HFHR urges Ombudsman to address disciplinary proceedings against officers of uniformed services
The Helsinki Foundation for Human Rights has called on the Commissioner for Human Rights to request a constitutional review of the provisions that prevent the reinstatement of disciplinary proceedings against police officers and members of certain other uniformed services after the expiry of a certain period after the date when a disciplinary decision was issued.
According to the Foundation, such temporal restrictions unreasonably deprive officers of the right to protect their good name.
The HFHR’s appeal to the CHR is a consequence of the case of a police officer who was dismissed from service on disciplinary grounds in 2001 and later challenged the dismissal as the Foundation’s client. The dismissal was based on a prosecutor’s allegations of the officer’s collusion with criminals. However, in 2011 a criminal court acquitted the officer on all counts. Despite the criminal case ending in acquittal, the disciplinary ruling has not been revoked and the man never returned to service. This was because pursuant to the Police Act disciplinary proceedings may not be reinstated after five years pass from the date of a final disciplinary ruling. The officer challenged the relevant regulations before the Constitutional Tribunal. In June 2016, the Tribunal ruled that the regulations were constitutional. However, the Tribunal suggested, in the justification section of its decision, that the outcome of the constitutional review could have been different had the applicant stated his case in a different manner.
In its statement sent to the Ombudsman, the HFHR suggests that the CHR should substantiate the request for the constitutional review by referring to the very fact that a temporal restriction of the defendant’s right to reinstate disciplinary proceedings exists. “In our opinion, there is no constitutional basis for the introduction of such restrictions. If new exonerating circumstances appear, the defendant should be able to reinstate disciplinary proceedings, even in cases where years have passed from their conclusion –similar mechanisms have been long-present in the criminal procedure and in disciplinary procedures of many professions. This is necessary to protect the right to defend a person’s good name enshrined in Article 47 of the Constitution”, HFHR’s lawyer Marcin Szwed explains.
The Foundation argued that the substantial passage of time should not be a basis for completely depriving an officer of the right to reinstate the proceedings, and may – at most – be invoked as a justification of a refusal to reinstate a person to a previous post, for example, if their health condition deteriorates.
The HFHR also noted the incompatible rules of disciplinary proceedings of different uniformed services. “It is difficult to understand why the legislator has introduced different periods for different services. For instance, police officers may reinstate disciplinary proceedings during a five-year period, the personnel of Internal Security Agency – within three years, the Border Guard officers – within 10 years, while and the officers of the Government Protection Bureau and Customs Service are subject to no restrictions concerning the reinstatement of disciplinary proceedings at the request of a defendant. All this proves that the adopted solutions are absolutely arbitrary”, adds Mr Szwed.