Tranitional Justice, Working Paper 3

Chapter 3: Transitional Justice 1997-2015

This chapter continues the overview of transitional justice mechanisms begun in paper 2. It shows clearly how elements of policy are linked to the ideology of the dominant governing party. The period after 1997 marks the beginning of right-wingdominance of the political scene, albeit with a brief hiatus in the years 2001-5 when the SLD was in charge. It begins withmajor innovations under the Solidarity (AWS) government of Prime Minister Jerzy Buzek, followed by some reversal under the SLD governments of 2001-5, and a new spurt with the chaotic governments of Jarosław Kaczyński’s Law and Justice (PiS) between 2005 and 2007. The main issues after 1997 were lustration and file access, with a key role for the new Institute of National Memory (IPN), which together generated anew ‘politics of history’ and a reshaping of the remit to dealwith crimes of the past. From 2000 onward the IPN became a keyinstitutional actor in crucial spheres of transitional justice.

After Civic Platform took office in 2007 new legislation altered the structure of the IPN and amended the procedures regarding file access in accordance with judgments of the Constitutional Tribunal. Indeed, decisions of the Supreme Court, appellate courts, and the Constitutional Tribunal proved central to successive developments. The paper reviews 1) lustration policies and practices 2) crimes of the past 3) access to files and 4) continuing issues of compensation 5) restitution and 6) the thorny question of modern Polish history. Since these arenas are linked in diverse ways, the division between sections is not always clear-cut.

Lustration

Lustration policies and practices provide a leitmotif for someten years from 1997. Given the obstacles to implementation ofthe 1997 Lustration Law, one might have expected the new AWS-UW coalition (Solidarity Election Action with the Freedom Union) to make this a priority after its election victory. This was not the case, despite the fact that the 1997 law had not been implemented. Initiatives came instead from President Kwaśniewski and from the Senate Commission on Human Rights and

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the Rule of Law (Komisja Praw Człowieka i Praworządności). Kwaśniewski’s amendments1 proposed that if judges could not be found to serve on the Lustration Court, then the Ministry of Justice could appoint judges for a six-month period, even without their agreement. The president also proposed the exclusion of intelligence and counter-intelligence officers from lustration, as the SLD had long advocated. He also soughtgreater precision for the concept of ‘collaboration’ or ‘cooperation’ (współpraca), which was to have been ‘conscious, secret and voluntary’.

The Sejm adopted the Senate’s version2 in June 1998. Kwaśniewski’s proposals did not find favour, and the new law was rather limited in scope. Aside from repairing some formal technical errors, it provided that the Warsaw Appellate Court would replace the non-functioning Lustration Court in adjudicating lustration affidavits, with an enhanced role for the Public Interest Representative and provision for deputies and senators to file a ‘parliamentary denunciation’ (donos).3 The law had acquired some urgency because of serious rumours circulating about Minister of the Interior Janusz Tomaszewski’s alleged collaboration with the security services(Tomaszewski lost his job and was vindicated only in February 2001). Two sections of this law were later declared unconstitutional by the Constitutional Tribunal (see below).

Between 1999 and 2004 some 27,000 candidates or occupants of public offices were required to file lustration affidavits regarding their (non-) collaboration with the security services.4 The posts affected were the president, deputies and senators, all ministers and their deputies, as well as directors of state offices, those in senior positions appointed by the president or parliament, all judges, procurators, and lawyers, and those working in key positions in the media. The Constitutional Tribunal and the Supreme Court refined the definition of ‘collaboration’5 (see below).

As lustration took centre stage, it was inextricably linked toquestions of access to security service files. In 1998 the Sejm passed a new law on the ‘Institute of National Memory (IPN) - Commission for the Prosecution of Crimes against the Polish Nation’6; this was the government’s response to

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President Kwaśniewski’s proposal to guarantee citizens’ accessto their own files through a Civic Archive.7 Kwaśniewski vetoed the law, but the Sejm rejected his veto. Only individuals deemed to have been ‘harmed’ or ‘damaged’ (pokrzywdony) by the security services could gain access to their files. Up to 2005 the IPN granted the status of pokrzywdzony to seven thousand people, including former president Lech Wałęsa. The implementation of the revised lustration law and the operation of the law on the IPN proved intensely contentious over subsequent years.

The 1997 Lustration Law had established the office of Public Interest Commissioner (Rzecznik Interesu Publicznego) to analyse the veracity of lustration affidavits and submit requests to the Court for a formal lustration process. The first Public Interest Commissioner (1999-2004) was Bogusław Nizieński, a lawyer and judge who had fought with the non-communist resistance, joined the anti-communist organisation WiN (Wolność i Niezawisłość) in 1945, and in 1980 organised Solidarity within the Ministry of Justice. Nizieński’s avowed right-wing views, his profound anti-communism, and his enthusiasm for the job along with a tendency to see the world in black and white made him a controversial figure, lauded by the Right and loathed by the Left. The second – and last – commissioner (2005-2007) was Włodzimierz Olszewski, a former chair of the National Legislative Council (Narodowa Rada Sądownictwa).

Despite the provisions of the law, which provided no penaltiesfor admitting collaboration, former prime minister Hanna Suchocka, now Minister of Justice, began to dismiss those regional procurators who had acknowledged their cooperation with the security services. She also issued an 'appeal' to court chairs to remove judges who admitted their collaboration. The-then head of the National Judicial Council Włodzimierz Olszewski expressed his 'opposition and anxiety' at the use of such extra-legal means.8

Lustration proceeded slowly. During his tenure Nizieński and his two deputies investigated about 70 per cent of the affidavits filed (18714). Of these, 153 cases were referred to the Court, which declined to investigate four. In addition

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the Commissioner acceded to the requests of six parliamentarians for lustration (the donos, art. 18 para 3). Healso made it clear that he had found almost 600 other cases with some, but ‘insufficient’ evidence. In 2000 the 18 presidential candidates were lustrated in accordance with a separate law on presidential elections. In this period the Court issued 100 final judgments, of which 63 cases were guilty of lustration lying and 24 were not guilty; in 13 casesproceedings were discontinued. 17 cases were still in the midst of the appeal process. In accordance with the 1997 law the Court also dealt with requests for ‘self-lustration’ (autolustracja) submitted by those who wished to defend themselves against allegations of collaboration. For example,former Speaker of the Sejm Wiesław Chrzanowski, whose name appeared on the notorious Macierewicz list of 1992, was vindicated by the Court in 2000.

