Inside the push to reform pre-trial detention

Entrepreneurs associated with the SprawdzaMY initiative have prepared a draft law aimed at limiting the alleged abuse of pre-trial detention in economic cases. In their view, courts too often resort to this preventive measure in a reflexive and uncritical manner.

The SprawdzaMY initiative has drawn up proposed amendments to the Code of Criminal Procedure concerning pre-trial detention. According to the authors, this preventive tool is being overused. The proposal is primarily focused on entrepreneurs and economic cases.

Alleged abuse of pre-trial detention

The authors of the draft law cite, among others, the position expressed in 2024 by Poland’s Commissioner for Human Rights, Prof. Marcin Wiącek. The Ombudsman noted that Polish law still does not set out clear criteria for extending pre-trial detention in a way that would allow the maximum duration to be foreseen after the first-instance court issues its initial verdict.

The Ombudsman also stated at the time that Poland should limit the practice of extending pre-trial detention, particularly by an additional six months after the first judgment of a court of first instance has been issued.

The authors also refer to other reports cited by the Ombudsman in his position. One of them is the report titled “Pre-Trial Detention – a (Non-)Temporary Problem. Analysis of Current Practice in the Application of Pre-Trial Detention,” prepared by the Helsinki Foundation for Human Rights.

The report concludes that prolonged use of detention is a systemic problem. This is evidenced, among other things, by the number of detainees, which during the period covered by the study exceeded 10 percent of the total prison population.

A convenient practice for courts

In its report “The Use of Pre-Trial Detention in Economic Cases,” the Helsinki Foundation for Human Rights notes that the frequently invoked premise of a severe potential penalty is rarely confirmed in practice. However, it remains the most convenient justification for courts.

File-based research further indicates a correlation between the use of pre-trial detention and the severity of the final sentence. In economic cases, it is extremely rare for defendants held in pre-trial detention to ultimately receive an actual custodial sentence.

Professor Paweł Wajda, a lawyer and legal affairs manager within the SprawdzaMY initiative, emphasizes that detention is intended as a preventive measure, not a form of punishment. In his view, the high proportion of detainees in the prison population is concerning.

“Worse still, it often happens that a person who was held in pre-trial detention is not convicted at all, which gives rise to the State’s liability for compensation. There have been cases where someone spent many months, or even years, in pre-trial detention, only to be acquitted or have the proceedings discontinued. They committed no offense, yet they served their time,” Professor Wajda said.

In economic cases where detention lasts longer than three months, time spent in custody can, in practice, constitute the only period of actual deprivation of liberty.

High rate of acceptance of detention requests

Additional key findings can be found in the report “Current Practice of Pre-Trial Detention in Poland. Empirical Research Report.” The Court Watch Foundation demonstrates that between 2015 and 2019, the number of people held in pre-trial detention centers increased by 100 percent.

The average duration of detention also increased. According to the report, defendants held in custody wait for a final judgment for an average of nine months, while the EU average does not exceed six months.

After 2016, the number of detention requests submitted by prosecutors rose significantly. Data from the National Prosecutor’s Office shows that in 2022 courts received 22,882 applications for pre-trial detention, of which 19,901 were approved. This means that courts accept over 90 percent of such requests.

Requests to extend detention were approved in 95 percent of cases. According to the Court Watch Foundation, prosecutorial arguments are often accepted by judges without sufficient scrutiny.

Under the Law and Justice (PiS) government, prolonged pre-trial detention was also used in cases involving entrepreneurs. This included cases that ultimately did not end in convictions, but in acquittals or discontinuation of proceedings.

Three-time detention and case dismissal

In recent years, widely discussed examples of alleged abuse of pre-trial detention include the cases of Przemysław Krych and Piotr Osiecki. The authors of the draft law also refer to these cases.

Przemysław Krych, founder of the Griffin Real Estate investment fund, was detained in 2017. He was charged with allegedly bribing the late PiS Senator Stanisław Kogut in exchange for political support. The businessman denied the allegations. He spent six months in pre-trial detention. In 2025, the Lublin regional prosecutor’s office opened an investigation into a possible abuse of power by investigators handling his case.

