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Lustration proceedings versus judges’ immunity P 31/12

“The need to carry out a lustration process with regard to judges in order to ensure their independence in adjudication should be balanced out with proper guarantees that safeguard judges and the administration of justice,” stated the Constitutional Tribunal.

On 2 April 2015 at 9.00 a.m., the Constitutional Tribunal considered a question of law, submitted by the Circuit Court in Gliwice, as to whether judges’ immunity comprised liability for filing a false lustration statement.

The Constitutional Tribunal adjudicated that Article 80(1) of the Act of 27 July 2001 – the Law on the Organisational Structure of Common Courts (hereinafter: the said Act), insofar as it did not provide for liability for filing a false lustration statement, was inconsistent with Article 181 of the Constitution.

As to the remainder, the Constitutional Tribunal decided to discontinue the review proceedings.

A dissenting opinion was submitted to the judgment by Judge Mirosław Granat.

The court referring the question, above all, challenged the constitutionality of Article 80(1) of the said Act, within the scope of the interpretation of the provision presented in the jurisprudence of the Supreme Court. In accordance with the said jurisprudence, the judges’ immunity covers only liability for offences or fiscal offences.

When assessing the constitutionality of the provision challenged in the question of law, the Tribunal stated that although judges’ liability for filing false lustration statements (i.e. the so-called lustration lies) did not constitute criminal liability in a strict sense, the former type of liability was greatly similar to the latter, due to its intrusive and considerable interference in the realm of the individual’s interests.

Within that scope, the Tribunal made reference to its previous jurisprudence and the stance of the European Court of Human Rights, in accordance with which lustration proceedings are penal in character (they display characteristics that evoke strong connotations with criminal proceedings). The Tribunal noted, in particular, that sanctions provided for the filing of a false lustration statement are as severe as depriving a judge of his/her office, and also a related and far-reaching sanction, namely the social disapproval of judges’ concealment of their collaboration with communist-regime security services as well as of the collaboration itself.

Although after subsequent judgments delivered by the Constitutional Tribunal with regard to regulations concerning lustration, sanctions provided for judges for the so-called lustration lie may be adjusted to the circumstances of a specific case, and thus they are less intrusive; however, as emphasised by the Tribunal, what is not diminished is the burden of a judge’s reputation being tarnished. The said burden affects not only a given judge but also the administration of justice, the uninterrupted functioning of which constitutes a constitutional value.

In accordance with the well-established jurisprudence of the Constitutional Tribunal, the guarantees provided for in Article 42 of the Constitution are granted to everyone, and thus also to a judge who is held liable for filing a false lustration statement. By contrast, the guarantee in the form of judges’ immunity, mentioned in Article 181 of the Constitution, is only provided to those with particularly important public offices and significant responsibility related thereto.

The aim of that guarantee is not to protect the group of public officials against criminal liability for an offence, but above all the protection of public trust in the judiciary. Consequently, immunity is not a personal subjective right of a judge. It protects the judiciary and its administration of justice as well as judges as representatives of that authority.

The Tribunal pointed out that both constitutional courts of Central and Eastern Europe as well as the ECHR noted that, with the lapse of time, lustration mechanisms to a lesser and lesser extent contributed to the protection of the democratic system and the public order. At the same time, the Tribunal noted that the second objective of the lustration process remained up-to-date, i.e. its role as an instrument that enhanced the transparency of public life and ensured that important state offices were held by persons who (regardless of their past) at present proved to be honest or truthful.

The Tribunal stated that, in the light of such objectives of lustration procedures, the lustration of judges also displayed certain special characteristics, regardless of the lapse of time. It aims at protecting the administration of justice, in the case of which the disclosure of collaboration between the state security apparatus of the previous political system, or even the accusation of such collaboration, may be damaging.

The intrusiveness of lustration proceedings, the possibility of instituting fictitious proceedings or the manipulative use of the proceedings may pose a threat to the independence of the judge and his/her readiness to adjudicate boldly. In the Tribunal’s opinion, this justifies protecting a judge with immunity in the course of lustration proceedings, which are so crucial for the sake of the administration of justice as well as for the judge him/herself.

The Tribunal deemed that, in the case under examination, there was a need to strike a balance: the need for a lustration process for judges, carried out in order to safeguard their independence in adjudication, should be balanced out by appropriate guarantees aimed at safeguarding judges and the administration of justice.

Taking the above into consideration, the Tribunal concluded that, in lustration proceedings, judges were also entitled to – among other constitutional guarantees – a guarantee in the form of immunity referred to in Article 181 of the Constitution. However, the Tribunal emphasised that the above statement did not determine that a similar conclusion would be justified in the case of any other type of judges’ liability than their criminal liability in a strict sense.

In order to draw such a conclusion, one would have to prove that there are constitutional values of equal significance to those in the case under examination, which would justify protecting a judge by immunity in given proceedings.

Also, the said statement does not justify comparing judges’ immunity with other kinds of immunity referred to in the Constitution. None of those types plays the role of a guarantee of the administration of justice, and ensuring the right to a fair trial to everyone – i.e. administering justice by an independent court.

The hearing was presided over by Judge Piotr Tuleja, and the Judge Rapporteur was Judge Sławomira Wronkowska-Jaśkiewicz.