A Controversial Biography

Transcription

1 HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME INFORMATION BULLETIN Issue II/2008 A Controversial Biography In June of 2008, the IPN (The Institute of National Remembrance) published a book by Sławomir Cenckiewicz and Piotr Gontarczyk entitled SB a Lech Wałęsa. Przyczynek do biografii (The Communist Security Forces and Lech Wałęsa. A Contribution to a Biography). This book sparked debate among Poles about the fate of Lech Wałęsa. We have decided to instead focus on the actions of the IPN, and whether it is acceptable for them to act as both a publisher and the accuser in lustration proceedings. In response to the statement issued by the Helsinki Committee on 30 June 2008, the IPN defended itself by arguing that Piotr Gontarczyk is not a prosecutor in the Lustration Office of the IPN, but his work there is strictly historical in character. This argument, however, is not convincing. Regardless of what Dr. Gontarczyk s work actually consists of, at the time when he was writing and publishing his controversial book, he was also acting as the Deputy Director of the Lustration Office, the section of the IPN that acts as the accuser in lustration proceedings. During these lustration proceedings, the Institute of National Remembrance accuses defendants of giving false declarations, in which they do not admit to collaborating with the communist regime s security forces. At the same time, the IPN engages in the analysis of historical documents and testimonies, and then publishes the results of their studies. A problem arises when the subject being studied in a historical context and the subject of lustration proceedings are one and the same, as was the case with the publication of SB a Lech Wałęsa. This creates a potential conflict of interest since it undermines the guarantee of a public authorities impartial judgment as well as their respect for the judgments in lustration cases. This conflict of interest becomes especially apparent when the author of an IPN publication is a high-ranking employee in the branch of the IPN that acts as the accuser in lustration proceedings. The controversy surrounding the book written by Cenckiewicz and Gontarczyk brought into question the acceptability of the current model, structure and functions of the IPN. Lawmakers have entrusted the IPN with THE HELSINSKI COMMITTEE IN POLAND The Position Held by the Helsinki Committee in Poland A Statement Made by the Helsinki Committee The statement of the Helsinki Committee from the 30 th of June 2008 is a critical assessment of the fact that the work written by Sławomir Cenckiewicz and Piotr Gontarczyk was even published. The book de facto questions the judgment made by the Lustration Court, which found that the lustration declaration submitted by Lech Wałęsa was in accordance with the truth. Warsaw, June 30 th 2008 The Helsinki Committee in Poland would like to express its deepest concern with the fact that the Institute of National Remembrance has decided to go ahead with the publication of a work, which was coauthored by the current Director of the Lustration Office of the IPN and that deals with the alleged collaboration of Lech Wałęsa with the communist security forces. This issue was the subject of lustration proceedings that ended with a judgment of the Lustration Court in 2000 that found the lustration declaration submitted by Lech Wałęsa to be truthful. It is unacceptable to join the function of Director of the Lustration Office of the IPN, which is currently the public prosecutor in lustration proceedings, with the role of an author who discusses issues that were, are or could become the subject of lustration proceedings. This situation could be compared to one in which the Office of the Public Prosecutor publishes a book, written by the Head of the Public Prosecutor s Office, which undermines an acquittal, in a case that was commenced by that Office of the Public Prosecutor. Employees of the IPN, as public officers have important rights and responsibilities, which cannot be reconciled with every action that a person without public authority could undertake. The freedom of speech and the freedom to conduct scientific research must not violate the presumption of innocence and the principle of division between the executive and judicial branches. Signed by the members of the Helsinki Committee in Poland: Teresa Bogucka, Halina Bortnowska-Dąbrowska, Jerzy Ciemniewski, Marek Edelman, Janusz Grzelak, Zbigniew Hołda, Jacek Kurczewski, Wojciech Maziarski, Michał Nawrocki, Marek Antoni Nowicki, Danuta Przywara, Marek Safjan, Stefan Starczewski roles and responsibilities that cannot be reconciled. This situation breaches the standards of a democratic state since it does not ensure the proper protection of an individual against the arbitrary violation of their rights by public authorities. Mikołaj Pietrzak HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME INFORMATION BULLETIN

2 2 Model of the IPN Reflections on the Possible Actions of the Constitutional Tribunal Experience indicates that conflict arises when it comes to the IPN performing a variety of duties. In this situation, the first question to arise is one about the constitutionality of the current statutory solutions, and then about the admissibility of questioning their constitutionality. This question appears in the context of the judgment of the Constitutional Tribunal from the 11 th of May Mielnik Sławomir / Fotorzepa Among the current duties of the Institute of National Remembrance one can differentiate four separate branches. The Inquiry Office, which deals with pursuing and prosecuting cases concerning crimes committed by the Nazis, communists, crimes against peace, mankind and war crimes. The Archives Office, which collects, records, houses, studies, protects and gives access to archived documents. The Education Office, which can also be referred to as the Research Office or the History Office, since it deals with all these aspects. As of 15 March 2007, a new act came into being, which gave the IPN another new role, and thus the Lustration Office was created. In this new role, the IPN examines lustration statements, acts as the public prosecutor in lustration proceedings, and also prepares and publishes internet directories, which include the names of people who were wronged by the communist security forces. The problem with assigning all the above-mentioned functions to the Institute of National Remembrance and the way in which it performs its duties, has arisen once again with the recent IPN publication of the book written by the Deputy Director of the IPN s Lustration Office, Piotr Gontarczyk and the Head of the IPN s Public Education Office in Gdansk, Sławomir Cenckiewicz, about Lech Wałęsa s contacts with communist regime s security forces in the 1970s and also about his lustration proceedings. The topic of the plurality of the roles and duties of the IPN returned a year after the Constitutional Tribunal reached a judgment (case no. K 2/07) on 11 th May 2007, about the unconstitutionality of a series of regulations in the 2006 lustration act. The applicants, who in this case were a group of MPs, reproved this concentration of lustration, archive and research functions in the hands of the IPN (point 17 of the application). The Tribunal examined the legality of the regulations called into question under the constitutional rights of presumed innocence and the right to a fair trial guaranteed by the European Convention on Human Rights. The Constitutional Tribunal partially found unconstitutional the regulations concerning the use of documents, the types of request for access to documents concerning the person applying for access that are denied and the publication of directories of people who were sources of information for the communist regime s security forces. The constitutionality of the regulations concerning the commencement of lustration proceedings through a motion issued by a prosecutor in the Lustration Office of