Amendments to the Act on the Institute of National Remembrance K 1/18
On 17 January 2019 at 10.30 a.m., the Constitutional Tribunal publicly delivered its judgment, issued at a sitting in camera, with regard to the application of the President of the Republic of Poland, in which the Polish President requested the Tribunal to examine the constitutionality of certain amendments introduced into the Act on the Institute of National Remembrance in 2018.
The Constitutional Tribunal adjudicated that:
1. Article 1(1)(a), third indent, of the Act of 18 December 1998 on the Institute of National Remembrance – the Commission for the Prosecution of Crimes against the Polish Nation, as amended by Article 1(1)(a) of the Act of 26 January 2018 amending the Act on the Institute of National Remembrance – the Commission for the Prosecution of Crimes against the Polish Nation,the Act on Military Graves and Graveyards, the Museums Act as well as the Act on the Criminal Liability of Collective Entities for Punishable Offences, in the part comprising the wording “Ukrainian nationalists and”, is inconsistent with Article 2 of the Constitution of the Republic of Poland, and the principle of specificity of legal provisions derived therefrom, as well as with Article 42(1) of the Constitution;
2. Article 2a of the Act of 18 December 1998 on the Institute of National Remembrance – the Commission for the Prosecution of Crimes against the Polish Nation, added by Article 1(2) of the Act of 26 January 2018 amending the Act on the Institute of National Remembrance – the Commission for the Prosecution of Crimes against the Polish Nation,the Act on Military Graves and Graveyards, the Museums Act as well as the Act on the Criminal Liability of Collective Entities for Punishable Offences:
a) in the part comprising the wording “Ukrainian nationalists and” as well as “by Ukrainian nationalists” in the first sentence,
b) in the part comprising the wording “Ukrainian nationalists and” as well as “and the Region of Małopolska Wschodnia” in the second sentence
– is inconsistent with Article 2 of the Constitution of the Republic of Poland, and the principle of specificity of legal provisions derived therefrom, as well as with Article 42(1) of the Constitution.
Moreover, the Tribunal discontinued the review proceedings as to the remainder.
The ruling was adopted by a majority vote.
The subject of the application lodged with the Tribunal by the President of the Republic of Poland
In his application, the Polish President challenged the conformity of:
1. Article 55a of the Act of 18 December 1998 on the Institute of National Remembrance – the Commission for the Prosecution of Crimes against the Polish Nation (hereinafter: the Act on the Institute of National Remembrance), added by the Act of 26 January 2018 amending the Act on the Institute of National Remembrance – the Commission for the Prosecution of Crimes against the Polish Nation, the Act on Military Graves and Graveyards, the Museums Act as well as the Act on the Criminal Liability of Collective Entities for Punishable Offences (hereinafter: the January Act), with Article 2 as well as Article 42(1) in conjunction with Article 31(3) as well as Article 54(1) in conjunction with Article 31(3) of the Constitution;
2. Article 1(1)(a), third indent, in the part comprising the wording “Ukrainian nationalists and” as well as Article 2a, in the part comprising the wording “Ukrainian nationalists” as well as the wording “and the Region of Małopolska Wschodnia” in the Act on the Institute of National Remembrance, which had been added by the January Act, with Article 2 as well as Article 42(1) in conjunction with Article 31(3) of the Constitution.
The Sejm's repeal of Article 55a of the Act on the Institute of National Remembrance
and the Tribunal's discontinuation of the review proceedings within that scope
Article 55a of the Act on the Institute of National Remembrance introduced a fine and/or the penalty of the deprivation of liberty for a period of up to 3 years for publicly attributing, contrary to facts, to the Polish Nation and/or the Polish State responsibility or co-responsibility for Nazi crimes committed by the German Third Reich or for other offences constituting crimes against peace, against humanity, or war crimes, and/or for grossly diminishing, in any other way, the responsibility of the actual perpetrators of those crimes.
Article 55a of the Act on the Institute of National Remembrance was repealed – by the Act of 27 June 2018 amending the Act on the Institute of National Remembrance as well as the Act on the Criminal Liability of Collective Entities for Punishable Offences (Journal of Laws – Dz. U. item 1277) – and ceased to have effect as of 17 July 2018.
Consequently, on the basis of Article 59(1)(4) of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal (Journal of Laws – Dz. U. item 2072), the Tribunal was obliged to discontinue the review proceedings within the scope of the constitutional review of Article 55a of the Act on the Institute of National Remembrance and, hence, the Tribunal did not examine the validity of the allegations raised within that remit by the Polish President.
