Placement in a psychiatric facility on the basis of a court decision that is not final P 1/21
On 4 February 2026, the Constitutional Tribunal delivered its ruling on the question of law – referred by the Disciplinary Court at the Court of Appeal in Szczecin [hereinafter: the court referring the question] – with regard to placement in a psychiatric facility on the basis of a court decision that is not final.
The Constitutional Tribunal adjudicated that: “Article 462(1) of the Criminal Procedure Code of 6 June 1997 (Journal of Laws – Dz. U. of 2025, item 46, as amended) in conjunction with Article 9(1) of the Executive Criminal Code of 6 June 1997 (Journal of Laws – Dz. U. of 2020, item 523, as amended) – insofar as the challenged provisions stipulate that a court decision in which (having admitted the public prosector’s application lodged under Article 324(1) of the Criminal Procedure Code) the competent court discontinues the criminal proceedings and orders a stay in a psychiatric facility, as a protective measure for the perpetrator who has committed a criminal offence in a state of insanity, may not be prevented from being enforced by the filing of an appeal against the said decision – are inconsistent with Article 78 in conjunction with Article 41(1), Article 42(2) and (3), Article 45(1), Article 31(3) as well as Article 32(1) of the Constitution of the Republic of Poland”.
Moreover, the Constitutional Tribunal decided to discontinue the [review] proceedings as to the remainder.
The ruling was adopted by a majority vote.
There was one dissenting opinion to the judgment, filed by Constitutional Tribunal Judge Wojciech Sych.
In today’s judgment, the Constitutional Tribunal [hereinafter also: the Tribunal] answered the question about the constitutional admissibility of the situation where it was possible for a first-instance court’s decision ordering a stay in a psychiatric facility to be referred forthwith to be enforced even after the said decision had been appealed. The main constitutional reservations, as raised by the court referring the question, concerned the issue whether it was admissible to take away – from an appeal filed in such a [criminal] case – the suspensibility of enforcement, arising from the filing of the said appeal, i.e. the appeal’s impact in the form of suspending the enforcement of the aforementioned decision. In the view of the court referring the question, what constituted the source of unconstitutionality [in the case under examination] was the principle (arising from Art. 462(1) of the Criminal Procedure Code) that an appeal had no suspensive effect, which – within the scope of adjudicating on a stay in a psychiatric facility, upon a public prosecutor’s application lodged under Article 324(1) of the Criminal Procedure Code – entailed that a non-final court decision was referred, on the basis of Article 9(1) of the Executive Criminal Code, for enforcement forthwith, even if the person to be subjected to psychiatric detention questioned the lawfulness of imposing on him/her the aforementioned protective measure.
In the first place, the Tribunal examined whether the way of devising the [statutory] mechanism of an appeal against a court ruling ordering the protective isolation measure involving placement in a psychiatric facility ensures the proper implementation of the constitutional guarantees arising from the right to appeal first-instance rulings and decisions, which is expressed in Article 78 of the Constitution of the Republic of Poland [hereinafter also: the Constitution].
The constitutionality assessment of the reviewed statutory mechanism that entails a restriction of the right to appeal [first-instance rulings and decisions] – including solutions which rule out an appellate measure’s effect in the form of moving particular proceedings to a higher-instance court or suspending the enforcement of a first-instance ruling or decision – requires that, every time, the Tribunal should take account of the following: the nature of a case under consideration; the nature of particular proceedings in that case; and, above all, the significance of the rights and freedoms that may be undermined as a result of the introduction of such exceptions to the aforementioned right of appeal. What is of fundamental importance here is the answer to the question whether the enacted appellate mechanism ensures the adequately effective protection of the rights and freedoms affected by a first-instance ruling or decision. Indeed, although under Article 78 of the Constitution, the legislature enjoys a certain margin of discretion as to the manner of regulating an appellate mechanism, any appellate measure enacted by the legislature ought to be effective, i.e. it must create a real possibility of assessing a first-instance determination and revoking or modifying the said determination.
