The lustration proceedings in the case of

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1 Information Bulletin of the Human Rights and Settlements with the Past Programme Issue 2 (4) / 2010 LUSTRATION and Institute of National Remembrance (IPN) The Case of Prof. Mirosław Wyrzykowski: Inadmissibility of Analogy in the Interpretation of the Lustration Act The District Court in Warsaw (Sąd Okręgowy w Warszawie) and the Court of Appeal in Warsaw (Sąd Apelacyjny w Warszawie) have adjudicated that the lustration declaration submitted by the judge of the Constitutional Court, Mirosław Wyrzykowski was truthful. Thus, the courts once more did not agree to the application of the extensive interpretation of the catalogue of the State security services, as enumerated in the Lustration Act. The proceedings were observed by representatives of the Helsinki Foundation for Human Rights. The lustration proceedings in the case of Prof. Wyrzykowski were initiated on a motion submitted by the prosecutor of the Institute of National Remembrance s (IPN s) Branch Lustration Office in Warsaw, who applied to the court for the instigation of the lustration proceedings against Prof. Wyrzykowski in order to declare that the lustration declaration that he had submitted was untrue. In the prosecutor s opinion, the reason for the untruthfulness of the declaration was the fact that a period when Prof. Wyrzykowski had been employed for two years at the Higher Police Training School of MSW 1 in Legionowo was not included in the declaration. The prosecutor believed that this school should be considered a communist state security institution, being that it is a central institution of the Security Service of the Ministry of Internal Affairs. The prosecutor petitioned the court to ban Prof. Wyrzykowski from holding any public office for a period of three years and to pre- 1 The Ministry of Internal Affairs vent the lustrated from being eligible for all public positions filled via general election over the same period of time. Prof. Mirosław Wyrzykowski has never contested that in the period between 1977 and 1979, he was a lecturer of administrative law at the Higher Police Training School in Legionowo and that he was employed on the basis of a part-time employment contract for the position of adjunct. In his opinion, however, the school cannot be considered a state security institution, as defined in the Lustration Act. Therefore, he was not obliged to disclose the information concerning his former employment in his lustration declaration. The Act does not proclaim either directly or indirectly the school to be a state security institution. The defence lawyers of the lustrated supported this argument by referring to the rationality of the legislator, who would have, they argued, directly listed the School in Legionowo in the catalogue of the state security institutions, especially in the light of the Supreme Court-determined rulings regarding the status of the Academy of Internal Affairs, whose status was similar to that of the School in Legionowo. In addition, in opposition to the prosecutor s opinion, they highlighted that the School in Legionowo was not a central institution of the Security Service within the meaning of the Act, and therefore cannot be considered a state security institution. The litigation concerned legal, rather than factual circumstances. Thus, there was no need to conduct a complex evidentiary hearings. For this reason, the court of the first instance was able to carry out the court proceedings, hear the parties and pass and pronounce the judgement over the course of one court session. By the judgment of 14 th December 2009, case No. XVIII K 258/09, the District Court in Warsaw declared that the submitted lustration declaration was truthful. In the reasoning of the judgement, the court indicated that the prosecutor s argumentation was inconsistent with the rules for the interpretation of legal acts. The court entirely concurred with the legal assessment of the Supreme Court made in the resolution of 20 th June 2000, (case No. I KZP 15/00) in relation to its interpretation of the concepts of the state security institutions and the central institutions of the Security Service enumerated in the catalogue of such agencies. The interpretation of the Supreme Court was based on the Lustration Act of 1997, yet is still current due to the almost complete transcription

2 2 PAP/Paweł Kula of the catalogue of the state security services into the Lustration Act of The District Court in Warsaw furthermore stated that the School in Legionowo could not be considered a state security institution as defined in Art. 2 1(5) taken in conjunction with Art. 3 of the Lustration Act, because it was not a central institution of the Security Service of the Ministry of Internal Affairs that was dissolved upon the foundation of the Office of National Security on 10 May, The School had been disbanded in 1989 and no legal successors had been indicated. Therefore, the deliberations as to whether the school was the central institution of the Security Service or not could be considered purposeless. In the court s opinion, the argument on the rationality of the legislators concurs with the interpretation made by the Supreme Court, which in its above-mentioned resolution of 2000 presented specific means for understanding the provisions of the Lustration Act of The same regulations were repeated in the Lustration Act of Because of that, it may be presumed that a reasonable legislator, when introducing the new regulation, would have been aware of the Supreme Court s prior rulings. As the rulings introduced no contradictions, however, he would not have not abandoned the previously-adopted formulation; therefore, he would have embraced it. The catalogue of the state security services was directly amended with the addition of the Academy of Internal Affairs, but not of the Higher Police Training School of MSW in Legionowo. The proceedings before the District Court in Warsaw were observed not only by the HFHR representatives, but also by Henry Horbaczewski, an american lawyer and representative of the International Bar Association Human Rights Institute (IBAHRI). In the report that was published in the Internet 2, the IBA indicated that the case of Prof. Wyrzykowski is a characteristic example of the accusations that have been made against the Constitutional Court s judges, one that raises doubts about the accusations main aim, which may in fact be to discredit the members of the Constitutional Court. Because of these reasons, the IBA made a decision to send its official representative to Poland, in order to examine whether the proceedings before the court would be consistent with the international standards of a fair trial. In the observer s opinion, the lustration proceedings before the District Court 2 The full report is available at the website of the International Bar Association at: aspx?articleuid=03129af6-b1b8-48bb-8f54-a5070c7c448d in Warsaw were fair. He believes that the court deserves praise for the fairness of the procedure. The IBA noted that cases based on the Lustration Act are sensitive, in principle, from a political point of view, especially when the case concerns one of the present judges of the Constitutional Court. The IBA is concerned that accusations of this nature regarding the incumbent judge may themselves have a negative influence on the independence of the judicial system, as well as on the rule of law. In the IBA s opinion, the theory of the retroactive classification of whether collaboration with the security services took place in the monitored case, as presented by the prosecutor, presents many possibilities of abuse, taking into consideration the strong influence of the security services on the life in Poland during the communist era. Nevertheless, the IBA believes that the independence and professionalism of the court of the first instance is significant in terms of the protection of individuals rights and freedoms and of the rule of law in Poland. These traits also have the potential to act as a deterrent against meritless prosecutions brought to court under the Lustration Act. The IBA welcomed the court s ruling, and expressed the hope that other Polish courts in similar cases will follow its example. The appeal against the judgment of the first-instance court was brought to court by the IPN s prosecutor. By the judgement of 14 th May 2010, case no. II AKa 108/10/L, the Court of Appeal in Warsaw upheld the verdict of the court of the first instance. The court once again did not agree with the opinion of the Prosecutor s Office of the IPN as concerns the interpretation of the Lustration Act. The Court of Appeal emphasized that the Lustration Act does not indicate either directly or indirectly, the MSW Training School in Legionowo as a state security institution. According to the court s opinion, the School does not fulfil any of the necessary conditions to be considered a state security institution, as defined in Art. 2 1 of the Lustration Act. This judgment means that the fact of being employed at the school is not subject to disclosure in a lustration declaration. Therefore there are no reasons to claim that Prof. Wyrzykowski submitted an untrue lustration declaration. The court noted that the legislator s attempt to clearly delineate the catalogue of the state security services in the Lustration Act was only partially successful. This statement relates in particular to the concepts of the Security Service and of the central institutions and local institutions of Security Service, as defined in the Act. An addressee of a given provision, however, should be able to clearly perceive the scope of the provision, as well as the bounds of its interpretation. As regards the interpretation of the concept of the state security services, the only interpretation technique that may be used in this situation is an interpretation of the language of the Act, while other interpretation techniques should not be applied. This is because the Lustration Act covers a wide range of addressees. If the act is read by a person who is not completely familiar with the structures of the security services, he/she will not be able to discern what the central institution of the Security Service is. The court pointed out that deciphering the content of provisions of law on the basis of confidential or inaccessible documents is unacceptable. This observation had already been made by the Supreme Court in its resolution of 20 th June 2000, case No. I KZP 15/00. The Constitutional Court subsequent- The judgement of the District Court in Warsaw of 14 th December 2009, case No. XVIII 258/09 The judgement of the Court of Appeal in Warsaw of 14 th May 2010, case No. II AKa 108/10/L; the judgement passed by: Jarosław Góral (presiding judge), Rafał Kaniok, Zbigniew Puszkarski (reporting judge)

3 ly elaborated on this opinion and clearly indicated the impermissibility of such a situation in its judgement of 11 th May 2007, case No. K 2/07. The court emphasized that confidential documents cannot be considered as having value under the binding provisions of the law, and that they can only be considered as a subject of research work. The judgement of the Court of Appeal in Warsaw is another indication of the lack of acceptance for the use of a broad interpretation of the provisions of the Lustration Act. Previously, the Court of Appeal in Gdańsk, which upheld the judgement of the District Court in Bydgoszcz, stated that the lustration declaration of the Member of Parliament Marian Filar, a professor of penal law who also lectured at the Higher Police Training School in Legionowo, was truthful. Mr. Filar had omitted this fact in his lustration declaration. In the case of Prof. Wyrzykowski, the Court of Appeal in Warsaw went further in its reasoning of the judgement than the Court of Appeal in Gdańsk. The Warsaw court did not, however, share the opinion of the court in Gdańsk, which stated that the MSW Higher Police Training School in Legionowo was the central institution of the Security Service. The lustration proceedings against the Constitutional Court judge Prof. Wyrzykowski raised much controversy. 25 deans and associate deans of the faculties of law in Poland, and, subsequently, the Committee of Legal Studies of the Polish Science Academy, protested against the use of the unacceptable methods applied by the IPN in order to accuse of submitting untrue lustration declaration. Furthermore, the unstable situation of the Constitutional Court s judges was brought into consideration, as was the climate of suspicion and intimidation created by the IPN regarding the Court s judges. When the Institute of National Remembrance verifies the truthfulness of a lustration declaration, its actions are theoretically within the scope of the law. There is, however, no time limit in which the verification process should end. Furthermore, the IPN has posted information on its website about the ongoing lustration proceedings concerning some of the Constitutional Court s judges. In response to press releases regarding this subject, Bohdan Zdziennicki, the President of the Constitutional Court sent a query to the President of the IPN on 9 th November 2009, with a request for the clarification of the legal basis of the publication of the information on the alleged lustrations of the Constitutional Court s judges on the IPN website. In the query, the President of the Constitutional Court emphasized that, within the text of the Lustration Act, only lustration proceedings that are carried out before the court are recognized as such. The information posted on the IPN website, however, attests to a broader understating of this provision within the IPN, according to which lustration proceedings also consist of the internal actions of the IPN. In the President of the Court s opinion, this interpretation undermines the reliability of the Constitutional Court in the eyes of the public opinion because of the ease with which the principle of the presumption of innocence is abandoned. While the right of the IPN s Prosecutor s Office to verify the truthfulness of the lustration declarations is not contested, the hope that it will exercise its duties with greater care and attention to the basic principles of law has to be expressed, in particular, as concerns the prohibition on the use of the broad interpretation of the provisions of law that constitute the basis of the quasi-penal responsibility under the Lustration Act. It must be noted that both the lustration proceedings in the case of Prof. Wyrzykowski and the atmosphere created by the lustration of the Constitutional Court s judges negatively affects the authority of the judges themselves, as well as that of the entire Constitutional Court. Paweł W. Osik, Wojciech Klicki The Issue of the Formal Immunity in the Lustration Proceedings an Unrecognized Problem The lustration proceedings against the Constitutional Court s judge Prof. Mirosław Wyrzykowski shed light on the existence of a problem, existing both under the Lustration Act of 1997 and the Lustration Act of 2006, that was not previously noted by anyone; namely, of the problem of the application of provisions on formal immunity in the lustration proceedings, especially in relation to persons who are granted this right under the Constitution. Only the Constitutional Court has taken a distinct position in the matter thus far, via the resolution agreed on during the General Assembly of the Constitutional Court s Judges on 13 th July The Resolution of the General Assembly states: In the light of the previous rulings of the Constitutional Court and of the European Court of Human Rights, in conjunction with the provisions (...) [of the Lustration Act of 2006], and, in particular, of Art. 19 and Art. 21 of said act, the responsibility of persons obliged to submit the lustration declaration defined in the above mentioned Act, as well as in Art. 7 1 of the Act, is a criminal responsibility, as defined by Art. 42 of the Polish Constitution. At the same time, the Resolution emphasized that: the assent to the prosecution of the Constitutional Court s judge as set out in the provisions of the [Lustration Act of 2006] (...) is issued granted the basis of Art. 196 of the Polish Constitution and Art. 7 1 of the Act of 1st August 1997 on the Constitutional Court. This issue is essential because a wide range of persons holding public offices; for instance, judges, prosecutors, Members of Parliament, the Polish Ombudsman, etc., is protected by immunity provisions. Until now, no one had paid attention to the questions related to the immunity. In practice, there was a presumption that, because of the character of the lustration responsibility and the group of individuals subjected to it, immunity does not apply in the lustration proceedings. There have been several lustration proceedings carried out successfully under the Lustration Act of 1997 in relation to judges and Members of Parliament, which did not set aside the defendants immunity. The problem became visible and pressing only when, in connection with the political issue of the instigation of the lustration proceedings, it turned out that immunity shall also apply in the lustration proceedings, in order to protect the persons holding high public offices from attempts to exert influence on them, or even to pressure by means of instigated legal proceedings, and, at the same time, to protect the gravity and respectability of the offices held, and institutions represented, by them. The situation is much clearer when it comes to persons who are provided with immunity under the Constitution that is, Members of Parliament (Art and Art taken 3

