Act on proceedings against mentally disturbed persons enters into force

In a week’s time, on 22 January 2014, the Act on proceedings against mentally disturbed persons who pose a threat to life, health or sexual liberty of others will enter into force. In December 2013 the President signed it into law but said he would refer the Act to the Constitutional Tribunal for review.

Pursuant to the law, prisoners who have already served their sentences and undergone a custodial therapy programme may be committed to the National Centre for the Prevention of Dissocial Behaviours. This measure will be applied in the case of individuals suffering from personality disorders which may result in them committing serious crimes against life or sexual liberty.

The Helsinki Foundation for Human Rights participated in legislative works on the law. The Foundation monitored the legislative process during which the new law has been negatively assessed by, among others, the National Council of Judiciary, the Prosecutor General, the psychiatric community, experts of the Parliament’s Bureau of Research, the Ministry of Foreign Affairs and the Polish Bar Council Human Rights Committee. The Criminal Law Codification Commission has failed to officially present its position on the matter during the course of the legislative works.

“Mandatory and permanent detention ordered after an individual has served their custodial sentence may be a violation of their personal freedom and the non-retroactivity principle”, says Dr. Adam Bodnar, HFHR Deputy President.

According to the Foundation, the obligatory treatment in a custodial setting should be replaced with more extensively applied preventive supervision, a better solution that may involve, for instance, the electronic tagging of potentially dangerous individuals.

The new law provides that the governor of the prison in which an inmate is detained may initiate the committal procedure. To do that, the governor needs to apply to the competent circuit court for identifying a given person as “posing a risk”. The committal order may be issued even if an inmate has completed their custodial sentence after the application is filed.

Within seven days after the application is received the court is obliged to appoint two expert psychiatrists and an expert psychologist or sexologist. The court also appoints a legal aid attorney for the person named in the application.

If the expert psychiatrists so decide, the evaluation may involve an observation in a psychiatric ward, the duration of which may not exceed four weeks. If the person named in the application does not serve a custodial sentence, the court may issue a warrant for the person’s arrest and compulsory appearance.

By declaring that a person is “posing a risk” the court may subject them to preventive supervision or commit the person to the National Centre for the Prevention of Dissocial Behaviours. Both measures are ordered for an unspecified duration.

“We may expect that first applications filed under the new law will be heard as soon as February”, says Dr. Bodnar. “We will be observing the judicial hearings of first applications under the Act”, he declared.