WYPYCH v. POLAND
Inadmissible
Nicolas Bratza
The applicant, Mr Andrzej Wypych, is a Polish national who was born in 1954 and lives in Kwidzyń. He was represented before the Court by Ms Beata Czech, a lawyer practising in Kwidzyń. The applicant was elected to the Kwidzyń Town Council during the municipal elections of October 2002 and has served as a councillor since that date. His term of office lasts four years. On 1 January 2003 amendments to the 1998 Local Government (County) Act, enacted in November 2002, came into force. These amendments impose an obligation on local councillors to disclose information to the public concerning their financial situation and property portfolio. This is to be done through a declaration which is submitted to the president of the local council. These declarations are subsequently published in the Public Information Bulletin, available to the general public via the Internet. In February 2003 the applicant asked the Ombudsman to lodge a request with the Constitutional Court to examine whether the provisions of the 1998 Act, as amended in 2003, were compatible with the Constitution insofar as they imposed an obligation on local councillors to make detailed information available to the general public about their property and income. The applicant argued that the provisions of the 1998 Act had not previously provided for such a disclosure. He was of the opinion that this obligation was in breach with the 2001 Protection of Personal Data Act. He argued that making such information publicly available would facilitate political harassment and could expose him and his family to the threat of theft or burglary. He could refuse to submit a declaration, but he would then be deprived of the monthly emoluments payable for his work as councillor. He drew the Ombudsman’s attention to the fact that, even in such a scenario, he would not be deprived of his office. In his view, this cast doubt on the effectiveness of the obligation to submit the impugned declaration. Insofar as declarations were designed to curb corruption, it was illogical that a failure to submit such a declaration would not result in removal from office. In his replies of 20 March, 8 May and 13 August 2003, the Ombudsman indicated that he was in receipt of voluminous correspondence drawing attention to various aspects of the transparency obligations imposed by the 2002 amendments to the 1998 Act. His correspondents argued that the scope of the obligation to make publicly available details pertaining to the financial situation of various local politicians and officials was too extensive and breached the right to respect for private and family life. In the light of the public reaction to those amendments, the Ombudsman was considering whether to ask the Constitutional Court to examine their compatibility with the Constitution. Eventually, however, after analysing various provisions of the Act, the Ombudsman complained to the Constitutional Court only about those amendments to the 1998 Act which imposed a wide-ranging obligation on certain local politicians to submit declarations about various aspects of the business activities of their close and extended families, in particular insofar as these activities concerned companies owned or co-owned by local municipalities. In a judgment of 13 July 2004, the Constitutional Court found certain of those provisions constitutional and declared others incompatible with the Constitution. However, it did not examine the obligation complained of in the present case, but only dealt with those obligations under the amended 1998 Act which related to the business activities of local politicians’ families. The applicant does not wish to disclose details about his income and property as required by the 1998 Act as amended. He has not submitted a declaration as required. Consequently, he has received no emoluments for his work as a councillor since July 2003, these emoluments amounting to 1,190 zlotys (PLN) per month. Article 61 of the Constitution reads: Every citizen shall have the right to obtain information on the activities of public bodies and of persons discharging public functions. This right shall also include the receipt of information on the activities of self-governing economic or professional bodies and other persons or organisational units in connection with fields in which they perform public duties and manage communal assets or property belonging to the State Treasury. The right to obtain information shall guarantee access to documents and entry to the sittings of collective public bodies which have been formed by universal suffrage and shall include the opportunity to make sound and visual recordings. Limitations on the rights referred to in paragraphs 1 and 2 above may be imposed by statute solely in order to protect the freedoms and rights of other persons and economic subjects, public order, security or important economic interests of the State. The procedure for the provision of information referred to in paragraphs 1 and 2 above shall be specified by statute and, as regards the Sejm and the Senate, by their rules of procedure. Article 47 of the Constitution provides: Everyone shall have the right to legal protection of his private and family life and of his honour and good reputation and the right to make decisions about his personal life. Article 79 § 1 of the Constitution provides as follows: “In accordance with principles to be specified by statute, everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or other normative act on the basis of which a court or an administrative authority has issued a final decision concerning his freedoms or rights or on his obligations as set out in the Constitution.” By a judgment of 23 June 1999 the Constitutional Court examined a request to examine the compatibility with the Constitution of the 1997 Act on Restrictions on Business Activity of Persons Carrying Out Public Functions (which was later replaced by the legislation complained of in the present case). In this request the complainants argued that the provisions of the 1997 Act insofar as they prevented members of executive boards of local councils and various other officials of local administration from conducting business activities on their own account were incompatible with the Constitution. This was because, the complainants averred, they imposed undue restrictions on business freedom guaranteed by its Article 22 of the Constitution. It was also argued that these restrictions were in breach of the principle of equality guaranteed by its Article 32. The Constitutional Court recalled the history of legislation intended to limit the scope of business freedom of persons engaged in various bodies of local government since the first such law was adopted in 1992. It reiterated that