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The Act on procedures for dealing with persons with mental disorders who pose a threat to the lives, health or sexual freedom of other persons K 6/14

‘Post-sentence isolation provided for by Article 14(3) of the Act is not a punitive measure. It is merely indirectly linked with the past of the person posing a threat. The purpose of the said isolation is to subject the person to a therapy in a special facility or to preventive monitoring.

On no account may such isolation constitute another sentence for an offence committed in the past,’ said the Constitutional Tribunal.

On 15 November 2016 at 9.00 a.m., the Constitutional Tribunal considered joined applications and questions of law lodged with the Tribunal by the President of the Republic of Poland, the Polish Ombudsman, the Circuit Court in Lublin (the 1st Civil Division), and the Court of Appeal in Wrocław (the 1st Civil Division), with relation to the Act on procedures for dealing with persons with mental disorders who pose a threat to the lives, health or sexual freedom of other persons.

In the judgment of 23 November 2016, the Constitutional Tribunal adjudicated that:

1. Article 1 of the Act of 22 November 2013 on procedures for dealing with persons with mental disorders who pose a threat to the lives, health or sexual freedom of other persons

a) is consistent with Article 41(1) in conjunction with Article 31(3) of the Constitution;

b) is not inconsistent with Article 42(1) of the Constitution;

c) is not inconsistent with Article 7(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, as amended by Protocols Nos. 3, 5 and 8 as well as supplemented by Protocol No. 2;

d) is not inconsistent with Article 9(1), Article 14(7) and Article 15(1) of the International Covenant on Civil and Political Rights (ICCPR), opened for signature in New York on 19 December 1966;

e) is not inconsistent with the principle of ne bis in idem, arising from Article 2 of the Constitution;

f) is not inconsistent with Article 4(1) of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Strasbourg on 22 November 1984;

2. Article 2(3) of the Act referred to in point 1 is not inconsistent with:

a) the principle of ne bis in idem, arising from Article 2 of the Constitution;

b) Article 42(1) of the Constitution;

3. Article 9 in conjunction with Article 1(2) and (3) of the Act referred to in point 1 is consistent with Article 2 and Article 41(1) of the Constitution;

4. Article 11 of the Act referred to in point 1;

a) is consistent with the principle of appropriate legislation, arising from Article 2 of the Constitution;

b) is consistent with Article 45(1) of the Constitution;

c) is not inconsistent with Article 41(1) in conjunction with Article 31(3) of the Constitution;

5. Article 14(1)-(3) of the Act referred to in point 1 is consistent with Article 45(1) of the Constitution;

6. Article 14(2) of the Act referred to in point 1:

a) is consistent with the principle of specificity of law, arising from Article 2 of the Constitution;

b) is not inconsistent with Article 42(1) of the Constitution;

7. Article 14(3) of the Act referred to in point 1:

a) is consistent with Article 41(1) in conjunction with Article 31(3) of the Constitution;

b) is consistent with the principle of specificity of law, arising from Article 2 of the Constitution;

c) is not inconsistent with Article 42(1) of the Constitution;

8. Article 15(1), first sentence, of the Act referred to in point 1 is not inconsistent with Article 177 of the Constitution;

9. Article 19(3) of the Act referred to in point 1 is not inconsistent with Article 42(1) of the Constitution in conjunction with the principle of ne bis in idem, arising from Article 2 of the Constitution;

10. Article 25 of the Act referred to in point 1 is consistent with the principle of the protection of citizens’ trust in the state and its laws, which arises from Article 2 of the Constitution;

11. Article 46(1) of the Act referred to in point 1, insofar as it provides for the preparation of an opinion on the necessity of further stay in the National Centre for the Prevention of Dissocial Conduct (hereinafter: the National Centre for Prevention) by only one psychiatrist, is inconsistent with Article 41(1) in conjunction with Article 31(3) of the Constitution.

Moreover, as to the remainder of the allegation, the Constitutional Tribunal decided to discontinue the review proceedings.

