On 9 April 2021, in the Warszawa-Wola District Court, a criminal trial was to commence in which the defendant is the management board of the Lux Veritatis Foundation. One of the members of the Foundation’s board is Tadeusz Rydzyk (from the Order of the Most Holy Redeemer) who, thanks to the media channels he operates – Radio Maryja and Television Trwam – gained a huge influence on part of the conservative electorate. Many politicians connected with the United Right that has been in power in Poland since 2015 have been flaunting their close relationships with the Redemptorist. Using the opportunity of the criminal case, they undertook specific activities which could deprive the Citizens Network Watchdog Poland, which is the subsidiary prosecutor and the injured party in the case, its right to a fair trial (Article 45 of the Constitution of the Republic of Poland).

After two court sessions at which the court proceedings could not be opened due to numerous formal motions submitted by defence counsels for the defendants and by the public prosecutor’s office, Zbigniew Ziobro – Minister of Justice and Attorney General, stated as follows on the air on Radio Maryja:

There can be no mention of an offence or suspected offence here. It is clearly and obviously apparent that this case is contrived, and attempts have been made, instrumentally and without grounds, to involve criminal courts to persecute the foundation [Lux Veritatis – note: Watchdog Poland] and persons who are respected and valued in many circles. These actions have been undertaken for the very reason to stigmatise, destroy them, and show that they are pilloried by criminal charges.

(…) This is not about justice and law, but about harassment and surveillance. These are methods reminiscent of Lukashenka’s regime. It is unthinkable that someone has the courage to formulate such conclusions.

These words were spoken when the Regional Court in Warsaw still had not received an appeal against the decision of the district court in which the case is in processed, and which had not consented to the suspension of the proceedings at the request of the defendants’ defence counsels. As it later turned out, the prosecutor’s office also submitted an appeal to the regional court against this court decision. If the trial eventually starts, in our opinion these are also words addressed to judges who will adjudicate in both the appeal against the ruling of the district court, and in the main case – if it finally takes place. [update: the Regional Court agreed with the district court on June 9th, 2021].  It could also be an announcement of further actions using the state apparatus. It should also be added that, from the beginning of the case, the prosecutor’s office seems to have been acting shoulder to shoulder with the defence – among other things, they demanded the change of the judge due to the alleged lack of impartiality. It happened after the judge did not agree to the dismissal of the proceedings at the first hearing.

What is the case about?

On 7 June and 3 November 2016, the Citizens Network Watchdog Poland sent requests for the disclosure of public information to the Lux Veritatis Foundation. Questions concerned undertakings financed from public funds. They referred to subsidies (for the years 2008 to 2016) and expenditure from them (only in 2016). The request had to be sent twice. The first time, it was sent by email, but the Foundation claimed that they had not received it. The second time, it was sent by traditional mail.

Not having received any reply within the statutory deadline, on 19 December 2016, the Citizens Network Watchdog Poland submitted a complaint for failure to act [silent denial] to the Provincial Administrative Court in Warsaw, demanding not just the disclosure of information but also that the court finds the Foundation in gross violation of the law. This is because undoubtedly the Foundation was aware that the petition had been received because a court trial was held in connection with the sending of the first request by email, and Watchdog Poland lost it due to the inability to prove that the request was undoubtedly received by the Lux Veritatis Foundation. Receiving the request for the second time, this time however by traditional mail, Lux Veritatis had to be aware that it had to respond to it.

In response to the complaint, the Foundation pointed out that it was not obliged to provide information about the state subsidies it had received, and that the Citizens Network Watchdog Poland used the word “undertaking” in its petition, and the Foundation did not use such a term. It does not carry out undertakings and it does not know what it is about – therefore, the petition is imprecise. However, it did not prevent the Lux Veritatis Foundation from claiming in response to the complaint that the information requested is not public information:

The Foundation would like to emphasise once again that, in its opinion, the information requested by the plaintiff does not constitute public information within the meaning of the Act [on access to public information – note: Watchdog Poland], and therefore the Foundation was not obliged at all to disclose it.

After more than six months of ineffective attempts to gain access to the information, on 25 January 2017, the Citizens Network decided to submit a notification of a suspected offence. This was because it became convinced that the failure to disclose information was intentional.