SLD governments 2001-2005

On taking office following its election victory, the SLD introduced changes that it had advocated since the early days of the debate. The 2002 amendments9 excluded from lustration those who had cooperated with the intelligence and counter-intelligence services, as well as the institutions concerned with Poland’s border defence. Changes made the concept of cooperation with the security services more precise, as Kwaśniewski had advocated in his presidential bill of 1997; cooperation must have been ‘genuine, harmful, and conscious’. Rulings of the Constitutional Court eroded these clauses, leaving intact only the need for ‘genuine’ collaboration (see chapter X).

However, the work of the Public Interest Commissioner was undoubtedly slowed by amendments to the lustration legislationafter the SLD took the reins of government - as well as by judgements of the Constitutional Tribunal, the Supreme Court, and the European Court of Human Rights. The pace of work slowed even more as the office of the Commissioner lost staff in anticipation of its liquidation in 2007 (see below) and – in Olszewski’s view – the IPN proved obstructive, failing to provide the necessary information and documentation for analysis.10 The Commissioner received 425 affidavits in 2006,

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of which two acknowledged their service with the communist security organs. He referred 15 cases to the Court: 10 judges,one deputy, the deputy prime minister, and three lawyers. These proceedings remained incomplete.

The SLD - beset by coalition tensions, internal divisions and increasing public distrust over allegations of deep-seated corruption, resulting in the prime minister’s resignation - did not pursue further legislation. However, lustration remained salient, with new accusations surfacing daily. In January 2005 the journalist Bronisław Wildstein, critical of the slow pace of IPN procedures, published his ‘working list’ of over 200 thousand names culled from the IPN registers. The Wildstein List was an indiscriminate listing of the names of those on whom files existed, with no indication of the role played by these persons. Critics of Wildstein pointed once again to the turmoil created for individuals on the list – including some well-known names already awarded ‘damaged’ status by the IPN. The Data Protection Registrar Ewa Kulesza informed the Procurator that head of the IPN Leon Kieres (2000–2005) had committed an offence: he had failed to safeguard information from copying and to prevent access of unauthorised persons.11 Wildstein was lauded by Jarosław Kaczyński, whose new party Law and Justice (PiS) won a narrow victory in the September 2005 parliamentary election.

In 2005 the overarching theme of PiS’s approach was its rejection of the chosen path of post-communist transformation and the need for a new constitutional settlement based on moral revolution and patriotic renewal of Solidarity’s core ideals and values. This was the project for a new ‘Fourth Republic’ to replace the corrupt, degenerate system of the Third (the term used in the 1997 Constitution to mark the distinction from the communist People’s Republic, the PRL). For Kaczyński the inauguration of the Fourth Republic would entail moral cleansing through deep lustration, anti-corruption measures, and reaffirmation of Catholic values; itsnew Constitution would repair the state; it would heal societywith a social contract, including fundamental changes in social and economic policy. This new dawn would mean the end of the enduring negative legacy of the Round Table negotiated in 1989 between the regime and Solidarity.

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This was indeed a return to fundamental issues of transitionaljustice. It was the Round Table ‘contract’ that lay at the heart of Jarosław Kaczyński’s analysis of the situation: By pursuing the ‘erroneous path’ of continuity, the Round Table had generated the conditions for the emergence of a system of control and exploitation (the układ) based on a web of interlocking informal networks of powerful interest groups, lobbies, and personal coteries allied with state security services and organised crime, pursuing wealth and power through crime, corruption, cronyism, and logrolling (Kaczyński2005: 7-13) – all made possible by the failure of successive governments to pursue a genuine strategy of decommunization . Rooting out the układ meant dismantling the structures and removing the personnel that made it possible. Only those with clean hands and a clean past could serve the state - hence theneed for new institutions such as a Truth and Justice Commission, Anti-Corruption Bureau and a greater role for the Institute of National Memory (IPN).

Lustration and PiS Governments

Governments between 2005 and the premature election of 2007 were volatile and unpredictable. After an uneasy period of minority government PiS reached coalition agreements with two radical parties, the League of Polish Families (LPR) and Self-Defence (SO). The nationalist LPR was an eager advocate of PiS’s world view, and SO was compliant, if not enthusiastic. PiS rapidly drafted new lustration legislation, but the law of2006 was amended virtually before the ink was dry. Despite itsflaws, President Lech Kaczyński, twin brother of PiS’s leader Jarosław, did not veto it; instead he immediately submitted a set of amendments to remedy its acknowledged deficiencies. Therevised law12, in effect from March 2007, replaced the Public Interest Representative with a special Lustration Department within the IPN, designed to identify ‘suspicious’ affidavits for further investigation and refer them to the courts. The new law also extended the requirement to disclose ‘collaboration’ to 53 categories of people born before 1 August 1972, all those ‘fulfilling a public function’, including teachers, academics, and journalists – some 700,000

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persons in all. To deal with the increase the number of courts rose to 20.

The law was greeted with outrage, and eminent politicians protested, among them former prime minister Tadeusz Mazowiecki, and former foreign minister Bronisław Geremek. There were similar protests from sections of the academic community, including former prime minister and justice minister Włodzimierz Cimoszewicz, now lecturing in Białystok; and journalists, including a sizeable contingent from Gazeta Wyborcza.13 Geremek, a member of the European Parliament, wrote that ‘I regard the demand for a new lustration declaration under threat of deprivation of my seat as contrary to the principles of the democratic law-based state and as disrespectful to the decision of 121,805 electors. It is contrary to the constitutional principle of respect for human dignity’.14

However, the new law did not endure. In May 2007 after a marathon session the Constitutional Tribunal rejected some 39 provisions as unconstitutional. Among other things, the Tribunal rejected the inclusion of journalists (save for the heads of the Polish Press Agency, Polish Radio and Polish Television); academics, the directors of private schools, the heads of media firms, tax advisers, banking and stock exchangeofficials, and the heads of sporting associations. It did not accept that the Censorship Bureau and the Bureau of Religious Affairs should be regarded as organs of state security. It also rejected the proposed publication by the IPN of a catalogue of agents and lists of alleged collaborators with the secret services, and it limited the opening of files to the public to those in the highest offices of state. The Tribunal questioned the model lustration declaration, to whichwas appended a list of categories of collaboration to which a person could admit but which were not clearly defined.

