First punish, then treat?

An amendment to the Criminal Code has been presented for the President’s signature. The law introduces, among other things, a possibility to impose involuntary treatment of persons who served their criminal sentences. The measures laid down in the amendment have raised major concerns regarding their constitutionality. The HFHR has called the President to launch a constitutional review of the new law.

The amendment provides that convicts should be isolated if they pose a risk of committing another offence. Moreover, measures such as electronic tagging, involuntary treatment or placement at a psychiatric ward may be imposed on such persons. “The measures will be imposed on the basis of a forecast of the risk of committing another offence presented by the perpetrator, and an assessment of the severity of social harm that may result from the offence”, explains Dr Piotr Kładoczny, HFHR’s legal expert.

The HFHR is concerned that the above protective measures are to be imposed already after a sentence is executed. The existing provisions of the Criminal Code stipulate that the period of a convicted person’s stay at a closed rehab centre is credited towards the term of their sentence. Also, the Code allows for an early conditional release of convicts who responded well to treatment or rehabilitation. This motivates the perpetrators to undergo treatment behind bars.

“The provisions of the recently amended Drug Abuse Prevention Act, based on the ‘treat rather than punish’ principle, go even further than that. Interestingly, it seems that the amended provisions of the Criminal Code follow the principle ‘first punish and then treat involuntarily’”, Dr Kładoczny says.

The Foundation is also concerned about the fact that the said measures are not subject to any temporal limitations and is worried that the criteria of their imposition are imprecise. “The situation of addicted persons who committed any addiction-related offence is the best proof that the measures of the new regulation are disproportionate. Such persons may be forced to abide by protective measures even for the rest of their life if it is considered necessary for the purposes of crime prevention”, Dr Kładoczny adds.

However, the most controversial issue is the introduction of a custodial sentence of up to two years that may be imposed on persons who fail to comply with the measure imposed against them. The Senate adopted an amendment to the bill that abolished criminal sanctions for a failure to comply with a mandatory treatment order. The Senators assumed that persons suffering from a disease or addiction need help rather than another sentence. However, the Sejm rejected the Senate’s amendment, which hasn’t been included in the final wording of the new law.

“The imposition of additional custodial sentences, e.g. on a person who suffers from a medical condition and refuses to undergo treatment because he or she is unaware of their actual condition or has concerns against the use of pharmaceuticals, is at odds with the principle of inherent and inviolable human dignity”, Dr Piotr Kładoczny says.

According to the HFHR, this leads indirectly to a violation of the fundamental principle of criminal law, the double jeopardy rule.