On 26 May 2017, the Lux Veritatis Foundation provided a partial reply to the request, sending a list of subsidies from public funds. However, as regards expenditures, it stated that:

the provision of detailed data on all expenditures connected with undertakings in which the Foundation used public funds, including the indication of the amount of the expenditure, date, addressee and subject of the expenditure, for the period requested, i.e., from 1 January 2016, goes beyond the statutory obligation to provide public information because the expenditures were connected exclusively with the area of statutory tasks carried out by the Foundation, and moreover it could involve the violation of provisions on protection of business confidentiality or provisions on personal data protection.

This happened two days after the District Court for Warszawa-Wola upheld the public prosecutor’s office’s decision on the refusal to open an investigation (24 May 2017). The reason behind this was supposed to be the absence of the administrative court’s judgement.

In November 2017, the Provincial Administrative Court (II SAB/Wa 17/17) ruled:

As (…) the foundation from which the information was requested sought the inability to provide the entire information in the provisions on the protection of business confidentiality and on personal data protection, the only correct response from the foundation would be to issue an appropriate decision (…). Relying only in writing on the exclusion of access to the requested information with reliance on the protection of statutorily protected secrets causes the entity from which the information has been requested to remain idle from a formal point of view. This is because without issuing the decision in which it would explain in detail the motives of its actions it deprives the petitioner of the possibility of verifying its claims.

Incidentally, it should have been added that the issue that the information not disclosed to the petitioner concerns the fulfilment of the foundation’s statutory tasks, raised in the foundation’s letter of 26 May 2017, remains without influence on the ruling. This is because in accordance with provisions of the Act on Foundations, these entities may operate exclusively within the boundaries of tasks specified in the foundation’s statute (…) Thus, if the foundation operates in accordance with law, and thus within the framework of tasks included in its own statute, then each of the foundation’s undertakings, also those carried out with the use of public funds, will at the same time constitute the fulfilment of statutory tasks. (…) the matter of the method in which public funds acquired by the foundation are used constitutes public information within the meaning of provisions of the Act on access to public information.

(…)

This Court has also reached a conclusion that the found idleness seemed to be idleness with features of gross violation of law (…) Such a qualification of the idleness found is supported for example by the fact that it continued for eleven months. (…) Such long period of failing to consider a petition submitted under the procedure of the Act on access to public information, which after all provides for a fourteen-day period for provision of access to public information, as well as internally contradicting positions of the foundation presented in the reply to the complaint in the letter of 26 May 2017 addressed to the petitioner, constitute evidence of the dismissive attitude towards the petitioner as well as towards the duties imposed on the foundation by the Constitution of the Republic of Poland and the Act on access to public information.

(…)

Considering the above circumstances, this Court acceded to the appellant’s petition and imposed a fine on the authority.

Lux Veritatis submitted a cassation appeal against this judgement, and Watchdog Poland still had not received a decision that they could appeal against. In January 2018, a new notification was submitted on a suspected offence due to the fact that a judgement of the Provincial Administrative Court had already been issued. On 30 November 2018, the Supreme Administrative Court dismissed the cassation appeal submitted by Lux Veritatis (I OSK 829/18).

On 31 December 2018, Lux Veritatis came to a conclusion that it was not business confidentiality that was the problem after all (in any case it did not cite this as a basis for the refusal of access to information), but only the protection of privacy of persons who receive payments from taxes. Additionally, it deemed that the information requested constituted processed information, i.e., the preparation of which required work to be done. And the work requires that the petitioner indicates significant public interest. The only thing is that the Foundation immediately decided that such interest did not exist. Another thing is that if Watchdog Poland received the summons to prove the existence of the interest, it would have argued against such approach. In the case of subsidies from public funds, entities usually have to submit a list of expenditures which includes both the name of the work carried out as well as numbers and dates of accounts and counterparties. Similar data should be included in accounting systems. The enquiry concerned only expenditures from 2016. It was therefore very unlikely that there were no lists containing the requested data.

On 27 September 2019, the Provincial Administrative Court in Warsaw (II SA/Wa 542/19) put the matter as follows:

(…) it is an undisputable circumstance that the party obliged to provide information classified the information requested as included in the processed information category.

It is also outside the dispute that the addressee of the petition failed to notify the petitioner about the above conclusion and did not call them to demonstrate a particularly significant public interest before the issuance of the decision of 31 December 2018 (…)

By issuing the decision, the Foundation in fact made it impossible for the party to demonstrate a particularly significant public interest on its part, or possibly made it impossible for the petitioner to undertake an argument against the statement that the requested information constitutes processed information.

