Cause of disability: matter for Constitutional Tribunal or Supreme Court?
The HFHR has asked the Commissioner for Human Rights to submit a complaint in cassation in a case about the disclosure of the cause of a disability in a disability evaluation decision. According to the Foundation, the regulation that requires the disclosure of such information is unconstitutional.
The motion to submit a complaint in cassation was filed on the basis of the case reported to the HFHR’s client by Adam Struga*. The man received a certificate of his disability, which was designated with the code “02-P”, indicating a mental condition. An employee must present the certificate to an employer in order to be able to claim various disability benefits. Given the above, in the assessment of Mr Struga, the disclosure of this information was a disproportionate interference with his right to privacy, which exposed him to maltreatment at a workplace because it may result in his employer learning about his mental disorders.
“Importantly, a single code of a disability refers to broad categories of conditions and does not discriminate between degrees of their severity. Therefore, the fear of being stigmatised at work is entirely justified because both a person suffering from a mild form of depression and a person with severe schizophrenia have the same code in their disability certificates”, said Marcin Szwed, a lawyer of the HFHR.
Regrettably, the courts hearing the case dismissed Mr Struga’s arguments, ruling that the obligation to include a disability code in a disability certificate is imposed by a regulation and is constitutional.
In its letter to the CHR, the Foundation noted that the regulation violated several constitutional provisions. The key issue is that an interference with the right to privacy is effected by an act of a sub-statutory level. The HFHR emphasised that irrespective of the type of enactment, the very fact that a disability certificate discloses a disability code violates the Constitution. This is a far-reaching and unreasonable interference with the rights of an individual, which arises out of a disclosure of sensitive information and exposes an individual to the risk of discrimination at a workplace.
The Foundation quoted a position statement of the Polish Psychiatric Society, which argued in a letter sent to the HFHR that the regulation’s provisions are unconstitutional and should be replaced by other, less intrusive measures. In its submission to the CHR, the Foundation also presented arguments that the regulation’s requirements are contrary to the European Convention on Human Rights, Convention on the Rights of Persons with Disabilities and the Polish Labour Code.
Who judges laws?
The HFHR underscored that the constitutional crisis that has been affecting Poland for nearly eighteen months gave rise to serious concerns whether the Constitutional Tribunal is longer capable of performing its constitutional function. In such a situation, it is common courts and the Supreme Court that need to review the compatibility of applied laws with the Constitution and international law. Only in this way the principle of constitutional primacy can be upheld and respected.
* – name changed