Shot on duty and without benefits?

The HFHR has presented an amicus curiae brief to the Regional Court in Lublin in a case concerning the reduction of the disability allowance of Wojciech, a former officer of the Communist-era police.

This reduction was related to the adoption of a 2016 law targeting officials of Communist Poland’s secret services. In the opinion of the Foundation, the slashing of benefits is a disproportionate interference in the sphere of the former officer’s rights, especially given the exceptional circumstances of the case, which could not have been taken into account because of how the new law was designed.

Regional Court’s decision

On 15 May 2019, the Regional Court in Lublin granted Wojciech’s complaint and held that he should receive his allowance in the full amount from before the reduction. The court ruled that the law which led to the reduction should not have been applied. First, the court found that the post to which Wojciech was transferred was not directly indicated in the law as grounds for deprivation of benefits. Second, the reduction in benefits should not take place without a review of the circumstances of a given case. Wojciech was unable to take up his post for health reasons, so he never actually been in the service of a totalitarian state.

Wojciech’s story

Wojciech joined the ranks of the Communist police in 1972. On 8 February 1982, he received multiple gunshot wounds while chasing a criminal, which left him in a serious condition. From 8 February 1982 to 15 July 1983, he stayed in hospitals, sanatoriums and was receiving outpatient treatment. While on sick leave, Wojciech was appointed a Deputy Political and Educational Officer of a police station, a post he had never applied for. He never actually took on this role. Wojciech was officially transferred to the new post on 1 February 1983 but was declared unfit for duty for reasons of disability as from 8 February 1982, which is the date of his wounding. The Institute of National Remembrance found that from 1 February 1983 to 15 July 1983, Wojciech remained in the service of the totalitarian Communist state. However, the Institute admitted that Wojciech appointment to the deputy political officer’s post was at the time a bureaucratic manoeuvre designed to increase the amount of his soon-to-be-granted disability allowance.

By a 2017 decision of the Director of the Pensions Department of the Ministry of the Interior and Administration, the gross amount of Wojciech’s disability allowance was set at PLN 1000.00, which translates into the monthly payment of PLN 854.00. Before the reduction, he received the gross amount of PLN 3493.28 (PLN 2888.66 net). Wojciech filed the complaint against the pension’s authority decision. The Commissioner for Human Rights intervened in the case.

HFHR’s amicus brief

The HFHR pointed out in its brief that it did not want to question the right of the state to address historical injustices, including those resulting from the legacy of totalitarian and communist regimes. However, this should be done with respect for the values resulting from the Constitution of the Republic of Poland and the European Convention on Human Rights.

In the HFHR’s view, any limitation of rights and privileges, including pension benefits, of former secret services officials should be guided by the principle of proportionality, which would imply an individual assessment of the specific situation of the individual concerned. According to the HFHR, there are serious doubts in Wojciech’s case whether the interference with his rights and freedoms resulting from the considerable reduction in his invalidity allowance is proportionate.

It is doubtful whether a fair balance has been struck between public interest and the interference with the individual’s rights, given the extent of the reduction in question (over 70%). Also, a crucial factual circumstance was not taken into account in the reduction decision, namely that Wojciech had never actually taken up the post related to being in the service of the totalitarian state, despite having been formally appointed to that post.

The HFHR indicated that the Regional Court in Lublin should consider the possibility of refusing to apply the statutory provisions which formed the basis for the decision issued in Wojciech’s case as these provisions are contrary to the Polish Constitution and international standards.