A ruling was determined by a majority of votes.

There was one dissenting opinion, filed with regard to the judgment by Judge Andrzej Wróbel.

 

Being under review by the Constitutional Tribunal, the question of the constitutionality of the Act on procedures with regard to persons with mental disorders who pose a threat to the lives, health or sexual freedom of other persons (hereinafter: the Act on procedures with regard to persons with mental disorders) required that the process of reviewing the constitutionality of the challenged provisions should take account of two competing constitutional values. In the Constitution, the constitution-maker assigned particular significance to the two following values: the personal liberty of every individual as well as the protection of life and health of every person. The task of the Tribunal was to determine to what extent the legislator had managed to achieve a certain balance between those values. Such an approach was supported at the hearing by the representatives of both applicants: the President of the Republic of Poland and the Ombudsman.

The controversial character of the challenged Act – controversial from the point of view of the Constitution – led to the situation where the provisions thereof were contested before the Tribunal by two authorities in the course of an abstract review (i.e. the President of Poland and the Ombudsman) as well as two courts referring questions of law (namely, the Circuit Court in Lublin and the Court of Appeal in Wrocław).

In total, 12 out of 59 provisions of the Act on procedures for dealing with persons with mental disorders who pose a threat to the lives, health or sexual freedom of other persons were challenged to a varied degree.

The allegations raised in the applications of the President of Poland and the Ombudsman as well as in the submitted questions of law amount to seven basic issues, namely: (1) a definition of a person posing the aforementioned threat; (2) the retroactivity of the Act, including the punitive and non-punitive character of measures applied with regard to persons with mental disorders, i.e. isolation in the National Centre for the Prevention of Dissocial Conduct as well as preventive monitoring; (3) the proportionality of measures which involve isolation (placement in the said National Centre for Prevention) or do not involve isolation (preventive monitoring), and are to be applied on the basis of the challenged Act with regard to persons that pose the aforementioned threat; (4) the competence of a civil court to apply the said Act; (5) the conformity of the procedure for adjudicating on recourse to preventive monitoring or placement in the National Centre for Prevention with the constitutional right to a fair trial, and the incidental character of the procedure; (6) the issue of the operativeness and constitutionality of the statutory criteria for decisions about the application of measures provided for by the Act (the notions of ‘high likelihood’ and ‘extremely high likelihood’); (7) bases for adjudication by a court on the release from the National Centre for Prevention.

The said issues have been addressed to some extent in the rulings of the European Court of Human Rights and the constitutional-law jurisprudence of other states, in particular as regards the post-sentence isolation of persons regarded as dangerous to society.

Each of the allegations was considered by analysing particular issues, in compliance with the principle that the Tribunal is bound by the limits of an application, a question of law, or a constitutional complaint, while adjudicating.

The allegation raised by the Ombudsman and the Court of Appeal in Wrocław in the context of Article 1(1) of the Act arises from the adoption of an interpretative assumption that is erroneous. In order to deem that an accused person “poses a threat” within the meaning of Article 1 of the Act, it does not suffice that the person has served the sentence of the deprivation of liberty in a therapeutic facility.

In the view of the Constitutional Tribunal, the legislator regulated the need to protect the health and lives of all persons against the criminal acts of persons who are particularly dangerous to society and who may, after serving the sentence of the deprivation of liberty, still pose a threat, according to the opinions of experts and a competent court. The legislator primarily addresses Article 1(1) of the Act to convicted persons who are serving the entire sentence of the deprivation of liberty for a period of 25 years, ordered on the basis of the Penal Code of 1969 (including those sentenced to the death penalty, which was subsequently replaced – on the basis of the Amnesty Act of 1989 – with the penalty of 25 years of the deprivation of liberty). This is the way in which Article 1(1) (in the context of the main ratio legis of the Act) should be treated by courts adjudicating on the basis of the Act. Nevertheless, the legislator extended – within the scope of constitutional values – the potential impact of the Act also to include persons who on the day of the entry into force of the Act were convicts sentenced by a legally effective ruling and who, during a long term of the deprivation of liberty, displayed mental disorders in the form of a mental disability, personality disorders or sexual preference disorders, and who were subjected to the penitentiary administration to therapeutic measures, in the vicinity of or within the reach of the said convicts.

