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The right to a fair trial; the deprivation of the complainant
of the right to participate in a court sitting concerning
the execution of a protective measure involving the placement
of the complainant in a secure psychiatric facility SK 13/14

The right to a fair trial; the deprivation of the complainant of the right to participate in a court sitting concerning the execution of a protective measure involving the placement of the complainant in a secure psychiatric facility

‘What is unconstitutional is the way of regulating the procedure for a court’s ex officio adjudication on the validity of the further execution of a protective measure involving the placement in a secure psychiatric facility, insofar as it does not guarantee that a person with regard to whom the measure has been applied has the right to participate in a court sitting concerning the execution of the measure and the right to be heard by a competent court,’ stated the Constitutional Tribunal.

On 22 March 2017 at 10 a.m., the Constitutional Tribunal publicly delivered its ruling, issued at a sitting in camera, with regard to Mr M.W.’s constitutional complaint pertaining to the deprivation of the complainant of the right to participate in a court sitting concerning the execution of a protective measure involving the placement of the complainant in a secure psychiatric facility.

The Constitutional Tribunal adjudicated that Article 204(1) and (2) in conjunction with Article 22(1) of the Act of 6 June 1997 – the Executive Penal Code, insofar as it does not stipulate that a perpetrator placed in a secure psychiatric facility – where the said placement is intended as a protective measure – has the right to participate in person in a court sitting concerning the execution of the said protective measure, is inconsistent with Article 45(1) in conjunction with Article 41(1) and Article 31(3) of the Constitution of the Republic of Poland.

The ruling was unanimous.


The challenged provision concerns the execution of a protective measure involving placement in a psychiatric facility – which has been ordered by a criminal court – of a person who, in a state of insanity, committed a prohibited act which is highly socially detrimental. The protective measure is to protect the life, health and property of other persons in a situation where there is high likelihood that the perpetrator will – due to his/her mental illness or mental handicap – commit such an act again. The placement in a psychiatric facility makes it possible to undertake appropriate treatment with regard to the perpetrator.

Such a protective measure constitutes a kind of a criminal-law reaction which results in the restriction of the perpetrator’s personal liberty. Unlike in the case of the penalty of the deprivation of liberty, the period of the application of the aforementioned protective measure is not specified in advance. Therefore, it is particularly important to have an effective judicial review of the application of psychiatric detention in the course of executive criminal proceedings. On the basis of Article 204(1) of the Executive Penal Code, a court is to issue – ex officio and at least every 6 months – a decision on the perpetrator’s further stay in the psychiatric facility.

The allegations raised in the constitutional complaint amounted to the question as to whether the provisions of the Executive Penal Code do not stipulate that a person placed in a psychiatric facility has the right to participate in person in a court sitting referred to in Article 204(1) of the Executive Penal Court or the right to be heard by a competent court as regards circumstances that may be of significance for the thorough consideration of the issue whether the said protective measure should be further applied.

The Constitutional Tribunal reiterated the significance of the right to a fair trial as a guarantee of the protection of other constitutional rights and freedoms. At the same time, the Tribunal emphasised the guarantee of personal participation in procedural activities as well as the guarantee of being heard by a court which are closely related to the legislator’s obligation to ensure that everyone has access to a fair, thorough and public court procedure.

What is also of relevance is the fact that psychiatric detention constitutes a measure that rules out the exercise of personal liberty. By contrast, personal liberty falls within the category of fundamental constitutional freedoms. The imposition of any restrictions on that freedom must be subject to diligent judicial review.

According to the Tribunal, the restriction of procedural guarantees within the scope of proceedings in the course of which a court ex officio examines the validity of a perpetrator’s further stay of in a psychiatric facility – which is imposed by the challenged provisions – was not necessary within the meaning of the Constitution. Consequently, the said restriction constitutes inadmissible interference in the right to a court’s fair, thorough and public consideration of a case.

In the view of the Constitutional Tribunal, the main requirement in review proceedings referred to in Article 204(1) of the Executive Penal Code should be the examination of all circumstances that are necessary to determine whether continuing psychiatric detention is valid. The provisions impose on the director of a psychiatric facility an obligation to provide a competent court with an opinion on the perpetrator’s state of health as well as any progress in treatment. Where needed, the court may seek expert opinions. However, at the same time, the said Code does not guarantee that a person directly concerned may participate in relevant court proceedings or present his/her stance and evidence in support thereof.

The Tribunal noted that, after a normative change that had taken place before the issuance of the judgment, the legislator supplemented the content of Article 204 of the Executive Penal Code, by adding the obligation of participation in a court sitting on the part of a public prosecutor and a defence counsel. Yet, the participation of the counsel for the defence may not – according to the Constitutional Tribunal – compensate the lack of that right on the part of the perpetrator. Arising from the constitutional right to a fair trial, the guarantees of participation in procedural steps as well as of being heard by a competent court are directly granted to a person whose situation is to be determined by a decision of the court. By contrast, in the current legal situation, the issue of further stay in a psychiatric facility is determined by the court without hearing or even seeing the person subjected to detention in the said facility. Moreover, the Tribunal stated that the requirement to expedite court proceedings which underlay the introduction of the court’s consideration of cases despite the nonappearance of parties fails to be sufficient justification for the exclusion of the perpetrator’s right to participate in person in a court sitting.

The efficiency of court proceedings may not be a sole basis for depriving a person whose rights or obligations are under judicial review of elementary procedural measures aimed at realising constitutionally guaranteed rights such as the right to a fair trial and the right to defence at every stage of criminal-law proceedings. Although what follows from Article 45(1) of the Constitution is the requirement to consider cases “without undue delay”, it may not be deemed – according to the Constitutional Tribunal – that the granting of the right to participate in a court sitting and of the possibility of being heard by a court, when done to a person directly concerned, by itself causes “undue delay”.

The main objective of court proceedings is, for a competent court, to determine a case fairly, thoroughly and publicly, and not to “be done with it” quickly.

The hearing was presided over by Judge Leon Kieres, and the Judge Rapporteur was Judge Piotr Pszczółkowski.