Application of preventive measure under amended Code of Criminal Procedure

An amendment to the Criminal Code, which is to introduce controversial changes in the application of the so-called “protective measures”, is due to enter into force in early July. The new law has been sharply criticised already at the stage of legislative works. After its enactment, the HFHR called on President of the Republic of Poland to launch a preventive constitutional review of the amendment.

In its statement, the Foundation noted that the enacted changes were a step back compared to the current law, considering them to be guided by the concept “punish first, place in treatment later” instead of effectively aiming to eliminate the medical causes of committed crimes.

President Bronisław Komorowski nevertheless decided to sign the amendment into law. Responding to that fact, the HFHR asked the Prosecutor General and Human Rights Defender to consider requesting an ex-post constitutional review of the law by the Constitutional Tribunal.

“According to the case law of the Constitutional Tribunal, in implementing the limitations of rights and freedoms of individuals, the state should choose measures that are least burdensome for the concerned entities while the effects of the introduced regulations should be proportionate to the burden imposed on citizens”, explains Dr Piotr Kładoczny, HFHR’s legal expert. The Foundation argues that the newly introduced regulations on protective measures fall short of these requirements. If a person undergoes a mandatory treatment already after they have served their custodial sentence and is forced to do so under the threat of another sentence, this is hardly an effective and least burdensome measure that prevents them from committing subsequent crimes. Any medical treatment should be based on the principle of voluntariness.

Another thing that cannot be accepted is the failure to introduce a maximum term for a mandatory treatment. In the case of custodial, unsuspended sentences, this means that a perpetrator may be placed at a psychiatric facility even for life. The idea of placing offenders (who are not legally incapacitated) at medical facilities in itself raises doubts regarding its reasonableness.

“The 1969 Criminal Code once introduced a measure that allowed for the placement of perpetrators with limited capacity who posed a threat to the public order”, reminds Dr Kładoczny. “This regulation was extensively criticised. Perpetrators brought customs of the prison subculture to hospitals, generating different types of tension and risks. For these reasons, the drafters of the 1997 Criminal Code decided against introducing similar provisions into the new Code. It is thus surprising that 20 years later the legislators revisited that concept and resolved to apply it towards even larger group of convicts”, Dr Kładoczny says.