HFHR critical of granting immunity for re-privatisation commissioners

The HFHR has presented an opinion on the Re-privatisation Commission Act to the Senate’s Human Rights, Rule of Law and Petitions Committee. The Act was adopted by the Parliament’s lower chamber last Friday.

This is the second Foundation’s opinion on the matter; the first one was submitted to the Sejm Legislative Committee in December 2016. In the recent opinion, the HFHR reiterates the objections expressed against the draft version of the Act and comments on the changes made to that version during parliamentary works.

Super immunity

The key modification grants an immunity to members of the Review Commission, which is designed to protect them from being held responsible for activities performed in their official capacity. In the opinion, the HFHR argues that this immunity is extensive, irrevocable and covers all forms of legal responsibility, both under the criminal and civil law. No other public official enjoys such an immunity, even parliamentarians, whose immunity is granted by the Constitution itself. “Awarding such an extensive immunity to Commission members are not only entirely unreasonable but also blatantly unconstitutional. The lawmakers may not give public officials this kind of ‘licence to abuse the law’, which releases them from any liability for taken actions. Such wide-reaching protection may also lead to a violation of the right to a court exercisable by parties aggrieved by actions of commissioners”, explains Marcin Szwed, HFHR’s lawyer.

Commission to decide on an award of compensation

The HFHR made a more positive assessment of the other change introduced during the legislative process. This amendment establishes a special procedure for examining claims for compensation for moral and financial losses submitted to the Commission by tenants affected by re-privatisation. Such compensation will be paid by municipal authorities and financed from the funds obtained from the recipients of re-privatisation decisions revoked by the Commission. In theory, the new procedure is designed to make the assertion of tenants’ claims easier by establishing a procedure alternative to the long and costly civil litigation. However, in practice the newly enacted provisions may prove completely ineffective: even in the Commission awards proper compensation to an aggrieved party, municipal authorities may always object against the award, which results in the automatic invalidation of the Commission’s decision and the case being referred to a civil court. Objecting will be a sound strategy for municipal authorities as the successful assertion of a claim in civil proceedings is far more difficult. In civil litigation, it is the claimant who must show all requisite elements of compensatory liability whereas the Commission, as an administrative body, is obliged to act ex officio. “The wording of the proposed provisions raises several additional concerns regarding, for instance, the waiver of costs in the civil proceedings”, adds Mr Szwed.