FOURTH SECTION

Application no. 56695/08 Krystian KULIŃSKI against Poland lodged on 4 November 2008

STATEMENT OF FACTS

The applicant, Mr Krystian Kuliński , is a Polish national, who was born in 1973 and lives in Lublin .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was a police officer working at the Lublin office of the Central Investigative Bureau, the anti-narcotic branch ( Centralne Biuro Åšledcze ).

On 29 October 2005 the police intervened in a night club Insomnia in Kielce because the applicant had been aggressive and under the influence of alcohol. He tried to provoke fights with other customers, threatened them with a firearm and abused them verbally. After unsuccessful attempts to calm him down the police arrested the applicant and placed him in a sobering-up centre. The applicant was aggressive to the staff of the centre and to the police officers.

On the next day the applicant left the Kielce sobering-up centre.

On 11 January 2006 disciplinary proceedings against the applicant were instituted. He was charged with a grave violation of the rules of ethics of a police officer in breach of section 132 (1) of the Police Act.

At the same time the Kielce District Prosecutor started an investigation into the incident and afterwards indicted the applicant before the Kielce District Court under Articles 224, 226 and 190 of the Criminal Code. On 29 June 2006 the Kielce District Court conditionally discontinued the criminal proceedings against the applicant.

On 22 March 2006 the Head of the Police ( K omendant Główny Policji ) suspended the applicant from his functions.

In the course of the disciplinary proceedings the applicant was heard and admitted to all charges. He expressed his remorse and apologised to all involved.

On 7 June 2006 the Head of the Police found the applicant guilty as charged and decided to dismiss him from the police. The Head of the Police established that the incident had been a very serious one and that the penalty took into account all the circumstances of the case including the fact that the applicant had been off-duty during the night in question.

The applicant appealed against the decision requesting reconsideration of the case. He argued that the penalty had been disproportionate to his offence in particular since he had served for fourteen years as a police officer in an exemplary manner. Moreover, his conduct during the incident of 29 October 2006 did not cause any material damage and nobody got hurt.

On 31 July 2006 the Head of the Police upheld his decision.

The applicant lodged a further appeal against the decision.

On 19 January 2007 the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny ) dismissed the applicant ’ s complaint. The court, which could examine only whether the impugned decision had been issued in accordance with the law, considered that the Head of the Police took his decision after having conducted disciplinary proceedings in a non-arbitrary manner.

The applicant lodged a cassation appeal with the Supreme Administrative Court ( Naczelny Są d Administracyjny ). He and his lawyers underlined that the Head of the Police had not taken into consideration any mitigating circumstances, like his exemplary service and the difficult period in the applicant ’ s personal life (he had felt depressed after his divorce and the death of a friend). In his cassation appeal the applicant ’ s lawyer also complained that in his disciplinary proceedings the applicant had been deprived of the right to be represented by a professional representative i.e. a lawyer. He relied on the Constitutional Court ’ s judgment of 19 March 2007 which had considered unconstitutional the provisions barring a police officer from being represented by a lawyer of his own choosing during disciplinary proceedings.

On 6 May 2008 the Supreme Administrative Court dismissed the applicant ’ s cassation appeal. It considered that the Constitutional Court ’ s judgment had been given after the Regional Administrative Court ’ s judgment and thus could not be applied in the instant case. Moreover, the decisions given in the disciplinary proceedings against the applicant were not based on the unconstitutional provision, and thus it would not be possible to reopen the proceedings following the Constitutional Court ’ s judgment.

On 13 May 2008 the applicant lodged a motion for the reopening of the proceedings in the light of the Constitutional Court ’ s judgment and leave to examine the request out of time.

On 16 June 2008 the Head of the Police refused to restore the time-limit for the purpose of reopening. Relying on section 135 (3) of the Law on Police such application for reopening shall be made within one month from the date on which the judgment of the Constitutional Court became final. In the instant case the time-limit had expired on 2 May 2008. The Head of the Police considered that the fact that the applicant had been waiting for the Supreme Administrative Court to give a final ruling in his case had not been a justified reason for failing to observe the time-limit.

The applicant appealed but on 12 August 2008 the Head of the Police upheld its own decision. On 14 August 2008 the Head of the Police refused to reopen the proceedings. On 18 September 2008 the Head of the Police upheld his own decision not to reopen the case.

B. Relevant domestic law and practice

Section 135f (1) of the 1990 Police Act, in so far as relevant, read as follows:

“In the course of disciplinary proceedings the accused person shall have the right to:

(4) appoint a defender from among the police officers”

Section 135r of the Police Act, in so far as relevant, read as follows:

“2. Disciplinary proceedings shall be reopened upon request of the accused police officer ( ... ), if as a result of a decision of the Constitutional Court , a provision, which constituted the grounds for the disciplinary decision, lost its power or was changed.

3. In cases referred to in paragraph 2, the request to reopen the proceedings shall be lodged within one month of the date on which the judgment of the Constitutional Court entered into force.”

On 19 March 2007 the Constitutional Court gave a judgment following a constitutional complaint lodged by the Ombudsman (K 47/05). The judgment was published on 2 April 2007 and entered into force on the same date. The court considered that section 135f (1) point 4 of the Police Act was unconstitutional in that it unjustifiably limited the right of the accused person to defend himself. The Constitutional Court held for instance that a police officer charged with defending an individual in disciplinary proceedings would not be able to offer the same level of services as a professional representative. Moreover, the representative continued his service as a police officer, and thus the disciplinary body remained his hierarchical superior.

On 4 June 2008 the relevant provision of the Police Act was amended in that an accused police officer could be represented by an advocate or a legal adviser .

COMPLAINTS

The applicant complains under Article 6 § 3 (c) of the Convention that in the disciplinary proceedings he was deprived of his right to defend himself through legal assistance of his own choosing.

He also complains that in spite of the Constitutional Court ’ s judgment finding the impugned provision unconstitutional he was prevented from having the disciplinary proceedings reopened.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Reference is made to the exclusion of legal representation for disciplinary proceedings and to the impossibility for the applicant to reopen the proceedings after the Constitutional Court ’ s judgment.

Moreover, was the principle of equality of arms respected during the disciplinary proceedings in which he had no right to be represented by a lawyer?