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Supreme Administrative Court declined the cassation complaint in the case of a police officer dismissed from the force

The boards declared M.B. unfit for duty pursuant to an Annex to the Regulation of the Minister of Interior of 1991 setting out the list of diseases and impairments which are to be taken into account in issuing decisions on a degree of fitness for duty. The disability decision issued for M.B. is based on the Annex provision referring to a subarachnoid haemorrhage whereas the complainant actually suffered from a cerebral haemorrhage, a condition not listed in the Annex.

In December 2010, the Provincial Police Commissioner in Rzeszów dismissed M.B. from the force. In July 2011 the first-instance Administrative Court dismissed B.’s complaint against the Commissioner’s decision. Later, M.B. filed a cassation complaint against the ruling.

In the cassation proceedings before the Supreme Administrative Court, the HFHR sought the Court’s leave to join the case as a community organisation and submitted an amicus curiae brief. The Foundation argued that the first-instance court had failed to examine legality of the cited legal grounds of the dismissal decision as it had not recognised that a subarachnoid haemorrhage and a cerebral haemorrhage are two different conditions. According to the HFHR, the complainant’s right of access to public service was breached.

At the hearing, Dr. Adam Bodnar for the Helsinki Foundation referred to the judgment of the Constitutional Tribunal of November 2009 (case no. P 61/08) and noted that the Regulation was of a discriminatory nature resulting from the unjustified automatism of medical certification procedure. The Tribunal found unconstitutional the provisions which allowed medical boards to rule on the total unfitness for duty of HIV carriers, regardless of their actual state of health. At the same time, Dr. Bodnar emphasised that the M.B.’s right to access public service had been disproportionately violated due to the defective rulings of medical boards based on incorrect legal foundations.

The Supreme Administrative Court rejected the arguments of the complainant and the HFHR and dismissed the complaint. First, the NSA ruled on the complainant’s submission that the finding that he was totally unfit for duty was not tantamount to certifying that he was “permanently” unfit for duty.  The Court decided that according to the rules of systemic interpretation of law, the two expressions must be deemed synonymous.

Second, the NSA did not address the issue of the mutatis mutandis application of a provision governing a different condition than that of the complainant. The Supreme Administrative Court argued that its task as a cassation court was not to rule on the legal qualification of the complainant’s disease. The Court held that such an assessment was at a sole discretion of medical boards composed of medical practitioners.

The NSA’s judgement is final.


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