Another opinion on changes in the functioning of sobering stations

The HFHR has submitted the second legal opinion on the Polish Senate’s draft amendment to the Upbringing in Sobriety and Alcoholism Prevention Act, Sejm paper no. 978. In April 2012 the Constitutional Tribunal (case no. K 12/11) found that the provisions relating to the imposition of charges for a stay in a sobriety station were unconstitutional.

The judgment of the Constitutional Tribunal will become effective on 16 January 2013, nine months from its publication date. It wasn’t until early December that the Senate’s draft amendment was sent to the Sejm. “The legislative works on the draft are progressing rapidly. The amended provisions have to enter into force by 16 January 2013, or otherwise the issue of charges related to a stay in a sobering station remains unregulated”, explains Barbara Grabowska, a lawyer with the HFHR.

The lack of legal basis for calculating the payment should prevent the authorities from charging it from any person admitted to a sobering station, thus depriving such facilities of an important source of income. On the other hand, the HFHR believes that such charges may be calculated arbitrarily, without a legal basis.

The HFHR also points to the fact that under the Senate Regulations a draft law developed to enforce the judgment of the Constitutional Tribunal and conclusions recommending amendments to a draft law may only include modifications aimed to enforce the said judgement and necessary consequences of such modifications. Yet the current legislative proposal not only modifies the provisions relating to charges for a stay in a sobering station but also assumes the introduction of numerous other regulations concerning the functioning of the facilities.

“The draft law stipulates, among other things, to add to [the Upbringing in Sobriety and Alcoholism Prevention] Act two new direct coercive measures that may be applied against an individual admitted to a sobering station, namely forced administration of a medicinal product and solitary confinement, currently regulated by secondary legislation.”, says Ms Grabowska. In the HFHR’s opinion it is also worrying that direct coercive measures prescribed in other legislative provisions may be potentially introduced for the use in sobering stations. The wording of the draft law is so vague that one cannot deduct from it which direct coercive measures will be allowed to be applied in respect of persons admitted to sobering stations. “In the current legal state, there is no uniform list of direct coercive measures”, explains Ms Grabowska.

The HFHR holds that a blanket authorisation for sobering stations personnel to use direct coercive measures laid down in other provisions of legislation may lead to the unjustified, arbitrary use of any measure specified in any piece of legislation. The Helsinki Foundation also disapproves, among other things, a broader definition of a direct coercive measure covering the immobilisation technique by means of other “technical devices” than the ones so far listed in the Act.
The HFHR also notes that it is not clear what principles will be governing the functioning of a system enabling the personnel to visually observe persons detained in sobering stations, as set out in the draft law. It is not explicit whether the said system is designed to only allow for the observation of persons kept in a sobering station or whether it should also provide the view of other rooms.

“In our opinion the constant supervision of a person kept in a sobering station through video recording devices will be a far-reaching interference with their legally protected rights and freedoms”, says Ms Grabowska.