Preliminary remarks.
Directive 2013/48/EU, commonly referred to as the “defence directive”, imposes on Member States the obligation to ensure minimum standards of access to a lawyer in criminal proceedings and in European arrest warrant cases.[¹] In December 2025, the European Commission brought an action against Poland before the Court of Justice of the European Union, alleging improper transposition of this act.[²] The present article subjects both the directive itself and the Commission’s actions to sharp criticism, demonstrating that its full implementation into the Polish Code of Criminal Procedure is not only unnecessary but positively harmful to the effectiveness of the administration of justice.
The Polish criminal procedural order, based on the Code of Criminal Procedure of 1997 (with numerous amendments), has for decades implemented constitutional guarantees of a broadly understood right to defence (Article 42 of the Constitution of the Republic of Poland) as well as standards arising from the European Convention on Human Rights, including the Salduz doctrine.[³]
Directive 2013/48/EU, adopted in 2013 with a transposition deadline of 27 November 2016, nevertheless goes far beyond the optimum, imposing the unification of internal procedural solutions of individual Member States of the European Union, which often exhibit significant differences from the imposed solutions.[⁴] The European Commission, instead of recognising the substantive compliance of Polish law with the objectives of the directive, has chosen the path of an uncompromising legal dispute.
Genesis and the real objectives of the directive.
Directive 2013/48/EU formally aims to strengthen the procedural rights of suspects and accused persons in criminal proceedings, implementing, as it were, the so-called “Stockholm Programme” of 2009.[⁵] In practice, however, it introduces solutions typical of the Anglo-Saxon model, completely inadequate in relation to the continental character of Polish preparatory proceedings, which are characterised by an inquisitorial nature with a strong role of law enforcement authorities, including the prosecution service.[⁶]
Substantive premises for not introducing the directive into the Polish legal order.
Threat to the effectiveness of prosecuting crimes.
- Polish criminal procedural law “delays” the moment of full access to a defence counsel until the presentation of charges or arrest under Article 244 of the Code of Criminal Procedure, only to the extent that there is a justified need for immediate action aimed at protecting legally protected goods.[⁷] The requirement of the presence of a lawyer at the first interrogation would eliminate, for example, the element of surprise when apprehending members of a criminal group, securing biological traces, or taking spontaneous explanations.[⁸] Statistics from the National Public Prosecutor’s Office indicate that in cases of organised crime, more than 40% of key evidence is obtained in the first hours after arrest.[⁹]
Violation of procedural balance and victims’ rights.
- The directive significantly strengthens the procedural position of the defence, already at the stage of preparatory proceedings, making the prosecutor and police a somewhat passive party in the face of the strong status of professional defence.[¹⁰] In the Polish system, the victim of a crime has limited rights, which are realised indirectly, in particular through the effective prosecution of perpetrators by police services and the prosecution.[¹¹] Excessive strengthening of the suspect’s position in the process undoubtedly leads to a significant prolongation of criminal proceedings, in conditions where the average duration of preparatory proceedings in complex cases already exceeds 12–18 months.[¹²]
The problem of absolute confidentiality of lawyer–client communication.
- The Polish system (including Articles 178–181 of the Code of Criminal Procedure, or the regulation of Article 6(4) of the Act on the Bar) allows exceptions to the general principle of confidentiality in the lawyer–client relationship when there are justified grounds for suspecting the defence counsel’s complicity in the crime or when monitoring communication is necessary to secure evidence, for example in terrorism or corruption cases.[¹³] The directive in recital 33 admittedly allows for such exceptions, but in practice the Commission interprets them extremely restrictively.[¹⁴]
Violation of the principle of subsidiarity and proportionality (Article 5 TEU).
- Procedural issues in criminal law fall within the exclusive competence of the Member States of the European Union.[¹⁵] The directive, although based on Article 82(2) TFEU, radically exceeds minimum harmonisation, relentlessly imposing detailed solutions and excessively interfering with the Polish legal and institutional system.[¹⁶] It should be emphasised that Poland, by ratifying the Treaty of Lisbon, did not relinquish sovereignty in the area of the criminal trial model.[¹⁷]
Fiscal and organisational aspects.
- Implementing the EU directive would also mean the necessity of mass provision of a court-appointed lawyer already at the stage of arrest (even in cases of minor misdemeanours), which would burden the state budget with additional hundreds of millions of zlotys annually.[¹⁸] In conditions of limited resources of defence counsels, especially outside large cities, this would lead to paralysis of law enforcement agencies and courts.[¹⁹]
Criticism of the European Commission’s proceedings before the Court of Justice of the EU.
- The filing of the action in December 2025, during parliamentary work on the amendment of the Polish criminal procedure act, had a purely political and repressive character.[²⁰] The Commission once again ignored the fact that Poland has for years applied higher standards in the area of the right to translation, information on charges, and the implementation of the principle of presumption of innocence (related directives).[²¹]
Final conclusions.
