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2015 | PL 4(94) | 25-41

Article title

Postępowanie ze sprawcami niebezpiecznymi – główne wątpliwości konstytucyjne

Title variants

Procedures Related to Dangerous Perpetrators – Main Constitutional Doubts

Languages of publication



The adoption of the Act of 22 November 2013 on the procedures related to people with mental disorders who pose a threat to other people’s life, health or sexual freedom was followed by a heated political and legal debate. Several doubts were raised concerning the constitutional admissibility of post-penal detention of the so-called dangerous perpetrators. The author discusses the most important allegations, mindful of the fact that they have been challenged before the Constitutional Tribunal and that they are expected to be examined shortly. Firstly, the new legislation is seen by many as being inconsistent with the constitutional standards of criminal law, since one may be held criminally responsible without having committed an act prohibited by a statute in force at the moment of commission thereof. However, it may be questioned whether the measures provided for by the challenged act constitute a form of punishment in the constitutional sense of this term. Secondly, some legal scholars claim that the provisions of the act do not fulfill the constitutional requirement of adequate specificity, as they refer to vague criteria such as ‘high probability’ and ‘very high probability’ of committing a criminal offence, while only the latter allows detention. This argument deserves serious consideration, although it seems that it would be difficult to find more specific criteria to apply in that matter. Finally, it was argued that the post-penal measures provided for by the act constitute a disproportionate interference with the personal freedom, for deprivation of liberty is not necessary to achieve the legitimate aim of safeguarding the public interest. This allegation should be carefully examined and if the existing preventive measures are found to be sufficient, post-penal detention should be declared inconsistent with the Polish Constitution.






Physical description


  • (Uniwersytet Warszawski – University of Warsaw)


Document Type

Publication order reference


YADDA identifier

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