Internal documents versus public information. There is a judgment!
Dr Michał Bernaczyk, prof. UWr, as a legal advisor, represented the NGO Watchdog Polska in the first historic trial before the Strasbourg Court concerning violation of the right to information.
On 21 March 2024, the European Court of Human Rights announced its judgment in the case of the Citizens Network Watchdog Poland (complaint no. 10103/20). The Strasbourg Court found that Poland had violated Article 10 of the European Convention on Human Rights. The complainant Citizens Network Watchdog Poland was represented by legal advisor dr hab. Michał Bernaczyk, prof. UWr from the Chair of Constitutional Law at the Faculty of Law, Administration and Economics.
The Strasbourg Court found that Poland had violated the European Convention on Human Rights by refusing to provide the Citizens Network Watchdog with information about the calendars of meetings of the President and Vice-President of the Constitutional Tribunal.
As we read, inter alia, in Rzeczpospolita, the roots of the case go back to 2017, when media reports about alleged meetings between Julia Przyłębska and Mariusz Muszyński and the then coordinator of special services Mariusz Kamiński appeared. At the time, the Constitutional Court was investigating the constitutionality of acquitting Kaminski before a final conviction. There was thus a suspicion that the leading judges of the Constitutional Court were meeting with the person whose status in criminal proceedings the court was to decide.
In order to dispel these doubts, the Citizens Network Watchdog Poland, a non-governmental organisation dealing with the openness of public life, requested, among other things, access to the calendars of meetings of the President and Vice-President of the Tribunal. This was refused on the grounds that they are ‘internal’ and unofficial documents and therefore do not have the nature of public information.
Citizens Network Watchdog Poland filed a complaint with the Voivodship Administrative Court in Warsaw, which, however, upheld the Court’s interpretation that meeting logs do not constitute public information. The Supreme Administrative Court took a similar view. Therefore, in February 2020, the organisation filed a case with the European Court of Human Rights, accusing Poland of violating Article 10 of the European Convention on Human Rights, which guarantees “freedom to receive and impart information and ideas”.
As prof. Michał Bernaczyk says: The silent protagonist of this story is the University of Wrocław, as Citizens Network Watchdog Poland’s position presented before the Court of Human Rights was based on the results of my research published in 2017 in the monograph “Dokument wewnętrzny” jako ograniczenie konstytucyjnego prawa do informacji. Rozstrzyganie kolizji w teorii i praktyce prawa” ( Warszawa 2017, Wyd. CH Beck).
The book was published thanks to funding from the dean of the Faculty of Law, Administration and Economics at the UWr and formed the basis of a proposal for promotion to the position of university professor.
What does prof. Michał Bernaczyk think this judgment means? What will be its consequences?
The judgment must be executed, and the concept of execution of the judgment of the European Court of Human Rights and observance of the Convention is not limited to an individual case, but enforces the application of the Polish law taking into account the Convention in separate “Polish” cases that are pending every day before administrative courts. This interpretation of the Act in a “Convention-friendly” manner is the minimum variant. The maximum variant, on the other hand, means amending the Access to Public Information Act so as to find a new, balanced solution between the interests of journalists, scientists, citizens interested in the state and efficient administration.
Constitutional or administrative law scholars cannot now pretend that nothing has happened. – Of course, pointing out the shortcomings of one’s own state is no pleasure, but the science of law does so with the intention of rectifying what is unconstitutional or contrary to human rights. And here we come to the constructive element, because I dare say that only at the FLAE UWr has this issue been comprehensively examined. I say this on my own behalf, but also in awareness of the achievements of my colleagues from the Institute of Administrative Sciences at the FLAE UWr, dr Łukasz Prus and dr Karolina Kulińska-Jachowska. Therefore, today it is the University of Wrocław that has the “scientific capital” and can bring good solutions to the discussion on the reform of the right to information.
Compiled by Katarzyna Górowicz-Maćkiewicz