4 4 in conjunction with Art. 108), judges (Art. 181), the Constitutional Court s judges (Art. 196) members of the Tribunal of State (Art. 200), the President of the Supreme Audit Office (Art. 206) and the Polish Ombudsman (Art. 211). It should not be doubted that the Constitution uses the concept of the criminal responsibility in its various provisions, e.g. in Art. 42 and, at every use, grants the same meaning to the concept, which is there formulated on a much broader level than the criminal responsibility defined in the Criminal Code and in the Code of Criminal Procedure, where it is understood only as responsibility for the committed crimes. In the constitutional meaning of sxc the term, criminal responsibility is defined as any kind of responsibility having penal or repressive character (the Constitutional Court s judgement of 28 th November 2007, case No. K 39/07). At the same time, the Constitutional Court has indicated multiple times in its previous judgments that constitutional concepts cannot be interpreted from the perspective of the concepts used in legal acts of inferior character. The penal character of the Lustration Act was stated in the judgement of the Constitutional Court of 11 th May 2007, in case No. 2/07. In the matter of lustration responsibility, the European Court of Human Rights has also made a statement, proclaiming, in its decision of 30 th May 2006, on the admissibility of the application in the case of Matyjek against Poland (Application No /03) that the lustration proceedings are in fact the criminal proceedings, as defined by Art. 6 1 and 3 of the European Convention of Human Rights. Some differences between the notions of responsibility under the Lustration Act of 1997 and the Lustration Act of 2006 must also to be noted. The first significant difference concerns the character of sanctions for submitting an untruthful lustration declaration. Under the Lustration Act of 1997, the lustration court s judgement was only declarative in character, and the court was only permitted to adjudicate whether the submitted lustration declaration was truthful or not. The sanction was clearly defined by law and had the same character in every case. Under the Lustration Act of 2006, the sanction for submitting an untruthful declaration lost its definite character, as well as the character of a sanction applied by right of law, with its definition changing between the two Lustration Acts. At present, the lustration court decides on the sanction to be applied, having the possibility to adjudicate a three- to ten-year ban on holding public offices and a three- to ten-year deprivation of passive voting rights to offices staffed in general elections. The qualitative difference between the lustration proceedings, as regulated under the Lustration Act of 1997 and those regulated under the Lustration Act of 2006 was also noted by the Constitutional Court in the judgement of 11 th May 2007, case No. K 2/07. The Court indicated that: the previously binding Lustration Act of 1997 emphasized only the veracity of the lustration declaration itself, considered apart from the circumstances of the collaboration and its course. The fact of work, service or collaboration [with the state security services] was not directly stigmatized and the blameworthiness of this kind of connection with the state security services was held to some extent as a separate, lesser issue from the normative content of the Act. The currently binding Act breaks with this kind of hypocrisy, calling matters as they are, mostly through the content of the Act s preamble. [...] The provision of courts with the means to examine not only the veracity of the lustration declarations, but also, and more especially, the substance and nature of the collaboration in question, must have an impact on the possibility of weighing the consequences of this collaboration, and must also be followed by the variation of the period of deprivation of passive voting rights. The issue of immunities in the lustration proceedings, as emphasized by the Constitutional Court, can already be noted in the lustration courts rulings. One such case may be considered the reopened lustration proceedings against the judge Alicja Rasmussen following the judgement of the European Court of Human Rights of 28 th April 2009, in the case of Rasmussen against Poland (Application No /05). By the decision of 22 nd December 2010, case No. III 217/09, the District Court in Szczecin discontinued the lustration proceedings against Ms. Rasmussen because of the lack of the required consent for prosecution. Furthermore, there have already been legal enquiries submitted to the Supreme Court regarding this issue, e.g. in case No. I KZP 31/10, which concerns a public prosecutor. Paweł W. Osik

5 Rules of Access to the Documents of the State Security Services 3 Years of Application of Unconstitutional Provisions One of the most important issues the Human Rights and Settlements with the Past Programme had to face was the problem of rules of access to the documents of communist state security services applied to persons those documents concern and the practice of the Institute of National Remembrance (IPN) within this scope after the Constitutional Court s judgement of 11 th May 2007, case No. K 2/07. The problem was eventually solved by the Constitutional Court s judgement of 20 th October 2010, case No. P 37/09 passed as a consequence of the legal enquiries submitted by the Supreme Administrative Court and the Regional Administrative Court in Warsaw. The Constitutional Court declared the unconstitutional character of the provisions despite the fact that on 27 th May 2010 they have been repealed by the amendment of the Act on the Institute of National Remembrance of 18 th March Legal enquiries of administrative courts Legal enquiries submitted by the Supreme Administrative Court with the decision of 13 th August 2009, case No. I OSK 336/09 and by the Regional Administrative Court in Warsaw with the decision of 9 th July 2009, case No. II SA/Wa 1788/08 were the consequence of the complaints submitted against IPN s organs decisions by persons who were denied with access to the documents that concern them. Both courts were asking about the constitutionality of a substantive provision. Additionally the Supreme Administrative Court referred also to the procedural provisions. First of all the courts challenged the constitutionality of Art. 31 1(2) of the Act on the Institute of National Remembrance. According to the challenged provision, the negative decision regarding the application of the person concerned for the access to documents containing the information that he/she was treated by the security services as a secret informer or assistant in the information collection process, or assumed the obligation to provide the state s security services with information or any kind of help in operations, or was performing tasks given by the state s security services and in particular provided information is issued in the form of an administrative decision. Both courts that have submitted legal enquiries and the Constitutional Court itself in its judgement referred to the circumstances that Art. 31 1(2) of the Act repeats the prerequisites of the denial of disclosing documents once set out in Art. 30 2(2) of the Act on the IPN which has been considered unconstitutional by virtue of the judgment of the Constitutional Court of 11 th May 2007, case No. K 2/07. The provisions have the same wording and express the same legal norm, however Art. 30 2(2) of the Act had a substantive character while Art. 31 1(2) has a procedural character that foresees the authoritative decision on the denial of disclosing documents but at the same time repeats previously considered unconstitutional substantive prerequisites of such a denial. Despite the Constitutional Court s judgement the Institute of National Remembrance was refusing to grant access to the documents invoking challenged in this case procedural provision of Art. 31 1(2) of the Act on the IPN giving it the substantive meaning. The Helsinki Foundation for Human Rights described this situation as disdaining of the Constitutional Court s judgement and application of an unconstitutional legal norm. Because of the aforementioned practice the administrative courts claimed the infringement of Art. 2 of the Constitution, expressing the principle of the democratic State ruled by law respecting the principle of the appropriate legislation and as a one of its elements, the principle of specificity of law and the principle of protection of citizens trust in the State and its laws. Additionally, beside the before mentioned aspects, in the courts opinion the questioned provision infringes the individual s constitutional right of access to official documents and data collections concerning himself (Art of the Constitution), what in consequence leads also to the deprivation of the right to demand the correction or deletion of untrue or incomplete information, or information acquired by means contrary to statute (Art of the Constitution). The refusal of granting the access to the documents results also in the violation of the right to legal protection of private life, honour and good reputation and to make decisions about personal life (Art. 47 of the Constitution). The persons concerned do not have the possibility to effectively protect their rights neither in the proceedings before the IPN nor before the administrative court. The fact of not disclosing the documents to persons concerned violates also the limits defined by the principle of proportionality (Art of the Constitution) and by the principle of equality and non-discrimination (Art of the Constitution). Within the scope of the provisions of a clearly procedural character, the Supreme Administrative Court challenged Art and Art of the Act on the IPN, which introduces the possibility of restriction of the obligation to draw up the statement of reasons of a negative decision on granting the access to documents or to desist from it at all, and the same possibility regarding the decisions issued in the complaint proceedings before the second instance organ, within the scope in which the disclosure of the information to the applicant prevents the realisation of the Lustration Act. In the court s opinion they infringe the principle of two-instance administrative procedure (Art. 78 of the Constitution), the principle of proportionality (Art of the Constitution) and the principle of the democratic State ruled by law (Art. 2 of the Constitution) because the provisions are unclear and have a blanket character. They do not specify accurately enough the prerequisite for the restriction of the right to obtain the statement of reasons of the decision. The next challenged provision is Art of the Act which introduces the rule, that the complaint to the administrative court against the decision issued by the IPN s authorities as regards the denial of the disclosure of documents is examined by the court in camera. This violates disproportionately the right to the public hearing of the case (Art taken in conjunction with Art of the Constitution). In the opinion of the Supreme Administrative Court Art of the Act on the IPN, which excludes the application of Art of the Act Law on the Proceedings Before Administrative Courts, and in consequence deprives of the possibility of hearing of the parties by the court, presenting their arguments, conclusions, indicating legal basis and factual claims, is limiting the principle of contradictory proceedings before administrative courts in the cases of complaints against the decisions of the IPN and constitutes a disproportionate limitation of 5

6 6 The Institute of National Remembrance the right to court (Art taken in conjunction with Art of the Constitution). In addition the Supreme Administrative Court challenged Art of the Act according to which the administrative court s judgement passed in camera is reasoned only when the complaint is allowed, and the certified copy of the judgement along with its reasoning is delivered to the President of the IPN and the applicant is provided only with the certified copy of the judgement (sentence). In this situation the applicant, regardless of the outcome of the proceedings, is not able to know the motives of the court s judgement. This provision in the Supreme Administrative Court s opinion infringes the right to a fair trial and in consequence the right to court (Art of the Constitution), right to appeal against the judgement of the first instance (Art. 78 of the Constitution), as well as the principle of equality (Art of the Constitution) because it is the reason of unequal positions of parties of the administrative proceedings before courts. Whereat it is hard to determine which right is supposed to be protected by the adopted limitation and whether the constitutional prerequisites set out in Art of the Constitution are respected. The last of the challenged provisions is Art of the Act of the IPN, stating that 4 6 shall apply as appropriate to the cassation appeal against the judgement of the Regional Administrative Court submitted to the Supreme Administrative Court. This means, that the foregoing regulations are the same both for the proceedings before the Regional Administrative Court as the first-instance court and the Supreme Administrative Court as the secondinstance court. This is why the provision also infringes in a disproportionate manner the principle of equality and the right to court (Art and Art taken in conjunction with Art of the Constitution). Constitutional Court s judgement Before the Constitutional Court issued the judgement the amending act of 18 th March 2010 entered into force and abolished the challenged provisions of the Act on the IPN. Taking into consideration however, that the administrative court examines the compliance of an administrative decision with the provisions of law being in force on the day of issuing the challenged decision, the Constitutional Court did not discontinued the proceedings and proclaimed that examination of the constitutionality of the challenged provisions remains significant for the protection of the constitutional rights and freedoms of the applicants in the proceedings before the courts that had submitted the legal enquiries. By virtue of the judgement of 20 th October 2010, case No. P 37/09 the Constitutional Court proclaimed that all challenged provisions of the Act on the IPN are inconsistent with the constitutional reference norms indicated in the legal enquiries. In the reasoning of the judgement the Constitutional Court while referring to the claim on the unconstitutionality of Art. 31 1(2) of the Act on the IPN pointed out, that the right of individuals access to archival documents concerning them guaranteed under the Act on the IPN is the realisation of the individuals constitutional right to access the documents and databases concerning them (Art of the Constitution). The Constitutional Court pointed out that the provision has a procedural character, determining that the negative decision on the disclosure of documents is issued in the form of an administrative decision. At the same time this provision is invoking the prerequisites of such a negative decision which correspond with the substantive prerequisites set out in Art. 30 2(2) of the Act on the IPN which was previously proclaimed unconstitutional by virtue of the judgement of the Court of 11 th May 2001, case No. K 2/07. In consequence, as the courts submitting the legal enquiries noticed, despite its procedural character Art. 31 1(2) is in practice the substantive basis of the negative decision on disclosing of documents. In the Constitutional Court s opinion: the limitations on the access to the documents result in an untitled restriction of the individual s autonomy of information, restriction of means, on the bases of which an individual would be able to realise the constitutionally guaranteed right to request the correction or removal of untruth information, of incomplete information or of information collected in contravention of the statutory acts. This equals to the infringement of Art and Art. 47 of the Constitution that are expressing the right of protection of the privacy. At the same time this limitation is excessive and disproportionate (Art of the Constitution) because the essence of the freedoms and rights set out in Art and Art. 47 of the Constitution are violated. While examining the claim on the infringement of the principle of the democratic State ruled by law (Art. 2 of the Constitution) from which the obligation of appropriate legislation derives, functionally related to the principles of legal certainty and security, and to the protection of individual s trust in the State and its laws, the Constitutional Court pointed out their essential significance while interfering the constitutional rights and obligations. The unclear and imprecise wording of the provision raises uncertainty of its addressees about the content of rights and obligations, especially when it creates an excessive freedom of interpretation (and even full arbitrariness) for the public authority. This may lead to the situation in which the authority will assume the role of the legislator. The Court proclaimed that the wording of the challenge provision is so unclear and imprecise that in consequence of its application, the requirements of appropriate legislation and therefore Art. 2 of the Polish Constitution had been infringed. Subsequently the Court started to examine the procedural provisions that regulate the procedure of disclosure of documents by the IPN and the control

