provide the basis for the enforcement of criminal liability. While the preceding paragraphs outlined the general principles of liability, the special part of the Penal Code (and some substantive laws, e.g. Aviation Law) clarifies liability by indicating specific conduct and the penalties for it.
Crimes against traffic safety
Chapter XXI of the Penal Code, contains a set of types of criminal acts that describe behaviour detrimental to communication security. Drones, when moving in air traffic, are part of the communication system. Pilots of drones who commit safety violations while flying certainly face the sanctions provided for in this chapter of the Penal Code.
Disaster
The provision of Article 173 § 1 of the Criminal Code states: “Whoever brings about a catastrophe in land, water or air traffic endangering the life or health of many persons or large-scale property shall be subject to a penalty of deprivation of liberty for a term of one to ten years”.
Such an approach to punishable conduct results in a wide range of possible situations meeting the characteristics of this criminal act. A catastrophe is to be understood as a traffic incident with specific, widespread and acute consequences for the life or health of a large number of persons or large-scale property. This danger must result from a breach of the rules of conduct. The case law assumes that “many persons” is at least 10 (sometimes 6 is indicated), but this refers to potential and not actual victims of the catastrophe. Large-scale property refers to the property that is at risk, not to the real losses caused by the disaster. The person bringing the disaster does not have to be involved in traffic. Clearly, therefore, a drone pilot, by controlling an unmanned craft, can cause a disaster in land or sea traffic, e.g. by uncontrollably directing a drone into a busy intersection.
The punishment envisaged for intentionally causing a catastrophe ranges from 1 to 10 years’ imprisonment. Liability for the act in question, caused unintentionally, is regulated by § 2 in Article 173 of the Penal Code and provides for a penalty of 3 months to 5 years’ imprisonment. However, if the imported catastrophe results in death or serious damage to human health, the stipulated penalty is between 2 and 12 years’ imprisonment.
Article 174 of the Criminal Code criminalises the bringing of a danger of a catastrophic transport accident. The danger must be direct and real, it cannot be abstract. The Supreme Court notes that it is a question of creating a situation in which, irrespective of a person’s further behaviour, the danger may turn into a catastrophe. The stipulated penalty for intentionally bringing about the danger of a catastrophe is from 6 months to 8 years’ imprisonment. Unintentional realisation of the elements of the act in question is punishable by imprisonment of between one month and three years.
Accident
The pilot of an unmanned aircraft may, by violating safety rules, commit an accident in communication, which, like bringing about a catastrophe, concerns all three means of movement. The provision of Article 177 of the Criminal Code provides for liability for causing an accident in which another person is injured. It is necessary that the perpetrator violates the rules of safety in traffic, so an accident can only be caused unintentionally.
Paragraph 1 of the above-mentioned provision of Article 177 of the Penal Code provides for liability for causing such bodily injury, the effects of which are reversible, but the disorder of health lasts longer than 7 days. The stipulated penalty in such a case is from one month to three years’ imprisonment. The provision of Article 177, Paragraph 2 of the Penal Code provides for the punishment of an accident resulting in the death of a human being or causing permanent and serious bodily injury – a punishment of 6 months to 8 years imprisonment is possible.
Driving “under the influence”
The provision of Article 178a of the Penal Code refers to driving while intoxicated or under the influence of an intoxicant. Commonly associated with road traffic, the provision also applies to the control of unmanned aerial vehicles. A person in a state of intoxication is one whose alcohol content in the exhaled air exceeds 0.5 per mille. Intoxicants are to be understood as any stimulant affecting the central nervous system and included in the list of prohibited substances by law. A motor vehicle is any vehicle moving by means of its own engine. Driving is any activity that determines the movement, speed and direction of the vehicle being driven.
The stipulated criminal sanction for driving while intoxicated or under the influence of an intoxicant is a fine, restriction of liberty or imprisonment from one month to two years.
Offences under the Aviation Law
The provisions introducing the types of criminal acts are mostly contained in the Criminal Code. However, some of them – particularly specialised ones and those concerning specific areas of human activity – are found in laws regulating a specific branch of law. This is the case of aviation law, the regulation of which also covers unmanned aircraft. Chapter XII of the Aviation Law contains criminal provisions, both offences and offences relating to civil aviation.
Lack of required characters and subtitles
Article 210(1) para. 2 of the Aviation Law regulates: “Whoever performs a flight in an aircraft without the required signs and inscriptions shall be liable to a fine”. According to this provision, performing a flight in an aircraft, including unmanned aircraft, without the required signs and inscriptions is punishable by a fine. It should be noted that this is an offence, so it can be committed intentionally and unintentionally. It is worth bearing in mind this provision in terms of the obligation to display the operator’s number on the unmanned aircraft. The offence in question is punishable by a fine, which may range from PLN 20 to PLN 5,000.
Flying an unfit vessel
The operation of an aircraft that does not have the required airworthiness constitutes an offence and is criminalised in Article 211(1) para. 1 of the Aviation Law. The concept of airworthiness is identified primarily in relation to manned aviation aircraft, however, it may also apply in the field of unmanned aircraft, in particular if noise regulations are taken into account. It should be borne in mind that, when talking about the required airworthiness, provisions specifically regulating the issue are necessary. The provisions regulating the airworthiness of drones can be found in Article 55 of Regulation 2018/1139 and its Annex IX. The offence of performing a flight with an unfit aircraft requires a demonstration of intent on the part of the offender. The penalty foreseen for the infringement is a fine, restriction of liberty or imprisonment of between one month and one year.
Operation of a flight without a licence
Article 211(1) para. 5 criminalises piloting an aircraft without the legally required licence. Pilots of unmanned aerial vehicles, are required to undergo appropriate training and sometimes receive official confirmation of their qualifications. The lack of the required licences here constitutes an offence. This offence under point 5 is also characterised by the intentionality of the offender. The statutory penalty is a fine, restriction of freedom or imprisonment of between one month and one year.
4 Summary
The use of drones, despite the overwhelming benefits, carries the risk of violating legally protected goods, and many possible violations of the law carry a danger to society. Moreover, some behaviours seriously harm extremely valuable values, such as life or health. Criminal law was established to protect these particularly important goods.
Users of unmanned aerial vehicles are subject to criminal liability for the infringements they cause. A drone, like any other object, can become a tool for – even unintentionally – realising a criminal act. The regime of criminal liability carries particularly severe sanctions. It is advisable to know the scope of the criminal norms and, with these in mind, to take special care to observe the rules of caution when using drones.
Maciej Szmigiero, PhD in Law, attorney at law
cooperation: Marcin Kata, 3rd year student at the Faculty of Law and Administration of Cardinal Stefan Wyszyński University in Warsaw
Sources:
- Act of 6 June 1997 Criminal Code (Journal of Laws 2022, item 1138, as amended).
- Act of 3 July 2002. – Aviation Law (Journal of Laws of 2022, item 1235, as amended).
- Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency. (EU) 2018/1139 of 4 July 2018 on common rules in the field of civil aviation and establishing the European Union Aviation Safety Agency and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 of the European Parliament and of the Council and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91 of the European Parliament and of the Council (OJ EU. L. 2018, No. 212, p. 1, as amended).
- Commission Delegated Regulation (EU) 2019/945 of 12 March 2019 on unmanned aerial systems and operators of unmanned aerial systems from third countries (OJ EU. L. 2019 No. 152, p. 1, as amended).
- Regulation of the Minister of Infrastructure of 5 November 2004 on the safety of operation of aircraft (Journal of Laws No. 262, item 2609).
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