Piotr Osiecki, founder of Altus, spent a total of 16 months in three separate detention periods. He was accused of acting to the detriment of GetBack, to which he had sold one of his companies. Shortly after his detention, his company lost 70 percent of its market capitalization. In September 2025, prosecutors discontinued a seven-year-long investigation into his case.

“This was a drastic case. In Mr. Piotr Osiecki’s case, there was no justification for imposing pre-trial detention three times. In economic cases, we are dealing with a paradoxical situation in which pre-trial detention destroys the detainee’s private life and has a similarly destructive impact on business. For a businessperson, house arrest or electronic monitoring would be a much better solution, allowing them to continue operating normally. In the cases of Mr. Krych and Mr. Osiecki, detention had a devastating effect on their businesses,” said Professor Paweł Wajda.

Years-long battles for compensation

A textbook example of alleged abuse of pre-trial detention is the case of Roman Kluska, founder of Optimus (later CD Projekt). In 2002, the entrepreneur was arrested on charges that his company had allegedly defrauded the state budget of PLN 30 million (approx. EUR 6.9 million) in VAT. He was released after posting PLN 8 million (approx. EUR 1.8 million) in bail. His detention was later deemed unjustified by another court, and Kluska himself received PLN 5,000 (approx. EUR 1,150) in compensation. CD Projekt pursued compensation from the state, but in 2018 a court ruled that the State Treasury was not liable for damages suffered by Optimus.

Another widely publicized case involved Marek Kubala, an entrepreneur who spent more than 20 years fighting for acquittal and compensation after the collapse of his business. He ran a car dealership in Wałbrzych, importing vehicles from the United States. In 2000, he was accused, among other things, of undervaluing vehicles and exposing the State Treasury to a loss of PLN 350,000 (approx. EUR 80,000). He was placed in pre-trial detention, and his company subsequently went bankrupt.

Years later, a court ruled that his detention had been groundless and awarded Kubala PLN 22 million (approx. EUR 5.1 million) in compensation. The judgment, however, is not final: in 2024, the Prosecutor General’s Office filed an appeal, and the case is still ongoing. Kubala has not yet received the funds.

Przemysław Marchlewicz, former PiS politician and former vice-president of Lotos, spent five months in pre-trial detention. He was suspected of tax offenses. Two years after his initial detention, prosecutors attempted to detain him again on the same grounds. In a final court ruling, the decision to refuse renewed detention was upheld, with the court finding no risk of obstruction of justice. The case was handled by prosecutor Jerzy Ziarkiewicz, a well-known figure who, during the tenure of Zbigniew Ziobro, headed the Regional Prosecutor’s Office in Lublin. Since the initial arrest in 2018, no indictment has been filed.

Draft by the SprawdzaMY initiative

One of the key assumptions behind the proposed changes is to limit the application of Article 258 §2 of the Code of Criminal Procedure. This provision regulates the “severity of the potential penalty” criterion and serves as an independent legal basis for ordering pre-trial detention.

It may be invoked in two situations: after a severe first-instance judgment has been issued – defined as a sentence of at least three years of imprisonment – or when the alleged offense carries a statutory maximum penalty of at least eight years in prison.

Jacek Socha, coordinator of the SprawdzaMY initiative and former Minister of the State Treasury, argues in an interview with XYZ that the ease of applying this provision has gone too far.

“In the case of offenses punishable by a statutory maximum of at least eight years, pre-trial detention can be applied without demonstrating any additional grounds. Moreover, it is relatively easy in such cases to imply the existence of an organized criminal group when multiple individuals are involved. As a result, the possibility of a sentence of at least eight years effectively arises almost automatically,” said Jacek Socha.

A flawed legal basis

The Commissioner for Human Rights has filed a motion with the Constitutional Tribunal seeking a declaration that this provision is unconstitutional. In his view, it relieves law enforcement authorities of the obligation to present concrete evidence demonstrating a risk to the proper conduct of proceedings.