7 7 of the Institute s decisions in the proceedings before administrative courts. With reference to Art sentence 2 and Art of the Act on the IPN foreseeing the possibility of restriction of the obligation to draw up the statement of reasons of the negative decision on the access to documents and of the decisions issued in the appellate proceedings or to desist from it at all, the Constitutional Court agreed with the opinion of the Supreme Administrative Court, that the lack of the statement of reasons of the decision causes the party to be in fact deprived of the possibility of defending its rights by means of submitting a complaint against the decision. The fulfilment of the right to submit a complaint becomes delusive and illusory. As a result of submitting a complaint against the decision, which does not contain the establishment of facts, the organ of second instance is forced to establish the facts by itself. At the same time the lack of statement of reasons of the decision of the organ of the second instance creates the situation in which a party is not able to know whether the verification of the appealed decision of the first instance organ actually took place. The statement of reasons constitutes an essential element of the right to appeal against the administrative decision. Its infringement results in violation of Art. 78 of the Constitution. Although there are exceptions from this principle, they must comply with the principle of proportionality and can not violate the essence of the right (Art of the Constitution). Yet, because of the unclear and imprecise wording of the prerequisites for the restriction of the obligation of issuing the statement of reasons it is not possible to determine whether this restriction and in consequence the limitation of the right to appeal against the decision is proportional to the value that was supposed to be protected. While examining the constitutionality of Art of the Act which introduces the rule according to which the complaint against the decision of the President of the IPN on the denial of disclosing of documents is being heard by an administrative court in camera, the Constitutional Court agreed with the Supreme Administrative Court s opinion, that in this situation the openness of the hearing is being limited not only to the public but first off all to the parties of the proceedings. In consequence the procedural fairness is being violated which is the essence of the constitutional right to a court (Art of the Constitution). The right to a court without keeping the standard of fairness would become illusory. Among the fundamental standards of the procedural fairness, particularly important is the requirement of providing the parties with the right of being heard, this one ensures the party with the efficient defence of just interests in court proceedings. The Constitutional Court at the same time acknowledged that in the case when none of the documents is confidential and may be disclosed to other persons than the one concerned to research workers and journalists it is hard to determine which value or which rights are supposed to be protected by means of the limitation of the openness of the hearing. Because of this fact also within this scope the principle of proportionality has been violated (Art of the Constitution). When examining Art of the Act which excludes the application of Art of the Act on the Law on the Proceedings before Administrative Courts in the proceedings in the case of a complaint against the decision of the President of the IPN, the Constitutional Court pointed out that one of the elements of the right to a court and of the procedural fairness which both delimit the legislator s freedom is the party s right to present arguments, motions, evidences, factual and legal bases, formulate claims and the possibility to argue with the opposing party. According to the requirements of a fair trial, parties of the proceedings must have an actual possibility of presenting their arguments and the court is obliged to consider them. This right affects the efficiency of protection of rights in court proceedings and ensures the principle of adversariness in it. The Constitutional Court decided that since it was not able to find the constitutional bases for the admittance of the hearing of the case before administrative court in camera there are also no legal bases that would allow to state that the limitations set out in Art of the Act are coherent with the right to a court (Art of the Constitution). Especially when these limitations are not based on Art of the Constitution, since it is not possible to determine which value is supposed to be protected. Additionally, while referring to Art of the Act on the IPN, the Constitutional Court proclaimed that the limitation contained therein which grants the right to obtain the reasoning of the judgement of the Regional Administrative Court, regardless of its nature, to only one party of the proceedings - the President of the IPN - is incoherent with the requirements of equality of arms. On the contrary, one of the parties has a privileged position. This privileged position is cumulative; this is visible already at the stage of the proceedings before the administrative authority, then at the stage of the proceedings before an administrative court and in the end when the cassation appeal is submitted to the Supreme Administrative Court. The realisation of the right to appeal against the judgement becomes illusory because of the lack of the reasoning of the judgement. It does not permit to evaluate the correctness of drawn conclusions and of establishment of facts made by the court, and in consequence makes impossible an actual dispute. The reasoning of the judgement is the only source of plaintiff s information about the motives, both legal and factual, that decided about passing of a particular verdict. It constitutes an essential element of the individual s constitutional right to a fair court. The Constitutional Court decided that the adopted limitation is not necessary for the realisation of any of the values set out in Art of the Constitution and therefore it does not comply with the principle of proportionality. While examining the infringement of the principle of equality under law (Art of the Constitution) by Art of the Act, the Constitutional Court stated that this infringement is strictly connected with the before mentioned violation of the right to a court (Art of the Constitution). Exclusion or limitation of kind and scope of means of defence of only one party of the proceedings, and at the same time granting the privileged position to the opposite party introduced a significant differentiation of the constitutional right to a court. The Constitutional Court proclaimed at this time that there are no convincing basis that would justify such differentiation of the parties of the proceedings. The last of the examined provisions was Art of the Act on the IPN which regulates the proceedings before the Supreme Administrative Court when the cassation appeal is submitted against the judgement of the Regional Administrative Court. The Constitutional Court proclaimed that there is also no constitutional justification that would allow The Constitutional Court s judgement of 20 th October 2010, case No. P 37/09, passed en banc (place of publication: OTK Z.U. 2010/8A/79; Dz.U. (Official Journal of Laws) of 29 th October 2010 No. 201 item 1335) Legal enquiries that institutedt the proceedings before the Constitutional Court: Decision of the Supreme Administrative Court of 13 th August 2009, case No. I OSK 336/09 Decision of the Regional Administrative Court in Warsaw of 9 th July 2009, case No. II SA/Wa 1788/08

8 8 to proceed in camera, to limit the right of the party of being heard and to obtain the reasoning of the judgement. These limitations infringe both the right to court and the right to the procedural justice set out in Art of the Constitution. At the same time it is not known what is the aim of these limitations. Therefore, they infringe also the principle of proportionality (Art of the Constitution). The privileged position of the administrative authority in the court proceedings results in the violation of the principle of equality of arms what causes the unjustifiable inequality of the parties of the proceedings and in consequence the infringement of Art of the Constitution. The challenged provisions of the Act on the IPN were in force until 26 th May The amendment of the provisions implemented by the act of 18 th March 2010 is consistent with the findings of the Constitutional Court made in the judgement of 20 th October 2010, case No. 37/09. As the Constitutional Court stated, the amendment abolished Art. 31 1(2) and pro futuro adopted, the legal situation which is consistent with this judgement and allows each individual to access the copies of documents stored in the Institute of National Remembrance. The Constitutional Court referred also to the argumentation contained in the reasoning of the amending act draft. According to which: «The practice of the IPN intensified the problem (of the limitation of the right to defence of persons accused of collaboration with security services) because of applying extensive and arbitrary criterions while issuing decisions on the denial of granting access to documents. The proposed solution therefore allows every person concerned to access the documents and releases the IPN from the obligation of deciding which document can be disclosed and to who. The submitted draft is also the fulfilment of the Constitutional Court s judgement (...). Entering into force of the proposed solutions will have a positive legal effect because they will affect the better realisation of the civil rights» (The Sejm Official Prints No. 2625, VI Term of the Polish Sejm). At the same time the Constitutional Court stated that the judgement in this case fulfils the aforesaid expectations. There remained however still one more problem, the amendment repeated the provisions concerning the proceedings before administrative courts considered to be unconstitutional in the Constitutional Court s judgement under discussion. As a consequence of the Constitutional Court s judgement and quashing of the unconstitutional provisions, the administrative courts will have to resume the proceedings in the cases of complaints against the negative decisions on granting access to documents issued by the President of the IPN which were suspended because of the legal enquiries submitted by the courts to the Constitutional Court. The courts will reverse the appealed decisions because of the fact that they were based on the unconstitutional provisions. Subsequently the application for the disclosure of documents will be considered one more time by the IPN basing on the new regulations. The only thing to regret is the situation in which for three years, despite of the Constitutional Court s judgement of 11 th May 2007, case No. K 2/07, there were successfully issued decisions based on the unconstitutional provisions, and in consequence the persons concerned could not access the archival documents of communist state s security services regarding them. Especially when some of these persons submitted their first applications for the disclosure of documents already when the institution of an aggrieved party existed, i.e. before the previous significant amendment of the Act on the IPN that entered into force on 15 th March Paweł W. Osik, Wojciech Klicki Statistical Data Concerning the Number of the IPN s Negative Decisions on Access to Documents The Helsinki Foundation for Human Rights for almost a year and a half was trying to obtain from the Institute of National Remembrance the statistical data concerning the number of decisions on denial of disclosing the communist state s security services documents to persons concerned issued by the IPN s organs in 2007 and The case ended with a final and binding judgement admitting the HFHR s claim issued by the Supreme Administrative Court (hereinafter referred to also as NSA) on 9 th December 2010, case No. I OSK 1798/10, this decision dismissed the cassation appeal of the President of the IPN against the judgement of the Regional Administrative Court in Warsaw of 13 th July 2010, case No. II SA/Wa 488/10. The judgement itself does not yet equal to the disclosure of the requested information. With its application of 8 th April 2009, the HFHR requested the President of the IPN for disclosure of the public information concerning the number of decisions on denial granting access to documents issued by the President of the IPN and the Directors of the IPN s Branches, respectively on the basis of Art. 31 1(1), Art. 31 1(2) and on the basis of Art. 31 1(1) and Art. 31 1(2) of the Act on the IPN. The President of the IPN denied issuing of the requested information. In his opinion this information is a processed information within the meaning of the Act on the Access to the Public Information, and at the same time, its disclosure is not motivated with any special public interest. When submitting the application the HFHR motivated it with the need to examine the scale of situations in which persons concerned are not provided with access to the archival communist state s security services documents. Including those documents which should be made available to them after the judgement of the Constitutional Court of 11 th May 2007, case No. K 2/07. This argumentation did not convince the Institute. The Foundation pointed out, that the obtained information will be used, among others, for the purpose of preparing the amicus curiae briefs for the Regional Administrative Court in Warsaw and the Constitutional Court. The Regional Administrative Court in Warsaw admitted the HFHR s complaint against the decision of the President of the IPN on the denial of disclosing the public information, and the Supreme Administrative Court dismissed the cassation appeal of the President of the IPN. The Supreme Administrative Court pointed out in the reasoning of the judgement, that the greater part of the information we requested is already in our possession, what is

