The application of direct coercive measures and the use of firearms or sniffer dogs by the functionaries of the Prison Service and the functionaries of the Government Protection Bureau. K 11/12
The challenged statutory authorisations are inconsistent with the Constitution.
At the hearing on 26 March 2013 at 8.30 a.m., the Constitutional Tribunal considered joined applications, submitted by the Public Prosecutor-General, with regard to the application of direct coercive measures and the use of firearms or sniffer dogs by the functionaries of the Prison Service and the functionaries of the Government Protection Bureau.
The Constitutional Tribunal adjudicated that Article 14(3) of the Act of 16 March 2001 on the Government Protection Bureau as well as Article 22 of the Act of 9 April 2010 on the Prison Service were inconsistent with Article 41(1) as well as Article 92(1) of the Constitution.
The above provisions would cease to have effect as of 5 June 2013. As to the remainder, the Tribunal discontinued the proceedings on the grounds that issuing a judgment was useless.
The application of direct coercive measures, i.e. interference with the realm of the constitutionally protected personal liberty, requires comprehensive and detailed regulation by statute, pursuant to Article 41(1) of the Constitution.
By contrast, both in the Prison Service Act and the Government Protection Bureau Act, these regulations are fragmentary. Indeed, the legislator has authorised the government lawgiver to specify the cases, requirements and ways of applying direct coercive measures as well as the procedure and conduct code for the functionaries applying the said measures, thus he has infringed Article 41(1) of the Constitution.
A statutory authorisation to issue a regulation may not have a carte blanche character and provide the government lawgiver with freedom to determine the substantive content of the regulation. What is, in particular, inconsistent with the Constitution is the authorisation not just to issue a regulation in order to execute a statute, but to independently regulate a number of issues with regard to which there are no direct requirements or guidelines.
The challenged statutory provisions which provide authorisation to regulate matters reserved to be determined by statute also infringe Article 92(1) of the Constitution, since they incorrectly specify the scope of matters to be regulated in executive acts.
The Tribunal stated that adjudicating on the constitutionality of the challenged provisions of regulations was useless, since - as the consequence of ruling the challenged statutory authorisations to be unconstitutional – the regulations issued on the basis of those authorisations would cease to have effect as of the day of the entry into force of the Tribunal’s ruling.
Constitutional Tribunal deferred the date on which the unconstitutional statutory provisions, and thus the regulations issued on the basis thereof, would cease to have effect. Ruling that the challenged provisions would cease to have effect as of the day of the publication of the Tribunal’s judgment in the Journal of Laws of the Republic of Poland would deprive the functionaries of the Prison Service and the Government Protection Bureau of a legal basis for applying direct coercive measures, which would make it impossible to carry out some of the tasks imposed on the functionaries by statute. Such a state of affairs would be highly undesirable, due to the necessity to guarantee the public order and security.
Until the moment when the authorisations cease to have effect in the two challenged Acts, the regulations issued on the basis thereof are still binding. The derogation of statutory authorisations and regulations issued on the basis thereof will take place simultaneously at the date indicated in the operative part of the judgment.
The hearing was presided over by Judge Marek Kotlinowski, and the Judge Rapporteur was the President of the Constitutional Tribunal, Judge Andrzej Rzepliński.
The judgment is final and its operative part shall be published in the Journal of Laws.