The challenged provisions that were subject to the Tribunal's review.
A constitutional issue examined by the Tribunal in the case ref. no. K 1/18 was the question whether, in the provisions challenged by the Polish President (Art. 1(1)(a), third indent, as well as Article 2a of the Act on the Institute of National Remembrance), the legislator's use of the phrases “Ukrainian nationalists” and “the Region of Małopolska Wschodnia” infringed the principle of specificity of legal provisions.
Thus, the subject of the constitutional review comprised, first of all, the provision stipulating that the Act on the Institute of National Remembrance regulates recording, collecting, storing, compiling, securing, providing and publishing the documents of the state security services, which had been produced and collected from 22 July 1944 until 31 July 1990 as well as the documents of the security services of the German Third Reich and the Union of Soviet Socialist Republics which pertained to crimes committed by Ukrainian nationalists and by the members of Ukrainian units collaborating with the German Third Reich.
Secondly, the subject of the constitutional review comprised Article 2a, added to the Act on the Institute of National Remembrance, pursuant to which crimes committed by Ukrainian nationalists and by the members of Ukrainian units collaborating with the German Third Reich denote acts committed by Ukrainian nationalists in the years 1925-1950, which involved the use of violence, terror, or other forms of human rights violations with regard to individuals or groups of people. In accordance with the challenged provision, crimes committed by Ukrainian nationalists and by the members of Ukrainian units collaborating with the German Third Reich also include involvement in the extermination of Jewish population and in genocide against the citizens of the Second Republic of Poland in the territories of Wołyń and Małopolska Wschodnia.
The Tribunal analysed the above provisions only insofar as they concerned the phrases “Ukrainian nationalists” and “the Region of Małopolska Wschodnia”
The Tribunal's reasoning
The Constitutional Tribunal agreed with the reservations raised by the President of the Republic of Poland and adjudicated that the provisions challenged within the aforementioned scope are inconsistent with Article 2 of the Constitution, and the principle of specificity of legal provisions derived therefrom, as well as with Article 42(1) of the Constitution, which expresses the principle that a prohibition or a requirement secured by a criminal sanction should be formulated in a precise and accurate way.
The Tribunal stated that the phrases “Ukrainian nationalists” and “the Region of Małopolska Wschodnia”, used in the Act on the Institute of National Remembrance, had not been defined by the legislator. This is significant as the challenged provisions are closely related to Article 55 of the Act on the Institute of National Remembrance, i.e. a provision containing a criminal sanction in accordance with which whoever publicly, and contrary to facts, denies crimes referred to in Article 1(1) of the said Act is subject to a fine and/or the penalty of the deprivation of liberty for a period of up to 3 years.
Moreover, the Tribunal pointed out that it is impossible to unambiguously reconstruct the meaning of the challenged phrases on the basis of either the normative acts from the years of the Second Republic of Poland (1918-1939) or the currently binding legislation. Also, in general Polish, those phrases do not evoke unambiguous and indisputable connotations.
Therefore, in the Tribunal's view, there was a justified conjecture that, in the course of applying the challenged provisions, law enforcement authorities and courts could have serious problems with determining the scope of criminal liability provided for in Article 55 of the Act on the Institute of National Remembrance. Thus, the provisions challenged by the President of the Republic of Poland violate Article 2 and Article 42(1) of the Constitution.
The effect of the judgment.
The effect of the judgment issued in the case ref. no. K 1/18 is that the following were ruled unconstitutional:
– Article 1(1)(a), third indent, of the Act on the Institute of National Remembrance only in the part comprising the wording “Ukrainian nationalists and”;
– Article 2a, first sentence, of the Act on the Institute of National Remembrance only in the part comprising the wording “Ukrainian nationalists and” as well as “by Ukrainian nationalists”;
– Article 2a, second sentence, of the Act on the Institute of National Remembrance only in the part comprising the wording “Ukrainian nationalists and” as well as “the Region of Małopolska Wschodnia”.
This means that the above-mentioned provisions still remain in the Polish legal system, but they are devoid of the phrases deemed unconstitutional by the Tribunal.
Due to the constitutional standards of appropriate legislation, the legislator should take action to make appropriate editorial modifications in the above-mentioned provisions.
The Presiding Judge of the adjudicating bench was the President of the Constitutional Tribunal, Judge Julia Przyłębska, and the Judge Rapporteur was Judge Andrzej Zielonacki.