PiS’s tenure, with marked instability of the governing coalition, was brought to a premature end in October 2007 by asuccessful vote of no confidence and the calling of premature elections, won by its main rival Civic Platform. However, the brief period between 2005 and 2007 was eventful, with the extension of the role of the IPN, a number of high profile

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lustration cases, the renewal of charges against communist leaders for ‘communist crimes’, disputes over historical interpretations of the past, and an attack on the judiciary itself. Several government officials lost their posts, notablythe deputy premier and minister of finance Zyta Gilowska in June 2006, after the Public Interest Representative accused her of secret collaboration with the security services. Gilowska returned to Jarosław Kaczyński’s government after hervindication by the Lustration Court. In mid-2005 a serious candidate for chair of the IPN was Andrzej Przewoźnik. After Rzeczpospolita claimed knowledge of a document showing that Przewoźnik had been an informer, his chances vanished. The decision of the Lustration Court clearing his name came too late.

During this period the Catholic Church also became embroiled in the question of collaboration. Throughout the 1990s the Church had largely avoided public scrutiny of its relations with the communist state – and it was not subject to lustration legislation. The first allegations of collaborationcame in 2005, shortly after the funeral of Pope John Paul II. The IPN published documents purporting to show that Father Konrad Hejmo, former deputy director of the Press Bureau of the Polish Episcopate in Rome and later the patron (opiekun) of Polish pilgrims, had been a secret informer in the years 1975-1988. The Church defended Hejmo, and a year later the historian Peter Raina published the Anatomy of a Lynching,15 a scathing assessment of the IPN’s findings. The most high profile case occurred in 2007, when the media accused archbishop Stanislaw Wielgus, appointed to run the Warsaw diocese, of collaboration; the archbishop resigned on the day of his inauguration. In March 2009 the Bishops declared the matter of lustration in the Church ‘closed’. There were no grounds for claiming that members of the Polish Episcopate hadconsciously and voluntarily collaborated with the security services of the Polish People’s Republic.

Accusations of ‘lustration lying’ were common, and often it took years for an individual to gain vindication. Accusations themselves were sufficient to cause resignation, as in the case of Minister of the Interior Janusz Tomaszewski, whose case was prolonged because the Public Interest Commissioner

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appealed against the Court’s finding that Tomaszewski had not acted as a secret informer for the security services. The caseof former prime minister Józek Oleksy also began in 1999 and ended only when it was discontinued in 2007. Leszek Moczulski,erstwhile leader of the Confederation of Independent Poland (KPN), was still battling to prove his innocence in 2014. In 2007 a PIS deputy claimed that two justices of the Constitutional Court had been registered as operational contacts by the intelligence agencies. Marian Grzybowski (he served from 2001 to 2010) and Adam Jamróz (2003-2012) were removed by the Court’s chair from lustration proceedings. No proceedings were initiated against Jamróz but Grzybowski was charged as a lustration liar; he was finally vindicated in 2013. In 2010 the Appellate Court rejected the IPN’s appeal against the lower court’s finding that TK Justice Mirosław Wyrzykowski (2001-1010) was not a lustration liar. The Court rejected the IPN’s claim that part-time lecturing for a military training college was in fact collaboration with the security services. Some cases just did not go away. That of Lech Wałęsa, former Solidarity leader, Nobel-Prize winner, andex-president resurfaced with alarming regularity.

We have already noted in chapter 2 that after the fall of the Olszewski government in 1991, the person of Wałęsa divided Solidarity yet again after his appearance on the Macierewicz list and the accusation that in the 1970s he had been an informer known as Bolek. Such accusations had been made for many years by some Solidarity activists, including Macierewicz. In 2000 Wałęsa, like all presidential candidates,was subject to lustration. The Lustration Court found Wałęsa’saffidavit of non-collaboration to be truthful. In 2005 Wałęsawas given the status of ‘one harmed’ by the security services by the IPN. The saga did not end there. The division between the supporters and opponents of Wałęsa persisted, with periodic accusations of Wałęsa’s ‘collaboration’ despite his clean bill of health by the lustration authorities. Jarosław Kaczyński and PiS were firmly in the anti-Wałęsa camp.

In June 2008 the IPN published The SB and Lech Wałęsa. A Contribution toHis Biography16 which repeated the claims that Wałęsa had served as an informer in the 1970s. Moreover, as president (1991-95),it was argued that he had received, amended and removed or

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destroyed incriminating evidence against him. The book was seen as much as a political weapon as a historical document. The young historians were accused of placing too much weight on the files themselves. This fed into wider issues of ‘the politics of history’ (see below).

Later that year the IPN revealed the text of an affidavit by Edward Graczyk, a former SB functionary long thought to be dead. Graczyk, the officer allocated from December 1970 in Gdańsk to the interrogation of shipyard workers, including Lech Wałęsą, testified that although ‘Bolek’ was the pseudonymallocated to Wałęsa, Wałęsa had never been a secret informer, had never received monies from the security services, and thatinformation gleaned from his interrogation had harmed no one.17

However, when in 2010 Wałęsa pursued defamation charges against Krzysztof Wyszkowski, former SB major Janusz Stachowiak testified that he had handled all the documentationof Wałęsa’s meeting with the security services and that Wałęsahad willingly cooperated. The Gdańsk Regional Court found Wyszkowski not guilty. A year later the Appellate Court reversed this decision and ordered Wyszkowski to apologise to Lech Wałęsa.

Lustration after 2007: the government of Civic Platform

Civic Platform had generally supported lustration, albeit withreservations. Most of the party had voted for the 2007 changes. However, the PO perceived the Chair of the IPN, Janusz Kurtyka, as too close to PiS, with a ‘shared view of history’, leading to demands for amending the law. The Executive Committee (Kolegium) was also highly politicised, having been chosen in 2007 from party nominees of the-then governing coalition of PiS, Self-Defence and the League of Polish Families. The PO spokesman claimed that ‘today the de-politicisation of the Institute of National Memory is one of the most important social expectations.’18 The new law19 introduced changes to the appointment and dismissal of the chair after the expiry of the term of the current incumbent (in fact, Kurtyka perished in the Smolensk air disaster of April, 2010). Members of the new governing Council would have to be professionally qualified. A proposal to abolish the IPN altogether was however roundly defeated in 2012.

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Over the next few years the lustration process was more or less routine. Table 1 shows the work of the new Lustration Department of the IPN. It shows that a very small proportion of affidavits denying cooperation with the security services were actually referred to the regional courts. The column ‘final court judgments’ refers to cases completed – i.e. afterall appeals had been exhausted; so the figures here are not necessarily related to the annual referrals in the previous column. However, we can conclude that the IPN did not unearth many ‘lustration liars’.