9 9 the consequence of submitting applications to the Directors of the IPN s Branches for access to the public information after passing of the appealed judgement of the Regional Administrative Court in Warsaw. Most of them considered the requested information simple (i.e. not processed as claimed the President of the IPN) and disclosed it within the statutory period. Referring to this fact the Supreme Administrative Court stated: The situation when the practice of regional branches (fully submitted to acceptance and implementing aims of the Act on the Access to the Public Information) is different than the one in the central organ, causes the infringement of the principle of increasing trust of citizens in State bodies and public awareness and appreciation of the law (Art. 8 of the Code of Administrative Procedure) and most of all affects the transparency of actions of the Institute of National Remembrance. It should be reminded that the basic goal of the Act on the Access to the Public Information is to organise the public supervision system over the activity of the public authorities in order for the citizens to have as wide as possible access to information possessed by the public administration. This is the fulfilment of the constitutional principle of the democratic State ruled by law and also of the principle of the transparency of activities of the public administration. Therefore the attitude of the President of the IPN is unacceptable, and what more, the punctualness of this institution gravely violates Art. 13 and Art. 16 of the Act on the Access to the Public Information, what anyway was the subject of a separate complaint of the Foundation, and also the principle of quickness and limited formalism set out in Art. 12 of the Code of Administrative Procedure. The court proclaimed that the information requested by the Foundation is a simple public information and therefore is not subjected to any limitations. In the situation when an administrative authority keeps in its records and registers data covered by the subject of the application, the performance of a simple technical work in order to count the number of applications and decisions does not cause the decision to acquire the value of the processed information. In the Court s opinion, in this situation examining the issue of a special public interest connected with the disclosure of the information is pointless. fotobase If there would be the necessity of proving that the requested information is particularly important for the public interest, according to the opinion of the NSA s bench in a given case, the President of the IPN should have no doubts that this prerequisite is fulfilled by the HFHR. From the Foundation s statute itself arises, that the aim of the Foundation s activity is to propagate human rights as the basis of functioning of State and society, furthermore the application contained reasons for which the Foundation is requesting the statistical data. The previous activity of the Helsinki Foundation in the realisation of its statutory aims cannot raise any doubts about the fact that its activity positively affects the functioning of particular public structures within the scope of the protection of human rights. (Quoted from the reasoning of the judgement of the Supreme Administrative Court of 9 th December 2010, case No. OSK 1798/10) If there was however such a necessity, in the NSA s opinion the organ, should not have any doubts, that in relation to the HFHR this condition is fulfilled. The court noted, that taking into consideration the statutory aims of the HFHR and its previous activity there can be no doubts, that the Foundation positively affects the activity of the public structures within the scope of the protection of human rights. The Court referred also to the one of the reasons of the Act on the IPN amendment, which was also noted in the Constitutional Court s judgement of 20 th October 2010, case No. P 37/09, concerning the way in which the IPN acts and its practice of using extensive and arbitrary criterions of decisions on denial of access to documents. Unfortunately from the day the HFHR submitted the application for the disclosure of the public information till the day of passing the final and binding decision in this case by the NSA more than a year and a half passed. The actions of the Institute therefore effectively prevented the Foundation from obtaining and using the requested information for the purpose they were meant to be used. Since in the meantime administrative courts submitted the legal enquires to the Constitutional Court, and the Court declared unconstitutionality of the challenged provisions, and in addition the Act on the IPN has been amended, so the provisions imposing limitations on persons concerned on access to the communist state security services documents have been abolished. Paweł W. Osik The case of the Helsinki Foundation for Human Rights complaint against the decision of 6 th January 2010 No. 3/10 of the President of the Institute of National Remembrance within the scope of the denial of disclosing the public information: Judgement of the Supreme Administrative Court of 9 th December 2010, case No. OSK 1798/10 The judgement and its reasoning is available at: _10.pdf Judgement of the Regional Administrative Court in Warsaw of 13 th July 2010, case No. II SA/Wa 488/10

10 10 Amendment to the Act on the IPN New Regulations Concerning the Disclosure of Documents On 27 th May 2010 the amendment to the Act on the Institute of National Remembrance entered into force and introduced modifications not only in the organisational structure of the Institute, but also revolutionary changes in the rules of disclosing documents of the communist security services to individuals those documents concern. Limitations that were raising doubts about their compliance with the right to protect private life (Art. 47 of the Constitution) and with the principle of autonomy of information from which the individual s right to access the documents concerning his/her person derives (Art of the Constitution) have been removed from the Act. The legislator while amending the act pointed out the following: The practice of the IPN intensified the problem (of the realisation of the right to defence of persons accused of collaboration with the security services) because of applying extensive and arbitrary criterions while issuing decisions on denial of access to documents. The proposed solution therefore allows every person concerned to access the documents and releases the IPN from the obligation of deciding about which document can be disclosed and to who. The submitted draft is also the fulfilment of the Constitutional Court s judgement [of 11 th May 2007, case No. K 2/07]. At present all documents that are stored in the IPN s archives are available on request of the persons those documents concern. The act eliminated the possibility of denial of access to whatever kind of documents, but at the same time introduced the possibility and in certain situations the obligation of disclosing only copies of the materials. The copies are disclosed when the physical condition of the documents makes it impossible, when more than one person is applying for the disclosure of the same materials and when the IPN has available only copies of those documents. The principle is that the IPN is making available all documents without any further additional decisions. A special category of the documents still consists of the documents produced by the applicant or with his participation within the framework of the activities carried out in connection with his work or service in the communist state s security services or in connection with activities carried out as a secret informer or assistant in the information collection process. In regard to this category some special rules apply. Those documents are subjected to disclosure, however only as copies. In addition an administrative decision that will state their special character is requested for this disclosure. The decision on the disclosure of copies of documents issued by the IPN s Branch Director within this procedure can be appealed to the President of the IPN, and subsequently to the administrative court. The act abolished than both the limitations on access to documents produced by the applicant or with his participation within the framework of activities carried out in connection with his work or service in the state s security services or in connection with activities carried out as a secret informer or assistant in the information collection process and as well as on access to documents from which arises that the applicant was treated by the security services as a secret informer or assistant in the information collection process, or assumed the obligation to provide the state s security services with information or any kind of help in operations, or was performing tasks given by the state s security services and in particular provided information. The latter of the before mentioned limitations were applied as a consequence of the practice adopted by the IPN after the Constitutional Court s judgement of 11 th May 2007, case No. K 2/07. Some amendments are however questionable. Within the scope of the provisions concerning the proceedings before administrative courts, the act repeats the solutions that were declared unconstitutional by virtue of the Constitutional Court s judgement of 20 th October 2010, case No. P 37/09. But on the other hand, the act abolished limitations on access to documents and the provisions on the basis of which the Institute adopted the practice which in fact led to the avoidance of the Constitutional Court s judgement of 11 th May 2007, case No. K 2/07 and refusal of the disclosure of documents on the basis of provisions that were proclaimed unconstitutional. The Helsinki Foundation for Human Rights since the half of 2007 undertook several different action with the aim of stopping this practice. Nevertheless the provisions concerning the disclosure of archival materials, at least at the beginning failed the reality test. The HFHR was provided with numerous signals regarding the practice of the IPN in the application of the new provisions. This had to be followed by interventionist actions by part of the Foundation. First of all it could be observed, that the applications for the disclosure of documents submitted on the grounds of the new provisions by persons previously denied with access, and in regard of which there were still undergoing proceedings before administrative courts suspended because of the legal enquires submitted by courts to the Constitutional Court were not examined as new applications. They were attached to the files of already finally and bindingly ended proceedings. On the other hand we observed, that previously not disclosed documents because of the IPN decisions, e.g. those from which arises the information that the applicant was treated by the security services as a secret informer or assistant in the information collection process, are at present treated as documents produced by the applicant or produced with his participation in the framework of activities carried out as a secret informer or assistant in the information collection process. The modification of the approach is incomprehensible as also under the previously binding act, this category of documents was also defined, as documents which can not be disclosed to the applicant. Paweł W. Osik Act of 18 th March 2010 amending the Act on the Institute of National Remembrance Commission for the Prosecution of Crimes against the Polish Nation and of the Act on the disclosure of information concerning documents of the state security services between the years , and the content of such documents (Dz.U. [Official Journal of Laws] No. 79, item 522 with further amendments), that entered into force on 27 th May 2010.

11 Freedom of Speech and the Historical Memory At the seat of the Helsinki Foundation for Human Rights on 7 th April 2010 the conference entitled Freedom of Speech and the Historical Memory took place. The meeting was organised by The Observatory of Media Freedom in Poland and the Human Rights and Settlements with the Past Programme. The conference prelectors were: Halina Bortnowska editorialist, ecumenist, social activist, member of the Helsinki Committee in Poland, Chairman of the Helsinki Foundation for Human Rights Council; Prof. Andrzej Friszke historian, Institute of Political Studies of the Polish Sciences Academy, lecturer of the Collegium Civitas; Prof. Antoni Dudek political scientist and historian, Institute of Political Science and International Relations of the Jagiellonian University in Krakow, consultant of the President of the Institute of National Remembrance; dr Ireneusz C. Kamiński from the Institute of Law Studies of the Polish Sciences Academy, Jagiellonian University in Krakow, author of the collection of rulings entitled Freedom of expression in the ECHR s rulings and the journalist Wojciech Mazowiecki. Advocate Mikołaj Pietrzak, former Coordinator of the Human Rights and Settlements with the Past Programme was the discussion moderator. The invited guests were seeking answers to the questions of limits of the freedom of expression in historical debate. Are the limits of the freedom of expression tighter when they concern living persons? Is the freedom of speech subjected to different limitations when we refer to the old history and different when we talk about modern history? Can the limits of the freedom of expression differ, when they are presented by the public authorities and private persons? The moderator of the discussion, Advocate Mikołaj Pietrzak was asking questions which we often ask to ourselves while reading historical publications, especially in relation to the newest history. In particular, can the author benefit from the unlimited freedom of expression when he/she refers to the historical memory, and if not, where those limits are. To what degree a historian or a journalist must take into consideration in his/ her work also the right to protect private and family life of persons or descendants of persons the historical material concerns? To what degree they are obliged to respect the protected private interests? M. Pietrzak stated that those issues are particularly important for Poland because of our country s specific historical situation what is the consequence of the political system transformation. The archival materials stored in the Institute of National Remembrance are our source of the newest history. The archival documents refer very often to the issues of great importance from the point of view of current social and political relations. The first person to speak was Halina Bortnowska, who criticised the excessive will of some historians and journalist to adjudicate and ladle out verdicts in their works. She raised the opinion, that both journalist and historians should From the left: Adv. Mikołaj Pietrzak, Ms. Halina Bortnowska (reporter), Prof. Antoni Dudek, Prof. Andrzej Friszke, Dr. Ireneusz C. Kamiński, Mr. Wojciech Mazowiecki (reporter) From the left: Dr. Ireneusz C. Kamiński, Mr. Wojciech Mazowiecki (reporter) finish the process of studying the past with the drawing of conclusions, without expressing unambiguous opinions since they are not judges. They should limit themselves to make hypothesis of a certain status, and not to act like judges and pass verdicts. The source of what can and what cannot be done within the framework of law is laid down in the Constitution and in the values contained therein. She noticed the conflict between the two most important rights guaranteed under From the left: Prof. Antoni Dudek, Prof. Andrzej Friszke HFHR 3 the Constitution the human rights and the freedom of speech. H. Bortnowska critically referred to the overriding role of the truth in this conflict, as a value between the freedom of speech and the protection of human dignity. She underlined, that truth is not always setting free, sometimes getting to know it has ruinous consequences. Prof. Antoni Dudek expressed a different opinion. He believes that the work of a historian and of a judge is closely connected. Historians 11

12 12 From the left: Adv. Mikołaj Pietrzak, Ms. Halina Bortnowska (reporter), Prof. Antoni Dudek, Prof. Andrzej Friszke HFHR which think that they work has nothing in common with being judges are simply unaware of that. A historian will always be the judge. It is exactly him, who when selecting the sources is interfering in their selection. Professor however noticed one crucial difference the court s judgement is legally binding and monopolistic while the judgements of historians are pluralistic and constantly questioned by fellow historians. Besides that, a reliable historian should be at the same time an advocate and a prosecutor he should accuse and defend, look at the issue from different perspectives. We cannot treat the true as a value which is supposed to set us free. According to the opinion of Prof. Dudek in the last few years the limits of the freedom of speech have changed, this is the consequence of the evolution of the democratic culture. Professor declared that we have to bear with the fact that the information will be disseminated, but it is important to remember about the limits of this dissemination. The dispute between the freedom of speech and the history has a universal meaning. The older democratic culture we have, the higher level of the tolerance of the freedom of speech is. A. Dudek admitted that that there have been incidents of abuses regarding the disclosure of documents and their interpretation at the Institute of National Remembrance. He pointed out however, that this operation could not have been carried out without any additional costs; in this case the balance is positive. He underlined that the IPN s archives are priceless source of the historical information. As an example of the limitation of the freedom of speech Prof. Dudek referred to the court s judgement in the case of the book of Paweł Zyzak Lech Wałęsa. The Idea and the history. The court ordered to remove the information about agent Bolek whose existence is confirmed by the IPN s archives. At the end he noticed, that not the court judgements, but the long-lasting creation processes of the culture of word will allow the creation of certain rules. Prof. Andrzej Friszke agreed with the preceding speaker s opinion that the roles of a historian and of a journalist cannot be completely separated from the roles of a prosecutor, an advocate and a judge. He spotlighted the fact, that conclusions of journalists and historians are affected not only by the sources but also by professional skills, objectivism, seeking for extenuating circumstances and the conditions of place and time. The professional skills hinge on several factors unfortunately none of them is legally regulated. The aim of the historian is to maximally reconstruct the reality. However, besides the previously mentioned professional skills also the empathy for the studied subjects is necessary. Professor admits the examination of different historical sources (the IPN s archive, police reports) because this aims to determine the merit of the case. At the same time not the sources are the most important factor, but the impartiality and the will to present just conclusions. Prof. Friszke raised also the issue of testimonies taken in the course of the investigations and not disclosed in the proceedings before court. Should this valuable historical source be disclosed when it violates someone s good name? The answer according to the professor s opinion remains open. Dr. Ireneusz C. Kamiński presented the issue from the legal point of view. He emphasized that the discussion about history has a great public significance. This kind of pronouncements is particularly protected both by the national and the ECHR rulings. The historical debate may remain in conflict with the rights of individual persons, but also with the common interest. These cases must be examined separately. In the first case we need a greater responsibility, reliability, consequence and deeper analysis of the sources. I.C. Kamiński referred to the case of Paweł Zyzak and proclaimed that he is surprised with the reasoning of the judgement passed by the court. He underlined that, if the judgement will be upheld and the case would end in the ECHR, the Court would state that Poland has infringed the European Convention of Human Rights. While with reference to the conflict between the freedom of expression and the common interest, the Strasbourg standards define a clear solution: the debate, with the reservation that it must be a free debate. There are limitations of a provocative debate in the context of which there are present historical events. He noticed that for example in many countries there are regulations that forbid to deny the Nazi crimes and treats this as a criminal offence, for committing of which a penalty of imprisonment can be adjudicated. In the context of the discussion, which denies the historical facts and also supports the ideology of the Nazi doctrine The video recording from the Conference Freedom of Speech and the Historical Memory is available at: waw.pl/przeszlosc-rozliczenia/relacja-i-zapis-audiowizualny-konferencji-wolnosc-slowa-a-pamiec-historyczna.html Additional conference materials, included in the publication Materials from the conference Freedom of Speech and the Historical Memory can be found at: (only in Polish)

