The Foundation noted that the law would apply to a broader category of persons than originally expected. So far the Ministry of Justice said that the regulation must be applied above all to the perpetrators whose death sentence had been commuted in 1989 to 25 years in prison.
The draft legislation introduces the category of “persons posing threat”, or offenders sentenced for violent crimes who were diagnosed during the term of their incarceration with a mental disorder which puts them at a high risk of committing another crime against life or sexual liberty.
A person will be considered “posing threat” by virtue of an order of the guardianship court issued upon the motion of the head of the prison where the person is detained. Still, the relevant provision of the bill fails to provide any guidance as to when the motion can be filed. It does not require the prison head to indicate what therapies the inmate underwent in prison.
Upon hearing experts, the court would be empowered to subject the person to Police supervision or order mandatory placement at the National Centre for Treatment of Mental Disorders. The placement order will be reviewed by the court at six-month intervals. The Foundation thinks that the above measures alone are insufficient for an effective social rehabilitation of “a person posing threat”. In consequence, the draft law should provide more opportunities for applying non-custodial measures such as electronic tagging, a conditional release from the Centre or mandatory outpatient treatment.
According to the bill, the sole criterion upon which the court is to choose between mandatory placement in the Centre and Police supervision is a degree of likelihood that the “person posing threat” may commit an offence. To order placement in the Centre, the court must be satisfied that the person poses a “very high” risk of re-offending. Police supervision, on the other hand, will be ordered in cases where the risk is “high”.
“Because of this slight difference in the legal test courts may be tempted to show less restraint in ordering placement in doubtful cases”, notes Barbara Grabowska, HFHR’s lawyer. “The bill creates a possibility of ordering administrative detention based on negative forensic prognosis. Unfortunately, the bill’s sponsor is yet to present a convincing justification that the proposed measures, which may include even life-long detention of potential offenders, are indeed proportional limitation of the individual’s personal freedom”, adds Ms Grabowska.
