The Ombudsman on the severity of the potential sentence

In March 2026, two constitutional complaints initiated proceedings before the Polish Constitutional Tribunal. Cases M.S. (SK 14/26) and N.S. (SK 18/26) challenge the legal basis for applying preventive detention. Both cases target Article 258 § 2 of the Code of Criminal Procedure. This provision allows courts to impose pre-trial detention solely based on the severity of the potential sentence. The complainants argue this violates constitutional standards of precision in restricting personal liberty. The Tribunal will also examine Article 258 § 1(2) in an interpretation that presumes obstruction of proceedings. This interpretation does not require concrete evidence of such risk. The core question is whether severity of charges alone justifies depriving someone of freedom. What is important, the Ombudsman supports the complaints.

The Ombudsman Supports the Complainants

The Commissioner for Human Rights joined the proceedings, siding with the complainants. He requested the Tribunal declare Article 258 § 2 incompatible with Articles 41(1), 31(3), and 2 of the Constitution. The Ombudsman cited the Supreme Court resolution of 19 January 2012 (I KZP 18/11). That resolution established that severe penalty constitutes an independent ground for detention. It also creates a presumption of obstruction risk.

The Ombudsman referenced the Tribunal’s 2019 signalling decision (S 3/19). In that decision, the Tribunal identified two key flaws. First, the provision disregards the actual need to secure proceedings. Second, its interpretation weakens other procedural guarantees, including subsidiarity and temporariness principles.

According to the Ombudsman, this norm violates proportionality. It does not independently serve any distinct preventive purpose. If no real risk of flight or tampering exists, courts should rely on Article 258 § 1 grounds.

Counterarguments and ECtHR Jurisprudence

The Ombudsman acknowledges that isolating suspects of serious crimes may serve public safety. However, the European Court of Human Rights consistently holds that charge severity alone cannot justify prolonged detention. Courts must identify concrete circumstances indicating real risk of flight or obstruction.

In Stettner v. Poland (application no. 38510/06), the ECtHR found the presumption does not inherently violate the Convention. Nevertheless, it stressed that charge gravity cannot be the sole reason for maintaining long-term detention.

Potential Impact and Legislative Context

If the Tribunal follows its 2019 signalling decision, it may declare the provision unconstitutional. This would require courts to demonstrate specific evidence justifying detention in every case. It could also stimulate new legislative efforts regarding the Code of Criminal Procedure.

Proposed reforms include linking the severe penalty ground to Article 258 § 1 conditions. Legislators also consider introducing maximum time limits for pre-trial detention. Such changes could reduce Poland’s losses before the ECtHR under Article 5(3) ECHR.

The so-called “sanation act” of 27 February 2026 attempted to eliminate severe penalty as an independent detention ground. Parliament passed it, but the President vetoed the bill. The National Bar Council president criticised this decision. He argued the reform would have strengthened proportionality and individual rights.

Political Instability of Detention Regulations

Experience shows that detention rules change significantly with political shifts. The liberalising amendment of 1 July 2015 was quickly modified after the government changed later that year. Different ruling parties view these reforms differently. Some see stronger procedural guarantees; others see weakened law enforcement tools. This political volatility creates uncertainty about the durability of any future reform in this area.

Full article is available in Polish here.

Article is available in Polish here.