As regards the constitutionality assessment in the case under examination, it was key for the Tribunal to determine the nature of the measure in the form of psychiatric detention, from the perspective of infringed constitutional rights and freedoms. A stay in a psychiatric facility (also referred to as ‘psychiatric detention’ or ‘psychiatric confinement’) – in the light of Article 93a(1) of the Criminal Code – falls within the catalogue of the protective measures provided by the said Code. The Constitutional Tribunal recalled that a protective measure constitutes a criminal-law construct which is applicable to perpetrators of prohibited acts and is ordered within the scope of criminal proceedings. The direct purpose of such a preventive measure is not to punish the perpetrator but, above all, to protect society against the threat arising from the risk of reoffending. From the constitutional point of view, also a preventive measure remains a criminal-law response measure, the application of which leads to interference with the rights and freedoms of persons found guilty of committing prohibited acts; the rights and freedoms interfered with include personal liberty, the right to respect for private life, and the freedom of movement. The court’s ordering of psychiatric confinement for the perpetrator – which entails his/her compulsory placement in an appropriate secure psychiatric facility (for a period that is not predetermined) – appears to be a measure that interferes with constitutional subjective rights in the most severe way. Since the aforementioned preventive measure falls under the category of criminal-law response measures, it must be safeguarded with particularly strong guarantees which rule out the risk of arbitrary resort to such a measure, in violation of the principles of adequacy and necessity. In that context, the Tribunal recognised the significance of the legislature’s obligation to guarantee an effective court review for the application of the said criminal-law response measure.
Having established the above findings, the Tribunal decided to juxtapose them with the higher-level norms for the review, indicated by the court referring the question. Firstly, the Constitutional Tribunal deemed that the challenged norm was inconsistent with Article 78 in conjunction with Article 41(1) and Article 31(3) of the Constitution.
The Tribunal recalled that, pursuant to Article 41(1), first sentence, of the Constitution, personal inviolability and liberty shall be secured to everyone. Those freedoms are fundamental for the protection of the other guarantees making up the individual’s constitutional status, as they remain closely linked with the principle of human dignity, expressed in Article 30 of the Constitution.
In the light of Article 41(1) of the Constitution, what constitutes a form of restriction or deprivation of personal liberty is not only a criminal-law penalty in a strict sense (i.e. one of the penalties enumerated in Article 32 of the Criminal Code). From the perspective of that higher-level norm for the constitutional review, the means of interference with the realm of protected personal liberty may also include different statutory solutions entailing the restriction or deprivation of the said freedom – not only those applied within the scope of criminal proceedings, but also those resorted to in other types of proceedings. According to the Tribunal, the concept of ‘deprivation of liberty’ – used in Article 41(1), second sentence, of the Constitution – must be construed broadly i.e. “as comprising all situations where the individual is prevented from exercising his/her liberty”. In the case under examination, the Tribunal maintained its previously taken stance, in accordance with which, from the perspective of Article 41(1) of the Constitution, the placement of the perpetrator of a prohibited act in a secure psychiatric facility – as a criminal-law response measure – undoubtedly constitutes interference with personal liberty, for the said protective measure entails being deprived of the possibility of exercising that liberty during the period for which the measure is applied (in addition, the said period is not predetermined). Moreover, what follows from the Tribunal’s jurisprudence [i.e. its case law] is that the legislature’s competence to specify rules and procedures in accordance with which the individual may be deprived of his/her personal liberty – as entrusted to the legislature in Article 41(1), second sentence, of the Constitution – “should not be understood as granting the legislature complete freedom in that respect. Indeed, the manner of specifying the said rules and procedures by statute is subject to assessment in the light of other constitutional guarantees”. In the case under examination, in view of the substance of the allegations raised by the court referring the question, what was of particular relevance to the carrying out of the aforementioned assessment was the principle of proportionality, arising from Article 31(3) of the Constitution. In accordance with that higher-level norm for the constitutional review, any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of values set out in that provision. Such limitations may not violate the essence of freedoms and rights.
The Tribunal confirmed that the fundamental objective of applying the aforementioned preventive measure is to protect public order and the freedoms and rights of other persons. Due to its therapeutic function, it also protects the perpetrator’s rights (inter alia, his/her right to health care). Undoubtedly, those objectives are legitimate in the light of the constitutional values set out in Article 31(3) of the Constitution. The perpetrator’s stay in an appropriate secure psychiatric facility contributes to the actualisation of the said values. However, the Tribunal shared the view of the court referring the question that the referral of the first-instance court’s decision (to order psychiatric confinement) for enforcement forthwith – i.e. even before the examination of the appeal questioning the justification for and legality of ordering such a protective measure – does not constitute a necessary means within the meaning of Article 31(3) of the Constitution, for there are other procedural solutions that can ensure the sufficient protection of the indicated constitutional values until the decision issued under Article 354 of the Criminal Procedure Code becomes final. In fact, the legislature has provided that, in the course of criminal proceedings, the so-called precautionary measures – including an isolation measure such as pre-trial detention – may also be applied for the purpose of preventing the accused from reoffending. The application of such a measure may also be justified when there is a reasonable fear that the accused – who has been charged with a crime or a lesser intentional offence – will commit a criminal offence against life, health or public safety, especially if the said accused has threatened to commit such an offence. The existence of circumstances indicating that the perpetrator of a prohibited act suffers from mental illness or intellectual disability does not preclude the possibility of imposing on him/her pre-trial detention.
