The judgement in the case of Sikh against Border Guard
It took the Circuit Court in Warsaw more than a year to resolve the case. During six hearings, the claimant argued that the checks he had been subject to violated his dignity, honour and the freedom of conscience, religion and denomination. For Sikhs, removal of a turban in public is an insult. In his suit Mr Puri requested an apology and the award of PLN 30,000 for a charitable cause. He also sought a court order obliging the Border Guards to conduct security checks in a manner not infringing his personal interests.
The Court held that although the claimant’s interests had been violated, the violation itself could not be regarded as illegal. According to the judge, the Border Guards officers who asked the Sikh to remove his turban during a security check acted within their legal powers. ‘The Court failed to directly refer to the claimant’s argument that the principle of proportionality must be respected during the check and the turban should be removed only as a last resort’, says Karolina Rusiłowicz, a lawyer with the Helsinki Foundation for Human Rights.
Attorneys for Mr Puri argued that the central issue in this case was the fact that despite he didn’t set off the alarm at the security gate, Border Guards officers immediately ordered him to remove the turban without first taking use of other available security screening measures.
During the trial, Shaminder Puri testified that the officers performing the checks were arrogant, and expressed absolutely no recognition of the cultural differences and the Sikh faith. The Court said such behaviour was ‘bad manners of the officers’ but dismissed the notion that it constituted an infringement of claimant’s personal interests.
In October this year, a draft regulation on the types of security checks performed by Border Guards officers was presented for intra-government consultations. The draft introduces a novel rule that the manual checks should be conducted in a way the least intrusive in the intimacy of the person checked.
Additionally, as provides the justification for the new regulation, the body search is to be used as a measure of last resort, only if unauthorised items cannot be detected by other screening measures. ‘We think it’s a step in the right direction. If the regulation is adopted, it may help to resolve similar issues in the future’, says Ms Rusiłowicz.
Shaminder Puri was represented in the case by Zuzanna Rudzińska and Janusz Tomczak, two pro bono attorneys from Wardyński i Wspólnicy, a Warsaw-based law firm.