Table 1: Lustration affidavits 2009-2013

Year affidavits verified

referred to court

final courtjudgments that year

of which, finding against accused

Total affidavits in archive

2009 5,3000 79 16 132010 5,000+ 68 52 352011 7,548 87 382012 7,715 136 68 2969852013 10,000 210 183 135 299698Source: IPN reports to the Sejm

Aside from investigating the affidavits of candidates, the IPNconcentrated its attention on the foreign ministry, local government and the legal professions. Two cases that attractedparticular attention were those of the former deputy minister of foreign affairs Maciej Kozłowski and former ambassador Tomasz Turowski, both vindicated by the courts, in Kozłowski’scase sixteen years from the start of investigations. Another prominent case was that of renowned communist-era journalist Irena Dziedzic, who had appealed after being branded a ‘lustration liar’ by the Warsaw Regional Court in 2010. In 2011 the Appellate Court ordered a retrial, when the same Warsaw Court found her affidavit to be truthful. The AppellateCourt refused to allow the IPN to appeal in 2013.

The IPN did not provide details of ‘positive affidavits’, submitted by those acknowledging cooperation with the securityservices. This information was provided by the Electoral Commission for candidates for elected office, but it was not 11

widely available for public functionaries. Over the years somefamous names had acknowledged their cooperation, including theeconomist and politician Andrzej Olechowski, who came second in the presidential election of 2000 and was a leading light in the formation of Civic Platform in 2001. Olechowski revealed that while working in international economic institutions he had provided economic information to the intelligence services. Jerzy Szeliga of the SLD retained his seat in 2001 (check), despite his positive affidavit. Szeliga,admitting cooperation with the intelligence services while working as an intern in East Germany, maintained that he aimedto prevent Poles from being recruited by the East German secret police, the Stasi.

In 2009 the IPN provided former Self-Defence deputy Zbigniew Nowak a list of 1706 persons who had acknowledged working for or cooperation with the security services.20 By the end of 2013this number had risen to 2785.21 However, according to some reporters it became more difficult to obtain detailed information from the IPN. When in 2011 Rzeczpospolita’s Cezary Gmyz asked how many current diplomats had confessed to cooperation with the security services, he was given a list of222 names. Later, when he asked how many serving generals had revealed their cooperation, the request was denied.22

Lustration in Sum

It is clear that lustration was highly charged and deeply political. The putative failure of the Mazowiecki government to ‘deal with the past’ set in train an issue that refused to go away. After the fiasco of the Macierewicz List, the victoryof the SLD, and the Oleksy Affair, lustration came to the forewith the instauration of right-wing governments, first under AWS and then under PiS. Yet for all the sound and fury, it ishard to regard lustration as a successful policy, even by the lights of its strongest adherents. Despite the undoubted sincerity of its most ardent proponents, lustration was so palpably politicised as to seem to many a mere instrument of the political game, far from the cleansing, truth-seeking process claimed for it. We shall discuss this further in Working Paper 5, along with the theoretical dimensions. We turn now to the issue of the past crimes of the communist regime.

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Crimes of the Past

Trials of the Top Communist Leadership

The issue of the culpability of communist leaders spanned the whole of the post-communist period. Wojciech Jaruzelski himself, along with former interior minister General Czesław Kiszczak and other communist leaders, faced various charges over the years until his death in May 2014. These were linked to the deaths of workers on the Baltic Coast during protests in December 1970, the declaration of martial law, and the deaths of miners protesting in the immediate aftermath of martial law.

Jaruzelski was Poland’s Minister of Defence in 1970, and he was First Secretary of the communist party from October 1981, when he succeeded Stanisław Kania. The inquiry into the deathsof 1970 began in 1990.  In September 1993 some elements of theinvestigation were suspended because some of those charged were dead (including former first secretary of the PZPR Władysław Gomułka); because of the statute of limitations; andbecause of the failure to identify the specific perpetrators of the fatal shootings. However, by April 1995 an indictment had been prepared against twelve people held responsible for the deaths of the Baltic protestors.

In March 1996 the Gdańsk provincial court opened proceedings. The charge against Jaruzelski was that ‘as Minister of Defenceof the Polish People’s Republic, directing the actions of the Polish Army to suppress those protesting against increased prices…on 15 December 1970 he issued a command at the instigation of…Władysław Gomułka and in contravention of Art. 32 (7) of the Constitution, to use live ammunition by militaryunits acting against the demonstrations, while understanding and accepting that this could result in the deaths of an unspecified number of persons.’ His co-defendants were similarly charged with culpability for the deaths.

The Court was beset by delays and rescheduling, and the frequent absences of the accused and the consequent disruptionof proceedings led the court to seek guidance on the state of health of those charged. The matter reached the Supreme Court,which decided in its judgement of November 199923 that under

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certain conditions – such as the provision of lengthy breaks and the presence of medical teams - Jaruzelski and nine otherscould be tried in Warsaw, their place of residence, rather than in Gdańsk, where most of the witnesses resided. The trialresumed in Warsaw in autumn 2001. This trial had not concludedwhen charges concerning martial law were laid in 2008.

In October 1996, while the SLD was in office, the Sejm had resolved to discontinue (umorzyć) proceedings conducted since 1993 by the Commission on Constitutional Accountability in the‘matter of calling to criminal and constitutional account before the Tribunal of State persons responsible for the introduction and implementation of martial law’ – Wojciech Jaruzelski and fifteen others. The Commission based its recommendations on a variety of technical legal flaws in the formulation of the original Sejm resolution, as well as its assessment of the merits of the case. In a nutshell it concluded that the Council of State had the constitutional capacity to introduce martial law and that its members, whether or not objectively correct, were motivated by genuine and legitimate anxieties about the security of the country in 1981.24

However, the Institute of National Memory (IPN) took up the question of martial law, and in 2007 its procurators finally charged its ‘authors’ - Wojciech Jaruzelski, former interior minister Czesław Kiszczak, and Stanislaw Kania, the communist party's (PZPR) former first secretary (and eight others). After numerous delays the trial began in earnest in September 2008. The accused were charged with inciting the members of the Council of State to violate the constitution by declaring martial law and with having ‘directed an armed criminal organisation’ for the purpose of imposing martial law on 13 December 1981, thereby violating the basic freedoms of Polish citizens.25 All the accused were elderly and in ill health. Indeed, for this reason Jaruzelski, now diagnosed with cancer,was excluded from the trial in 2011 along with three co-defendants. Two others died before the trial ended. Jaruzelskihimself died in May 2014 at the age of 90.