13 13 which is inconsistent with the democratic values, the ECHR declares that this is not an intervention incoherent with the European Convention of Human Rights. Wojciech Mazowiecki noticed that the journalistic problem is caused by the impossibility of stopping at the stage of hypothesis because every publication already becomes a verdict. Both journalists and historians are subjected to similar rules: they cannot rely only on one type of sources, confuse facts with opinions, not to listen to the arguments of persons attacked or to present something as a fact without giving the readers the opportunity to verify those statements. He pointed out two inadmissible kinds of journalism: slovenliness and writing just to prove a thesis. He underlined that the unproven thesis cannot be presented, and that the most difficult issue is the evaluation of the gathered materials by a journalist or by a historian. According to W. Mazowiecki it sometimes happen in the work of a researcher that cases are not decided for the benefit of the accused like he was demanding. After the panellists have presented their opinions the discussion with the audience took place. Between the speakers, the constitutionalist Prof. Wiktor Osiatyński was present, whose opinions are closer to those of Ms. Bortnowska. He underlined the differences between the roles of a prosecutor, an advocate and a scientist. In his opinion a historian is obliged to present facts and to inform that the conclusions are subjective. He accused journalist of confusing facts with opinions. He confirmed the opinion of the majority of panellists that the freedom of speech should not be limited by law, at the same time stating its limits morality. The Constitutional Court s judge, Prof. Mirosław Wyrzykowski had doubts about the way the work of a historian should be treated. Ms. Halina Bortnowska (reporter) Wiki In his opinion the historian should only provide the reader with the materials necessary to make an assessment. The reader should be the judge. Advocates, judges, prosecutors have a very precise referents, this is why Advocate Beata Czechowicz asked about the same guarantees in the work of journalists or historians. Though in these cases they have to limit themselves to decency, good professional skills and rules of performing a profession but also have to take into consideration different opinions. The moderator of the discussion M. Pietrzak put a question to Prof. A. Dudek and Prof. A.Fiszke. He asked about their opinion about the book Security Services and Lech Wałęsa. Contribution to the biography, that contains statements different, end even contradictory to the statements of the legally binding lustration judgement. When summarising H. Bortnowska repeated, that a situation in which a journalist or a historian proclaim their selves judges is not appropriate. Prof. Dudek confirmed, that all scientific statements, including of course historical statements, are all hypotheses. He gave as an example a part of the book of Marcin Król in which the author compares the truth to a mountain with the top covered with mist so it is impossible to decide which way up is the best and therefore the peak will remain unconquered. An intensive discussion took place between Prof. Dudek and Mr. Mazowiecki, which outside of the context of the IPN and the professional reliability concerned also the simplification of the language of the public debate. Prof. Dudek referring to the doubts of the discussion moderator Advocate Mikołaj Pietrzak about the publications of books with the content contrary to the courts judgements declared that court judgements cannot decide about the character of historical debate because those judgements would simply end the discussion. Mr. Mazowiecki agreed with the opinion of Ms. Halina Bortnowska that it is obvious that the role of a researcher is to present information and not to adjudicate in a case. The authors of one-sided judgements should be stigmatised effectively in order to make this information reach the public opinion. Dr. Kamiński confirmed this, declaring that the law should be as far as possible from historical debates. In the case of common interest any interventions are inadvisable, in individual cases (when they affect e.g. particular public persons) they shall be limited to actually necessary cases. Prof. Friszke when summarising the conference remembered that there are issues when only one source of information is available, e.g. police reports. Mr. Mazowiecki declared that in such cases the better solution is not to publish the information at all or to publish them along with notes about every doubt. Agnieszka Adamska Lustration Proceedings in the Case of Marcin Libicki Incoherence of the Two Pillars of the Lustration Instruments By virtue of the judgement of 22 nd February 2010, the District Court in Poznań (Sąd Okręgowy w Poznaniu) declared that Marcin Libicki while being a member of the European Parliament submitted, a truthful lustration declaration, in which he negated any connections with the communist state s security services. The Helsinki Foundation for Human Rights participated in this proceedings as a public representative (third-party). The proceedings was instituted in the mode of so called autolustration procedure with the motion submitted by the lustrated person as consequence of publication of the information on the IPN s website about the content of archival documents concerning his person, and subsequent dissemination of this information by media. The documents shown among other that he was operatively used by the Department I of the Ministry of Internal Affairs, i.e. intelligence of the People s Republic of Poland. In spite of the concurrent positions of the lustrated person and the prosecutor of the IPN s Lustration Office concerning the veracity of the lustration declaration, the court summoned as witnesses and heard the testimonies of the two former functionaries of the Security Service,

14 14 whose names were listed in the documents provided to the court by the IPN. In the judgement, the court basing on the so called material understanding of the collaboration, stated that in the light of the evidences, it is obvious that Marcin Libicki did not work, serve or collaborate with the communist State s security services. The court determined that there are no evidentiary documents regarding the registration as a collaborator, there are also no notes, reports or any other documents produced by Marcin Libicki, or by functionaries that would refer to the delivered information. In the court s opinion, if the collaboration actually took place, some documents would had been produced. The judgement is final and binding and neither of the parties appealed against it. The Foundation decided to participate in this proceedings because the case illustrates what a great responsibility lays on the State when lustration instruments are created. This is one of these cases, which illustrates the incoherence of the two pillars of the lustration instruments existing in Poland. On one side of the lustration procedure, based on the obligation of persons applying for public offices to submit a lustration declaration and on the subsequent verification of its veracity by part of the IPN s Lustration Office and potential possibility of the lustration court s judgment within the scope of its truthfulness. Where the sanction for the so-called lustration lie consists in the loss of the public office and in the temporary ban for performing any public functions. On the other side, the pillar which is a normative novelty, in the form of the common access to the communist state s security services documents concerning persons holding some of the highest public offices. This pillar includes also the disclosure of information regarding the content of documents concerning the person performing a public function in the Internet Bulletin of the Public Information for the period of holding a public office. Within this pillar the whole process was initiated as a consequence of the publication of the content of the documents concerning Marcin Libicki. The problem is that the information contained in the archival documents are not verified in any way by the IPN before their publication. If someone was registered by the security services in any of the categories of the so-called personal source of information, this information will be made public. Regardless of the fact whether this person was conscious of such a registration, was only suspecting that this could take place or the registration was made without the knowledge and consent of this person. The so-called autolustration proceedings is the only mean of defence when the information of alleged collaboration is published by the Institute and the person those information concern do not agree with them. The Lustration Act grants the right to instigate such a proceeding to each person publicly accused of service, work or collaboration with the communist security services. In this context it is also relevant to properly understand the concept of the collaboration with the state s security services and whether this collaboration should only have a formal character, i.e. be limited only to the examination of the fact how an individual person was classified or treated by these authorities. Or maybe for the declaration of its actual existence, more findings have to be made, in order to determine the actual character of contacts with the security services, and above all, to find out, whether the collaboration was followed by the substantive actions. This interpretation of the concepts of the collaboration arises from the Constitutional Court s rulings. The case circumstances show how huge consequences may have the publication of information of alleged collaboration with the security services. Already at the beginning of the 90 of XX th century, the Constitutional Court pointed out that the publication of such information may in fact constitute a penalty of infamy (the Constitutional Court s judgement of 19 th June 1992, case No. U 6/92). The judgement of the District Court in Poznań states the veracity of the lustration declaration, but cannot restore the situation as it was before the publication on the IPN s website and it does not eliminate the consequences of publication that was widely reported by media. As a consequence of the publication, Marcin Libicki was not on the list of candidates to the European Parliament. Furthermore, the information about the content of the lustration court s judgment will not be even published in Bartosz Jankowski/Fotorzepa the Internet catalogue of public persons, because the lustrated in the meantime ceased to perform public functions, and this kind of information is published in the IPN s Public Information Bulletin only for the period of time in which the person holds a public office. Paweł W. Osik The judgement of the District Court in Poznań of 22 nd February 2010, case No. XVI K 25/10/07 The judgement and its reasoning is available at: pl/przeszlosc-rozliczenia/aktualnosci/ orzeczenie-sadu-lustracyjnego-pierwszejinstancji-wraz-z-uzasadnieniem-wsprawie-bylego-posla-do-parlamentueuropejskiego-marcina-libickiego.html

15 The Autolustration of the Member of Parliament Jan Kuriata the Principle of Equality of Arms and other Issues Related to the Lustration Instruments under the New Lustration Act The lustration proceedings instituted by the District Court in Koszalin with the motion of the Member of Parliament Jan Kuriata is probably the first proceedings initiated by a person holding a public office, whose name was published in the Internet by the Institute of National Remembrance in the so-called catalogue of persons holding public functions. The proceedings lasted more than two and a half years and ended in the first instance with the judgement of 2 nd December 2010 stating that the submitted lustration declaration is veracious. The prosecutor announced that he will appeal against this judgement. The Helsinki Foundation for Human Rights participated in this proceedings as a public representative (third-party). The proceedings was instituted with the motion of the lustrated itself by means of the so-called autolustration procedure because of the information on the content of the communist security services documents concerning his person that were published on the IPN s website in the so-called catalogue of the public persons. The published information indicated that the civil counter-intelligence registered him at first as a candidate for a collaborator, and after a few years as a collaborator. The prosecutor in its statement declared, that the submitted lustration declaration is untruth. The case revealed a series of problems of the Polish lustration instruments, in particular in the form of incoherence between their two pillars, as well as within the framework of the lustration proceedings itself, in the model adopted by the Lustration Act of 2006 being one of those pillars. At the beginning the court closed the hearing to the public because of the motion submitted by the prosecutor. This was motivated with the eventuality of disclosing State secret. Since some of the archival materials were confidential. In this situation, despite the fact that the HFHR was admitted to the proceedings, its representative was not allowed to participate in the hearings. As a consequence of our actions the court however decided to proceed in open court, pointing out on the directions contained in the judgments of the European Court of Human Rights. Thus, as the case shown, despite the series of rulings of the ECHR within this scope, the problem of confidentiality of materials in the lustration proceedings still remains actual. As the ECHR declares, since the judgement of 24 th April 2007 in the case of Matyjek against Poland (Application No /03), restrictions on access to such materials are causing the infringement of the right to fotobase a fair trial (Art. 6 of the European Convention of Human Rights) by the violation of the right to an effective defence of the lustrated and the principle of equality of arms. It also should be noted, that currently the restrictions on access to classified documents in the court s secret registry are even stronger than those which the European Court of Human Rights considered inconsistent with the European Convention of Human Rights. The lustrated person, still cannot obtain the certified copies or copies of the documents, and in consequence is not able to consult with own experts, but currently in addition he is not even allowed to take notes while reading the files. Previously the taken notes had to be left in the secret registry. Other important issue to arise in connection with the trial is the problem of the adversariness in lustration proceedings according to the model adopted by the new Lustration Act and the realisation of the principle of equality of arms. The ECHR in its rulings pointed out, that because of the significant differences between the position of the Commissioner of the Public Interest and the lustrated person at the pre-trial stage, the principle of the equality of arms was violated in the lustration proceedings carried out under the Lustration Act of The Court indicates, that on this stage only the Commissioner of the Public Interest had access to confidential materials, in addition he had this access via his own secret registry and was assisted by a highly qualified personnel specialised in the analysis of such materials. In the current legal situation this problem grows because of the liquidation of the Commissioner of the Public Interest and commissioning of his functions in the lustration proceedings to prosecutors of the IPN s Lustration Office. At this time, we face the situation in which one public institution the Institute of National Remembrance is responsible for the preliminary verification of the veracity of the lustration declarations, instituting lustration proceedings before courts and representing the public interest in this proceedings (the IPN s Lustration Office), and at the same time it provides the court with basic evidences in the form of the archival documents of the communist security services (the Office of Disclosure and Archiving of Documents). What is more, in the circumstances of this case both the prosecutor and the court applied to the historians of the Institute of National Remembrance, employees of the Office of Disclosure and Archiving of Documents, with the request to prepare a historical analysis of the preserved archival documents. When passing the judgement however, the court did not decide to include the opinions of the court experts to the evidentiary material. Another issue that raises reservations is the time that has passed between the publication of the information about the content of the doc- 15

