Report of the CHR on the Activities of the National Preventive Mechanism in Poland
PG VIII TK 87/13) that they are affected by the same defects as before the amendment”60.
The Commissioner for Human Rights also pointed out that the case needs to be resolved
by the Tribunal and the amendment to the provision does not change the CHR’s opinion.
3) Performance of personal controls by the personnel
Personal controls of charges are performed by the personnel in all the visited juvenile
detention centres and juvenile shelters to check whether they do not carry prohibited and
potentially dangerous items. Such controls happened to be so thorough that they consisted
in taking off underwear61 and doing sit-ups to check whether charges do not carry drugs
or other prohibited items in intimate parts of their bodies62. Controls of charges in one
establishment were procedurally defined in rules of visits63.
It should be stressed at this point that a personal control is one of the most serious interferences with the right to privacy and intimacy and thus authority to perform it must not
be presumed. Furthermore, it must not arise out of a legal act of lower rank than a statute.
In this context, it is worth pointing out the Judgment of the Constitutional Tribunal of 29
October 2013 (file ref. No U 7/12), which was rendered upon application by the Commissioner for Human Rights, challenging provisions governing a personal control of foreigners
held in guarded centres or in custody for the purpose of expulsion. In its judgment, the
Constitutional Tribunal stressed that conditions for the admissibility of a personal control
of a person deprived of personal liberty can never be left to a secondary legislator. They
always must take the form of a statute.
At present, however, personal controls in juvenile detention centres and juvenile shelters
are performed pursuant to the Ordinance of the Minister of Justice of 17 October 2001 on
juvenile detention centres and juvenile shelters64, rather than a statute. Moreover, the Ordinance does not indicate persons authorised to perform personal controls, conditions for
their application and a measure of appeal against a decision in this respect. Terminological
inconsistency in the Ordinance, which first defines the term “personal control” and later
refers to it as a “personal search”65, is also noticeable.
The Commissioner for Human Rights requested the Minister of Justice to take legislative
action on the matter66. The Minister of Justice replied on 25 April 2014 that the Ministry
is working on draft assumptions of the Act on juvenile delinquency proceedings. Relevant
regulations have not been adopted to this day, although the representatives of the NPM
believe that this issue requires urgent regulation.
For both opinions, cf. https://www.rpo.gov.pl/pl/content/wniosek-do-trybuna%C5%82u-konstytucyjnego-w-sprawie-systemu-izolacji-nieletnich-ze-wzgl%C4%99du-na
JDC and JS in Głogów.
62
JDC in Ostrowiec Świętokrzyski.
63
JDC and JS in Mrozy.
64
Dz.U. of 2014, item 1054, as amended.
65
Cf. § 2(20) and § 10515(6) of the Ordinance.
66
KMP.573.24.2014.AI. General
letter
of 8 April
2014, https://www.rpo.gov.pl/pl/content/
wyst%C4%85pienie-generalne-do-ministra-sprawiedliwo%C5%9Bci-z-08042014-r-w-sprawie-kontroli-osobistych
60
61
32
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