these laws were to curb possible corruption by making it impossible for certain categories of public officials to combine their public functions with business activity. The Court further considered that the provisions complained of could not be said to breach the principle of equality as guaranteed by the Constitution. This principle meant that all persons having the same legally relevant characteristics were to be treated equally, without differences to their advantage or disadvantage. However, this principle accepted that different classes or groups of persons be treated differently (K17/95). In this connection, it reiterated that the case-law of the Court regarding restrictions of business activity of persons holding public functions was already established in that it had repeatedly held that such persons had to expect that such restrictions would be imposed on them. It recalled that these restrictions were meant to prevent public officials from engaging in situations and dilemmas of such a nature as to be capable of not only casting doubt on their personal honesty and integrity, but also of undermining authority of the State’s bodies and of weakening the trust of the electorate and public opinion in their functioning (W 2/94). The Court referred to its judgment given in 1995 in which it had stated that the legislature was empowered to impose various restrictions on local councillors in respect of their professional activities, provided that such limitations would be reasonably linked to public interest they were intended to serve and that the scope of such limitations remained proportionate to the importance of such public interest (K 29/95). As regards the temporal scope of application of the 1997 Act, the Court noted the complainants’ argument that the introduction of that Act adversely the legal situation of the public officials concerned in that it had extended during their mandate the scope of limitations applicable to them. The Court considered that the prohibition on laws which harmed the position of individuals applied only to existing legal relationships within the area of civil, social insurance or administrative law. It could not be interpreted in such a way as to constitute a total ban on the introduction of new public law regulations which would be less advantageous for persons carrying out public functions during their mandate. It was of the view that such persons could not be considered as having any ‘acquired rights’ in respect of the conditions of their mandate that could be compared to such rights within the meaning of this term for the purposes of civil or social insurance law. Under Article 25 (c) § 1 of the Local Government (County) Act of 5 June 1998 as amended in 2002, local councillors, members of local government executive boards, executive secretaries to county councils and members of governing boards of legal entities with legal personality, such as companies owned or co-owned by local municipalities, are to submit declarations on their financial situation and property portfolio, hereinafter referred to as “declarations”. The declarations must cover their personal property and assets owned as marital property, and must list the following assets: savings and other liquid assets, all immovable property and shares and actions in public companies owned by both public-law and private-law persons. The declarations must also include information on property purchased by way of tender from any public-law entities and information about businesses owned or run by the persons obliged to submit declarations. The obligation to submit a declaration also covers information on income earned in the context of paid employment or any other income-generating professional or business activity. Further, information on all movable property exceeding PLN 10,000 in value is to be included. Information on all loans of over PLN 10,000 taken out by the individual concerned and the conditions under which these loans were granted is to be disclosed. Pursuant to Article 25 (c) § 5 of the Act, the declaration must be submitted within thirty days of the date on which a councillor makes a solemn oath to perform his or her duties honourably. Councillors’ declarations are to be submitted to the President of the County Council. Declarations are to be submitted for each calendar year until 30 April of the following year at the latest, and also two months prior to the end of a councillor’s term of office. The declaration is to be accompanied by a copy of the annual income-tax declaration for the relevant year. Declarations are to be submitted on a standardised form, provided in the Ordinance issued by the Prime Minister on 26 February 2003. The president of the local council is empowered to examine the declaration submitted by councillors and is obliged to transmit a copy to the local tax office. A copy of the declaration is to be kept for six years in the local council’s public records. Under Article 25 (c) § 8, the local tax office is empowered to examine whether the declaration is compatible with the councillor’s income-tax declaration for the relevant year. Where doubts arise as to its veracity, the president of the local council or the tax office may request the local tax inspectorate to institute a tax audit procedure in respect of the councillor. Pursuant to Article 25 (c) § 12, the president of the council is obliged to submit a report to the council by 30 October each year, listing those councillors who have failed to submit declarations. This report should include information about any irregularities discerned in the declarations and about any measures taken in connection with these irregularities, such as those provided for in section 25 (c) § 8 of the Act. Under Article 25 (d), the information contained in the declaration is to be made public, with the exception of councillors’ home addresses and the address of other real estate that they own. Pursuant to Article 25 (f), a councillor who fails to submit a declaration will not be paid his or her monthly emoluments until such time as a declaration is duly submitted. Electronic copies of all submitted declarations are accessible to the general public through the Public Information Bulletin, as provided for in the 2001 Access to Information Act. Pursuant to Article 8 of the Access to Information Act, a Public Information Bulletin has been created. It is an official publication and is accessible to the general public via the Internet. The Minister of Public Administration is responsible for its creation and functioning. He or she is also responsible for ensuring that all public-law entities which are legally so obliged submit any information which is to be made public and that the Bulletin’s home-page contains links enabling visitors to access all such information.