PHASES OF POLISH TRANSITIONAL JUSTICE AS RELATED TO THE 1997 LUSTRATION ACT, THE 2007 AMENDMENT OF THE 2006 LUSTRATION ACT, AND THE PRESENT DAY

PHASE 1: FROM 1989 TO THE ENACTMENT OF THE 1997 LUSTRATION ACT

In 1990, the first Polish parliament chosen in partly free elections enacted the Office for State Protection Act. The law dissolved the communist political police and terminated the employment of its officers. Dismissed personnel could, however, be reappointed if certain conditions were met. According to the statute and to delegated legislation, the officer had to be no older than 55, be in good physical and mental condition, have at least secondary school education, and represent an “impeccable moral and patriotic attitude.” Moral integrity could not be affirmed if a vetted person had a record of infringements of law, violations of dignity and rights of individuals, or abuses of the post for private needs. Out of nearly 14,000 officers, over 10,000 passed the screening; yet, due to downsizing of the secret service, not more than 5,000 were reappointed.

Because of the vetting criteria—the appraisal of the work of an individual as a secret service officer—the process can be understood as an example of lustration. Those who acquired a negative opinion from the vetting commission were subject to a sanction, as their dismissal was final, and they faced no prospect of employment in the security service. Therefore, the procedure falls within the retribution model.

The 1991 elections led to the creation of a government with the issue of lustration high on its agenda. Even though the administration planned to introduce an act on vetting, no bill was proposed. On the 28th May 1992, the Sejm, the lower chamber of the Polish parliament, passed a resolution which urged the Minister of Internal Affairs to submit a list of secret collaborators of the communist secret service currently holding certain public positions, including members of Parliament and higher state officials.31 On the 4th of June, the list—which mentioned many members of Parliament and the President— was presented to the Sejm and other State institutions. Both the Minister and the Prime Minister claimed at that time that the document was not a verified list of agents but rather a set of names which appear in the archives and which should be subject to further scrutiny. This being the case, the creation of the list does not meet the definition of lustration. However, it can be regarded as a means of public disclosure of the secret files, which falls within the historical clarification model. This in no way should be read as an assertion of the reliability of the list, as even members of the government called for its further analysis.

The list was leaked to the media and caused uproar, which hastened the fall of the government. The resolution was later found to be unconstitutional, being contrary, inter alia, to the principles of the democratic rule of law, the protection of human dignity, the representative democratic system, and the principle of legality.

Under the next government, six lustration bills were sent to parliament, yet none of them were finally passed. On the other hand, the 1993 Parliamentary Elections Act was enacted, which forced all candidates to present a statement on their work or cooperation with the communist secret service, including military intelligence. The law was lex imperfecta, as no sanction for a lie was provided.

The first phase of Polish lustration included two significant developments: the 1990 Office for State Protection Act, which included instruments falling within the retribution model, and the case of the 1992 list of alleged collaborators, that could be qualified as an element of historical clarification. Nevertheless, during this period there existed no lasting lustration procedure. The regulation provided in the 1993 Parliamentary Elections Act could not be regarded as one, as the lack of sanctions and verification of the declarations made it impossible to enforce the law. Thus, the first phase of Polish lustration can, nevertheless, be classed under the thick line model.

PHASE 2: FROM THE ENACTMENT OF THE 1997 LUSTRATION ACT TO THE ENACTMENT OF THE 2007 AMENDMENT OF THE 2006 LUSTRATION ACT

In 1995, Prime Minister Józef Oleksy was accused of cooperating with Russian intelligence and stepped down from office. The charges were not proven, yet the case gave a new momentum to the development of Polish lustration. Out of the five submitted bills, the joint proposal filed by the Labour Union (UP), the Freedom Union (UW), and the Polish People’s Party (PSL) became the basis of the 1997 Lustration Act; which, after considerable changes, was passed on 11th April and entered into force on 3rd of August 1997.

The law provided for the vetting of the President, members of Parliament, higher public officials appointed by the President, the Prime Minister or parliamentary bodies, prosecutors, judges, chief officers in ministries and central or regional offices, and major figures in the public media, provided they were all born no later than 10th of May 1972. The lustration was also compulsory for candidates for these posts. A total of 22,000 citizens were covered by the act. Each of the vetted had to issue a statement on their work, service, or cooperation with the communist state security authorities, the list of which was included in the statute. Statements pleading cooperation were to be published. Cooperation was defined as both conscious and secret. In 1998, the Constitutional Court stated that the individual must have provided the secret service, which was acting within its operational duties, with actual information. The mere declaration of cooperation—with no later factual collusion—was not enough to amount to collaboration.

The most important feature of the Lustration Act was the fact that service or cooperation with the communist state security authorities was not, in fact, penalised. What was being punished was the lustration lie—a deliberate submission of a statement that was also objectively false.296 As possible punishment was provided for the present conduct of an individual, the law could not, therefore, be regarded as retroactive, which was crucial considering the penal character of the legislation.

As the creation of a special lustration court was unsuccessful, the law was amended in 1998. The statute41 moved the procedure to the Warsaw Appellate Court. The act widened the scope of the vetted and covered defense counsels and officials appointed by the Speaker of the Sejm or the Senate. The result was an exlege dismissal from a post or profession; only judges had to be discharged by the verdict of a disciplinary court.

The mechanism introduced by the 1997 Lustration Act falls within the historical clarification model. Even though the law provided for a sanction, the vetted, in principle, may have felt unthreatened by it, given that they were contributing to the historical account with their true statements. Thus, Polish lustration seems to share similarities with the South African measures, as in both cases the sanction was imposed not for past misconduct but for present lack of cooperation with the process of historical clarification.

