Acquitted police officer may protect his reputation in disciplinary proceedings – application to Strasbourg Court
The HFHR has submitted an application to the European Court of Human Rights in the case of an acquitted police officer who could not reopen disciplinary proceedings that led to his removal from service. The application indicated that such a situation resulted in a violation of the Convention and in particular the right to protect a person’s reputation and good name, which is a derivative of the right to the protection of private life.
The application concerns a former police detective. His duties included participating in undercover operations set up to infiltrate criminal groups. The officer worked effectively and contributed to identification and arrests of many criminals. In 2001, the prosecution service charged him with several criminal offences, including corruption. After the charges were filed, the chief of a provincial Police department brought disciplinary proceedings against the officer and sanctioned him with removal from service.
After ten years, a criminal court acquitted the officer on all counts. In the statement of reasons appended to the judgment the court held that the applicant had never abused his authority and all the testimony made against him was completely unreliable. At the time, the applicant planned to return to service. However, in accordance with the Police Act, disciplinary proceedings against officers may not be re-launched after the passage of five years from the issuance of a disciplinary ruling. Interestingly, the Constitutional Tribunal ruled in a 2016 constitutional complaint case that this temporal limitation on the possibility to reopen disciplinary proceedings was constitutional.
The application presents allegations of a violation of the right to the protection of reputation and the absence of a guarantee of an effective remedy. Although the Police Act allows for the reopening of disciplinary proceedings if new material circumstances are unveiled, this may only happen within a short duration of five years. Considering that criminal cases tend to be excessively lengthy, this remedy is practically unavailable. “We also emphasised that provisions of the Police Act are discriminatory because under Polish law officers of certain other uniformed services may re-institute disciplinary proceedings for their benefit without any temporal limitations”, adds Katarzyna Wiśniewska, a lawyer of the Helsinki Foundation.
The regulations unfavourable for police officers sanctioned in disciplinary proceedings is the problem the HFHR has been dealing with for years. “In October 2016, we asked the Commissioner for Human Rights to apply to the Constitutional Tribunal for a constitutional review of these regulations. We argued that the possibility of reopening disciplinary proceedings in an attempt to seek a resolution favourable for a defendant should not be limited by any deadline because such a limitation serves no constitutional purpose”, Marcin Szwed says.
The application to the ECtHR was prepared as part of the Strategic Litigation Programme and the applicant is represented before the Court by Professor Ireneusz C. Kamiński, a legal expert of the HFHR.