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Law on persons “posing threat” is constitutional

The Constitutional Tribunal ruled that the vast majority of the provisions of the Act on proceedings against mentally disturbed persons who pose a threat to life, health or sexual liberty of others remains in compliance with the Constitution. The constitutional review proceedings were initiated by the President of the Republic of Poland, the Commissioner for Human Rights and the two common courts that referred questions of law to the Tribunal.

The Poland’s constitutional court held that a person’s placement at the National Centre for the Prevention of Dissocial Behaviours decreed under the reviewed Act is not a criminal or punitive measure. According to the Constitutional Tribunal, such a placement has primarily a therapeutic purpose and protects the safety of the public. The Tribunal did not subscribe to the argument that the placement at the NCPDB is similar to protective measures applicable under the Criminal Code. This conclusion is based on various factors, including the assumption that the basis for the application of measures introduced by the Act is not a prohibited act but rather the general conduct of a person who may be considered posing a threat to life or health of others.

For the above reasons the Tribunal dismissed the arguments based on Article 42 of the Constitution, which provides that only persons who committed an act prohibited by a statute in force at the moment of the act’s commission and punishable under law can be held criminally responsible.

The only section of the Act that the Constitutional Tribunal found unconstitutional was the provision on the procedure of periodic reviews of a placement order. Here, the Tribunal held that this procedure should involve evaluation by not one but at least two expert psychiatrists, which is already the requirement applicable during the initial placement process.

Judge A. Wróbel presented a dissenting opinion, in which he argued that the placement is not a criminal measure but it constitutes deprivation of liberty. Judge Wróbel affirmed that the main purpose of the Act is to ensure that mentally disturbed persons receive proper treatment. Yet he emphasised that the application of an obligatory treatment programme that involves deprivation of patients’ liberty is an ineffective means for achieving this purpose. According to judge Wróbel, preventive supervision would be more useful.  He also noted that the assessment of the probability that a person “posing threat” may commit a criminal offence in the future is susceptible to serious errors.

The HFHR has been monitoring the works on the Act on proceedings against mentally disturbed persons since they were commenced. In several opinions and briefs, also the one submitted to the Constitutional Tribunal, the HFHR noted that the proposed law may be an attempt to circumvent the double jeopardy rule and the non-retroactivity principle. Furthermore, the Foundation emphasised that a placement order that is issued not at the moment of a conviction but at the end of a prison’s sentence violates the Constitution.

To find out more about all actions taken by the HFHR during the legislative process, follow this link.


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