In 1998, two verdicts of the Constitutional Court upheld the 1997 Lustration Act, quashing only its minor provisions. In 2002, the Parliament enacted an amendment which included significant procedural changes and involved a redefinition of cooperation. The redefinition was struck down by the Constitutional Court on procedural grounds. The Court also found the termination of court proceedings due to the resignation of the vetted from office to be in violation of the equality principle, as it enabled unfair calculation of the result of process. In September of the same year, the Parliament again redefined cooperation, requiring it to be factual—which implemented previous court interpretations—and without connection to intelligence, counterintelligence, and border protection. The second condition was quashed in 2003 by the Constitutional Court as contrary, inter alia, to the equality principle and the citizen’s right to information. The Court also found the lack of information on the length and the character of service or cooperation in published court verdicts to be a violation of equality and the right of an individual’s good name to be protected.

In 1999, the Polish Bar Council issued a resolution, in which it claimed past cooperation with the communist secret service to be contrary to the basic norms governing professional conduct and called upon ex-collaborators to resign from the Bar. It also announced that it would take all legally eligible steps in order to remove them from the association and urged local bar councils to do the same.303 Thus, the factual lustration mechanism was closer to the retribution model, as the counsels could be dismissed on the basis of their pasts and despite their truthful declarations.

In 1998, the Parliament enacted the Institute of National Remembrance Act, which regulated access to the archives of the communist secret service. The victims, who were subject to data gathering and who did not cooperate with the secret service, had the right to access their files and to ask the Institute for their rectification or anonymisation; the names of people who informed on them were also available. The officers and collaborators, provided they admitted their actions, gained access to the files connected to them. The archives were also open for scientific research. The statute created the possibility of a disclosure of the past and can, therefore, be qualified as falling within the historical qualification model.

In 2005, the Constitutional Court ruled that the restriction of the right to access and rectification of files only to the victims violated the constitutional right to the control of information on individuals gathered in public registers. In its verdict the Court ruled that access to files for groups other than victims can be achieved with a direct use of constitutional provisions. Thus, the ruling gave universal access to the secret service archives.

The second phase of Polish lustration was marked by the existence of an ongoing lustration procedure. Its provisions fell within the historical clarification model, with the exception of the lustration of attorneys, which was closer to the retribution model. The public disclosure of the files was introduced in 1998 and became universal in 2005.

PHASE 3: FROM THE ENACTMENT OF THE 2007 AMENDMENT OF THE 2006 LUSTRATION ACT TO THE PRESENT DAY

On the 18th of October 2006, the Parliament enacted the new Lustration Act. The statute replaced the previous lustration mechanism with a new procedure, which encumbered the Institute of National Remembrance (IPN) with an obligation to issue personal certificates, consisting of information gathered in the archives of the communist secret service. As the information would not be verified, the measure should be regarded as an instrument of public disclosure, rather than lustration. This radical change never entered into force, as the Lustration Act was completely amended on the 14th of February 2007.

The 2007 Amendment of the 2006 Lustration Act marked a return to the previous procedure, focused on an appraisal of the validity of lustration statements. However, the law drastically widened the scope of the vetted and also included, inter alia, members of local government, all legal professions, diplomats, important posts in state organisations, certain positions in private and public media, schools and universities, and chief positions in banks and public companies. An estimated 350–400,000 people were to be covered by the act.306 The law provided for the creation of an online register of lustration declarations. The lustration proceedings were to begin with a motion by the IPN prosecutor. The final and binding verdict which found the statement to be false caused immediate dismissal from a post and a 10-year prohibition from appointment for public positions and the right to be elected.

The law provided universal access to the files of people holding certain public positions. It also confirmed a general right to access one’s own file, with the exception of officers and collaborators in regard to the documents they created. The IPN was also to create online registers of victims of communist surveillance, important communist politicians, secret service officers, employees and soldiers, and, finally, of secret collaborators, people who agreed to collude, or those who were treated as co-operators.

In its landmark 2007 verdict, the Constitutional Court declared a large part of the 2006 Lustration Act to be unconstitutional. The Court set the limits on the lustration procedure, stating that the scope of vetting cannot include positions with no connection to the public sphere. Thus, it struck down provisions on the lustration of the private sector, including private schools, universities, and media. Apart from quashing several other procedural provisions, the Court also stated that a fixed punishment for failure to submit a declaration or for presenting a false one—which, in the case of some professions, reduced the role of disciplinary courts to a mere reiteration of the previous verdict—violated the principle of proportionality and the principle of decent legislation. The online register of statements was said to violate the right to privacy and the limits on the data collected on individuals. The Court found that the catalogue of collaborators infringed the presumption of innocence; the creation of other registers was upheld, given that members of the ruling parties who later joined the opposition were not barred from being treated as victims. As a result of the verdict, the lustration process was halted and the declarations submitted had to be returned to the vetted.

The verdict was implemented in the amendment enacted in September 2007. However, the law reintroduced fixed sanctions for a lack of declaration or a false one. With regards to the latter, the provision was again quashed in 2011.

During the third phase of Polish lustration, the case of the 2006 Lustration Act allowed the Constitutional Court to set the limits on the existing lustration procedure. What is more, a new mechanism for the creation of an online register of former secret service officers was also introduced. As the catalogue was to be created “on the basis of the official documents,” such as “open engagements, employment contracts, or other similar documents which certified unambiguous situations, easy to demonstrate or prove using official data,” the author argues that the register was to be based on individually verified information—and thus is a method of lustration. According to article 20 section 5 of the 2006 Lustration Act, an entry in the IPN register can be questioned using a general lustration procedure56, and, thus, the new mechanism seems to be secondary and subjected to the main process of lustration. Therefore, since 2007, apart from the instruments of public disclosure, Poland applies two alternative lustration mechanisms, both falling within the historical clarification model.