The subject of the Constitutional Tribunal control was the order of the Minister of Internal Affairs of 9 July 1991 concerning the features and methods of proceedings of the medical boards subordinate to the Minister of Internal Affairs (Journal of Laws No. 79, item 349 with later amendments). As a result of the referred regulation, a positive HIV diagnosis meant that a patient was immediately recognized as unfit for service (health category D). The medical boards did not have the possibility of classifying such people as, for example, fit for limited service on some specific posts (health category C). Thus, as a result of being infected with HIV, it was impossible to serve in the Police or other services.

The case underlying the question of law concerned a police officer with eight-years’ work experience. In 2006, as part of routine medical examinations, he underwent voluntary test for HIV. The test result was positive. The MSWiA Voivodeship Medical Board, and next the MSWiA District Medical Board unanimously stated that the policeman was infected with HIV as a result of his service in the Police. They found him unfit for service in the Police, but fit for work (disability class III).  In consequence, the Municipal Police Chief released him from duty. The Voivodeship Police Chief upheld this decision. The policeman appealed to the Voivodeship Administrative Court in Gdańsk.

Referring a question of law to the Tribunal
After hearing the case, the Voivodeship Administrative Court in Gdańsk decided to refer a question of law to the Constitutional Tribunal. It concerned the matter of compliance of § 57 point 4 of annex no. 2 of the order of the Ministry of the Interior and Administration of 1991 from article no. 60 of the Polish Constitution, which formulates the right of access to the public service under equal conditions. This right accrues to all Polish citizens who enjoy full civil rights.

During the trial both the representative of the General Prosecutor and the representative of the Minister of Internal Affairs and Administration claimed that the regulation should be pronounced inconsistent. At the same time, the representative of the Minister of Internal Affairs and Administration informed that the resort is working on complex amendment of the regulations concerning the assessment of the state of health of the officers of various uniformed services.

The Constitutional Tribunal in the introduction to the justification stressed that it is entitled to substantive control of seemingly only technical annexes to orders, thus giving them prescriptive character (for example the judgement of the Constitutional Tribunal of 25 May 1998, ref. no. U 19/97). In the heard case it found that § 57 point 4 of annex no. 2 of the order of the Ministry of the Interior and Administration of 1991 should be considered only in connection with the regulations of the order itself and the Police Act of 1997. It also stressed that, regardless of the fact that the questioned regulation concerns various types of uniformed services (the Police, Boarder Guards, Prison Service and National Fire Service), the adjudicated case concerns only policemen.

 Next, the Constitutional Tribunal moved to the analysis of conditions of employment in the Police forces. It pointed out that the conditions such as having Polish citizenship, full civil rights, clear criminal record and necessary education are quite strict criteria. Bearing that in mind, the assessment of the fundamental criterion – "physical and mental fitness for service" is significantly different due to its flexibility, undetermined character and variability.

Disproportionate automatism
Moving to the question of compliance of the referred regulation from the annex to article no. 60 with the article no. 31 paragraph 3 of the Constitution the Tribunal claimed that, in view of the established practice of the medical boards, this regulation results in automatic release from duty when a policeman is found infected with HIV, regardless of the actual state of health. Confirmation of HIV makes a person completely unfit for service (health category D), without the possibility of being classified as fit for limited service (health category C). Health category D assigned to a policeman causes – without any exceptions – initiation of article no. 41 paragraph 1 article 1 of the Police Act (" A policeman is released from duty in the following cases: (…) medical certificate by a medical board on being permanently unfit for service").

The key matter for the adjudication of the Constitutional Tribunal has been deciding whether the referred solution is a disproportionate limitation of the constitutional right of access to public service in the Police. The Constitutional Tribunal pointed that  the aim of the studied limitation is surely the protection of other values protected by the Constitution, that is the health, freedom and rights of other people. However, "the mechanism of automatic dismissal from the Police, resulting from § 57 point 4 of the annex no. 2, is not the least oppressive measure of preventing accidental epidemics". The Constitutional Tribunal also criticised the lack of flexibility in the attitude of the police to officers infected with HIV. It pointed to the fact that there are many posts in the police that have a "civil’ character and on which (as opposed to patrol duty) HIV carrying does not have much significance. The Constitutional tribunal stressed that "a sufficient guarantee of public health and the rights of any third party, would be leaving the assessment of policemen-carriers’ fitness for service to medical boards, which should take into consideration the current state of health of a particular officer, as well as the range of duties associated with the post occupied to date". The Constitutional Tribunal also stressed that the current regulations have been especially harmful for the policemen who were infected as a result of their service and in practice – due to the strict, automatic sanction – might lead policemen to hide the fact of being carriers.

What is going to change after the judgement?
In this particular case, the Voivodeship Administrative Court in Gdańsk, thanks to the judgement of the Constitutional Tribunal, was given the possibility of stating that the dismissal of the policeman infected with HIV was unjust. After the judgement it became possible for the medical boards to assess the influence of HIV carrying on the health of a police officer and his fitness for service, on the basis of the general regulations of the order. However, it seems that legislative intervention will be necessary in this case.

A broader problem – health related discrimination in the uniformed services
The case of the policeman infected with HIV, which was the subject of Constitutional Tribunal’s adjudication, illustrates a broader problem of the access to the uniformed services in the instance of acknowledgement of the presence of disease entities determined in annex no. 2 to the order of the Ministry of the Interior and Administration concerning the features and methods of proceedings of the medical boards. HIV infection is not the only instance in which we deal with an automated decision of medical boards, without examining the actual state of health of an officer or a uniformed service candidate. The conclusion that should be drawn from the judgement is that the medical decision as to the fitness for service should be determined by doctors (who know the realities of service). Medical examination should not be conducted ex ante. by the legislator. It is also important for the Ministry of the Interior and Administration to conduct an inspection of the diseases listed in the annex and adjust it to the current state of medical knowledge. During the trial, the representative of Ministry of the Interior and Administration submitted a clear declaration regarding that.

It should also be stressed that technical, personnel or organisational problems cannot be an excuse to eliminate people from the uniformed services due to their diseases. The costs involved can be considered lower than the benefits that come with the possibility of employing these people and drawing on their experience.