In the view of the Tribunal, the wording of Article 1(1) of the said Act neither raises any reservations from the perspective of the requirement of adequacy (usefulness) of the introduction of the rights and freedoms by the legislator. Article 1(1) in conjunction with the other provisions of the Act provided a tool for the judiciary to be applied with regard to a defined group of offenders who are finishing their sentences, which allows the judiciary to protect others against the real threat posed by those offenders, as well as to protect the offenders themselves against the consequences of serious criminal acts.

The Tribunal deemed that, contrary to the view of the Circuit Court in Lublin, the circumstance that a convicted person was serving a sentence of the deprivation of liberty in a therapeutic facility would be an insufficient prerequisite for admitting an application of the head of a prison filed for the institution of court proceedings.

Justification for an application does not free the court from the obligation to provide its own evidence to determine whether the convicted fulfils the statutorily specified requirements for the application of the preventing monitoring or the placement in the National Centre for Prevention. In accordance with Article 11 of the Act on procedures for dealing with persons with mental disorders, the court is required within the scope of such proceedings to designate two expert psychiatrists in the case of persons with sexual disorders – also an expert sexologists or  a certified psychologist within the field of sexology.

Moreover, the Constitutional Tribunal deemed that, taking into account the varied nature of the personality disorders of those who may be placed in the National Centre for Prevention (inter alia persons with disorders related to sexual preference and/or with dissocial personality), neither from the legislator nor an authority issuing an executive regulation might be required to provide a detailed rules for carrying out a therapy in the National Centre for Prevention.

The said therapy must in principle, be individualised in character, and must be addressed to every patient separately. The placement in the National Centre for Prevention constitutes a form of the deprivation of personal liberty, which combines the elements of mandatory psychiatric detention (comparable to the legal solution included in Article 23 of the Mental Protection Act) as well as a few precautionary measures provided for in the Penal Code.

Taking into account all the prerequisites for the placement in the National Centre for Prevention, the Tribunal held that the post-sentence isolation provided for in Article 14(3) of the Act is not a punitive measure. It is merely indirectly linked with the past of the person posing a threat. The purpose is to conduct a therapy in the National Centre for Prevention or preventive monitoring. On no account is this reconviction for an offence committed in the past.

Moreover, contrary to isolation and medical precautionary measures regulated by the provisions of the Penal Code, the placement in the National Centre for Prevention is not used “instead of a penalty”, e.g. because a person is not of a sound mind or his/her capacity in this respect is considerably impaired. The said differences result in a situation where the constitutional standards arising from Article 42(1) and Article 2 of the Constitution are not adequate to the placement in the National Centre for Prevention on the basis of Article 14(3) of the Act (the prohibition against retroactivity as well as the principle of ne bis in idem).

According to the Tribunal, the placement in the National Centre for Prevention does not constitute an instance of the retroactivity of the law; the said placement is neither a penalty nor a precautionary measure within the meaning of the Penal Code. Hence, one may not speak of an infringement of the principle of ne bis in idem. In the view of the Tribunal, the post-sentence isolation in the National Centre for Prevention in a number of ways differs from isolation ordered on the basis of relevant statutes in force in Germany and Australia, which have been negatively evaluated by international bodies (M. v. Germany; Fardon v. Australia).

The challenged Act provides for an order of a civil court to subject a person to inpatient therapy in the National Centre for Prevention, meets the requirement of a distance between that measure and the penalty of the deprivation of liberty. Specified by law, the mode of implementing a court order makes the said isolation much more similar to the institution of the coercive placement of a patient in a psychiatric facility than to the penalty of the deprivation of liberty.