16 16 jankuriata.pl uments concerning Jan Kuriata in the Public Information Bulletin of the IPN (December 2008), instituting of the lustration proceedings (March 2009) and passing of the judgement by the first instance court (December 2010). There is therefore the question of the possibility to effectively realise the right to a hearing within a reasonable time (Art. 6 of the ECHR), and taking into account the protective character of the so-called autolustration proceedings, also the issue of existence of effective remedies when the right to respect for private life is violated because of the infringement of the good name of an individual (Art. 8 taken in conjunction with Art. 13 of the ECHR). The IPN had a significant influence on the length of the proceedings. In the first place the time that the prosecutor needed in order to gather all documents to prepare the lustration proceedings, then the tempo of providing the court with additional documents by the IPN, and the period of time that the IPN s employees, here acting as the court experts, needed to prepare the supplementary opinion requested by the court. In the judgement declaring the truthfulness of the submitted lustration declaration the District Court in Koszalin underlined the lack of material evidences that would lead to the conclusion that the lustrated person was collaborating with the security services, and also the fact that the evidences were very modest and mostly consisted of the remains of the archival materials and testimonies of the former functionaries of the security services. The HFHR decided to participate in the proceedings because the case illustrated the inconsistency of the two pillars of the lustration instruments of the lustration proceedings based on the obligation to submit the lustration declaration and the instruments of the common access to the content of the documents concerning persons holding some of the public offices. Those information are published in the Internet Public Information Bulletin of the IPN without any verification of their truthfulness. However other problems emerged during the trial. It turned out that, in spite of the series of the ECHR s judgements, in the lustration proceedings there still may appear confidential materials which can be examined by the party in a significantly limited way. The case illustrated also the problem of the realisation of the principle of equality of arms after the lustration functions was transferred to the Institute of National Remembrance and the issue of the realisation of the right to a hearing within a reasonable time. Paweł W. Osik The judgement of the District Court in Koszalin of 2 nd December 2010, case No. II K 35/08 Autolustration of the Professor of the Wrocław University of Technology influence of the IPN s Way of Acting on the Realisation of the Right to a Hearing within a Reasonable Time In January 2009 the lustration proceedings against the Prof. Stanisław Januszewski has started before the District Court in Wrocław. He applied to institute the proceedings by means of the so-called autolustration procedure because he was publicly imputed of the collaboration with the communist security services in historical publications of the Institute of National Remembrance. The trial is still at the stage of the proceedings before the court of the first instance. The Helsinki Foundation for Human Rights participates in this proceedings as a public representative (third-party). Prof. Stanisław Januszewski applied to the court in October 2007 with the request to verify the truthfulness of the lustration declaration submitted for the needs of the proceedings after another publication of the Institute of National Remembrance in which his name was related with the secret collaborator having the pseudonym of Hołyński. He was supposedly meant to invigilate the opposition environment in Wrocław. The proceedings in the case of Prof. Januszewski illustrates in a particular way the problem of the realisation of the right to a hearing within a reasonable time in the lustration proceedings. Taking into consideration the fact, that the so-called autolustration proceedings is a special type of the lustration proceedings, instituted with the motion of the person publicly imputed, among other, of the collaboration with the communist security services, the realisation of the right to a hearing within a reasonable time directly affects the realisation of the right to protect honour and good name. At this time the trial is still at the stage of the hearing of evidence. By now the court managed to gather archival materials, heard most of witnesses, also the former functionaries of the se-

17 curity services and consult an expert within the scope of the analysis of the handwriting and examination of the documents. The speed of the trial was significantly affected by the actions of the Institute of National Remembrance. At first, the prosecutor needed almost a year to provide the court with materials and the statement concerning the truthfulness of the lustration declaration required to carry out the lustration proceedings. Nevertheless the documents in possession of the IPN were the basis of the Institute s publication, and were partially published as a source material. Because of that, the court was forced to request the faster settlement of the issue. In the end, the prosecutor applied for declaration of untruthfulness of the declaration. On the subsequent stages of the trial, the IPN had constant problems in punctual providing the court with the requested documents and information on the former functionaries of the security services. This significantly delayed the hearing of the evidence by the court. Unfortunately, in spite of the fact that already 3 years have passed, it is hard to predict when the lustration proceedings may end. The issue of the so huge dependency of the court, exercising the enforcement of law on the public administration institution which the IPN is, and the practical lack of control by part of the court of the methods of delivering the documents and other materials required in the lustration proceedings is greatly disturbing. Paweł W. Osik The lustration proceedings instituted by means of the so-called autolustration procedure before the District Court in Wrocław in the case of Stanisław Januszewski, case No. III K 307/08 The European Court of Human Rights Declares Again Violation of the Right to a Fair Lustration Trial In 2010 another two judgements of the European Court of Human Rights declared the violation of the right to a fair trial on the grounds of the Polish lustration proceedings. By virtue of the judgement of 5 th January 2010 in the case of Wrona against Poland (Application No /05) and by virtue of the judgement of 8 th June 2010 in the case of Górny against Poland (Application No /07) the ECHR again consistently declared, that as a result of restrictions on access to evidences comprising confidential documents imposed on the lustrated and because of the privileged position of the Commissioner of the Public Interest in the lustration proceedings, the right to a fair trials was infringed because of the violation of the right to an effective defence and the principle of equality of arms (Art. 6 1 taken in conjunction with Art. 6 3 of the European Convention of Human Rights). Despite of the previous judgements of the ECHR declaring violation of the right to a fair trial, the Polish authorities did not undertaken any actions on the legislative level in order to eliminate the reasons of the infringements declared by the Court. Within the scope of access to the confidential documents in the lustration proceedings still apply properly applied provisions of the Code of Criminal Procedure and of the executive acts, which since 2003 are even more restrictive Previous judgements of the European Court of Human Rights: Date of issue Name of the case and the application number Judgement available at: 24 April 2007 the case of Matyjek v. Poland (Application no /03) 17 July 2007 the case of Bobek v. Poland (Application no /01) 15 January 2008 the case of Luboch v. Poland (Application no /05) 17 February 2009 the case of Jałowiecki v. Poland (Application no /07) 28 April 2009 the case of Rasmussen v. Poland (Application no /05) 5 January 2010 the case of Wrona v. Poland (Application no /05) 8 June 2010 the case of Górny v. Poland (Application no /07) than those in connection with which the court made its statement. In the current legal situation parties are still not allowed to obtain copies of the confidential materials, which they can familiarise with only in the court s secret registry, but they are even deprived of the right to take notes while examining the confidential documents and therefore are forced to rely only on their memory. It is however true that there are accessible information on the actions of the present special tal=hbkm&source=externalbydocnumber&table=f69a27fd8fb86142bf01c1166d EA rtal=hbkm&source=externalbydocnumber&table=f69a27fd8fb86142bf01c1166d EA rtal=hbkm&source=externalbydocnumber&table=f69a27fd8fb86142bf01c1166d EA rtal=hbkm&source=externalbydocnumber&table=f69a27fd8fb86142bf01c1166d EA rtal=hbkm&source=externalbydocnumber&table=f69a27fd8fb86142bf01c1166d EA hbkm&source=externalbydocnumber&table=f69a27fd8fb86142bf01c1166dea hbkm&source=externalbydocnumber&table=f69a27fd8fb86142bf01c1166dea services taken together with the IPN that aim to reduce the number of documents created before 1990 which are classified as secret through their disclosure and review within as wide as possible scope. These actions however cannot ensure, that in the current lustration proceedings those materials would not actually appear. Specific lustration proceedings confirm this. Paweł W. Osik 17

18 18 Amicus Curiae Written Comments in the Case of Wilkowicz agains Poland (No. 2) Another Case Concerning the Access of the IPN Files Before the ECHR The Helsinki Foundation for Human Rights, with the consent of the European Court of Human Rights, submitted on 19 th October 2010 an amicus curiae written comments (third-party observations) in the Wilkowicz against Poland case (No. 2) (Application No /07). The is already the third case in which the ECHR communicated to the Polish government the application concerning the problem of access to the communist state s security services documents stored in the Institute of National Remembrance by the individual those documents concern. The applicant applied for access to the documents of the security services concerning his person since the very beginning of the binding force of the Act on the Institute of National Remembrance. At first he tried to obtain the status of an aggrieved party, subsequently, after the judgement of the sn Constitutional Court of 26 th October 2005, case No. K 31/04, he was trying to access the documents concerning his person on the basis of the directly applying provisions of the Constitution (Art and 4 of the Constitution), and at least he applied for access to the documents basing on the regulations that are in force since 2007, what is the consequence of the amendment of the Act on the IPN by virtue of the Lustration Act of 2006 and the judgement of the Constitutional Court of 11 th May 2007, case No. K 2/07. The applicant accused Poland of, among other, the violation of the right to respect for private life (Art. 8 of the European Convention of Human Rights) and of the right to an effective remedy (Art. 13 of the Convention). The HFHR in the amicus curiae written comments prepared for the ECHR emphasised one more time that as the practice show, the procedure of disclosing documents stored in the IPN was and still is long and complicated. In consequence, it fails to comply with the aim for which it was created. The HFHR particularly referred to the issue of the efficiency of means of defence in this case, especially to the control of the activity of the IPN s organs in proceedings before administrative courts, within the scope of disclosing documents to individuals on the grounds of directly applying provisions of the Polish Constitution. This practice took place in the period between 4 th November 2004 and 15 th March 2007 and was the consequence of not satisfying by the legislator the Constitutional Court s judgement of 26 th October 2005, case No. K 31/04. Legal measures that could control the activity of the IPN s organs within this scope did not exist at all. This situation must be considered from the perspective of the infringement of Art. 8 of the ECHR and the obligation of the State to provide the individual with an effective and accessible procedure of granting access to documents concerning his/her person, as well as in the context of the infringement of Art. 13 of the ECHR and the right to an effective remedy. This is why the HFHR stated in the presented to the Court opinion that the system of instruments of the protection of the rights and freedoms of the individual in the proceedings before the IPN was and still is insufficient. Paweł W. Osik Proceedings before the European Court of Human Rights in the case of Wilkowicz against Poland (No. 2) (Application No /07) The content of the HFHR s amicus curiae written comments is available at: hfhrpol.waw.pl/przeszlosc-rozliczenia/images/ stories/ _hfhr_wilkowicz_v_poland_2_written_comments.pdf The Second Reopening of the Lustration Proceedings After the ECHR s Judgement By virtue of the judgement of 25 th August 2010 the Supreme Court reopened the lustration proceedings in the case of Zbigniew Luboch. This is already the second decision on the reopening of the lustration proceedings passed as a consequence of the European Court of Human Rights declaration of violation of the right of the lustrated person to a fair trial, including the realisation of the right to an effective defence and the principle of equality of arms. In the judgement of 15th January 2008, in the case of Luboch against Poland (Application No /05) the ECHR declared, that in consequence of imposing on the lustrated restrictions on access to documents which are classified as top secret and in the same time constitute evidentiary material, the right to an effective defence of the applicant was violated. In addition the Court proclaimed that in the situation of unequal positions of the lustrated person and the Commissioner of the Public Interest on access to the confidential materials, especially at the pre-trial stage, the principle of equality of arms was also infringed. For that reason the court declared the infringement of Art. 6 1 taken in conjunction with Art. 6 3 of the European Convention of Human Rights. The Supreme Court while reopening the lustration proceedings in the case of Zbigniew