In 2011 the Constitutional Tribunal issued a judgment declaring martial law illegal. The ‘martial law’ trial

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continued, and the following year the Warsaw Provincial Court found Kiszczak guilty. Stanisław Kania and Eugenia Kempara were acquitted because they had played no active role in the proclamation of martial law – Kania had already been removed as party leader in October 1981. Kiszczak was sentenced under art. 258 § 2 of the Criminal Code to four years’ imprisonment,reduced to two years by virtue of the amnesty of 1989 and suspended for five years due to the state of his health. In June 2013 the Appellate Court suspended the trial itself on health grounds – Kiszczak was then 88. In July 2014 the IPN requested a new medical examination, granted by the Appellate Court.

By 2014 Czesław Kiszczak had effectively been on trial for almost twenty years. In 1996 he was acquitted of authorising the use of live ammunition against striking miners of the Wujek and Manifest Lipcowy mines in December 1981, following the declaration of martial law. A second trial, which ended in2004, saw Kiszczak found guilty of contributing to the deaths in the two mines. He received a suspended sentence of four years, reduced to two as a result of the 1989 amnesty. The appellate court then ordered a retrial, which began in 2006. In July 2008 the court concluded that Kiszczak bore ‘involuntary responsibility’ (wina nieumyślna) for nine deaths atthe Wujek miner and discontinued proceedings. A fourth trial began in February 2010 on the same charges of contributing to the deaths at Wujek. In April 2011 the Warsaw District Court acquitted the former general.

Communist Functionaries

The top leadership was not the sole focus of concern; lower-level functionaries also faced investigation. Initially the IPN’s investigative arm, the Commission for Investigating Crimes against the Polish Nation, focused on officials of the security services and investigating officers, including their responsibility for (among others) false arrest, intimidating witnesses, manufacturing evidence, extracting confessions under duress. These cases included the detention and trial of anti-communist resistance fighters during the Second World War, as well as the post-war activities of ‘pro-independence organisations’ more generally.

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The IPN also turned its attention to the phenomenon of ‘judicial crimes’ perpetrated by procurators and judges, both civil and military. These were violations and distortions of law and procedure committed by judges and procurators in trials of the communist period. This investigation was seen asthe corollary of the rehabilitation process: If those convicted had been rehabilitated and their sentences invalidated, as many had been under the terms of the Sejm’s 1991 Resolution, then those who caused the original injustice should also be brought to book.26

At the end of 2009 the Commission was investigating 889 communist crimes – about a quarter of which had been under investigation for five years or more. From 2000 to the end of the first quarter of 2009 the Commission conducted over 6300 preparatory investigations, presented 242 charges against 385 alleged perpetrators, and took evidence from 67397 witnesses.27

In 2013 IPN procurators completed 1286 investigations and brought to court eleven sets of charges (aktów oskarżenia).

Cases relating to the Stalinist period, before 1954, when repression was at its height, proved particularly difficult. The Report of the Mazur Commission28, set up in 1956 to investigate Stalinist abuses in the military courts at a time when the ‘restoration of socialist legality’ was the watchword, provided the IPN a useful starting point with a list of military judges, prosecutors, investigating officers and their victims.29 However, in many cases indictments were not possible (or were dismissed) because the alleged perpetrators were dead. In some cases extradition was refused by foreign governments. For example, on three separate occasions between 1999 and 2008 Poland unsuccessfully sought the extradition of former procurator Helena Wolińska-Brus fromthe United Kingdom; Wolińska-Brus had left Poland in 1968 withher husband, the eminent economist Włodzimierz Brus, as a consequence of the ‘anti-Zionist’ campaign then waged by the communist authorities. The Polish indictments were based on the allegation that Wolińska-Brus had fabricated evidence leading to the execution of General Emil Fieldorf in 1953 and the wrongful arrest and imprisonment of 24 other anti-Nazi resistance fighters. In 2010 the Swedish authorities similarlyrefused to extradite another 1968 exile, former judge Stefan

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Michnik, accused of presiding over a dozen or so problematic trials of former army officers in the Stalinist period.

The IPN also reopened the most celebrated cases of the post-Stalin era, such as that of the death of Stanisław Pyjas in 1977, the death of 19-year old Grzegorz Przemyk in 1983, and the murder of Father Jerzy Popiełuszko in 1984 (see paper 2). In 1998 the law on the IPN had effectively replaced the concept of Stalinist crimes with that of ‘communist crimes’. What had been ‘murder’ was now reclassified as ‘communist crime’ because it had been committed by a functionary of the state. However, in December 2009 the Appellate Court freed Ireneusz Kościuk, found guilty of the fatal beating of Przemyk, on grounds that the cut-off date for the statute of limitations had passed. This was confirmed by the Supreme Court in 2010.30 Charges brought against 21 former functionaries of the police and security services for irregularities in the investigation of Przemyk’s death, including undue pressure on witnesses so that the ‘real perpetrators’ evaded justice, also fell. By the end of 2012 all investigations into the Przemyk case had been discontinued.

The statute of limitations proved a major problem in bringing cases for historic crimes. We will discuss this further in chapter Z. Unless the charges entailed crimes against humanity, ie were not isolated inhumane acts but part of widespread or systematic practice, prosecutions did not succeed if the time limit had been exceeded. However, this didnot necessarily mean that cases were not pursued, nor that they were not brought to the courts. In most recent cases, with mixed success, the charge sheet specified that the crimeswere ‘communist crimes and at the same time crimes against humanity’.

This was so in charges faced by former commanders of the provincial police in regard to the arrests and internments of martial law. The illegality of martial law was not the basis of these charges, but rather the premise that arrests and internments immediately after the declaration of martial law were illegal because the decree establishing it had not yet been published in the Journal of Laws. A number of complex legal decisions by the Supreme Court and the Constitutional Tribunal

17

addressed this question; they will be discussed in Paper 4. Charges also related to the period following the suspension ofmartial law (July 1983) – such as those laid against functionaries like Ryszard C. who violated the human rights ofanti-government demonstrators in Krakow in May 1986, ‘by preventive arrests of activists of the anti-communist opposition to prevent their attendance at holy mass and in pro-independence demonstrations....’.31 We shall see that in some cases the IPN clearly rested on violations of existing law by state officials. In others they appeared to depart fromthat standard, applying retrospectively interpretations of laws that would not have been accepted at the time. We shall also pursue this further in Paper 4.