Directive 2013/48/EU, despite undoubtedly noble declarations, constitutes a serious threat to the effective functioning of the Polish model of criminal prosecution and, more broadly, the entire justice system. Its full implementation would be decidedly a step backwards – from a model protecting the public interest to a model unreasonably favouring the accused party. This would come at the expense of both individual victims of crimes and the overall condition of society as a whole. In view of the above, Poland – especially now, as a frontline state particularly exposed to acts of espionage, diversionary actions, or terrorism – should consistently defend its model before the Court of Justice of the European Union, invoking serious violations of the principles of proportionality, effectiveness, and procedural sovereignty.
Footnotes:
[¹] Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings… (OJ EU L 294 of 6.11.2013, p. 1) – https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=celex:32013L0048 (accessed: 15 March 2026).
[²] EC files complaint against Poland. “Incorrect transposition”, Wprost, https://www.wprost.pl/polityka/12200595/ke-skierowala-do-tsue-sprawe-przeciw-polsce-niewystarczajace-wysilki-ws-rozwiazania-problemu.html (accessed: 15 March 2026).
[³] Article 6(3)(c) ECHR; ECtHR judgment in Salduz v. Turkey (application no. 36391/02), § 55 – https://hudoc.echr.coe.int/eng?i=001-89893 (accessed: 15 March 2026).
[⁴] Recitals 14 and 15 of Directive 2013/48/EU – https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=celex:32013L0048 (accessed: 15 March 2026).
[⁵] Council Resolution of 30 November 2009 – The Stockholm Programme. (OJ EU C 115 of 4.5.2010, p. 1) – https://eur-lex.europa.eu/EN/legal-content/summary/the-stockholm-programme.html (accessed: 15 March 2026).
[⁶] Cf. comparison of models: S. Waltoś, Proces karny. Zarys systemu, Wydawnictwa Prawnicze PWN, Warsaw 2001, pp. 91–93.
[⁷] Article 244 § 1 and Article 313 § 1 CCP – https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20250000046 (accessed: 15 March 2026).
[⁸] Cf. justification of the 2024 CCP amendment bill (Sejm print no. 1600) – https://orka.sejm.gov.pl/Druki10ka.nsf/0/AEB8C3C99B6F3D32C1258CDC0031F636/$File/1600.pdf (accessed: 15 March 2026).
[⁹] Report of the National Public Prosecutor on the activities of the prosecution in 2024, Warsaw 2025, p. 112 – https://www.gov.pl/web/prokuratura-krajowa/sprawozdania-statystyczne-za-2024-rok (accessed: 15 March 2026).
[¹⁰] Recital 20 and Article 3(3)(c) of Directive 2013/48/EU – https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=celex:32013L0048 (accessed: 15 March 2026).
[¹¹] Article 299 § 1 and Article 306a CCP – https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20250000046 (accessed: 15 March 2026).
[¹²] Ministry of Justice data – average duration of preparatory proceedings in 2022–2025 – https://isws.ms.gov.pl/pl/baza-statystyczna/opracowania-wieloletnie/ (accessed: 15 March 2026).
[¹³] Article 180 § 2 CCP and Article 6(3) of the Act of 26 May 1982 – Law on the Bar – https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20240001564 (accessed: 15 March 2026).
[¹⁴] Recital 33 of Directive 2013/48/EU and the Commission’s position in the letter of 15 July 2025 – https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=celex:32013L0048 (accessed: 15 March 2026).
[¹⁵] Article 4(2) TEU and Article 5(3) TEU – https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:12012M/TXT (accessed: 15 March 2026).
[¹⁶] CJEU judgment in Case C-201/15 AGET Iraklis, paras 85–92 – https://curia.europa.eu/juris/document/document.jsf?docid=185000&doclang=PL (accessed: 15 March 2026).
[¹⁷] Article 82(2) second subparagraph TFEU – https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:12012E/TXT (accessed: 15 March 2026).
[¹⁸] Estimated regulatory impact analysis – RIA to the 2025 CCP amendment bill – https://orka.sejm.gov.pl/Druki10ka.nsf/0/AEB8C3C99B6F3D32C1258CDC0031F636/$File/1600.pdf (accessed: 15 March 2026).
[¹⁹] NRA report “Access to the legal profession in Poland – status as of 2025”, Warsaw 2025 – https://kza2025.adwokatura.pl/wp-content/uploads/2025/06/Sprawozdania-Organow-Adwokatury_kadencja-2021-2025.pdf (accessed: 15 March 2026).
[²⁰] Cf. position of the Government of the Republic of Poland of 10 January 2026 in response to the Commission’s statement of claim, indirectly in Sejm materials https://orka.sejm.gov.pl/Druki10ka.nsf/0/AEB8C3C99B6F3D32C1258CDC0031F636/$File/1600.pdf (accessed: 15 March 2026).
[²¹] Directive 2010/64/EU, Directive 2012/13/EU – https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:32010L0064 and https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:32012L0013 (accessed: 15 March 2026).