Exposing a Person to a Direct Risk of Loss of Life or Serious Damage to Health as a Result of Failure to Act by the Guarantor: Commentary on the Judgment of the Supreme Court of 4 January 2020 (III KK 411/21, LEX no. 3287205)

Abstract

In the commented judgment, the Polish Supreme Court assumed that the result of the offense under Article 160 of the Penal Code may also be the maintenance of a state of imminent threat of death or serious damage to health in a situation where the perpetrator is the guarantor and his act consists in the failure to act required in the given circumstances. It is difficult to agree with this view, given the meaning of the concept of effect in criminal law, according to which it is a state separate from the perpetrator’s behavior, constituting a specific and objectively noticeable change in the surrounding reality. Therefore, the assessment of the occurrence of the effect should be separated from the assessment of the act itself as threatening human life or health. If the immediate threat to human life or health persists due to the failure to act by the guarantor, the determination of the effect requires the determination of the extent to which this condition could be reduced if the guarantor complied with the obligation to act.