the IPN was partially ascertained. The charge concerning the assigning of so many incompatible duties to one institution was not recognized as unconstitutional according to the rule of checks and balances between the legislative, judicial and executive branches (art. 10 s. I Constitution). In view of the return of the above-mentioned problem, another question arises about the acceptability of subsequent application to the Constitutional Tribunal, because of the res iudicata principle. No reference was made in the Constitutional Tribunal s judgment to the incompatibility of the regulations concerning the functions of the IPN, the entire Lustration Act and important changes in the Act concerning the IPN with art. 10 s. 1 of the Polish Constitution. The Constitutional Tribunal found the regulations regulating the organization of the lustration prosecutor and the role of the IPN as the initiator of lustration proceedings to be in accordance with the Constitution. The judgment of the Constitutional Tribunal contains a resolution concerning the discontinuatiom of proceedings in the area unexamined in case no. K 2/07 as a result of different ongoing proceedings -the motion of the Ombudsman or the insufficient justification of the claims of unconstitutionality. In view of the subject of two motions of the Ombudsman- the penalization of slander against the Polish Nation (case no. K 7/07) and the subject range of the lustration act and the rules of an individual s access to documents concerning them (case no. K26/07), the rejection of the claim concerning the organization of the IPN was a result of insufficient justification of this claim. One may therefore argue, that the res iudicata does not prohibit the Tribunal from considering this matter in the future. The skilled wording and justification of a complaint questioning the constitutionality of the laws found in the act concerning the IPN is a first-rate challenge. However, the authorities that have the right to question the constitutionality of the law in front of the Constitutional Tribunal should seriously consider exercising those rights guaranteed to them by the Constitution. One must also reckon with the fact that if the Constitutional Tribunal does find the regulation unconstitutional, it will lead to drastic changes in the regulations concerning settlements with the past., Mikołaj Pietrzak INFORMATION BULLETIN HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME

3 The Opinion of the Committee of Historical Sciences of the Polish Academy of Sciences The publishing of the book about the assumed collaborative past of Lech Wałęsa by the IPN led to many questions about the correctness of the analytical methodology used by the Institute s historians. The Foundation decided to ask an independent institution for their opinion on this matter. The Helsinki Foundation for Human Rights in an open letter written on the 14 th of August 2008, to the Committee of Historical Sciences of the Polish Academy of Sciences asked that they verify the correctness of the activities of the IPN, to identify problems and potential merits of the structural model of the IPN, which encompasses the multitude of above-mentioned roles and duties. Particularly, the Foundation asked this independent institution to take a stand on the acceptability of the IPN s two-sided role from the standpoint of ethics and methodology in the field of historical sciences. In response, we received a letter from the Chairman of the Committee of Historical Sciences of the Polish Academy of Sciences, Professor Janusz Żarnowski, which contained his personal opinion on this matter. Professor Żarnowski sharply criticized the historical evaluation formulated by the State through its institutions ( ). He also underlined that these kinds of evaluations, unavoidably, are dictated by the political parties in power. These evaluations of historical occurrences should be left to open scholarly and social discussions, in which there are participants with all the different biases prevailing among society and academia. In the same way, it is unacceptable for there to be a monopoly of certain types of sources by a national institution, which regardless of the rule of law has countless possibilities to access and manipulate them. Through experience, the Human Rights and Settlements with the Past Program, which is part of the Helsinki Foundation for Human Rights, can verify the aptness of the concerns and criticisms in the evaluation presented by Professor Janusz Żarnowski. The current model of the IPN is conducive to conducting and presenting historical studies by workers of the IPN in a selective and biased way, contrary to the conclusions drawn from the judgments of lustration proceedings. In the same way, it does not protect people from the violation of their rights, specifically those protected by the legal right to the protection of privacy, information autonomy, the protection of ones honor and good name. The Helsinki Foundation for Human Rights is hopeful that soon the entire Committee of Historical Sciences of the Polish Academy of Sciences will take a stand on this issue. Mikołaj Pietrzak The Program s Advisory Counsel A ship, in order to keep due course, it must have a good navigator. Similarly, the Human Rights and Settlements with the Past Program requires guidance of its direction of growth and future focus. The program is now receiving this guidance from a newly formed Advisory Counsel. Through analysis of the problems dealing with lustration that the program s team has encountered, the Advisory Counsel shares with us advice about how to approach these difficult issues. The Advisory Counsel is comprised of renowned and respected people, who for years have dealt with both the theoretical and practical aspects of the protection of human rights. They include: HALINA BORTNOWSKA-DĄBROWSKA a graduate of the Catholic University of Lublin and a doctorate student at the University of Leuve, a journalist, publicist and editor of the monthly magazine Znak, devoted much of her life to volunteer work, participated in actions against the leaders of the communist regime, was sent to an internment camp in 1981, was a founder and member of Otwarta Rzeczypospolita Stowarzyszenie przeciw Antysemityzowi i Ksenofobii (Open Republic Association Against Anti- Semitism and Xenophobia), a member of the Helsinki Committee, the Chairman of the Council of the Helsinki Foundation for Human Rights. DR. JERZY CIEMNIEWSKI a graduate of the Department of Law and Administration at the University of Warsaw, a PHD in constitutional law, from 1998 to 2007 was a judge in the Constitutional Tribunal, a Member of Parliament in the I, II and III terms in the Polish Sejm, a member of the Scholarly Council of the Institute of Legal Sciences of the Polish Academy of Sciences, an activist in NSZZ Solidarność, co-founder and member of the Helsinki Committee in Poland, a member of the Council of the Helsinki Foundation for Human Rights. PROF. MAREK SAFJAN a professor in the Department of Law and Administration at the University of Warsaw, from 1998 to 2006 was a judge and the chairman of the Constitutional Tribunal, a member of the Committee for Ethics in Education of the Polish Academy of Sciences, the author of many published books and a columnist, a member of organizations dealing with human rights, was awarded the medal Pro merito by the Council of Europe. Andrzej Orzechowski 3 HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME INFORMATION BULLETIN