Some cases investigated by the IPN belonged to the realm of the historians rather than criminal investigators. No charges could conceivably be brought in these cases, investigated for putative communist conspiracy. In November 2008 the body of Poland’s wartime leader General Sikorski was exhumed from Wawel Cathedral, Krakow, while three other victims of the air crash in which he died in July 1943 were exhumed from the Polish War graves cemetery at Newark, England. An examination of the bodies was carried out to determine the cause of death,but no evidence was found that the officers had been murdered.However, the IPN’s investigations into the possibility of sabotage continued until 2013, when it concluded that ‘the investigation could neither confirm nor refute the possibilityof …sabotage.’32 In 2014 the IPN also suspended its investigation (from 2006) into the assassination attempt on Pope John Paul II.33 Along with many Nazi atrocities – not dealt with here - it also investigated the murder of thousandsof Polish officers by the Soviet NKVD at Katyń in 1940.

Communist Crimes in Sum

It is hard to see the pursuit of the communist leaders and their subordinates in terms other than vengeance. The IPN appealed virtually every judgement that went against it. Although the courts did take cognisance of the state of healthof defendants, the IPN wreaked havoc on their lives, exacting punishment when the courts did not. There is an obvious case for historians to reveal the injustices of the past – and

18

these injustices were many, often with devastating consequences for the victims of repression. One cannot see theprosecutors of the IPN as an instrument of justice. Areas suchas martial law remained contentious, and many Poles accepted Jaruzelski’s own arguments that he had chosen the lesser evil.We shall review this and other historical controversies in Paper 4. For all the energy and money expended, justice was not obviously served by the IPN.

The Files

The files of the security services were obviously closely bound up both with the issues of lustration and the pursuit ofthe perpetrators of crimes in the communist period. One major criticism of the revelations of the Macierewicz List in 1991 stemmed from the fact that the accused had no means of access to files and thus no way of understanding or challenging the case against them. Early proposals to close the files altogether, say for a period of fifty years, proved politically unfeasible. However, the 1997 Lustration Law did not deal with the issue of access to the files. That came in the law of 1998: establishing the Institute of National Memory(IPN) was intended to resolve the problem of the files. All documents - from the Ministry of the Interior, the Office of National Security, Military Information Services and many others - were to be transferred to the archive of the IPN. This work was more or less competed by 2005. One part of the archive was to remain restricted: Documents with national security implications were to be separated (wyodrębnione), with no access save to persons specified by the Minister of Defence or the head of the State Security Bureau (Urząd Ochrony Państwa) (art. 39). However, courts dealing with lustration and also the Public Interest Representative were not restricted by this clause [art. 39 (5)].

The remainder of the archive was available, with some conditions. Up until 2008 after receiving the status of ‘damaged’ or harmed (pokrzywdzony) from the IPN, victims of the old system - those about whom the organs of the security services had gathered secret information (art. 6) - could reada copy of their personal files, with the names of third parties removed. They could however then proceed to request

19

the names of secret service functionaries and the names or pseudonyms of informers. Victims could request that their files remain anonymous but this could be refused in cases of academic research. They could also agree to the public releaseof their own files (art. 37).

Files could also be used for academic research (art. 36). Amendments to the law in 1999 now required a justification forany refusal to deny anonymity on grounds of academic research (art. 34 (2) and also required the authorisation of the director of the IPN for academic research (art. 36). The DataProtection Registrar Ewa Kulesza criticised the IPN’s interpretation of the law, which extended access not just to academics but also to journalists who were ‘doing research’.

In July 2001 the IPN began to accept requests for access. During the first year of effective operation the IPN granted 459 persons the status of ‘pokrzywdzony’.34 Between July 2001 andthe end of 2007 9826 persons were deemed ‘pokrywdzony’ and thusable to see their personal files. Those not granted this status (often because of lack of documentation in the archive), still had no means of challenging the so-called revelations of wild lustration. The release of the Wildstein List in 2005 created potential injustice for thousands of people who were on the list but were not granted ‘damaged’ status. Although the IPN was inundated with requests to provide affidavits of non-collaboration, it had no powers to do this. If a name figured on the list, it could do no more than confirm any mistaken identity. The only concession was – ironically – to former security service personnel, who gained the right to see their own personnel files (but not their reports on their targets) after of the Constitutional Court judgment of October 2005 (this will be discussed further in working paper 6).

In 2007 the status of ‘pokrzywdzony’ was removed in the revised Lustration Law. But Art. 30 § 2 of the law on the IPN still provided that it would not make available documents whose ‘content revealed that the applicant a) was treated by the security services as a secret informer or aided in the operational gaining of information b) obliged himself to provide information to an organ of state security or provided

20

such an organ with any assistance whatever in operational actions’35. When the TK struck down Art. 30 in May 2007, the IPN continued to reject applications. The head of the IPN did not accept the argument that since Art. 30 § 2 had been declared unconstitutional and repealed, then it followed that a different provision (Art. 31 § 1) with the same content was also unconstitutional. He argued that only when the Constitutional Court expressly declared unconstitutional a given provision of the law was the IPN under the obligation not to apply that provision.

The 2007 law also provided that individuals could request the names of all functionaries who had dealt with them, as well asthose who had provided information about them. They could alsorequest that the personal data in their files – health status,sexual preference, ethnicity, religion, and so on – should notbe made available. Academics and journalists gained full access to the files with further amendments of June 2007; thishad been suspended for a few months as a result of the Constitutional Tribunal’s decision in May. Refusal to release files could be appealed to the administrative court, sitting in closed session.36

From 2007 all citizens could also gain access to the files of persons holding high offices of state and employees or functionaries of the organs of state security, including personal information. Those who felt injured by any subsequentrevelations could take civil action. In the Sejm SLD spokespersons had argued that each citizen should have the right to inspect the documents about him or her and to remove inaccurate or incomplete information.