And as regards the protection of privacy, the court relied on a whole series of judgements that had been issued over the years and which confirmed that the information demanded by the Citizens Network Watchdog Poland did not contain any information requiring even to be anonymised:

The Foundation’s claim – that the disclosure of personal data of the parties concluding with the Foundation civil law agreements financed from public funds infringes these persons’ rights to privacy – cannot be accepted.

In this respect, the binding opinion in this case should be repeated (…) that an entity (including a natural person) concluding a civil law agreement with a public entity may not expect that with regard to such data as the first name, surname or business name, subject of the agreement, amount of remuneration they will retain their right to privacy (…) This is because the personal data of persons with whom agreements have been concluded allow the civic appraisal of whether the performance of the agreement has been entrusted by the authority to persons with the appropriate knowledge and skills allowing its performance, and the agreement itself has not been in fact a concealed method of  unauthorised transfer of public funds to private persons (…).

However, the Foundation legitimately claims that stating the address of residence of a natural person and their bank account number goes beyond the scope of transparency of information about the counterparty, however, Watchdog’s petition does not include the provision of such information.

On 11 December 2019, Lux Veritatis summoned Watchdog Poland to prove particularly significant public interest due to the fact that the information requested constituted processed information.Watchdog argued against this approach, claiming that this was simple information that only needs to be searched for as any information before it is disclosed. The Foundation did not accept this argument and on 23 January 2020 it issued a negative decision

This decision was delivered only to the Citizens Network Watchdog Poland. It was not delivered to the attorney representing the organisation in this case. This is why in June 2020 the Attorney submitted a complaint that the Foundation failed to act. On 5 November 2020, the complaint was dismissed (II SAB/Wa 379/20). The court analysed the dates on which the Lux Veritatis Foundation issued individual documents, however, it failed to evaluate the fact that an Attorney had been established for the case. This is why on 24 March 2021, the attorney submitted a cassation appeal, indicating that the Provincial Administrative Court in Warsaw, in its deliberations, completely disregarded the circumstance that the document described as a decision had been delivered directly to the complainant (Watchdog Poland), and not to their attorney established in the case. 

The cassation appeal is waiting to be heard.

As has been mentioned, on 18 January 2018, the Citizens Network Watchdog Poland submitted the second notification of a suspected offence. From that date until 4 June 2020, the public prosecutor’s office refused to take up the case and the complaints had to be submitted to the court which ordered an investigation or failed to accept discontinuations. Due to the fact that this route had been exhausted, on 19 June 2020 the Citizens Network Watchdog Poland submitted a subsidiary indictment and from 9 April 2021 trials have been appointed in the District Court for Warszawa-Wola.

Legal situation

Under the Polish legal system, it is mainly administrative courts that deal with the protection of the right to information. Courts may adjudicate on the authorities’ failure to act or on the legitimacy of decisions issued by them. The weakness of this system is that when obliged entities want to avoid the provision of access to information, they can protract the case endlessly. This is what is happening in this case. First a complaint had to be submitted to the court against the failure to act, then against the protection of privacy, and then, again, against the failure to act, and in the future probably against the processing of information. 

This is why the penal sanction provided for in Article 23 of the Act on access to public information constitutes an important complement to the effective securing of the right to information contained in Article 61 (1) and (2) of the Constitution of the Republic of Poland. “Whoever, contrary to their obligation, fails to make public information available, shall be subject to a fine, restriction of liberty or imprisonment for up to one year”.

For over 20 years of existence of the Act, liability for the failure to provide information under that Article was only recognised several times. Usually, an administrative procedure is used, the drawback of which is the absence of sanctions for the failure to provide information. Although under the Law on Proceedings before Administrative Courts the Court (…) may (…) adjudicate, ex officio or at the request of the party, the imposition of a fine on the authority (…) or award a sum of money from the authority to the complainant (…), but the penal sanction provided for in the Act on access to public information constitutes a significant reinforcement of the ability to enforce the right to information. 

What happenned between May and June 2021?

In order to understand the scenarios which might have taken place in May and June 2021, two cases waiting to be heard in the Constitutional Court should be studied. Both concern Article 23 of the Act on access to public information.