4 4 The Conference and Reactions to the Bulletin On the 1 st of July 2008, the program Human Rights and Settlements with the Past organized its first press conference. This meeting with journalists and reporters took place at the headquarters of the Helsinki Foundation for Human Rights. Its guest speakers were some of today s leading renowned specialists in the area of human rights. They were Halina Bortnowska-Dąbrowska and Prof. Wiktor Osiatyński. The Human Rights and Settlements with the Past Program was represented by its coordinator, advocate Mikołaj Pietrzak. The conference was lead by Dr. Adam Bodnar. Paweł Osik and advocate Jacek Oleszczyk, members of the program s team, also participated. Many members of the press, radio and television accepted our invitation to this press conference. As planned, we presented our plans for the future of the program as well as our accomplishments to date. Reporters were given the opportunity to acquaint themselves with the activities of the program and with the tasks that lie ahead. The main purpose of this press conference was to present the first bulletin, which contained information about the ongoing work of the program as well as the achievements of the program after its first year of activity. This publication was also sent to people who have influence over the creation of laws and policy in our country. People who received our bulletin include the judges of the Constitutional Tribunal and the high-ranking members of the Institute of National Remembrance. It is important to note the positive reactions that our bulletin received from both the Marshal of the Sejm of the Republic of Poland Bronisław Komorowski and Judge Marek Kotlinowski of the Constitutional Tribunal. Our work was met with congratulations and best wishes for further success. We are extraordinarily grateful for all the support and faith in our work. Andrzej Orzechowski Marshal of the Sejm of the Republic of Poland Dear Mr. Coordinator, Mikołaj Pietrzak, Advocate Coordinator of the Program Human Rights and Settlements with the Past Please accept my sincerest congratulations! I thank you for the informational bulletin of the Human Rights and Settlements with the Past Program which I received from you and read with great interest. You and your colleagues deserve congratulations not only for such a successful publication but primarily for all the successes you have achieved through the Program. Proof of the high level of your activities is that the Constitutional Tribunal acknowledged your opinion presented as an amicus curiae. Similar successful interventions to protect the rights of citizens, whose constitutional rights were violated by the lustration act or wild lustration, deserve even greater praise. It is with great pleasure that I learned about the Helsinki Foundation for Human Right s monitoring of judgments of the European Court of Human Rights as well as their close work with the Ombudsman. Thanks to your work Poland keeps moving towards becoming an ideal state of law. Unfortunately, the question of past and history, from which at the same time we draw so much pride, in Poland is a rather difficult matter. Reconciling justice and honesty for the victims of the communist system with the guarantees that all citizens are entitled to is often a tall order. Thanks to your program and the continuous efforts of the Helsinki Foundation, our system can meet these expectations. While thanking you for this interesting publication, I would like to extend assurances of my sincere and far reaching support. Sincerely, INFORMATION BULLETIN HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME

5 THE CASE OF PROF. JAN MIODEK Lustration and the Protection of Personal Interest Autolustration and civil claims against the infringement of personal interest can act as effective defense mechanisms in cases of public slander concerning alleged collaboration with the security forces of the communist regime. The effectiveness of these methods has been proven by the result of the case concerning the infringement of personal interest brought before the civil court by Prof. Jan Miodek against the editorialist Grzegorz Braun. Sadowski Bartek / Fotorzepa Paweł Kozioł / agencja gazeta 5 On the 20 th of April 2007, almost two years ago, Grzegorz Braun, on Radio Wrocław, stated during a public debate that Prof. Jan Miodek was a secret titled to in a criminal trial. They include the right to presumed innocence and the principle in dubio pro reo. In a civil trial Prof. Miodek did not have these guarantees. 20,000 PLN to a charity chosen by Prof. Miodek, the Foundation To help children with cancer, and repay the legal fees that Prof. Miodek incurred. examine documents. Most importantly, the ruling of a lustration court is unequivocal proof that the documents concerning a certain person do not prove that communist security force collaborator and therefore, it The testimony of witnesses was not the only Grzegorz Braun announced that he planned to ap- person s collaboration with the security forces of the was unethical of him to criticize the fact that academic evidence used during this trial. At the University of peal the ruling, while calling for Prof. Miodek to tell communist regime. In other words, the same effect of circles must undergo lustration. In order to defend his Wrocław, a commission of historians was established the truth and to stop spinning the truth. What more, clearing ones good name is achieved using a simpler personal interest, Prof. Miodek decided to pursue civil to examine all the files presented by the Institute of Na- Grzegorz Braun announced that new documents have method and on a much larger scale. The ruling of action. He demanded a local and nationwide public tional Remembrance that mentioned Prof. Miodek. been unearthed that corroborate his theories about a lustration court is admissible evidence in a civil trial apology from Grzegorz Braun as well as the payment Both the witnesses and the commission of histo- Prof. Miodek s past. The Court of Appeal dismissed and it allows the court to deliver a judgment without of 50,000 PLN to the charity of the plaintiff s choice. rians confirmed that Prof. Miodek never collaborated his appeal. hearing the testimony of witnesses. Also the ruling in These proceedings after a while lost some of the characteristics of a civil trial, according to which the de- with the security forces of the communist regime. More importantly the commission stated that all the THE SIGNIFICANCE OF THIS RULING a civil case only solves the specific dispute brought to court, while the ruling of a lustration court protects fendant should try to prove that he did not infringe on documents concerning Prof. Miodek were created The case of Prof. Jan Miodek points out one of the one against all speculation and slander concerning the personal interest of the plaintiff and that his actions without his knowledge or permission, and they were effective ways of fighting the phenomenon that has ones collaboration with the communist regime s se- were within the parameters of the law. Meanwhile it internal memos of the organization that was trying to come to be known as Wild Lustration. The plaintiff curity forces. was Prof. Miodek who was trying to prove his inno- convince him to cooperate with them and denunciate was able to not just prove that he never collaborated Prof. Miodek had the right to submit an application cence by showing that whatever contacts he may have his friends in the world of academia. with the security forces of the communist regime but to commence a lustration trial in accordance with the had with the former security forces, never turned into collaboration or any form of denunciation. A seemingly THE RULING he also obtained a ruling that ordered for a public apology in nationwide media and a monetary reward lustration act, in connection with the Constitutional Tribunal s ruling from the 11 th of May 2007 (case no. regular civil trial had turned into a lustration case. On the 3 rd of July 2008 a judgment was reached, in of 20,000 PLN for a charitable cause. However one K2/07), which expanded the group of candidates for It is important to note that lustration proceedings the above mentioned case, by the District Court of looks as it, although this is a meaningful success in the autolustration. Prof. Miodek made a conscious and can be initiated according to art. 20 of the act of the 18 th Wrocław (case no. I C 420/07). The court ordered battle against slander concerning alleged collaboration thought