In the view of the Tribunal, the basic method of a therapy with regard to a majority of personality disorders is a combination of approaches adjusted to affect the personality of a person placed in the National Centre for Prevention. The counteracting of personality disorders is a tough and long-term task. It may not be expected neither from the legislator nor from an authority exercising the competence to issue an executive regulation that a unified therapeutic programme will be determined for all those placed in the National Centre for Prevention, with regard to which the adjudicating court agreed with the experts’ opinion on a high likelihood that a prohibited referred in Article 1 of the Act that a prohibited act might be committed when the patient leaves the National Centre for Prevention.

The Tribunal stressed that the same isolation measure involving the placement in a psychiatric facility may be ordered as a precautionary measure on the basis of the Penal Code, but also as a certain preventive-therapeutic measure ordered by a civil court on the basis of Article 23 of the Act on procedures for dealing with persons with mental disorders.

It is not possible to order the said measures together. This means that similar (or the same) measures which in a broad sense are to safeguard society against persons posing threats may be ordered within the scope of the criminal procedure, where there is a direct relation to a committed prohibited act (as precautionary measures), or in the civil procedure, where there is no such relation (a convicted person has not committed a given prohibited act, but there is high likelihood that s/he will commit such an act) or where such a relation is only indirect and does not imply double jeopardy (a convicted person has committed a prohibited act and there is high  likelihood that s/he will commit such an act again).

Thus, the time-limit for the applicability of the challenged Act of 2013 in this context does not prove its punitive character.

As to the allegation about an infringement of the principle of proportionality by the provisions of the Act which permit to order one of the two measures with regard to convicted persons deemed to be posing a threat, the Tribunal noted that the issue of the proportionality of the indefinite post-sentence detention in the National Centre for Prevention as regards persons posing a threat requires taking account of the comparative-law context, i.e. legal measures adopted in other states in order to safeguard society against dangerous people after they have served the sentence of the deprivation of liberty, always a long sentence.

In the view of the Tribunal, isolation in the National Centre for Prevention used with regard to a person who poses a threat constitutes an exceptional measure. The court should determine this only when preventive monitoring proves insufficient.

Therefore, in a sense, within the scope of the very Act, the legislator introduced a less burdensome measure, namely, preventive monitoring. Isolation for an indefinite period is thus to be regarded – according to the intention of the legislator – as the last resort and should be used only in cases where a person with disorders poses a particularly serious and real threat to the security, health and lives of other persons, and likelihood that the person will commit an offence again is – on the basis of Article 14(3) of the Act – ‘extremely high’.

As regards the conformity with the right to a fair trial in the context of the procedure for adjudicating on the use of preventive monitoring or on placement in the National Centre for Prevention, the Tribunal stated that evaluation as to whether experts’ findings on the state of health and possible future conduct of a person under examination justify deeming that the person poses a threat – where the said evaluation determines the application or non-application of preventive monitoring or a decision to place, or not to place, the said person in the National Centre for Prevention – falls within the scope of the application of law and constitutes the exclusive power of a competent court (and not of experts).

In order to properly assess the likelihood of committing a prohibited act referred to in Article 1(3) of the Act by a convicted person – after s/he has served the sentence of the deprivation of liberty – it is indispensable to assess that likelihood by taking account of evidence gathered by the adjudicating court and all the circumstances determined in the case. Opinions presented by experts – though no doubt being of key significance – constitute some of circumstances that the court takes into account when it autonomously adjudicates on the case. The court’s evaluation also includes the results of a therapy as well as the possibility that the person posing a threat will effectively undergo a therapy after having been released.