19 19 Luboch, overruled judgments of both instances of the lustration courts and forwarded the case for rehearing to the District Court in Rzeszów. In the reasoning of the judgement the Supreme Court pointed out the following: the ECHR s statements gave no doubts that the declared violations refer to the «main stage of the trial» and its crucial part. Those violations, what is obvious, had structural and complex character, and therefore might have influenced the content of the challenged lustration judgment. In this situation the «necessity of the reopening» set out in Art of the Code of Criminal Procedure is obvious. The Supreme Court provided the court carrying out the case after the reopening of the proceedings and examining again the truthfulness of the lustration declaration submitted by Zbigniew Luboch with important directives. The court pointed out the following: During the rehearing of the case, the court proceedings will have to be carried out once again and during the rehearing the reasons that had led to this judgement must be avoided. Paweł W. Osik The judgement of the Supreme Court of 25 th August 2010, case No. II KO 115/09 the judgement and its written reasoning is available at: wznowienie_z_luboch.pdf The Judgement of the European Court of Human Rights of 15 th January 2008, in the case of Luboch against Poland (Application No /05) the judgement in English language version is available at: asp?action=html&documentid=827747&portal- =hbkm&source=externalbydocnumber&table=f6 9A27FD8FB86142BF01C1166DEA Suspension of the Proceedings in the Case of Lech Wałęsa was Unlawful By virtue of the judgement of 26 th August 2010 the Regional Administrative Court in Warsaw (Wojewódzki Sąd Administracyjny w Warszawie), case No. II SA/Wa 65/10, quashed the decision of the President of the Institute of National Remembrance on the suspension of the administrative proceedings in the case of Lech Wałęsa regarding the access to the archival documents concerning his person. The Helsinki Foundation for Human Rights was participating in the proceedings as a non-governmental organisation (third-party). With the decision of 24 th September 2009 the President of the IPN suspended the appellate administrative procedure against the decision of the IPN s Branch Director in Gdańsk, that denied Lech Wałęsa access to the part of the documents, from which, in the organ s opinion, result that the applicant was treated by the security services as a secret informer or assistant in the information collection process. The President of the IPN acknowledged that in the case the preliminary question emerged in the form of the constitutionality of the provisions of the Act on the IPN, within the scope covered by legal enquiries submitted to the Constitutional Court by the Regional Administrative Court in Warsaw and the Supreme Administrative Court. The administrative court allowed the complaint against the decision submitted by Lech Wałęsa. The court motivated its verdict with the provisions of the Code of Administrative Procedure, which do not give the possibility of suspension of the administrative proceedings because of a legal enquiry submitted to the Constitutional Court by an administrative court. Within this scope different rules apply than those in the proceedings before the administrative courts. While the legal enquiry to the Constitutional Court may constitute a reason of the suspension of the proceedings before administrative fotobase court, under no circumstances can lead to the suspension of the administrative proceedings before the public organ. In the court s opinion there are no doubts about the fact, that the legal enquiry to the Constitutional Court is not a preliminary question within the meaning of the provisions of the Code of Administrative Procedure. At the same time, the Constitutional Court is neither an administrative authority nor a court within the meaning of this Code. The Constitutional Court has a unique status, this results from the provisions of the Constitution and its particular function. At the end the court noted that, if in every case of proceedings before the Constitutional Court the administrative proceedings in which the decision must be issued on the grounds of the questioned provisions would be suspended, we would deal with a considerable lengthiness of the administrative proceedings. The HFHR was participating in the proceedings before the administrative court because was previously admitted to participate in the proceedings before the IPN as a non-governmental organisation (third-party). The Foundation in its statement, apart from lack of the legal basis for the suspension of the proceedings before the President of the IPN, also spotlighted the wider context of the case, underlining that the suspension of the proceedings will cause the lengthiness of the proceedings to be even greater. This directly affects the possibility of realisation of the right to a decent administration, and in particular to settle a case without undue delay. In consequence of the judgement, the President of the IPN was obliged to examine the appeal against the decision of the IPN s Branch Director in Gdańsk on the denial of access to the documents, submitted by Lech Wałęsa. Paweł W. Osik, Wojciech Klicki The case of the complaint of Lech Wałęsa against the decision of the President of the IPN of 28 th October 2009 No. 123/09 regarding the suspension of the appellate procedure against the decision of the IPN s Branch Director in Gdańsk of 22 nd January 2009 No. 4/09 on denial of the applicant s access to the part of the archival documents that concern his person: The judgement of the Regional Administrative Court in Warsaw of 26 th August 2010, case No. II SA/Wa 65/10

20 20 1 The Military Information Services Facts of the case The action was instituted because in the WSI Report the name of Wojciech Pogonowski was The WSI 1 published along with the information that in the end of 2000, as the director of the Military University of Technology Publishing House he Report Violation of the Personal Interest as a Result of the Publication of the WSI Report the Judgement in the Case of W. Pogonowski By virtue of the judgement of 13th December 2010 the District Court in Warsaw decided the case for the protection of the personal interest in the first instance brought by Wojciech Pogonowski, who instituted an action against the State Treasury because of the publication of his name in the WSI Report. The court ordered the Minister of National Defence, who was representing the State Treasury, to publish the apologies on the fourth page of the journal Gazeta Wyborcza. Furthermore the court ordered the Minister to pay the compensation in the amount of PLN. PAP/Barbara Ostrowska was accused of committing an offence by the Regional Military Prosecutor s Office in Warsaw. This information can be found in the Chapter 10 of the Report entitled The activity of the WSI officers at the Military University of Technology, in the summary of the description of criminal acts to the detriment of the University. At the same time, in the Report there are no precise information on the content of the presented accusations and effects of the conducted investigation. While the Regional Military Prosecutor s Office in Warsaw did in fact present charges to Mr. Pogonowski, and even brought accusations to the court, but by virtue of the judgement of the Military Regional Court in Warsaw of 31 st May 2005 he has been acquitted. This means, that when the Report was being prepared the information on presenting charges to the plaintiff was incomplete and aimed to show him in an unambiguous negative context. According to the statutory legal basis of the publication of the WSI Report, information on a civil person collaborating with a soldier or with an employee of the military special services within the scope of actions exceeding the issues of the State s defence and the security of the Polish Armed Forces, could have been included and published in the Report only when it was confirmed, that such a person was conscious or able to foresee, and at the same time agreed to participate in such illegal actions. In relation to the fact, that at the time of the publication of the Report, the plaintiff was acquitted from accusations published in the Report by virtue of the judgement of the Military District Court in Warsaw is incoherent with the above mentioned prerequisites that allow to cover a civil person with the Report. The statutory act that allowed publishing of the Report was submitted to the Constitutional Court in order to verify its coherence with the Polish Constitution. By virtue of the judgement of 27th June 2008, case No. K 51/07, the Constitutional Court declared the incoherence of Art. 70a 2 of the Act of 9 th June 2006 The provisions implementing the Act on the Military Counterintelligence Service and the Military Intelligence Service and the Act on the service of officers of the Military Counterintelligence Service and the Military Intelligence Service which al-

21 21 lows the possibility of including in the Report information on civil persons collaborating with soldiers or employees of the military special services with Art. 32 of the Polish Constitution which express principle of equality under law. At the same time, the Constitutional Court proclaimed that Art. 70a of the Act of 9 th June 2006 which warrant the creation of the Report, within the scope in which it does not guarantee to persons concerned access to the files is inconsistent with Art of the Constitution, which guarantees to every individual the right to access the official documents and databases concerning his/ her person. What is more, within the scope in which it does not ensure the parties with the right to be heard by the Commission and comment the collected information, which are the basis of the Report, is incoherent with Art of the Constitution, which guarantees to every individual the right to request the correction or removal of untruth information, incomplete information or information collected in contravention of the statutory act. Furthermore within the scope in which it does not guaranty the legal means of control of the decision on making public the personal data covered by the Report in court proceedings, is inconsistent with Art of the Constitution, guaranteeing every individual the right to a fair and public trial carried out in reasonable time by a competent, independent and impartial court. The Constitutional Court in the reasoning of the judgement also declared, that persons concerned may pursue their rights using civil legal instruments by means of an action for the protection of the personal interest, and also by means of the criminal procedure, submitting private acts of indictment in the case of public slander. Reasoning of the judgement The District Court in Warsaw when stating the reasons of the judgement in the case of W. Pogonowski, indicated that the judgement of the Constitutional Court in case No. K 51/07 itself confirms, that the personal interest of the plaintiff was infringed. Furthermore, information concerning the plaintiff that were included in the Report, in the court s opinion: are not even half of the true. The information about presenting charges, without any additional information about acquittal may suggest, that the issue of the criminal responsibility of the plaintiff is still open. This fact also indicates the unlawfulness of including the name of the plaintiff in the WSI Report. In its oral reasoning, the court referred also to the issue of the representation of the State Treasury. In the statement of claim the State Treasury was supposed to be represented by the President of the Republic of Poland, the Chairman of the WSI Verification Commission and the Minister of National Defence. In the course of the trial, the court released the President of Poland and the Chairman of the Verification Commission from the obligation of further participation in the proceedings and called for participation the Chief of Military Intelligence Service and the Chief of Military Counter-Intelligence Service. Eventually the court decided that the State Treasury shall be represented by the Minister of National Defence. This is acknowledged by the previous rulings within this scope of the District Court and the Court of Appeal in Warsaw. The statement of claim contained the request to oblige the State Treasury to publish the apologies on the first pages of three journals: Gazeta Wyborcza, Rzeczpospolita and Dziennik, and furthermore to award the compensation in the amount of PLN to the plaintiff. The court recognised those requests to be excessive. Thereby awarded the plaintiff with the compensation in the amount of PLN altogether with the interest charges since the day of the verdict, and ordered the publication of apologies only in Gazeta Wyborcza on the fourth page. When the court was stating the reasons of this judgement, underlined that the plaintiff did not prove during the trial any actual influence of the fact of publishing his name in the WSI Report on his life. The proceedings instituted with the claims of Mr. Mikołajczyk and Mr. Wojnarowski for the protection of the personal interest are still pending. The courts are permanently dealing with the problems of the representation of the State Treasury and with the issue of access to documents that were the basis of the Report. Wojciech Klicki The judgement of the Constitutional Court means, that the provision on the basis of which the plaintiff has been covered by the Report as a person supposedly collaborating with soldiers or employees of the military special services within the scope of actions exceeding the issues of the State s defence and the security of the Polish Armed Forces is unconstitutional. Michał Żamojda / HM&HARE The case instituted with the claim of Wojciech Pogonowski against the State Treasury represented by the Minister of Defence for the protection of the personal interest: The judgement of the District Court in Warsaw of 13 th December 2010, case No. II C 647/07

