Medical examination or other actions carried out with the participation of the accused or the suspect. U 2/11
The challenged provisions are inconsistent with the Constitution.
At the hearing on 5 March 2013 at 9 a.m., the Constitutional Tribunal considered an application, submitted by the Polish Ombudsman, with regard to medical examination or other actions carried out with the participation of the accused or the suspect
The Constitutional Tribunal adjudicated that:
1. § 5(1) of the Regulation of the Minister of Justice of 23 February 2005 on medical examination or other actions carried out with the participation of the accused or the suspect
- is inconsistent with Article 74(4) of the Act of 6 June 1997 – the Code of Criminal Procedure as well as with Article 92(1), Article 41(1) and Article 47 in conjunction with Article 31(3) of the Constitution,
- is not inconsistent with Article 22(2) of the Act of 6 November 2008 on Patients’ Rights and the Ombudsman for Patients’ Rights
2. § 5(2) of the Regulation referred to in point 1 is inconsistent with Article 74(4) of the Act of 6 June 1997 – the Code of Criminal Procedure as well as Article 92(1) and Article 41(1) of the Constitution.
3. § 10(1) of the Regulation referred to in point 1, in the part containing the wording “despite the application of direct coercion”, is inconsistent with Article 74(4) of the Act of 6 June 1997 - the Code of Criminal Procedure as well as Article 92(1) and Article 41(1) of the Constitution.
Agreeing with the view presented by the Ombudsman, the Tribunal adjudicated that, by providing for the application of direct coercion in the course of carrying out medical examination and actions specified in Article 74 of the Code of Criminal Procedure, the Regulation supplemented the said Code, thus losing its executive character and destroying the link existing between a regulation and a statute. Indeed, the challenged provisions of the Regulation go beyond the scope of statutory authorisation, by regulating matters which have not been regulated by statute. Consequently, they are inconsistent with Article 74(4) of the Code of Criminal Procedure as well as Article 92(1) of the Constitution.
The lack of provisions in the Code of Criminal Procedure as regards the rules and procedure for the application of direct coercion in the course of carrying out medical examination and actions specified in Article 74 of the Code of Criminal Procedure as well as with regard to admissible direct coercive measures entails that the constitutional review of the challenged provisions of the Regulation must be rigorous. Taking this into account, the Tribunal stated that the challenged provisions introduced the restriction of personal inviolability and personal liberty, and thus interfered with the realm reserved solely for statutes, which had been determined by the constitution-maker in Article 41(1) of the Constitution.
As to the issue of conformity of § 5(1) of the Regulation to Article 47 of the Constitution, the Tribunal ruled that the right to privacy also implied respect for the dignity of the accused or the suspect in the course of gathering biological evidence which constitute actions involving an invasion of the bodily integrity of the person. The Tribunal stressed that the legal institution of assistance in the form of applying direct coercion, as provided for in the challenged provision of the Regulation, constituted a restriction of the right to privacy, and since the said restriction had been introduced by means of a sub-statutory act, § 5(1) of the Regulation was ruled inconsistent with Article 47 in conjunction with Article 31(3) of the Constitution.
Sharing the view presented by the Minister of Justice, the Tribunal adjudicated that Article 22(2) of the Act on Patients’ Rights was an inadequate higher-level norm for the review in the context of § 5(1) of the Regulation, indicating that medical examination carried out on the basis of Article 74(2) and (3) of the Code of Criminal Procedure were not aimed at preserving, recovering and improving health. Moreover, the Act on Patients’ Rights and the Act on Medical Activity, however, provide for a rather active role of the patient, and in the case of the accused or the suspect – subjected to direct coercion so that evidence could be obtained in the course of criminal proceedings – there is no such active role in that context.
The hearing was presided over by Judge Andrzej Wróbel, 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