Press release after the hearing concerning the exemption of police officers and firefighters from service if they suffer from chronic hepatitis or from acquired immunodeficiency syndrome (AIDS) U 5/13
Taking it for granted that every person who is an HIV carrier, or suffers from acquired immunodeficiency syndrome (AIDS) or chronic hepatitis, is completely incapable of service with the police or the National Fire Service, regardless of his/her position and state of health, is inconsistent with the Constitution.
At the hearing on 10 December 2013 at 2 p.m., the Constitutional Tribunal considered an application, submitted by the Polish Ombudsman, with regard to the exemption of police officers and firefighters from service if they suffered from chronic hepatitis or from acquired immunodeficiency syndrome (AIDS).
The Constitutional Tribunal adjudicated that:
- § 44(6) as well as § 57(5) of Annex No. 2 to the regulation of the Minister of the Interior of 9 July 1991 on the scope of competence and rules of procedure of medical committees subordinate to the Minister of the Interior, insofar as they recognised that a police officer who suffered from acquired immunodeficiency syndrome (AIDS) or chronic hepatitis was completely incapable of service, regardless of his/her state of health, were inconsistent with Article 60 in conjunction with Article 30 and Article 31(3) of the Constitution.
- § 44(6) as well as § 57(4) and (5) of Annex No. 3 to the above regulation, insofar as they recognised that a firefighter who was an HIV carrier, or who suffered from acquired immunodeficiency syndrome (AIDS) or chronic hepatitis, was completely incapable of service, regardless of his/her state of health, were inconsistent with Article 60 in conjunction with Article 30 and Article 31(3) of the Constitution.
The challenged provisions entail that confirmation that a firefighter is an HIV carrier, as well as confirmation that a police officer or firefighter suffers from acquired immunodeficiency syndrome (AIDS) or from chronic hepatitis, is tantamount to recognising a given functionary as incapable of service (D -health category) and dismissing him/her from the police or the National Fire Service. Additionally, medical committees have no competence to assign C-health category in those cases (capable of service with some restrictions, e.g. only in some positions).
There is no doubt that due to the tasks of the police and the National Fire Service, their functionaries are required to be particularly physically and mentally fit. However, the examination of their state of health in respect of their capacity for service should be carried out by considering both their current health as well as the scope of activities related to a given position they have been appointed to. The examination may not be limited by the challenged provisions which – regardless of the circumstances of a particular case – take it for granted that every person who is an HIV carrier, or who suffers from acquired immunodeficiency syndrome (AIDS) or from chronic hepatitis, is completely incapable of service in the police or the National Fire Service. Indeed, such decisions are often incompatible with medical knowledge, and also violate the dignity of those functionaries whose state of health has deteriorated as a result of and due to performed duties.
In the opinion of the Constitutional Tribunal, the challenged solutions constitute a disproportionate restriction of the right to access to public service in the police force and the National Fire Service. The intention to minimise the risk of contracting the HIV, HBV and HCV viruses is justified by such constitutional values as the protection of health as well as the rights and freedoms of other persons.
Still, the said goal may be achieved by means of less radical measures, e.g. by assigning a given police officer to a different position. The persons whom the challenged provisions concern should not take part in patrolling, intervention or rescue operations, where there is a relatively high risk of an injury and contact with infected blood; however, there are no reasons why those persons could not work in administration, education, analysis departments, or police or fire-service laboratories.
The Constitutional Tribunal did not take into account a motion filed by the Minister of the Interior in which he had requested that the Tribunal would defer the moment when the challenged provisions would cease to have effect, due to the fact that legislative work had not yet been finished by the Ministry. Indeed, such a solution would not sufficiently guarantee the protection of rights of ill police officers and firefighters. What confirmed the Tribunal’s statement was, inter alia, that the Minister of the Interior had not yet implemented the judgment of the Constitutional Tribunal issued on 23 November 2009 in the case P 61/08, which concerned police officers who were HIV carriers, despite the fact that more than four years had elapsed from the issue of that judgment. At the same time, the Constitutional Tribunal confirmed it was necessary to introduce amendments in the challenged regulation forthwith, which was incompatible with current medical knowledge and legal standards, so that solutions contained therein could be binding until the issue of a possible new statute.
The hearing was presided over by Judge Zbigniew Cieślak, and the Judge Rapporteur was Judge Wojciech Hermeliński.
The judgment is final and its operative part shall be published in the Journal of Laws.