By Piotr Stepulak (European Prison Litigation Network)
In January 2026, the Polish Supreme Court rejected the Ombudsperson’s request to adopt a binding resolution concerning the retroactive extension from 25 to 30 years of the minimum detention period before life-sentence prisoners can apply for parole, leaving unresolved the question of the compatibility of the reform with the Polish Constitution, the ECHR and the ICCPR. However, it provided guidance to ordinary courts on how to assess in individual cases whether the application of the amended provisions would be compatible with Article 3 ECHR.
In January 2026, the Polish Supreme Court rejected the Ombudsperson’s request that it adopt a resolution to harmonise the interpretation by ordinary courts of new provisions governing the minimum detention period before life-sentence prisoners become eligible to apply for parole (I KZP 3/25, 21 January 2026). While it declined to issue a binding resolution, on the ground that it cannot rule in abstracto on the compatibility of legislation with the Constitution or with international law – a matter reserved to the Constitutional Tribunal – the Court nevertheless set out non-binding guidance that ordinary courts may draw upon when assessing, in individual cases, whether the amended provision is compatible with Article 3 of the ECHR.
The provisions at issue before the Supreme Court were amendments to Article 78 § 3 of the Criminal Code, introduced in 2022 and which entered into force on 1 October 2023, which raised from 25 to 30 years the minimum period a person sentenced to life imprisonment must serve before applying for conditional early release. A central element of the case was that the amending act ordered that the new provisions apply also to prisoners already serving life sentences, expressly displacing the general rule of Polish criminal law, which requires courts to apply the law in force at the time of the offence where it is more favourable to the accused (lex severior retro non agit). The practical effect was a retroactive worsening of the legal position of prisoners sentenced to life imprisonment for offences committed before 1 October 2023.
The Ombudsperson’s motion arose from an observed divergence in ordinary courts’ practice: while a minority of courts continued to apply the 25-year threshold to offences pre-dating the amendment, the dominant line applied the new 30-year threshold retroactively to all life-sentence prisoners, which the Ombudsperson argued was incompatible with European and international standards. The Ombudsperson argued that the new framework breached both the prohibition of inhuman treatment (as enshrined in Article 40 of the Polish Constitution, Article 3 ECHR and Article 4 of the EU Charter of Fundamental Rights) and the principle of non-retroactivity of heavier penalties (as enshrined in Article 2 of the Polish Constitution, Article 7(1) ECHR, and Article 15(1) of the International Covenant on Civil and Political Rights).
Although the Supreme Court declined to rule on the merits with binding effect, owing to its lack of competence, as explained above, it also held that, in any event, no divergence in ordinary courts’ case law requiring harmonisation had arisen, since the overwhelming majority of courts uniformly applied the 30-year rule. Nevertheless, it chose to set out its own view on the compatibility of the amended provision with higher-ranking law, expressly so that ordinary courts might rely on it when interpreting and applying the law.
As regards the principle of non-retroactivity, relying on its own binding 1999 resolution (I KZP 15/98) and on established Constitutional Tribunal jurisprudence from 2000, the Court reiterated that access to parole is a matter of execution of sentences, not of substantive criminal law, and held that the principle of non-retroactivity of heavier punishment does not apply.
With regard to the 30-year threshold, referring to ECtHR case law (including Bodein v. France (no. 40014/10, 13 November 2014), the Court held that it could not be regarded, in abstracto, as inherently incompatible with the ECHR. Noting that Article 78 § 3 of the Criminal Code counts the entirety of the period of deprivation of liberty, including pre-trial detention, toward the 30-year threshold, it observed that the actual period available for rehabilitative engagement prior to parole eligibility is in practice shorter than 30 years and may in many cases approximate the 25-year period referred to in ECtHR case law. The Supreme Court also observed that the presidential pardon procedure constituted a complementary mechanism for sentence reduction for life-sentenced prisoners. Accordingly, the Court considered that life imprisonment as currently structured in Poland cannot be regarded, in the abstract, as legally or factually irreducible under Article 3 ECHR.
The question of the compatibility of these amendments with the constitutional and international framework therefore remains unresolved. One possible avenue would be review by the Constitutional Tribunal. However, the constitutional crisis in Poland, which has led both the ECtHR and the CJEU to consider that the Polish Constitutional Tribunal does not satisfy the criteria for an independent court, makes this avenue largely illusory (see, respectively, ECtHR, Xero Flor v. Poland, no. 4907/18, 7 May 2021, and CJEU, C‑448/23, 18 December 2025).
The European Prison Litigation Network (EPLN) and its members and partners monitor developments in domestic prison law across Europe and provide concise analyses of the most significant changes affecting prisoners’ rights at national level. These updates are intended to support practitioners in identifying emerging European trends, drawing on comparative experiences, and strengthening their legal practice and advocacy in defence of prisoners’ rights.
Funded by the Robert Carr Fund. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the Robert Carr Fund, which cannot be held responsible for them.