through decision to pursue his case in civil of October 2006, concerning the disclosure of infor- Grzegorz Braun to publicly apologize to Prof. Jan with the security forces of the communist regime, court. As it turned out, this is an effective method mation concerning documents of state security forces Miodek for spreading the false information that he contrary to appearances, it is the harder route. Polish to clearing ones name of accusations of collaborating between the years and the content of such was a secret informant of the security forces of the law provides the powerful tool of autolustration, which with the security forces of the communist regime. documents (Law Journal from 2007 No. 63, point 425 communist regime. According to the courts ruling, gives the victim of slander a better starting position However, the question still remains, is this always the as amended). Such lustration proceedings guarantee this apology must be published in the press and tel- and also does not require the defendant to call his best and easiest course of action? the defendant a series of rights, which he would be en- evised nationwide. Also, Grzegorz Braun must pay own witnesses or organized special commissions to Andrzej Orzechowski HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME INFORMATION BULLETIN

6 6 Wild Lustration The phenomenon known as Wild Lustration developed side by side with the official lustration procedures both in Poland and in other countries. The role of the government is counteracting this phenomenon and providing its victims with effective forms of protection. In a ruling of the 21st of October 1998 (case no ) the Constitutional Tribunal took notice of the growing problem of Wild Lustration, which refers to the phenomenon where various leaks, Jodłowski Tomasz / Fotorzepa often from untraceable sources, are published about alleged collaboration of certain individuals with the security forces of the communist regime. This often-sensational information mostly concerns public figures. This ruling concluded the first case in which the Constitutional Tribunal examined the laws and regulations concerning lustration. The Tribunal condemned this phenomenon since it unlawfully attacked an individual s honor and good name. Since the 15 th of May 2007, every person who has been publicly slandered and accused of collaborating with the communist security forces can commence autolustration proceedings. As was shown by the case of Prof. Jan Miodek, there are ways to protect THE JUDGMENT IN THE KRZYSZTOF ŁOZIŃSKI CASE The Case of Krzysztof Łoziński points out the difficulties that an individual encounters when submitting a claim for reparations for repression caused by the security forces under the communist regime. The fundamental source of these difficulties is often the statute of limitations. Because of his activism in the Solidarity movement, the communist security forces repressed Krzysztof Łoziński in the 1980s. After the political transformation in Poland, Mr. Łoziński filed a claim against the National Treasury for reparations and compensation for unjustified arrest and violence against him, and the loss of employment caused by the communist security forces as a consequence of his political activism. This case was discussed in depth in the last bulletin. On the 11 th of July 2008 the first ruling was made in the above-mentioned case. The District Court of Warsaw ruled that the evidence brought before it in connection with this case does lead to the conclusion that the plaintiff has a just complaint, however due to the fact that a substantial amount of time has passed between the act of repression and the filling of a case, the court is forced to dismiss this case on the basis of the statute of limitations (case no. II C 607/06). We expect that Mr. Krzysztof Łoziński s representative will submit an appeal. Andrzej Orzechowski one s personal interests using tools provided by the civil court system. The problem of Wild Lustration is still present in the Polish public life. However, what is more disconcerting is the fact that it is becoming more common for public authorities to play a role in these events. The first autolustration proceedings were recently commenced by people whose information was published in IPN directories. In the last bulletin we made reference to the commencement of autolustration proceedings in connection with an IPN publication. We also note with concern that the Institute of National Remembrance has not as of yet taken a formal position on the issue of the truthfulness of lustration statements and on the delay in the transfer of archived documents. This situation obstructs an individual s ability to promptly clear their good name of slander and false accusations. THE VERIFICATION OF REPORTS CONCERNING WILD LUSTRATIONS IN WROCŁAW The Helsinki Foundation for Human Rights became interested in media reports of members of the Wrocław City Council organizing informal consultations with the Wrocław Branch of the Institute of National Remembrance concerning candidates for the Wrocław Award. The Helsinki Foundation for Human Rights expressed its deepest concerns regarding reports of the Wrocław City Council s attempts to verify information about the pasts of candidates nominated for the Wrocław Award. The Foundation requested that both the City Council and the Director of the Branch of the Institute of National Remembrance in Wrocław elucidate the circumstances of this case. The Foundation expressed its apprehension about the fact that we could be dealing with a case of unacceptable willfulness on the part of both the government and the Director of the Bureau of the Institute of National Remembrance in Wrocław. According to media reports (J. Harłukowicz, M. Kokot, Lustracja przed nagrodą, Gazeta Wyborcza Wrocław from the 10 th of June 2008) this case is an example that illustrates the potential risks associated with allowing Wild Lustration to continue. This type of lustration is not based on any statutory regulations or powers. In a law-abiding democratic state this type of situation is unacceptable. In the circumstances presented by the media, the phenomenon of Wild Lustration is especially dangerous since the side sharing information and the side benefiting from access to the information are both public institutions, not private individuals. Since an individual who is the subject of these types of investigations led by public institutions is not privy to the information contained in these documents, he has no way of taking a stand on the content of the documents or on the conclusions drawn from the information in them. The Chairman of the City Council of Wrocław and the Director of the IPN Branch in Wrocław in their letters to the Helsinki Foundation for Human Rights both disagreed with the assumption that the purpose of their actions was the lustration of the candidates for the Wrocław Award. This case also interested the Prosecutor of Wrocław, and the Helsinki Foundation for Human Rights asked to be informed about the planned course of action for this case. We received information on the 3 rd of July 2008 from the Regional Bureau of the Prosecutor for Wrocław Stare Miasto that they had opened an investigation. We hoped that this investigation would lead to some answers about the situation presented by the media, however the investigation was discontinued. INFORMATION BULLETIN HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME

7 Wojciech Druszcz An Application Filed Before the Court in Strasburg in Connection with Wildstein s List The lawyers of the Helsinki Foundation for Human Rights helped with the preparation and filing of an application before the European Court of Human Rights in the case of J.S. This case was described in the Information Bulletin no. 1/2008. The lustration court ruled that the publishing of the personal information of J.S. in what has come to be known as Wildstein s List does not constitute slander nor does it imply that she collaborated with communist security forces. Since being on Wildstein s List does not imply collaboration, it also does not constitute grounds for the initiation of an autolustration proceeding and it does not allow one to legally verify the truthfulness of a lustration statement. From the moment that the documents held by the Institute of National Remembrance were made available to the individuals whom they concerned, J.S. has been striving for access to the documents concerning her. In March of 2004 the IPN informed her that in their archives there were no documents found concerning her and therefore she is not entitled to the status of an injured party. In 2005, J.S. found her personal information on what has come to be commonly referred to as Wildstein s List. She then issued a request to the IPN, asking them to confirm that she is indeed the person whose information was published on the list and to grant her access to all the documents concerning her. The IPN issued J.S. a document confirming that the information found on Wildstein s List is indeed her personal information. When the Constitutional Tribunal in its judgment of the 25 th of October 2005 ruled that one does not need to have the status of an injured party in order to be granted access to one s documents published by the communist regime s security forces, J.S. once again applied for access to any documents concerning her. Meanwhile the Institute of National Remembrance had found the documents concerning J.S. and in them there was information about multiple meetings with the communist regime s security forces and their unsuccessful attempts to get her to collaborate with them. However, thanks to information from an employee of the IPN we know that the applicant was not granted access to all the documents concerning her. On the 15 th of March 2007, a new lustration act came into being, which introduced dramatic changes as to the workings of the Institute of National Remembrance. In connection with these changes J.S. once again applied for access to the documents concerning her. The new lustration act foresaw the publishing of an IPN directory of personal sources of information, which would probably also contain J.S. personal information. In the judgment of the 11 th of May 2007 (case no. K 2/07) the Constitutional Tribunal found a series of regulations in the lustration act to be unconstitutional. These regulations limited the individuals who qualified to initiate autolustration proceedings, to only those who had been publicly accused (slandered or libeled) of collaborating, cooperating or working for the communist security forces. The Constitutional Tribunal also found the publishing of a directory of personal sources of information to be unconstitutional. Using this judgment as grounds for her own case, in October of 2007 J.S. applied for the commencement of a lustration proceeding in connection with the public slander brought on by the publishing of Wildstein s List which by implied that she collaborated with the security forces of the communist regime. However, the District Court in Warsaw on the 18 th of December 2007 ruled in its judgment (case no. XVIII K 291/07) that the listing of a person s name on Wildstein s List does not constitute public slander about collaboration. The Court of Appeal in Warsaw of the 29 of February 2009 (case no. II AKz 89/08) upheld this decision by denying J.S. the right to commence autolustration proceedings. The Helsinki Foundation for Human Rights joined these proceedings before the court as a social representative. The decision made by the Branch Director of the IPN in June of 2007 to deny J.S. access to the files concerning her was upheld by the decision of the President of the IPN in August of After submitting her application to the European Court of Human Rights, the Helsinki Foundation for Human Rights helped J.S. prepare and submit a complaint to the Administrative Court regarding both of the administration s decisions to deny J.S. access to her documents in the IPN. The Foundation tried without avail to join the administrative legal proceedings being led by the IPN. The HFHR submitted a motion to the Administrative Court asking to be allowed to take part in this case as a social organization. In its decision of the 7 th of January 2009, the Voivodship Administrative Court dismissed this motion (case no. II SA/Wa 1431/08). The Foundation filed a complaint with the Supreme Administrative Court. In her submitted motion to the European Court of Human Rights, the applicant accused Poland of violating her right to protect her private life (Art. 8 of the Convention), her right to an effec- 7 HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME INFORMATION BULLETIN

8 8 Golik Dariusz / Fotorzepa tive instrument of protecting her private life from a public institution using the lustration process (Art. 13 of the Convention) and the right to a fair trial (Art. 6 1 and 3 of the Convention). In the beginning, the Polish government did not try to prevent the leaks of information from the Institute of National Remembrance concerning officers, collaborators, candidates for collaboration, employees of the national communist security forces as well as others. They also did not adopt appropriate measures to explain the true character of Wildstein s List, which Polish society commonly believed was a list of past agents and collaborators. The circumstances and people involved in the publishing of this information in the internet are still unclear. The government of Poland did not give the applicant the opportunity to exercise her rights to protect her private life through autolustration. The government also did not give her access to the documents concerning her, published by the communist regime s security forces, so she was unable to verify the truthfulness of the information contained in these documents. On the 1 st of December 2008, the European Court of Human Rights communicated to the Polish Government the application against Poland of the 29 th of August 2008 (application nr 43932/08). Given the speed of proceedings this is a very exceptional situation. The Court asked the government of the Republic of Poland if the applicant s right to protect her private life had been violated and if the government fulfilled its responsibilities to protect her rights in light of having denied her access to all the documents concerning her after the publication of Wildstein s List. The Court also asked if the national law guaranteed the applicant appropriate instruments by which to protect herself after the privacy of her personal life had been violated by the publishing of Wildstein s List, after she had been denied the rights to commence autolustration proceedings and after she had been denied access to the documents concerning her. Without a doubt, the Courts ruling in this case will set a precedent important to many people who currently find themselves in a situation similar to that of J.S. The Helsinki Foundation has decided to take action on a national level by asking, the Polish Ombudsman and the Attorney General in the name of J.S., to consider the possibility of submitting a cassatory appeal against the ruling of the Warsaw Court of Appeal. The basis for the cassatory appeal was to be the violation of material law through the inaccurate interpretation of the conditions that characterize public accusations (slander or libel) of collaboration with the national security forces. In light of this case, the question arises if the right to initiate autolustration proceedings should be limited by the conditions of having first been accused publicly of having served in, been employed by or collaborated with security forces. These conditions should be limited to proving some legal interest in the initiation of a lustration case, in particular in cases concerning public slander. Alternatively, the abolition of all limitations should be considered, thereby giving everyone interested the right to initiate lustration proceedings. We hope that this problem will be reflected