On 11 May 2007, the Constitutional Tribunal in Poland ruled the partial inconsistency of the new lustration law with the Constitution. On 18 June, a written justification of this verdict was published, in which the CT inter alia called into question the statutory template for the lustration declaration. On 13 July, the Ombudsman – Janusz Kochanowski (right) took position on this issue.   

Written by Agnieszka Chmielecka/ HRH Warsaw
Photo: Ombudsman´s Office

The Ombudsman position on this issue
The lustration declaration relates to work or service in national security forces or cooperation with these forces in the period between 22 July 1944 and 31 July 1990. The requirement to submit such declarations is imposed inter alia on individuals running for public office through general elections. On 13 July 2007, under circumstances indicating the possibility of preterm parliamentary (as well as local government elections) in Poland, Ombudsman Janusz Kochanowski turned to Polish Prime Minister Jaroslaw Kaczynski with a declaration, in which he stated that the lack of a statutory template for a lustration declaration would make it impossible to carry out such elections, and moved a proposal to settle this issue by law as soon as possible.  

HFHR opinion
The HFHR also took the floor on this issue. According to the Foundation such template, designed for exceptional and transitory situations, could be specified by the State Election Commission (PKW), which is the highest electoral body in Poland competent for carrying out elections and specifies inter alia templates for official forms. This would allow to avoid a situation where the procedure of appointment by means of elections would be blocked for purely formal reasons. After getting that opinion, the Ombudsman considered the Foundation’s suggestion as “an idea that is fresh and worth considering”.      
       
Position of the State Election Commission (PKW)
In response to the running discussion, on 24 July the State Election Commission also made the statement on this issue and judged that it is not capable of directly specifying the lustration declaration template. At the same time, the PKW defined what should be included in such a lustration declaration. This shows that the PKW recognized that each individual can prepare such a declaration independently provided that it contains the elements listed in the act and repeated in the written statement of the PKW. At the same time, it was stated that the lack of a statutory declaration template cannot lead to a situation where either the local government or parliamentary elections are not carried out.

In connection with the above, the Ombudsman’s concerns that it will not be possible to carry out parliamentary elections – under the current legal conditions – were unfounded.