Thus, the Tribunal stated that the legislature had created procedural solutions intended – in the course of criminal proceedings – to protect constitutional values, such as public order, as well as the rights and freedoms of third parties, while at the same time they made it possible to ensure that a perpetrator diagnosed, by experts, as suffering from mental illness or intellectual disability would receive appropriate healthcare. Pre-trial detention may be imposed on an extra-procedural ground that there is a reasonable fear that a prohibited act against life, health or public safety will be committed. The legislature has explicitly provided for the possibility of imposing pre-trial detention in the form of placement in an appropriate healthcare facility, including a psychiatric facility, until a final ruling is issued on the protective measure in the form of psychiatric detention and until the ruling is prepared for enforcement. Pre-trial detention may therefore be imposed to secure the perpetrator until the enforcement of the final decision ordering psychiatric detention. In such a case, pre-trial detention imposed on the extra-procedural ground set out in Article 258(3) of the Criminal Procedure Code fulfils functions that are analogous to those of psychiatric detention, which is ordered where there is a high probability that the perpetrator will commit another prohibited act deemed considerably detrimental to society, due to his/her mental illness or intellectual disability. Consequently, in the Tribunal’s view, with a view to the higher-level norms for the constitutional review as set out in Article 78 in conjunction with Article 41(1) and Article 31(3) of the Constitution, the referral of the first-instance court’s decision (issued under Article 354 of the Criminal Procedure Code) for enforcement forthwith is not necessary for the protection of constitutional values, such as public order, as well as the rights and freedoms of third parties. Moreover, the imposition of pre-trial detention is, in its nature, also a procedural determination – it does not constitute a ruling on the commission of a prohibited act or on the circumstances of such an act, and hence it does not ‘overthrow’ the presumption of innocence. In order to impose precautionary measures, it suffices to gather evidence indicating a high probability that the accused has committed the criminal offence, whereas a protective measure in the form of psychiatric detention is imposed on the “perpetrator” of a prohibited act committed in a state of insanity.
The Tribunal also found that the reviewed norm was inconsistent with Article 78 in conjunction with Article 45(1), Article 42(2) and (3) as well as Article 31(3) of the Constitution, i.e. the provisions expressing the right to a fair trial, the right to defence at all stages of proceedings, and the presumption of innocence.
The Tribunal recalled that, expressed in Article 78 of the Constitution, the right to appeal first-instance rulings and decisions constitutes – in the context of court proceedings – an element of the constitutional standard of fair, diligent, and public court proceedings, which is derived from Article 45(1) of the Constitution. In accordance with that standard, everyone has the right to a fair and public hearing of his/her case without undue delay, before a competent, impartial, and independent court.
By contrast, pursuant to Article 42(2), first sentence, of the Constitution, anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings. Expressed in the aforementioned provision, the constitutional right to defence is not only a fundamental principle of criminal proceedings, but also a basic standard of a democratic state ruled by law. For this reason, the said right should be understood as broadly as possible and applied to any proceedings of a “repressive” nature. Also, the Tribunal emphasised that the constitutional right to defence gives rise to an obligation on the part of the legislature to provide such procedural instruments which would enable persons against whom criminal proceedings are being conducted to protect their interests in a real and effective manner at all stages of the proceedings (including the appellate stage). At the same time, the said right is not absolute in nature, and the exercise thereof may be subject to certain restrictions, provided, however, that such restrictions meet the requirements under Article 31(3) of the Constitution.