in the planned revision of the lustration act. From the human rights point of view, it is more beneficial for a person to have many different tools to choose from when protecting their rights. This is the case regardless of the fact that these extra tools will encumber the courts and the public interest advocate, in the form of the Lustration Office of the IPN. INFORMATION CONCERNING THE ACTIVITIES OF THE INSTITUTE OF NATIONAL REMEMBRANCE IN 2007 On the 29 th of May 2008, the Commission of Justice and Human Rights of the Sejm of the Republic of Poland examined information concerning the activities of the Institute of National Remembrance the Commission for the Prosecution of Crimes Against the Polish Nation, between the 1 st of January and the 31 st of December Thanks to permission granted by the Chairman of the Commission, Paweł Osik, a representative of the Helsinki Foundation for Human Rights, was able to participate in these meetings. The questions directed to the President of the IPN concerned issues that the Foundation deals with on a daily basis. They include questions about: 1) the use of legal standards that were found unconstitutional by the Constitutional Tribunal in its judgment of the 11 th of May 2007 (case no. K 2/07) that deny individual s access to documents concerning them; 2) the prolonged wait for the IPN to take action in cases where the motion to commence lustration proceedings is filed by a person who was publicly slandered and accused of collaboration with communist security forces, specifically when the source of this accusation is an IPN publication; 3) the prolonged wait for the granting of access by the IPN to its security force documents concerning public figures. The responses of the IPN representatives were far from satisfying. The minutes from the meeting of the Commission of Justice and Human Rights can be accessed on the website of the Sejm: INFORMATION BULLETIN HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME

9 VERIFICATION AND THE MILITARY INFORMATION SERVICE (WSI) REPORT THE LIQUIDATION AND VERIFICATION OF THE WSI, AND THE WSI REPORT BEFORE THE CONSTITUTIONAL TRIBUNAL In two judgments of the 27 th of June 2008, the Constitutional Tribunal found some of the provisions concerning the drawing up and publication of the WSI Verification Report to be unconstitutional (case no. K 51/07). The Constitutional Tribunal found the Act regulating the mechanisms of the verification of soldiers and WSI employees as well as the duties and responsibilities of the Military Counterintelligence Service (SKW) and the Military Intelligence Service (SWW) to be constitutional (case no. K 52/07). In both cases, upon the request of the President of the Constitutional Tribunal, the Helsinki Foundation for Human Rights presented and amicus curiae opinion. On the 27 th of June 2008, the Constitutional Tribunal delivered two judgments in cases initiated by Members of Parliament to examine the accordance of the acts regulating the liquidation of the WSI with the Constitution, the International Covenant on Civil and Political Rights and the European Convention on Human Rights. The acts in question were those regulating the liquidation of the Military Information Services, the verification of its soldiers and employees and the creation of new intelligence services - the Military Counterintelligence Service and the Military Intelligence Service. The Constitutional Tribunal delivered both judgments on the same day. The Acceptability of the Verification Procedures The Constitutional Tribunal s judgment in case no. K 51/07 found some of the provisions concerning the drawing up and publication of the WSI Verification Report to be unconstitutional. The Constitutional Tribunal found the creation of reports describing and examining the functioning of state institutions to be acceptable and even desirable. This is a mechanism that can guarantee that public institutions are run effectively and in accordance with the law. It also allows for the laws to be created that better administrate these institutions. The WSI Verification Report was supposed to help perfect the intelligence services by pointing out any weakness and irregularities that thanks to this report could be avoided in the future. Also, the information contained in this report could be encompassed by the principle of the citizens right to the access of information. The Private Character of the WSI Verification Report When assessing the character of a document, the Constitutional Tribunal underlined that once the decision was made to publish the WSI Verification Report it became an act exercising public authority, an act establishing the legal situation of all the people described by it, who must in this case tolerate the government s interference into their right to the autonomy of information and their right to protect their good name. However the regulations lacked provisions that would verify the truthfulness of the information disclosed in the Report, which potentially could lead to the publication of false information. The Unconstitutional Aspects of the Procedure for the Creation of the Report The Constitutional Tribunal declared that the provisions allowing for the creation of this Report are unconstitutional, as they are in violation of the rule of autonomy of information (art. 51 s. 3 and 4 of the Polish Constitution). This unconstitutionality was caused by the fact that interested individuals were denied access to the files of their case and there was no legal right for individuals to be heard regarding the collected information that was presented in the WSI Verification Report. Maciej Dańczak/ Right to Trial The Constitutional Tribunal found that the provisions allowing for the creation of the WSI Verification Report are unconstitutional since they do not ensure the legal possibility of a judicial review of the decision to publish the personal information of people contained in this document. The Constitutional Tribunal stressed that an effective judicial review of the decisions made by the author of the Report should be held before its publication. Persons Covered by the WSI Report It is important to mention that the Constitutional Tribunal found that the provisions, which allow for the names of people who consciously collaborated with the soldiers and workers of the Military Information Service to be included in the Report for reasons of national security and the security of the Armed Forces of Poland, to be unfounded according to the principle of equality under the law (art. 32 Constitution). This means that the WSI Report should not contain the names of people who were neither soldiers nor employees of the WSI or any of its predecessors. Any annexes to this Report may not contain any information about this group of people either. In the opinion of the Constitutional Tribunal, people who fulfill governmental administrative functions and people who are employed by or appointed to public service have to be prepared to deal with harsher criticism from society than people employed in the private sector. 9 HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME INFORMATION BULLETIN