22 22 The Lengthiness of the Investigation of the Appellate Prosecutor s Office in Warsaw in the Case of the WSI Report The investigation that is conducted since 5 th October 2007 in the subject of exceeding the powers of the public officer in connection with the publication of the WSI Report lasts too long. The District Court in Warsaw while admitting the complaint against the lengthiness of the investigation submitted by Wojciech Pogonowski declared that the case is of priority character because of its significance to the aggrieved party who claims to be the victim of slander. Yet, in the course of the investigation that lasts already more than three years, not even the decision to present charges to anyone has been issued. Among other, Mr. Wojciech Pogonowski, Mr. Edward Mikołajczyk and Mr. Jacek Wojnarowski have the aggrieved party status in this proceedings. Because of the prolonging investigation, each of them submitted again in August 2010 the complaints against the lengthiness of the investigation conducted by the Appellate Public Prosecutor s Office in Warsaw (case No. Ap V Ds. 49/09) in the case of suspicion of committing a criminal offence by the Chairman of the Verification Commission and other members of the Commission. Possibility of submitting complaints against the length of the pre-trial proceedings appeared in May 2009 when the Act on the Complaint against the Infringement of Individual s Right to Examine the Case in Pre-trial Proceedings and Court Proceedings within a Reasonable Time has been amended. The complaints that were submitted just after that day were dismissed. The District Court declared that is not entitled to examine the lengthiness of the pre-trial proceedings started before 1st May 2009, i.e. before the amendment entered into force. When further complaints were submitted to the District Court in Warsaw in August 2010 by the persons assisted by the Foundation, the court was examining what actions the prosecutor is undertaking. Those examinations shown that in the period of time of more than a year only two witnesses have been heard and a few files of other proceedings have been inspected. It is worth to emphasize that only in this way the persons with the aggrieved party status were able to get any information about the course of the investigation. The court declared the lengthiness of the proceedings and awarded the applicants, Mr. Wojnarowski, Mr. Mikołajczyk and Mr. Pogonowski, with the compensation in the amount of 3000 PLN from the State Treasury. At the same time, unfortunately only in the reasoning of the judgement, the court ordered the prosecutor who is conducting the investigation to intensify the actions and their frequency, what would allow the making of a substantial decision in the case. The complaints against the lengthiness was considered in September Despite the fact that the court declared the lengthiness of the proceedings, till the end of 2010 the aggrieved persons did not receive any information about the discontinuance of the investigation or about the fact of presenting charges to anyone. This gives reasons to believe, that the declaration of the lengthiness of the proceedings by the court did not affect the course of the investigation. Wojciech Klicki The decision of the District Court in Warsaw of 30 th September 2010, case No. X S 85/10 (on admittance of the complaint submitted by Edward Mikołajczyk against the lengthiness of the investigation of the Appellate Public Prosecutor s Office in Warsaw, case No. Ap V Ds 49/09) The decision of the District Court in Warsaw of 30 th September 2010, case No. X S 86/10 (on admittance of the complaint submitted by Jacek Wojnarowski against the lengthiness of the investigation of the Appellate Public Prosecutor s Office in Warsaw, case No. Ap V Ds 49/09) The decision of the District Court in Warsaw of 30 th September 2010, case No. X S 97/10 (on admittance of the complaint submitted by Wojciech Pogonowski against the lengthiness of the investigation of the Appellate Public Prosecutor s Office in Warsaw, case No. Ap V Ds 49/09) Civil Persons Covered with the WSI Report against Poland Before the European Court of Human Rights The cases instigated with the private acts of indictment of Mr. Jacek Wojnarowski, Mr. Edward Mikołajczyk and Mr. Wojciech Pogonowski concerning the offence of the public slander in mass media (Art of the Polish Criminal Code) was legally discontinued. There are however on the cours proceedings concerning the protection of the personal interest against the State Treasury and the investigation relating to exceeding of the powers of the public officer in connection with the publication of the Report. Because of the prolonging period of time, when the persons covered by the WSI Report were not able to protect their rights, the Human Rights and Settlements with the Past Programme decided to submit applications in the cases of Mr. Wojnarowski, Mr. Mikołajczyk and Mr. Pogonowski to the European Court of Human Rights. The applications claim the infringement of: Art. 8 of the European Convention of Human Rights In opinion of the Helsinki Foundation for Human Rights the applicants right to respect for private life and the right to protect honour and good name was infringed with the publication of the Report. According to the Report the applicants were consciously participating in the actions of soldiers or employees of the military special services which were exceeding the scope of the State s defence and the security of the Polish Armed Forces, i.e. were acting to the detriment of Poland. This publication was made without ensuring the applicants with any procedural rights, and even without their knowledge. Art. 13 taken in conjunction with Art. 8 of the European Convention of Human Rights In opinion of the Helsinki Foundation for Human Rights Art. 13 taken in conjunction with Art. 8 of the Convention was infringed because the applicants were not provided with any remedies of defence, neither prior nor follow-up the publication of the Report. The legitimacy of this claim is motivated first of all by the discontinuance of the proceedings in the case instigated with the private acts of indictment against Antoni Macierewicz, the author of the Report. But also other instruments to which the applicants are entitled remain inefficient the investigation in the case of exceeding the powers of the public officers is not moving on. Art. 6 of the European Convention of Human Rights Art. 6 of the Convention was infringed in the Foundation s opinion because of the violation of the applicants right to a hearing within a reasonable time. Consequently the applicants are not able to vindicate, correct within a reasonable time the untruth and harmful information. Wojciech Klicki Proceedings before the European Court of Human Rights, in the case of Mikołajczyk against Poland (Application No /09) Proceedings before the European Court of Human Rights in the case of Pogonowski against Poland (Application No /09) Proceedings before the European Court of Human Rights in the case of Wojnarowski against Poland (Application No /10)

23 Amicus Curiae Brief Submitted to the Constitutional Court in the Case No. K 36/09 (So-Called Deubekization 1 ) <?> A term understood as the removal of state privileges of former security services members and communist state collaborators. The Helsinki Foundation for Human Rights on 26 th May 2010 submitted to the Constitutional Court an amicus curiae brief to the case No. K 36/09. The case was instituted with the motion of the General Management of the Independent and Self-Governing Trade Union of the Police Officers and concerned the constitutionality and the coherence of the regulations adopted by the Act of 23 rd January 2009 (socalled Deubekization Act) with the European Convention of Human Rights. The act provides the rules of lowering the old age pensions of the former functionaries of the communist state s security services 1. The HFHR already presented its amicus curiae brief to the Constitutional Court in the case No. K 6/09, where the Foundation presented statement on the subject of the constitutionality of the provisions of the Act. The Court at that time proclaimed in the judgement of 24 th February 2010, case No. K 6/09 that adopted regulations are in principle consistent with the Constitution. The previously presented statement of the HFHR has not changed, and in principle the same statement was submitted in this case. The Foundation believes that the Act is still raising doubts about its constitutionality. The Foundation underlined, and within the necessary scope also extended the most important thesis of the previously presented brief, especially within the context of the Constitutional Court s judgement of 24 th February 2010, case No. K 6/09 referring at the same time to the issue of the extent in which the motion of the <?> Information about the amicus curiae brief submitted to the Constitutional Court are available at the Human Rights House Network website at: Deubekization General Management of the Trade Union of the Police Officers should be examined after the before mentioned Constitutional Court s judgement. The applicant questions the compliance of the Act s Preamble and its substantive as well as procedural provisions with the Constitution and with the European Convention of Human Rights. In the conclusion of the amicus curiae brief the HFHR noted that the subject regulated by the Act has a very complex and complicated character. The HFHR emphasized one more time that in principle, limitations of old age pensions of the former functionaries of the communist state s security services may comply with constitutional principles, especially with the principle of the democratic state ruled by law and implementing the principles of social justice as well as the principle of proportionality. However, some of the regulations adopted by the Act of 23 rd January 2009 raise serious doubts about their constitutionality. They introduce disproportionate limitations; in fact they take the form of collective responsibility based on the presumption of guilt. The adopted particular solutions seem rather to be acts of retaliation than of deprivation of privileges. At the same time, in relation to the adopted measures more serious doubts arise concerning the realisation of the principle of equality under law. This is particularly visible with regard to situations where the same rules apply to functionaries of the communist state s security services who were positively verified in 1990 and continued their service in the democratic state s security services and the functionaries who did not undergo the verification procedure or were verified negatively. Summarising the issues covered with the amicus curiae brief the HFHR stated, that in its opinion: I. The motion in this case should be examined in full not only because of the differences of the subject of the motion and of the indicated reference norms in relation to the case No. K 6/09 closed with the Constitutional Court s judgement of 24 th February 2010, but also, what is crucial, in order to avoid the situation that would have the attributes of deni de justice (denial of justice). II. Old age police pension is a kind of privilege. The deprivation of this privilege can only occur in relation to persons who where exercising their duties without exceptional diligence. III. The lowering of old age pensions of the former functionaries of the communist state s security services may only take the form of the deprivation of privileges; it cannot become a repression or retaliation. When the democratic state ruled by law creates the system that lowers such old age pensions it must comply with the basic requirements and rules concerning the instruments serving the settlements with the communist past and its heritage. The democratic state ruled by law while creating and applying these instruments must comply with the formal and legal terms of such a state. It cannot apply any other means because it would not be any better than the totalitarian regime. IV. The Act s Preamble contains normative content and therefore can be subjected to the Constitutional Court s examination of its constitutionality and compliance with the ratified international treaties. The Preamble within the challenged scope is incoherent with the indicated reference norms. V. The regulations adopted by the Act are raising serious doubts on their compliance with the principle of protection of acquired rights. This particularly concerns the situation in which they are applied to the former functionaries of the communist state s security services who in 1990 were positively verified. VI. The adopted solutions lead to a disproportionate limitation of the constitutional rights and freedoms in the form of the property rights and the rights to equal protection of property and other financial rights considered together with the right to social insurance. For the evaluation of the proportionality: 1) is significant to determine the existence of one of the criterions set out in Art of the Polish Constitution which allows the limitations of the constitutional rights and freedoms; 2) it is essential to evaluate the proportionality of the adopted instruments with the assumed by the legislator and presented in the Act s Preamble goals and efficiency of those instruments, what also affects the substantive scope of the Act and its consistency with the Preamble; 23

24 24 3) it is necessary to individually apply those instruments, i.e. in every individual case these instruments shall apply to a person basing on his/her individual support of the communist apparatus of repression; 4) the amount and the method of lowering the old age pensions is important and therefore the issue of the character of the adopted solutions; 5) the moment of adopting these instruments is important, i.e. 20 years after the fall of the communist system. VII. The solutions adopted by the Act violate the principle of equality under law and at the same time do not ensure their individual application. These violations particularly affect functionaries who in 1990 were verified positively and the functionaries who were not performing duties of the communist state s political police (e.g. functionaries of the Militia in the period of time before 14th December 1954). Also the different treatment of retired police functionaries and military soldiers (covered with police or military old age pensions) violates the principle of equality under law. VIII. Specific procedural solutions adopted by the Act which in fact are exceptions from general rules, result in infringement of the principle of proportionality. In the HFHR s opinion they also may violate the principle of equal protection of property and other financial rights. Because of the reasons presented in the opinion, the Helsinki Foundation for Human Rights believes that, the regulations adopted by the Act of 23 rd January 2009 amending the Act on the Old Age Pensions of Functionaries of the Police, as well as the regulations of the Act itself and its Preamble are still raising serious doubts about their compliance with the Polish Constitution and with the Convention for the Protection of Human Rights and Fundamental Freedoms. Paweł W. Osik The proceedings before the Constitutional Court in the case of the motion submitted by the General Management of the Independent and Self-Governing Trade Union of the Police Officers of 20 th October 2009, case No. K 36/09 The amicus curiae brief of the Helsinki Foundation for Human Rights of 26 th May 2010 submitted to the Constitutional Court in the case No. K 36/09 are available at: amicus_curiae_k_36-09%281%29.pdf The Publication of the Lawyers of the Helsinki Foundation for Human Rights in the Book of the 25 Years of the Constitutional Court Three lawyers of the Helsinki Foundation for Human Rights, Dr. Adam Bodnar the Secretary of the Board of the Helsinki Foundation for Human Rights and the Chief of the Law Department, Barbara Grabowska Coordinator of the Strategic Litigation Programme and Paweł Osik Coordinator of the Human Rights and Settlements with the Past Programme prepared the article entitled Amicus curiae briefs in the proceedings before the Constitutional Court in the practice of the Helsinki Foundation for Human Rights which was published in the Book of the 25 Years of the Constitutional Court. Evolution of the functions and tasks of the Constitutional Court assumptions and their practical realisation. The content of the article Amicus curiae briefs in the proceedings before the Constitutional Court in the practice of the Helsinki Foundation for Human Rights is available at: przeszlosc-rozliczenia/images/stories/ksiega_xxv-lecia_tk_opinie_przyjaciela_sadu.pdf (only in Polish) Closing of Activity of the Human Rights and Settlements with the Past Programme We wish to inform that the Human Rights and Settlements with the past Programme on the day of 31 st December 2010 ended its activity. The cases included in the Programme before that day will be continued by the Helsinki Foundation for Human Rights until their legally binding end. We sincerely thank all co-operators, volunteers and sympathisers for their help and support. Team of the Human Rights and Settlements with the Past Programme HELSINKI FOUNDATION FOR HUMAN RIGHTS Programme HUMAN RIGHTS AND SETTLEMENT WITH THE PAST ul. Zgoda 11; Warsaw tel.: (+48 22) fax: (+48 22) rozliczenia@hfhr.org.pl webpage: The Human Rights and Settlements with the Past Programme is part of the HFHR s Law Department managed by Adam Bodnar. THE HELSINKI FOUNDATION FOR HUMAN RIGHT was founded in 1989 by members of the Helsinki Committee in Poland. The Foundation is one of the most experienced and professional non-governmental organisations in Europe acting in the field of the human rights. Board Danuta Przywara President Jerzy Ciemniewski Vice-President Adam Bodnar Secretary Elżbieta Czyż Tresauer Janina A. Kłosowska Board Member The project is financed by: Trust for Civil Society in Central and Eastern Europe Project, DTP: HM&HARE DESIGN, Helena Csató-Żamojda Council Halina Bortnowska-Dąbrowska Chairman Janusz Grzelak, Michał Nawrocki, Marek Antoni Nowicki, Teresa Romer, Stefan Starczewski PROGRAMME TEAM Paweł Osik Programme Coordinator; Wojciech Klicki The general supervision over Programme s activities is provided by Dr. Adam Bodnar, member of the Board and Chief of the HFHR s Law Department. Selected cases are carried out by Advocate Mikołaj Pietrzak, who also is the member of the Council. Co-operators of the Programme: Advocate Jacek Oleszczyk and Andrzej Orzechowski.