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220 Haoirf Kalata

A “request" of thc victim of an ofTencc to shorten his or ber pain. is understood as something morc than a qucstion and should be repctitivc in order to havc an impact on mildcr pcnal responsibility of a mcdical doctor. Only thc person who exprcsscs a thoughtful, firm and elear rcqucst may approach a perpetrator to causc dcath. If a family of a sick camc up with a rcqucsl to a doctor to shortcn thc sick’s suffering and thc sick himsdf or hcrsclf had not caprcsscd sucb a rcqucst. or duc to any other rcasons could not eapress a request. the actions of the doctor would deteranne common homicide as a cnmc. Members of the family, on thc other hand, would be subjcct to pcnal responsibility for iastigation to a aimc of homicide.

It is significant for legał qualification of an offcncc of “euthanasia homicide’* to know whether a request has becn formulatcd by a person who al thc timc was ovcr 16 years-old. who had becn sound in mind, conscious, not under thc influence of any tranquilizcrs, and who also was not suffering from mcntal depression In other words, a person asking thc doctor to causc his or her own dcath, should havc fuli capability to cvaluatc thc mcaning of his or her action and its conscqucnccs. Such a rcquest, therefore, cannot be formulated by a mcntally ill, unsound person, or one having his or her psychological functions unscttled. Change of an acl of will and further statement of thc sick that he does not rcqucst the suffering to be shortened by causmg dcath, eacludes the doctor's actions from bcing quali-fied in tenns of pcnal responsibility as “euthanasia homicide.” If thc doctor, despite the withdrawal of the patienfs rcqucsl. did put thc patiem to dealh, he or she would be rcsponsiblc for committing homicide as a crimc.

A doctor committing an offence of euthanasia should be gukled by a particular motivc for killing, that is by mercy towards the victim. Most often, commentarics point out to mercy triggered by incurablc. progressing turaorous illncss. Another opinion says that compassion may also conccrn a victim of a crash or a terrorist attack who. for esiunplc, lost thc limbs and cycsighl. Whether “euthanasia homicide” may justify also psychological suffering of thc victim (for esample. duc to handicap, loss of a dose person) is debated in the doctrinc.’

In the period from 1990 to 2004 in Polund, courts havc convictcd 5 persons guilty of an offcncc of “euthanasia homicide,” scntcncing thetn for 2 ycars of imprisonment. Statistics do not show, howcvcr, whether the conricted wcrc practicing doctors.⁶

' A. Marek. Pratoo kośne [Gnmma] Law|. Waruiwa 2005. p. 431.

* One of the authors ttatet lh»t In Polaad. in pnndple protccutor officcs do not initiKe pcnal procccding* in catc of “euthanasia honuodc," commiltcd b> a mcdical doctor if hu tnain purpoie w»* not to cause dcilŁ of a paleni but lo rcduce pain, ihoughl, in rrto.1 it cauted icodcratcd dcath. Ihc aulhor Mile* thal “prołeculing bodie* nrc aware of eanting soda! estimilcs ta litu matter." This tuiemcol has not bcen. howoer, bickod by research oo pro*ecuticc’s pnctsccs A. Gubidski, Komentarz do kaleki u etyki Ukankir; JComrocolary to thc eodc of medieal ethies|, Warszawa 199$. p. ISO.

The structurc of responsibility for "euthanasia homicide," adopted in the Polish penal law is based on an assumption that a mcdical doctor is fully awarc of thc illcgality of his owo actions. that is. he knows that he is committing an offcncc. The doctor is at thc same timc awarc that paticnt'$ sulTcring is hard to bcar and that by compassion he fulfills his rcquest to shortcn thc pam by bringing about dcath of thc sick.

Despite thc fact that thc tcxt of thc rcgulation conccrning thc responsibility for thc “euthanasia homicide” has not becn changed sińce 1932. it nccds to he noted that thc P.C. of 1997 foresces thc possibility of an cxtraordinary mitigation of punishment by courts, morcovcr, desisting an infliction of punishment of “euthanasia homicide" perpetrator (Art. ISO § 2). Penal Codę rcgulation stands that courts havc such option in ąuestions considcred as “cxtraordinary cascs." This rcgulation docs not make it prccisc, howcvcr. what should be understood under the noiion of “extraordinary casc." Commentaries point out to “extraordinary cascs" whilc talking about parti-cular exacerbation of paticnt's sufTering. its pcrsistcncy that causcs physical and mcntal degradation of thc sick, and also to a particular cmotional rdationship binding a perpetrator and a victim. Extraordinary casc, in which estraordinary commutation of a scntcncc and waving of an infliction of punishment marks an cxtreme, abnormal, motivating situation. that influen-ccs a perpetrutor to kill a suffering human bcing. It nccds to be stressed that a mcdical doctor is not thc only person who could be guilty of “euthanasia homicide" but it coukl be any person, for cxample, a dose one who wants to shortcn thc unbcarable suffering of thc sick, and who bestows love.

It should be noted that thc doclnnc set up by thc P.C. of 1997 which considcrs an option of cxtraordinary commutation of a scntcncc, and morcover, of an infliction of punishment towards a perpetrator of an oflcncc | of “euthanasia homicide" could not be tnicrprctcd as an opentng way for thc courts to legalize euthanasia.' Possibility of commutation of a scntcncc, and morcovcr. of an infliction of punishment arc only availab!c to thc courts after a trial at bar has becn ctccuted and a perpetrator proelaimed guilty of "euthanasia homicide." that is after the acknowledgment that an offcncc has becn committcd. Whilc scntencing a mcdical doctor to be guilty of an offcncc of "euthanasia homicide" to imprisonment, thc court may also forbtd bhn or ber to perform the doctor’s profession for a period of 10 ycars.

A dogmatic assumption which justifies pcnal responsibility of a perpetrator of the “euthanasia homicide" rdates to thc recognition of human lifc

Kodeks karmy C14U tseregAtna (Cnmaul codę PankuUrly put|. vot I, ed. A W«łck. WuuA+t 2006, p. 27Z