Pre-trial detention following a non-final judgment – constitutional concerns

plpolski (Polish)

This article concerns the use of pre-trial detention following a non-final judgment by a court of first instance. The author focuses on an analysis of the judgments issued by the Constitutional Court. They declare the current provisions of the Criminal Procedure Code regarding the application of the detention in question unconstitutional. In 2012, the Court pointed out that the current provisions in the Code do not provide any specific grounds for the use of pre-trial detention after a non-final judgment in a case.

Polish law does not provide any prerequisites for the application of the most troublesome preventive measure foreseen in criminal proceedings. Significantly, 7 years later, the Constitutional Court confirmed the defectiveness of the legislation. They criticised the long-standing failure of the legislator to respond to the issue.

The problem of prolonged pre-trial detention was a topic of the Court Watch Foundation report and the Ombudsman’s audits. They both indicate that is a significant issue throughout the country. The average length of pre-trial detention is roughly 14 months. 10% of all detainees in Polish prisons and jails are pretrial detainees, who are, after all, innocent under the law. The problem, however, is not only the long detention period. Another thing is the laconic nature of the justifications for the orders given by the courts. A single judge has just 48 hours to consider prosecutor’s request for pre-trial detention. This means that they will not always be able to analyse all the files in the case, and the passing of judgments in these cases becomes automatic.


In conclusion, the suspect does not have many tools to defend themself against an unfair law. The legislature still has no plans to amend the law, despite its unconstitutionality. The suspect’s only option is to point out illegality and faulty wording during court hearings. Unfortunately, more than 90% of the prosecutor’s requests for pre-trial detention in Poland are accepted and nothing heralds a change in this state of affairs.


Full article is available in Polish here.

plpolski (Polish)

Zobacz także:

Extraction arrest


The European Court of Human Rights and the extension of pre-trial detention


Automation of the actions of the Public Prosecutor’s Office in relation to applications for the extension of pre-trial detention and the occurrence of “special circumstances of the case” preventing the completion of the proceedings on time.