10 10 As the Helsinki Foundation for Human Rights duly noted, those interested in protecting their rights can due so by using civil law instruments, filing a claim for the protection of personal interest, as well as through criminal law instruments, filing a private motion for slander or libel. The Constitutional Tribunal shares the opinion of the Helsinki Foundation for Human Rights, that these instruments do not guarantee individuals enough effective forms of protection. Firstly, they do no prevent the violation of an individuals rights by the publication of the report. Civil law instruments can be inaccessible for some individuals because of the cost of civil proceedings. For these reasons, the Constitutional Tribunal finds that art. 70a of the Act from the 2th of June 2006, due to the fact that it does not present legal means for effective judicial control over the Report of the Chairman of the Verification Commission, is not concordant with art. 45 s. 1 of the Polish Constitution. (From the reasoning of judgment of the Constitutional Tribunal of the 27 th of June 2008, case no. K 51/07) However, people who collaborated with soldiers and military intelligence or counterintelligence officials could have, for obvious reasons, expected the government to protect their autonomy of information and their right to privacy. One could even assume that the government would attempt to keep their collaboration with the above-mentioned institutions secret. Even if a person from the group we are discussing were to commit a crime, the proper actions against that person are defined by the criminal code. The Constitutional Tribunal acknowledged that people who find themselves in different legal situations, should not be treated in the same way. The Duty to Establish and Announce Truthful Information In this case, the Constitutional Tribunal found art. 63 s. 6a of the Act Liquidating the WSI (Act of the 9 th of June 2006 The provisions in the act concerning the Military Counterintelligence Service and the Military Intelligence Service and the act concerning the officers of the Military Counterintelligence Service and the Military Intelligence Service, Law Journal No. 104, pos. 711 as amended.), pertaining to the access granted to members and the Chairman of the Verification Commission to all documents that are essential in the verification process of submitted statements, to be constitutional. This provision calls for the Director of the Military Counterintelligence Service and Director of the Military Intelligence Service to grant the members and the Chairman of the Verification Commission access to all archived and operation materials, including those that contain national secrets, and to all other documents that are indispensable in the process of verifying the verification declarations and in the preparation of this Report. The Constitutional Tribunal underlined that in this way the state authorities, and especially the Chairman of the Verification Commission and the author of the Report, are charged with the task of establishing the truthfulness of every fact before including it in the Report. Also, the Constitutional Tribunal pointed out the high standards that lawmakers had set for the author of the Report, which if complied with would allow for the inclusion of the personal information of civilians in the Report. The Acceptability of Preparing Annexes The Annex as a Form of Compensation The Constitutional Tribunal found the provision allowing for the preparation of annexes to the Report in an unrestricted period of time, if they reveal new circumstances that should be encompassed by the Report or have an effect on its content to be constitutional. Annexes can be prepared by the Chairman of the Verification Commission, and after the end of its existence, by the Director of the Military Counterintelligence Service or Director of the Military Intelligence Service. The Constitutional Tribunal also noted that the preparation of annexes should only commence after the interested individuals have been guaranteed the proper procedural assurances. The Helsinki Foundation for Human Rights hopes that the preparation of annexes will be used as an instrument to compensate those individuals whose rights were violated by the publication of the Report. The Effects of the Judgment The ruling presented by the Constitutional Tribunal proves that there is a need to amend the Act Liquidating the WSI so that it includes the necessary procedural guarantees. Until the Act is amended or new laws are enacted, the public authorities should refrain from giving the public access to the Report s annexes, unless all the personal information contained in the documents is made anonymous. The judgment of the Constitutional Tribunal opened the door for claims demanding compensation from the State Treasury for financial and nonfinancial damages that were incurred due to the unconstitutionality of the regulations. The judgment of the Constitutional Tribunal in reality means that now civilians can file claims for compensation regardless of the accuracy of the information contained in the Report. The inaccuracy of this information can only affect the amount of compensation the injured party receives. Soldiers and intelligence officers can file claims for compensation for information that was published in the Report but should not have been, for the inaccuracy of information and for not being given procedural guarantees, which could have prevented this. Civil cases that were won by the plaintiff or settled may require the reopening of proceedings or filing of new claims as a result of the mere publication of the personal information in question. Individuals with closed cases will need to file new motions with separate claims. In cases that are in progress one needs only to expand the original motion so that it includes the new claims. Legally closed cases against the State Treasury, where the motion of the plaintiff was dismissed, should be either reopened or a new claim should be filed. Access to Documents The Constitutional Tribunal drew its ruling concerning the provisions that deal with access to documents and information collected by the Verification Commission from art. 52 s. 3 of the Constitution. Regardless of any legislative changes, every person mentioned in the Report has the right to apply to the Director of the Military Intelligence Service for access to documents concerning them, according to art. 51 s. 3 in connection with art. 8 s. 2 of the Constitution. In a similar case, the Constitutional Tribunal s judgment of the 26 th of October 2005, case no. K 31/04, found that it was unconstitutional for the IPN to subject an individual s access to documents of the communist security forces to the condition that the individual must have the status of an injured or persecuted party. Until the IPN Act was reformed, the Institute granted individuals access to documents concerning them solely based on art. 51 s. 3 of the Constitution. Therefore there is a certain model that has been proven to work in a situation similar to the one discussed above. The Significance of the Verification Commissions Position and Organizational Issues With its next judgment in the case no. K 52/07, the Constitutional Tribunal found that the Acts (of the 9 th of June 2006) regulating the creation of the Military Counterintelligence Service and the Military INFORMATION BULLETIN HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME

11 11 Dudek Jerzy / Fotorzepa Intelligence Service were in accordance with the Constitution, the International Covenant on Civil and Political Right and the European Convention on Human Rights. Though in this case the Constitutional Tribunal did not agree with any of the claims, in the justification of its decision the Tribunal pointed out a couple of issues that were relevant in exercising the provisions regulating the procedure of verifying former soldiers and employees of the WSI. Specifically, the Tribunal s concerns regarded the position held by the Verification Commission concerning the impact that the truthfulness of an individual s verification statement has on that individual s opportunity to work for the Military Counterintelligence Service or the Military Intelligence Service. The Constitutional Tribunal found the provisions regulating the duties and role of the Military Counterintelligence Service and the Military Intelligence Service to be in accordance with the Constitution. Also, the Constitutional Tribunal declared that the obligation for both current and former soldiers and employees of the WSI as well as those soldiers and employees of the WSI or earlier intelligence services applying to work for the Military Counterintelligence Service and the Military Intelligence Service, to file verification declarations does not violate the ban on self-incrimination. Cases conducted based on the examined