There will be harsher penalties for forest rallies on quads and motorcycles

The draft amendment to the Code of Petty Offenses, which has just been added to the Council of Ministers' legislative agenda, is a response to foresters' demands. According to the Ministry of Justice, data analysis shows a nearly 40-fold increase in damages related to illegal vehicle entry into forests and fir pine harvesting over the past five years.

According to the ministry, the sharp increase in the number of offenses involving illegal vehicle entry into the forest (Article 161 of the Code of Petty Offenses) is a result of the increasing popularity of quad bikes and dirt bikes in recent years. Rally enthusiasts often use these types of vehicles in areas where it is prohibited. This causes damage to the forest, plants, and mushrooms, and creates significant noise, which frightens and disturbs animals in their habitats.

While in 2021 there were 36,303 recorded cases of committing an offence under Article 161 of the Petty Offences Code, last year this number amounted to 57,713, which is an increase of 59%.

According to the Ministry of Justice, the relatively low severity of penalties for these offenses under Article 161 of the Code of Petty Offenses, i.e., a fine starting from the lowest possible level of PLN 20 and the inability to impose a fine, does not contribute to the prevention of this practice. Therefore, in response to the State Forests' demands formulated by the Ministry of Climate and Environment, it was decided to strengthen the sanctions. How?

Larger fines and penalties

First, a new type of aggravated offense will be introduced to Article 161 (Article 161 § 2, which the bill provides for), consisting of "causing significant noise with a vehicle or destroying or significantly damaging plants, animals, fungi, their habitats, or natural habitats." The perpetrator of such an offense will face a minimum fine of PLN 500. The maximum fine under the Code of Petty Offenses is PLN 5,000.

Secondly, Article 38 § 2 of the Petty Offences Code, which defines the list of offenses subject to so-called recidivism, will be amended. This means that if the same offense is committed within two years of a final conviction, the lower limit of the statutory penalty will be doubled. This means that for repeated noise pollution or damage to fauna or flora (Article 161 § 2 of the Petty Offences Code), the minimum fine will be PLN 1,000.

In addition, there will also be the possibility (in the case of Article 161 § 1 of the Petty Offences Code) and the obligation (in the case of Article 161 § 2 of the Petty Offences Code) to order a fine of up to PLN 1,500.

While the Ministry of Justice took into account the foresters' demands regarding the fine, the amount of the proposed fine for an offense under the proposed Article 161 § 2 is six times lower than expected by the Ministry of Climate and Environment, which proposed that it should amount to a minimum of PLN 3,000 and PLN 6,000 in the event of recidivism.

According to Dr. Dorota Czerwińska, an attorney at the Czerwińska Lipiński law firm, responding to changing realities, in this case the phenomenon of harmful use of forests by users of motor vehicles such as quads or so-called motocross mopeds, is among the powers and responsibilities of the legislator.

"This provision, it seems, would establish a qualified type not only for the offense currently included in Article 161 of the Animals and Funerals Code, but also for certain other offenses listed in Chapter XIX of the Animals and Funerals Code, such as Article 163 of the Animals and Funerals Code. The legislator would therefore express the view that destroying mushrooms with a motor vehicle (e.g., a quad bike) is more harmful than destroying them by moving the mulch (e.g., with your foot). Such assessments are debatable, but it seems that making them falls within the legislator's discretion," the expert points out. In her opinion, the proposed sanction, although relatively severe, seems to be proportionate to the socio-economic realities.

"It's important to remember that the inevitability of punishment remains key to the effectiveness of criminal or misdemeanor responses, so the detectability of such offenses may be even more important than the amount of the fine imposed. Furthermore, it's important to remember that provisions on the destruction of plants, fungi, and their habitats are also included in Article 131, Section 13 of the Nature Conservation Act. This, in turn, is a misdemeanor punishable by up to a prison sentence, and destroying them with a motor vehicle could be privileged. Therefore, this issue requires consideration during the drafting process," notes Dr. Czerwińska.

The troublesome theft of branches for wreaths and decorations

Another problem foresters face is the theft of fir branches, which are used for wreaths and decorations. Illegal fir branch harvesting, while generating significant profits for perpetrators, often leads to injury or even destruction of trees due to their drying. The problem is that Supreme Court case law indicates that the theft of fir branches cannot be classified as theft of timber from the forest, which, depending on the value of the stolen property, is either a crime under Article 290 of the Penal Code (if it exceeds 800 PLN) or a misdemeanor.

In its judgment of August 1989, the Supreme Court ruled that "taking cut branches (so-called stroisz) from a state forest constitutes an offence under Article 148 § 1 item 2 of the Forest Code, regardless of the value of the property taken."

Therefore, the Ministry of Justice proposes that forest damage, which is currently only a misdemeanor, be divided into two categories. This means that Article 148 of the Forest Code will only cover acts worth up to PLN 800, while anything above that amount will be treated as a crime under the new Article 290a of the Penal Code.

"It seems that the proposed changes, breaking with the jurisprudence resulting from the Supreme Court resolutions in cases I KZP 17/89 and I KZP 17/93, which are already quite old and perhaps out of step with contemporary reality, will serve to increase the coherence of the criminal law system. It is not rational to consider taking a tree from a forest worth PLN 801 as a crime, but taking branches from the same tree from the same forest worth even PLN 8,000 as a misdemeanor," explains Dr. Dorota Czerwińska. "Although the statistical data cited by the authors of the bill do not at all substantiate the thesis of a systematic, significant increase in the taking of branches (usually for reeds), the direction of the changes should generally be assessed positively. From a legislative technical perspective, perhaps the scope of criminalization of Article 120 of the Petty Offences Code and Article 120 of the Petty Offences Code should be expanded." 290 of the Penal Code (forest theft) and thus "cut these behaviors in half," instead of establishing a separate type of crime in the Penal Code, the expert argues. "Especially since the other proposed solutions (mandatory compensation of double the value of the timber, criminal penalties for inciting and aiding and abetting) are a copy of the solutions in Article 120 of the Penal Code and Article 290 of the Penal Code," she adds.

The bill also provides for the obligation to award damages to the injured party in the amount of double the value of the subject of the act.