Art. 231 of the Criminal Code is one of the most important and at the same time most controversial provisions of Polish criminal law. It penalizes a public official who, by exceeding their authority or failing to perform their duty, acts to the detriment of the public or private interest.
Elements of the offense:
- Subject – only a public official (funktionariusz publiczny) as defined in Art. 115 §13 of the Criminal Code. This includes, among others, judges, prosecutors, police officers, local government officials, and employees of government agencies.
- Act – exceeding authority (acting beyond one’s competence) or failing to perform a duty (omission of a required action).
- Result – acting to the detriment of public or private interest. The harm does not need to materialize – the creation of danger to the interest is sufficient.
- Intent – the perpetrator must act intentionally, at minimum with indirect intent (dolus eventualis).
Common prosecution errors:
In my practice, I frequently encounter cases where Art. 231 is applied too broadly. Prosecutors tend to conflate procedural irregularities with criminal conduct, forgetting that not every breach of duty constitutes a crime. The key distinguishing factor is the element of intent and the direction of the action toward harming a specific interest.
Paweł Osiński
Attorney specializing in white-collar criminal law