The Helsinki Foundation for Human Rights has also called for the repeal of the “severe penalty” criterion. It made this recommendation in its 2024 report on pre-trial detention in economic cases.

The authors of the draft law argue that detention should be ordered on the basis of criteria other than those set out in Article 258 of the Code of Criminal Procedure.

“We want to tighten the conditions for applying this preventive measure so that courts are required to rely on more convincing evidentiary material,” says Professor Paweł Wajda.

“Very often, pre-trial detention is applied to entrepreneurs long after the event that supposedly justifies it, in situations where the grounds for such a measure no longer exist. The system is currently structured in such a way that there is no real adversarial principle, meaning procedural equality of the parties. A suspect’s access to case files and contact with defense counsel is restricted. I know of a case where a person in detention appealed to a higher court without access to the case file. Together with their lawyer, they effectively had to draft the appeal ‘blind,’” adds Jacek Socha.

Stronger oversight of proceedings

In its draft, the SprawdzaMY initiative proposes changes intended to make it more difficult for courts to apply pre-trial detention in a routine manner.

The authors propose strengthening oversight of detention proceedings by introducing public hearings, faster access for defense counsel to detention case files, and limiting the grounds that allow for the automatic imposition of detention.

They also call for a modification of the role of the so-called “small crown witness” as a source of incriminating evidence against suspects.

Greater judicial oversight would mean the presence of the suspect at detention hearings. It would also entail mandatory electronic access to case files within a timeframe that allows for meaningful preparation of a defense.

In April, Jacek Socha met with Justice Minister Waldemar Żurek. The meeting concerned provisions on pre-trial detention.

“Minister of Justice, Waldemar Żurek, expressed the view that he supports changes to the provisions governing pre-trial detention under the Code of Criminal Procedure,” says the coordinator of the SprawdzaMY initiative.

The proposals put forward by the business community have been submitted to the government. They are expected to be introduced to parliament as part of a bill sponsored by a group of MPs.

Multiple bills in parliament

Several private members’ bills concerning the rules governing pre-trial detention are currently under parliamentary consideration.

One of them is a draft prepared by the Confederation party and coordinated by MP Przemysław Wipler. Its main objective is to tighten the applicable criteria so that detention is used strictly as a measure of last resort. Similarly to the SprawdzaMY initiative, the proposal includes a call for greater transparency in detention proceedings.

In May, the Poland 2050 party submitted a private members’ bill developed in cooperation with the National Bar Council. It proposes, among other things, immediate access to legal counsel for suspects, the elimination of detention based solely on the severity of the potential penalty – a demand also made by SprawdzaMY – and a reduction of the maximum detention period to 12 months.

At the end of 2024, Poland 2050 MPs also submitted another draft bill, which provides, among other measures, for a maximum duration of the initial detention order not exceeding one month. Like the SprawdzaMY proposal, it also introduces the principle of open detention hearings. The bill was coordinated by MPs Paweł Śliz and Ryszard Petru. The latter has since left Poland 2050 and joined the Center parliamentary group.

A government bill on electronic detention is also under review.

In March, President Karol Nawrocki vetoed a government bill intended to limit the automatic application of pre-trial detention. Two weeks later, he submitted his own legislative proposal on the matter.

Key Takeaways

1. The SprawdzaMY initiative notes that courts approve pre-trial detention in more than 90 percent of cases. In its view, the “risk of a severe penalty” criterion is being abused and effectively relieves investigators of the obligation to present concrete evidence indicating a risk that the suspect may obstruct proceedings.
2. The authors of the draft law propose, among other things, abolishing this criterion. They also call for stronger oversight of detention proceedings. This would be achieved through public hearings and the participation of the suspect. The draft also provides for rapid electronic access to case files for both the suspect and their defense counsel.
3. Several legislative amendments to pre-trial detention rules are currently under parliamentary review, prepared by MPs from the Confederation party and Poland 2050. In addition, the Ministry of Justice has drafted legislation introducing electronic detention. President Karol Nawrocki has also submitted his own bill on the matter.