The first one is the constitutional complaint submitted by Ewa Przybyło, the former Mayor of Rabka-Zdrój, sentenced for the failure to provide information. In the constitutional complaint, Article 23 of the Act on access to public information indicating penal liability for the failure to provide information was contested. The complaint was supported by the Attorney General, Zbigniew Ziobro, a well-known supporter of severe penalties for criminals. What is interesting, the complaint was not supported by Elżbieta Witek, Speaker of the Sejm.

The second case is a motion of the person holding the function of the First President of the Supreme Court, Małgorzata Manowska, to find a number of provisions of the Act on access to public information, including Article 23, unconstitutional. Over 100 social organisations submitted a petition to withdraw the motion from the Constitutional Court out of concern that it would result in attempts to suspend cases such as the described case. Knowing the practice of authorities in Poland, one could expect that such situations might occur. Although there is a presumption of constitutionality of regulations until the Constitutional Court rules otherwise, the organisations were afraid of unnecessary hindrances that would protract the acquisition of information. Małgorzata Manowska rejected this petition. The case has been in the Constitutional Court since February 2021.

On 29 April 2021, when the accused in the Lux Veritatis case were to be questioned, the questioning did not take place because defence counsels submitted a motion to suspend the case until the Constitutional Tribunal rules about the constitutionality of Article 23 of the Act on access to public information. The Court rejected the motion, pointing out that there was a presumption of constitutionality of the regulations, it does not interfere with hearing the case, and the court case cannot be protracted. The defendants had the right to appeal against this decision within 7 days. The appeal was submitted also by the public prosecutor’s office.

There were four predictable scenarios (as of 12 May 2021). At the end of June it seemed that the first one happens, which proves that regardless of significant changes in the rule of law, the judiciary is able to resist political tenson.

1. The decision of the district court will be maintained and on 30 June the court trial will commence. That day at least the accused will be examined.
2. The decision of the district court will be revoked by the regional court. This is where the words of the Minister of Justice, which may be perceived as an attempt at influencing the court, can be of importance. It is also worth noting that the substantive rulings by courts were indirectly or directly the subject of proceedings initiated by the public prosecution subordinated to Zbigniew Ziobro. For example, the court decision concerning the refusal to use arrest against the management board of the state-owned company Azoty S.A. in Police is the subject of criminal proceedings against persons appointing the panel of judges. Judge Igor Tuleya was deprived of his immunity and proceedings concerning the disclosure of the statement of reasons for the judgement have been pending against him in pre-trial proceedings on legality of law enacted by the Sejm. What is more, for a few years it has proved impossible to obtain the information about the algorithm of allocating cases to judges.
3. The decision of the district court will be upheld by the regional court, therefore the court trial should be opened on 30 June, but before this happens, the Constitutional Court will deem Article 23 of the Act on access to public information unconstitutional. This would also not be incompliant with the practice of recent years when both dates of trials and judge panels were appointed to suit the current political need. An example here may be the case for the Ombudsman’s term of office that has been postponed 9 times.
4. Other unforeseen circumstances and date changes will take place.

In summary, the greatest threats are connected with the fact that as a result of the appropriation of the Constitutional Court, the careless words of the Minister of Justice and Attorney General, or the non-transparent way of allocation of judges to cases, the cases will not be heard at all.

As an aggrieved party, the Citizens Network Watchdog Poland expects the right to a fair trial which will determine whether an offence under Article 23 has taken place.

The involvement of Law and Justice (PiS) politicians

Although the thing most damaging for the rule of law is the personal involvement of Zbigniew Ziobro, Minister of Justice and Attorney General in the media defence of the accused and the pronouncing of sentences in the media, the whole case shows how much influence Tadeusz Rydzyk, President of the Lux Veritatis Foundation, has on the governing majority.

Since 9 April, many negative materials have been broadcast in Radio Maryja and Telewizja Trwam about the Citizens Network Watchdog Poland. The general narrative is such that the Foundation provided access to all requested information, and if it failed to provide access to something, it was because the demand was for personal data. At the same time, a campaign has been conducted against the Citizens Network Watchdog Poland, stigmatising financing from abroad and alleging that its activities are aimed at destroying Catholics in Poland.

The accusations peaked when Tadeusz Rydzyk stated:

From the start, our good name has been tarnished through lies, slurs, etc., because this is what you do if you want to destroy someone. This is what Hitler did, this is what Stalin did, they did this in Spain, in Mexico. This is what happened with priest Jerzy Popiełuszka – his good name was besmirched, he was lynched in the media, and then murdered [blessed Father Jerzy Popiełuszko, the martyr of the Roman Catholic Church, was murdered by the officers of Security Service in 1984, during the communist times – note: Watchdog].