The Tribunal recalled that, pursuant to Article 42(3) of the Constitution, everyone shall be presumed innocent of a charge until his/her guilt is determined by the final judgment of a court. At the same time, what also follows from Article 42(3) of the Constitution is the individual’s right to have the aforementioned proceedings shaped by the legislature in such a way that the protection associated with the presumption of innocence is guaranteed until that presumption is overthrown by a “final” (conclusive) court ruling.
In the case under examination, the Tribunal stated that the aforementioned legal mechanism – where the filing of an appeal against a court decision issued after admitting the public prosecutor’s application lodged under Article 324(1) of the Criminal Procedure Code does not suspend the enforcement of the said decision – undoubtedly constitutes a restriction of the right to an effective judicial review of first-instance rulings and decisions as well as the right to defence “against” possible miscarriages of justice and the consequences thereof. This issue is of even more relevance here as, in the case under examination, those restrictions pertain to reviewing the application of an isolation measure, provided for in criminal-law statute as a response to the commission of a prohibited act in a state of insanity. According to the Tribunal, the restriction of the above-mentioned procedural rights and guarantees is not necessary (within the meaning of Article 31(3) of the Constitution) to ensure the protection of other constitutional values. At the same time, the restriction violates the essence of the guarantee arising from the constitutional presumption of innocence. The Tribunal assumed that the presumption of innocence, expressed in Article 42(3) of the Constitution, in principle, rules out the possibility of applying a protective isolation measure to a person in respect of whom all circumstances justifying the deprivation or restriction of his/her personal liberty (namely, inter alia, the commission of the act itself, action taken in a state of insanity, and the existence of a threat referred to in Article 93g of the Criminal Code) have not been determined by a final court ruling. A different interpretation of the aforementioned higher-level norm for the constitutional review would lead to the conclusion that the guarantee characteristic of the norm would not apply to “everyone” against whom criminal proceedings are being conducted, since the protection arising from the principle of the presumption of innocence (covering both a presumption of non-culpability and a certain presumption about not being the perpetrator) would not apply to persons who have – in the opinion of the authorities conducting criminal proceedings – committed a prohibited act in a state of insanity (the so-called perpetrators of unsound mind).
What is more, the Tribunal stated that the mechanism adopted in Article 462(1) in fine of the Criminal Procedure Code – whereby the court that has issued the appealed decision, or the competent court to consider the appeal, may suspend the enforcement of the said decision – does not ensure sufficient guarantees to actualise the right to effective court protection in appellate proceedings and the right to defence at all stages of criminal proceedings. Firstly, neither above-mentioned provision nor any other legal provision specifies the grounds on which the court should base its decision to suspend the enforcement of a non-final decision ordering psychiatric detention. Secondly, in the light of Article 462(2) of the Criminal Procedure Code, a refusal to suspend enforcement does not even require justification.
The Tribunal also deemed that the challenged norm is inconsistent with Article 78 in conjunction with Article 32(1) of the Constitution.
Indeed, the challenged norm brings about the effect that, depending on whether a first-instance court’s ruling takes the form of a decision or judgment, the necessity arises (or does not arise) for the said ruling to be referred forthwith to be enforced, without waiting for the ruling to become final. What may not constitute a justified criterion for a distinction drawn in the procedural situation of two groups of persons is the fact whether the competent public prosecutor has decided to file, with the court, an application under Article 324(1) of the Criminal Procedure Code or an indictment.
The Tribunal did not find any sensible and constitutionally significant reasons why the differences in the procedural situation of persons with regard to whom psychiatric confinement is ordered – as identified by the court referring the question – could be constitutionally justified. The mere form of a ruling (namely, a decision or judgment) is of secondary relevance, for the essence of those rulings remains the same (i.e. it pertains to determining if a prohibited act has been committed in a state of insanity and if the Criminal Code’s prerequisites for applying the aforementioned protective measure are met). The difference in the form of the ruling arises from the stage of the proceedings at which those circumstances are determined as well as from procedural decisions taken by the competent authorities (and in particular, whether, as a result of the preliminary proceedings, the public prosecutor files with the court an application under Article 324(1) of the Criminal Procedure Code or an indictment, and the fact if the perpetrator was acting in a state of insanity is only established after the commencement of court proceedings).
The adjudicating panel in the case under examination comprised the following judges of the Constitutional Tribunal: Judge Wojciech Sych as the Presiding Judge; Judge Jakub Stelina as the Judge Rapporteur; Judge Rafał Wojciechowski; Judge Jarosław Wyrembak; and Judge Andrzej Zielonacki.