Pursuant to the provisions of Article 552 § 4 of the Code of Criminal Procedure. compensation and reparation are due in the case of undoubtedly wrongful temporary arrest.
Unjustified pre-trial detention
As indicated by representatives of the doctrine, “undoubted wrongfulness” of pre-trial detention manifests itself in three forms:
1) when it was applied in violation of the provisions of Chapter 28 of the Code of Criminal Procedure irrespective of the type of the final decision ending the proceedings – so in particular when there was no justified fear of the accused escaping or hiding at the time of the application of the pre-trial detention, especially when his/her identity could not be established or he/she did not have a permanent place of residence in the country, or in a situation when there was no justified fear that the accused would induce false testimony or explanations or otherwise unlawfully obstruct the criminal proceedings;
2) when, due to the type of final decision ending the criminal proceedings, it turns out that the application of this measure was unjustified. In such a case, the assessment of the correctness of the application of the detention order should be made from the perspective of this ruling. This applies to such rulings in which guilt has not been attributed to the accused and thus when he/she has not been finally subjected to criminal liability;
3) when – despite the fact that guilt and culpability have been attributed – the accused has not been finally subjected to an absolute penalty of imprisonment (and thus when the person is sentenced to a suspended sentence of imprisonment, a penalty of restriction of liberty or a fine).
Compensation and reparation
As regards compensation, it should be pointed out that: damage to property includes the coverage of incurred losses and lost benefits – within the meaning of Article 361 § 2 of the Civil Code. Damnum emergens, i.e. actual damage, is a loss in the victim’s property which manifests itself in the reduction of assets or increase of liabilities as a result of unjustified pre-trial detention, while lucrum cessans is the lost benefit which the victim could have obtained if the damage had not been inflicted upon him. On the other hand, compensation for non-material damage is compensation for non-material damage resulting from unjustified pre-trial detention, which has the form of a single cash payment from the State Treasury. It should be borne in mind here that violations of personal rights do not have any consequences for the victim’s property, but they cause physical and mental suffering connected with the execution of this protective measure.
The application for compensation and reparation for unjustified pre-trial detention should be submitted to the district court with jurisdiction over the place where the pre-trial detainee was released. The application addressed to the competent court is free of court fees, regardless of the amount of damages and compensation requested. It must, however, be filed within one year of the date on which the ruling ending the proceedings in the case in which the defendant remained under pre-trial detention became final.