acts are not repressive in character. During the procedure verifying soldiers and employees, the WSI does not sentence those individuals to any penalties. One of the principles of the Act is the abolition of those crimes committed by soldiers and WSI employees that are revealed in the verification declaration. The main goal of these procedures is to reveal situations where the law was broken. The Constitutional Tribunal does not share the view that the information revealed in verification declarations decides or negatively impacts an individual s candidacy for acceptance into the Military Counterintelligence Service or the Military Intelligence Service. The Constitutional Tribunal indicated that the decision to appoint someone an officer, to appoint a career soldier as an intelligence officer and to hire an employee in the Military Counterintelligence Service or the Military Intelligence Service is made by a representative of the human resources department of those organizations. Individuals, who were obliged to give verification declarations, were first informed of the Verification Commission s policy concerning the truthfulness of verification declarations. The role of the Verification Commission was based solely on judging the truthfulness of verification declarations. The Act, however, did not forbid the appointment or hiring of individuals who had admitted in their declarations to having committed certain acts. The Act allowed for the representatives to interpret the revealed facts, since they independently made all the decisions concerning personnel. The Constitutional Tribunal underlined that the lack of an opinion of the Verification Commission cannot stand in the way of ones access to public service. This is particularly relevant when it comes to the fact that the work of the Commission was discontinued before the verification of a large part of the declarations was completed. The Significance of the Constitutional Tribunal s Rulings. What Did the Tribunal Not Examine? In its justification of both judgments, The Constitutional Tribunal answered only half of the relevant questions, leaving the others unanswered. This can be explained by the range and scope of the applications and the constitutional control standards indicated by the applicants. The Constitutional Tribunal did not present a clear declaration concerning the options that the President of Poland had in regard to the publication of the WSI Verification Report. This issue is relevant since it could be key in the potential examining of the responsibility of President of Poland for the content and publishing of this Report. The Constitutional Tribunal also did not address the problem of soldiers and WSI employees who had begun the verification process, while at the same time not applying for appointment or employment in the new intelligence services, and whose verification declarations had not been examined before the dissolution of the Verification Commission. These THE HELSINKI FOUNDATION FOR HUMAN RIGHTS IS ADMITTED TO PARTICIPATE AS A SOCIAL REPRESENTATIVE IN A CASE BEFORE THE INSTITUTE OF NATIONAL REMEMBRANCE In a decision of the 4 th of August 2008, the Director of the Branch of the IPN in Warsaw allowed the Helsinki Foundation for Human Rights to participate as a social representative in the case concerning Hanna P. s application for access to documents concerning her (case no. BUWa- III (38)/07). It took a while before the Foundation was able to convince the Institute of National Remembrance to accept the possibility of allowing a non-governmental organization to participate in administrative proceedings. In the case of Mrs. Hanna P., the prosecutor of the Commission for Investigating Crimes Against the Polish Nation was informed of this potentially committed communist crime, which resulted in the initiation of an investigation concerning the creation of documents containing false information about alleged collaboration with security forces, by officers of the communist authorities. individuals now find themselves in a stalemate situation. The had voluntarily submitted their statements, thus risking legal repercussions, in order to clear their good names. Meanwhile the organization responsible for verifying statements disappeared before having verified their statements. In its place, no new organization was called to complete the verification proceedings. This situation is unacceptable since it violates an individual s trust in the State. HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME INFORMATION BULLETIN

12 12 Sławomir Kamiński / agencja gazeta The Inaction of the Director of the Branch of the IPN in Warsaw In its judgment of the 11 th of September 2008, the Voivodship Administrative Court in Warsaw dismissed a claim filed by the Helsinki Foundation for Human Rights about the inaction of the Director of the Branch of the Institute of National Remembrance in Warsaw concerning a motion asking that the Foundation be allowed to participate in a specific case as a social representative (case no. II SAB/Wa 49/08). The Voivodship Administrative Court in Warsaw dismissed this claim on the basis of a formality, since the IPN had in the meantime denied the motion asking that the Foundation be allowed to participate in the case as a social representative. In the justification of its ruling, the Court agreed with the Foundation s claim that this was a case of inactivity and serious delay in the settlement of the case, and it admonished the IPN s behavior. The Voivodship Administrative Court in Warsaw underlined that a large amount of work and a limited number of personnel do not under any circumstances excuse the slowness of the IPN s administration when it comes to handling matters. Initially, the IPN had not delivered the complaint of inactivity to the Court, claiming that it was unfounded. In response to this behavior, the Voivodship Administrative Court in Warsaw in its judgment of the 10 th of July 2008 fined the Director of the Branch of the IPN in Warsaw 3,000 PLN (case no. II SA/Wa 12/08). Only the Foundation s motion for fining the IPN s administration forced it to deliver the complaint of inactivity to the Court. The Helsinki Foundation for Human Rights hopes that the Institute of National Remembrance will take under consideration the position held by the Voivod Administrative Court in Warsaw and will take care to follow procedural regulations and the timely settlement of cases concerning not just the Helsinki Foundation for Human Rights, but those of every individual who, for instance, applies for access to documents of the communist security forces concerning them. HELSINKI FOUNDATION FOR HUMAN RIGHTS Program HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST ul. Zgoda 11; Warsaw tel. (+48 22) fax (+48 22) rozliczenia@hfhr.org.pl strona www The Human Rights and Settlements with the Past program is part of HFHR`s Law Department managed by Adam Bodnar, along with other programs such as The Innocence Clinic, Court Watch Program, Strategic Litigation Program and Public interest law actions. Projekt, DTP: HR&HARE DESIGN, Helena Csató-Zakrzewska THE HELSINKI FOUN- DATION FOR HUMAN RIGHTS was founded in 1989 by members of the Helsinki Committee in Poland. The Foundation is one of the most experienced and professional non- governmental organizations in Europe acting in the field of human rights. BOARD Danuta Przywara President Zbigniew Hołda Vice-President Adam Bodnar Secretary Elżbieta Czyż Treasurer Janina A. Kłosowska Board Member COUNCIL Halina Bortnowska-Dąbrowska Chairman SPONSORS The project is financed by Trust for Civil Society in Central and Eastern Europe Jerzy Ciemniewski, Janusz Grzelak, Marek Antoni Nowicki, Marek Safjan, Stefan Starczewski PROGRAM TEAM Advocate Mikołaj Pietrzak Program Coordinator Adwocate Jacek Oleszczyk Paweł Osik Andrzej Orzechowski The project is financed by Open Society Institute CI PRAWA CZ OWIEKA A ROZLICZENIA Z PRZESZ O INFORMATION BULLETIN HUMAN RIGHTS AND SETTLEMENTS WITH THE PAST PROGRAMME