Rules governing body searches of foreigners unconstitutional, says Constitutional Tribunal

The Constitutional Tribunal held on 29 October 2013 that internal regulations of guarded centres for foreigners which govern body searches were contrary to the Polish Constitution. The constitutional review was launched at the request of the Human Rights Defender.

So far, the rules concerning body searches applied to foreigners have been included into centres’ internal regulations. The Tribunal found that “a body search of a foreigner staying in a guarded centre or a pre-expulsion detention centre constitutes a major interference with the personal liberty of a human being”, arguing that a power to conduct such searches should be explicitly and carefully described in a statute rather than in an enactment of secondary legislation.

“Body search is not an organisational or disciplinary measure, it is an excessive interference with the sphere of rights and freedoms of foreigners staying in the centres”, explains Ewa Ostaszewska-Zuk, HFHR lawyer.

Upon a motion of the Ministry of the Interior, the Tribunal ruled that the unconstitutional provisions would be abolished after nine months following the day when the judgment is published. During that time the Ministry is to prepare provisions governing body searches of foreigners staying in guarded centres or pre-expulsion detention centres which will come into force as a part of the new Foreigners Act.