The Constitutional Tribunal did not agree with the allegation raised by the Ombudsman as regards the lack of a specific time-limit for preparing a psychiatric and psychological opinion in executive proceedings. According to the Tribunal, what arises from the wording of Article 9 of the challenged Act is that a psychiatric and psychological opinion on the state of health of a person in question is to be prepared the course of executive proceedings. The Act does not outline a specific time-frame for the preparation of such an opinion. What follows from the logic of that legal institution is that such an opinion will be prepared towards the end of the period of a sentence. Therefore, the Tribunal does not see any necessity for the legislator to provide a more specific time-frame for preparing such an opinion. Indeed, the very nature of personality disorders which constitute the basis for filing an application for the use of one of the two preventive-therapeutic measures provided for in the Act (preventive monitoring or isolation in the National Centre for Prevention) indicates that the said measures are not determined by a particular time-limit.

In the view of the Tribunal, the lack of the indication of a specific time-limit for preparing the opinion referred to in Article 9 of the Act does not constitute an infringement of the principle of appropriate legislation, reconstructed from Article 2 of the Constitution. Specified in Article 9 of the challenged Act, an application of the head of a prison merely commences proceedings aimed at determining whether a convicted person referred to in the application poses a threat, and it does not determine the person’s legal situation after s/he has served the sentence of the deprivation of liberty. The person’s situation is shaped by a legally effective court ruling that determines whether the person poses a threat, which is issued, inter alia, on the basis of an opinion of experts which has been prepared solely for the purpose of those court proceedings. Thus, the lack of a time-limit for issuing a psychiatric and psychological opinion in the course of executive proceedings does not infringe the principle of appropriate legislation and, consequently, also the right to the protection of the personal liberty of the person whom the application concerns.

In the view of the Constitutional Tribunal, the provision of Article 46(1) of the challenged Act – pursuant to which adjudication “on the further deprivation of a given person of liberty”, which is related to the further stay in the National Centre for Prevention, is based exclusively on a psychiatric opinion, and the results of therapeutic activities – does not safeguard against the arbitrary or routine extension of the person’s stay in the National Centre for Prevention.

According to the Tribunal, the 2013 Act, which authorises a competent court to issue a decision on the necessity, or the lack thereof, to extend stay in the National Centre for Prevention on the basis of an opinion of one psychiatrist as well as the results of therapeutic activities, is insufficient from the perspective of procedural guarantees which should be granted to a person placed in the National Centre for Prevention.

When depriving a mentally unstable person who poses a threat to others of his/her liberty – due to the person’s state of health – the legislator must regulate by taking account of the requirement to carry out periodic court review as to whether the state and level of the mental disorder of a patient placed in the National Centre for Prevention justifies the extension of the period of a therapy in the said Centre for a particular period.

When adjudicating – in the intervals of at least 6 months – on the necessity to extend, for another 6 months, the therapy of a person staying in the National Centre for Prevention, the court should be provided with an opinion of two psychiatrists who are not institutionally linked to the said Centre, and in the case of a person with personality disorders – also an opinion of an expert psychologist, whereas in the case of a person with a sexual preference disorder – also an opinion of an expert medical practitioner from the field of sexology or a certified psychologist from the said field.

As stressed by the Tribunal, the obligation to obtain opinions from two expert psychiatrists and one expert psychologist enhances the procedural guarantees of a convicted person who is the subject of an application for the placement in the said Centre or for the use of preventive monitoring. What clearly follows from the jurisprudence of the Supreme Court is that in such an instance the court may not solely rely on one of the opinions, completely ignoring the content of the other. If the conclusions of the experts are contradictory, the court is also obliged to make reference with regard to final conclusions expressed by the other of the experts. In the view of the Supreme Court, the overlooking of evidence submitted in appellate proceedings and not addressing the evidentiary submission may affect the outcome of the proceedings. The court has no obligation to admit evidence from an opinion of other experts, or from an opinion of a relevant institution in every case when the submitted opinion is disadvantageous to a party, but the court is obliged to admit such evidence where necessary, and in particular, when contradictory opinions were presented by experts.

The hearing was presided over by the Vice-President of the Constitutional Tribunal, Judge Stanisław Biernat, and the Judge Rapporteur was the President of the Constitutional Tribunal, Judge Andrzej Rzepliński.