We noted above the legislative changes in March 2010 to the governance of the IPN. The lawmakers also acted to reduce the problems that had arisen from efforts to construct legal mechanisms to prevent access to their files of former functionaries and ‘their human sources of information’. We have seen that it was very difficult for those refused access to defend themselves against charges of collaboration with thesecurity services – a process made more difficult by the IPN because of its ‘ever-wider and arbitrary’ criteria for granting access to documents (rozszerzających i arbitralnych kryteriów

21

odmowy).37 The revised law meant that the IPN could no longer determine whether and to whom documents could be released; it must release documents to anyone making such a request for their own files (Art. 30). Moreover, individuals could preventaccess to their personal data for up to fifty years (Art. 37).38 Sometimes refusals were also motivated by the inability of the archive unambiguously to identify, for example, individual informers.39

These changes were designed to reflect Civic Platform’s policyof ‘depoliticising’ the IPN and also to meet the requirements of another Constitutional Court judgment finding sections of the 2007 legislation unconstitutional.40 After rejecting Art. 30 (see above) the TK now also found that Art. 31, similarly providing for the refusal of documents, violated the right to protection of one’s private life, the right of access to official documents and collections of data, and the right to demand the correction of incorrect or incomplete information. Applications and refusals are enumerated in Table 2.

Table 2. Requests for access to files held by the IPN (number)1

Year requests granted for access to documents (anonymised to May 2010)

requests granted for access to or copies of non-anonymised documents

requests for names & data pertaining to employees, functionaries & secret collaborators

applicants requesting & receiving accessto documents

applicants refusedunder Art. 31

applicants receiving documents or copies

requests realised

functionaries refused access

secret collaborators (TW) refusedaccess

200 10285 215 1827 22 1563

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72008

15765 949 3323 697 85 1838

2009

4497 1133 6345 914 174 2025

2010

3462 264 4024 423 213 1282

2011

2463 2305 262 38 857

2012

1901 1759 185 25 353

2013

2246 2129 133 25 469

1 The table excludes applications submitted and pendingSource: IPN Reports to the Sejm

At the same time, however, despite the attempts of the-then Data Protection Inspector Ewa Kulesza, Art. 71 still exempted the IPN from the provisions of the data protection laws (‘the law on data protection of 1997 does not apply to the activities of the Institute…defined in Article 1’). Despite the changes in 2010 the privacy provisions did not affect access of scholars and journalists to unexpurgated files. Seweryn Blumsztajn, former opposition activists and Gazeta Wyborcza publicist observed that ‘...if the militia or the Security Service (SB) ever took an interest in you, then todayyou are public property. You have no right to your own past and anyone can do with it as they wish.41 For GW ‘access to information about an individual’s intimate secrets – often gained illegally by the security services – appeared to be fodder for journalists’.

In 2012 legislation was proposed to deal with some procedural objections of the TK42, including the imprecision and vaguenessof Art. 32 and its procedural requirements; the secrecy of hearings in appeals against the IPN to the administrative courts; and the absence of a requirement for a written justification of the courts’ decision. In the view of the Tribunal the justification of an administrative decision is anessential element of the individual right to appeal, while thelack of justification deprives the plaintiff of a genuine possibility of defence. The response was to propose the

23

deletion of the offending sections of Article 32.43 But in October 2014 the draft had not had its first reading.

The Files in Sum

It took nearly twenty years to resolve, more or less, the issue of personal and public access to the files of the security services and other public institutions. Here too there was considerable scope for the politicisation of the process. Even after 1998 the initial emphasis on ‘victims’ andthe effective discretion of the IPN, as well as the IPN’s own willingness to reveal information (as in the case of Father Hejmo, noted above), made the whole process deeply dissatisfying. Accusations based on deductions about the putative identity of informers still surfaced in national and local politics in 2014.44 Data protection issues have been ignored. Journalists’ access ‘for research’ seems particularlyproblematic. Compensation for Past Wrongs

In the last paper we discussed various mechanisms for dealing with the victim of oppression under the previous regime. In the period after 1997 new legislation emerged and a number of previous laws were amended and extended to increase the scope of compensation. After 1998 the IPN became a major instrument of compensatory mechanisms. People needed affidavits or documentary evidence for a variety of reasons. Requests for affidavits or evidentiary materials came from individuals and also from the judicial organs. In addition the IPN responded to requests to confirm imprisonment in the period 1944-56 for political or religious activity linked to the struggle for sovereignty and independence.45 It also dealt with requests fordocuments showing imprisonment for political activity after 1956. The IPN issued 45 378 pages of copied materials, excerpts, or abstracts of documents.

Adding to earlier laws on combatants and political prisoners, the new 1998 law on pensions provided that contributions wouldbe attributed to periods when individuals were engaged as combatants (or their equivalent) or were victims of repressionduring or after World War II; had been imprisoned for political reasons; or worked before 1989 for organisations

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deemed illegal under the-then law.46 Of particular importance was the 2007 amendment, extending the 1991 law (the ‘February law’) on unjust judicial verdicts between 1944 and 1956 right up to 1989.47

The new law provided procedures for seeking compensation for all verdicts by the courts and decisions of the security services for acts undertaken in the pursuit of ‘independence’.This now included internment and the judgments of civil and military courts after 13 December 1981 (the introduction of martial law), with the possibility of financial compensation up to 25,000 złoties for damaged health and harm done after 1956. In 2009 another law extended compensation to the families of those who had died ‘as a result of participation in mass gatherings, demonstrations and strikes’ between 1956 and 1989.48

By the end of 2011 an estimated 75000 oppositionists had received compensation for false arrest or internment.49 In thatyear the Constitutional Court declared the 25,000 limit unconstitutional, requiring individual assessment of the amount of compensation in each case.50 This led to renewed applications for greater compensation. Some famous names such as former senator Zbigniew Romaszewski and KPN activist Adam Słomka attracted criticism on the grounds that it was not those responsible but the new democratic state which would pay, causing undue budgetary pressures at a difficult economictime.

Restitution of Property

The restitution of property had two main dimensions – it related to property nationalized by Polish communist governments and later also to property confiscated by Soviet authorities in the Polish borderlands transferred to the USSR.We have seen that in the first instance attention was concentrated on restoring the property of the trades union andthe Catholic Church. Gradually the right to restitution was extended to other religious bodies, including the Jewish communities. Yet despite many legislative proposals in the early 1990s there was no law governing the return of property to former individual owners. Restitution (or in Polish

25

terminology ‘reprivatisation’) was not a priority. When a Reprivatization Law passed in 2001 under the AWS government, the Sejm failed to overturn President Kwaśniewski’s veto. In Tyszka’s view the dominant narrative referred to the entire population as victims, hence the impossibility of universal compensation.51

The historical issue of Poles from the ‘lands beyond the Bug’ was recognised in law because the Polish authorities had entered agreements with the Soviet Union in 1944 to provide compensation for the loss of their property. But theory aside,plaintiffs encountered obstruction until the 2004 ruling in Broniowski v Poland at the European Court of Human Rights. The government responded with the law of 200552 providing for compensation equal to the value of 20% of the value of the lost property.53 As of October 2012 some 43 per cent of 111,600applications from those leaving the eastern territories of what became the USSR had been dealt with and compensation paidof over 2.1 milliard złoties.54 Yet even as late as 2012 the IPN commented that a considerable proportion of queries submitted still centred on matters such as repatriation and repression against Polish citizens in the so-called eastern lands of the Second Polish Republic and the former USSR.