This narrative was maintained for several weeks, and just before 29 April Tadeusz Rydzyk called upon the politicians of Law and Justice and the President to take action. His call was answered.

On 25 April 2021, the Judge of the Constitutional Court, Krystyna Pawłowicz, stated as follows on her Twitter account:

I SUPPORT the LUX VERITATIS Foundation and I DO NOT WISH any information to be disclosed against this leftist, anti-Christian network WATCHDOG Poland which is harassing this Catholic Foundation in courts. [original spelling – note: Watchdog Polska]

On 27 April 2021, Beata Kempa, MEP, posted on Twitter:

This case does not electrify the public opinion and no one will speak for the persecuted. Most probably because they form an important Catholic community which consistently and humbly works for Poland and the Church. #LuxVeritatis #fundacja #TvTrwam

On 29 April 2021, seven senators of the Republic of Poland issued the following statement:

In connection with the court proceedings brought against the Lux Veritatis Foundation by the Citizens Network Watchdog Poland – alleging the infringement of Article 23 of the Act on access to public information – we express a deep concern about the situation that has occurred.

According to the Foundation’s representatives, answers were given to the enquiring entity. In this situation, the further legal steps undertaken are perceived as an abuse of the right to public information for the purpose of persistent harassment and paralysis of the possibilities of conducting statutory activities. It should be mentioned that the case concerning public funds obtained and spent by the Lux Veritatis Foundation had already been dismissed by the public prosecutor’s office. This judicial authority has refused to prosecute and then discontinued the proceedings – several times. As Lidia Kochanowicz–Mańk, Financial Director for the Lux Veritatis Foundation, indicated: “This is not about any public information, this is about gagging us so that we cease to operate. So that charges are made against us, so that the world hears: <<Look! They are unreliable. They conceal information. They gain financial benefits from this and they refuse to provide information>>”.

Taking the above into account, we oppose any actions that bear the hallmarks of aiming to restrict the freedom of speech in Poland and to reduce the rights of a Catholic entity to conduct evangelisation using public media. Freedom of religion and freedom of speech are norms that are protected by the Constitution, and they constitute the measure and standard of human rights. 

This particular statement was signed by: Jan Maria Jackowski, Bogusława Orzechowska, Alicja Zając, Jerzy Chróścikowski, Andrzej Pająk, Zdzisław Pupa, Rafał Ślusarz. There were also several other statements of other polititians, mostly conneted to the Minister of Justice – Zbigniew Ziobro and his party.

The activities of Watchdog Poland in protecting the right to information

The Citizens Network Watchdog Poland was established in 2003. For 18 years, it has been operating in support of the right to information. It conducted around 900 court cases connected with this topic. Each year, it provides around 2000 legal consultations to citizens in this area. It monitors all entities obliged to provide information, and its goal is to cause that all regulations concerning transparency operate and that anyone can benefit from them. The examples of monitored institutions include political parties, ministries, the Sejm and the Senate, State Treasury companies and municipal companies, hospitals, and local authorities. One of the types of monitored institutions are also civil society organisations receiving public funds. [Report for the 15th anniversary]

The Citizens Network Watchdog Poland publishes extensive information about its financing. Besides the standard, which is the publication of financial statements, it announces the funds it receives on an ongoing basis, it has published information about its payroll, and discloses its expenditures from 1% of tax received by taxpayers. With these activities, the organisation wants to set standards which build trust and contribute to the rational use of public money. 

Instead of a summary

These are not the only cases concerning access to public information connected with public financing transferred to civil society organisations. They are also conducted by other organisations. 

As one of the public affairs commentators observed:

The Minister of Justice who, in defence of Rydzyk’s empire against a group of curious citizens, goes as far as likening them to Lukashenka’s regime, serves his own interests in this case that go beyond even the wish to do the Redemptorist, ruling the potential electorate, a favour. It was the Justice Fund supervised by Ziobro, originally allocated to help crime victims, that generously subsidised Father Rydzyk’s foundation. The gentlemen thus have a shared secret to keep, and a verdict unfavourable for Father Rydzyk would open the door too widely for further questions being asked about other subsidies from the Fund from which Ziobro has been taking as he deems fit for political projects – often ones that have nothing to do with support for crime victims.