Compensation came from the Reprivatization Fund (Fundusz Reprywatyzacji), funded by the value of five per cent of shares sold in the privatization of state enterprises, createdin 2001 on the basis of the 1996 law on commercialisation and privatization.55 The fund met individual claims for wrongful imprisonment under the 1991 law as well as for property illegally seized by the communist regime.

Indeed, the National Administrative Court, the Supreme Court and the Constitutional Court proved receptive to individual claims under the Civil Code. Most individual claims relied on administrative procedural law.56 The administrative bodies decide whether a decision of nationalisation violated then existing law in a 'shocking breach of law'. This gives some scope for arbitrariness because there are no set criteria for a ‘shocking breach’. When breach is found, the nationalizationdecision is annulled; thus the state has no right to possess the property claimed; it should be returned to its owner in

26

nature. If this is not possible, then the claimant has the right to claim compensation.

Collectivization had failed in Poland and most agricultural land remained in peasant hands. Unsurprisingly there was no move to restore land to the dispossessed landowning class. However, palaces, castles and country houses were often given back to former owners or their heirs because estates under 50 hectares had been illegally seized under the land reform law or because residences lacked the ‘agricultural purpose’ specified in the reform. According to estimates of the Ministry of the Economy from 1989 to 2012 about three quartersof the 4000 claims brought to the courts on grounds that the nationalization of their enterprises had been invalid under communist law found in favour of the former owners.57

The Politics of History

In addition to the various mechanisms of post-communist justice, the ‘politics of history’ or ‘historical politics’ emerged as a major theme in Poland’s transitional justice debates at the beginning of the twenty-first century. Of course from 1989 it was obvious to all that Poland’s history had to be rewritten, if only for the purposes of the teaching programme in schools and universities. The old regime had written its own history to its advantage, albeit countered in some measure by the underground press, including contrary interpretations of historical events and personal memoirs.

The cessation of the censorship, access of historians to new materials, and the readiness of participants to record their memories and experience led to an explosion of new historical monographs. Historians were divided over the nature of the communist regime, its evolution, and its impact.58 However, therevisionist task for historians was complicated by politiciansonce again seeking to use history for their own ends. Anna Wolff-Powęska defined ‘historical politics’ as ‘the conscious action of the political class with the aim of shaping the scope and character of collective historical memory’.59 She argued that ‘years of dictatorship made it difficult to acceptthe fact that in a socially differentiated, democratic state historical memory is polyphonic, dynamic, accelerated, and

27

commercialized’.60 One might counter that it was precisely divisions within the political class that made history so contentious, especially from the early years of the twenty-first century.

Filip Musiał analysed three irreconcilable traditions shaping contemporary historical perspectives in Poland. The first, theindependence or insurrectionary outlook, rejected any form of compromise with the communists and denied any positive attributes of the communist system for an uncompromising pro-independence anti-communism. This view he associated with the Law and Justice Party (PiS). The second, democratic tradition emphasised the importance of reformist currents within the Communist Party and stressed the importance of compromise and ‘political realism’. Musiał associated this view with Civic Platform – leaving aside its conservative wing. The third, post-communist tradition, saw the Polish People’s Republic as an emanation of Polish statehood with positive achievements inthe political, social, and educational spheres. This approach was taken by the Alliance of the Democratic Left (SLD).61 PiS’sview guided policy during the years 2005 to 2007 and remained influential within the IPN.

Certainly Jarosław Kaczynski’s historic narrative formed a keyelement of the Law and Justice Party (PiS)’s programme for a Fourth Republic to replace the Third (dating from 1989). Therewere four key strands of this discourse, many of which were detectable in his rhetoric from the outset, that is from 1989.The first was the portrayal of the Round Table agreement as aninstance of national treachery, permitting the (ex) communiststo retain the web of their networks intact (the układ) and to burrow deep into the economy. The second extended this critique to the Third Republic, where liberals and disguised leftists conspired to preserve the dominance of the układ and to prevent the exposition of a true history of Polish patriotism in favour of a-national (or anti-national) cosmopolitanism. The third went back the origins of the PolishPeople’s Republic (PRL) to recast the whole of the anti-communist opposition as heroes and champions of independence and mutatis mutandi the communist and socialist proponents of theregime as unpatriotic puppets of the USSR. The primary need

28

was to purge the country of ‘mendacious history’ by restoring ‘true history’ to its rightful place.

PiS mobilised the support of a number of right-wing historiansand sociologists – such as Antoni Dudek and Zdzisław Krasnodębski respectively. Kaczyński attracted support from a group of conservative thinkers for whom the basis of ‘historical politics’ stemmed from the conviction of the need to engage the state institutions in the process of popularising a notion of the past consonant with Polish raison d’etat and the interests of the national community. The social consciousness of ‘real history’ had been infected and distorted by ideology and censorship. Social memory had to be restored and consciousness purged by the elimination of ‘the historical lies manipulated by the (communist) regime.’62 As Dariusz Gowin put it, ‘we postulated active state policies in the sphere of history. A state which consciously eschews such actions becomes the object of the historical policies of others’.63 The notion that Poland needed to counter false or misleading interpretations of history fostered by other stateswas a common theme.64 This was coupled with attacks on the leftand liberal governments of the first post-communist period; according to Krasnodębski, ‘The ideology of Polish liberalism and the utopia of the open society negated the need for collective memory and state policies on history.’65 When JanuszKurtyka took over as director of the IPN in December 2005, these views became a driving force for the IPN, with a centralrole for the popularising of its research findings through public lectures, travelling exhibitions, multi-media presentations, internet portals, brochures and leaflets, teacher training materials, and a strong presence of Facebook.66

The IPN quickly became the key body for historical research, with funds, staffing and resources that massively exceeded those of academic historians. The historians of the IPN generated a vast output of new historical monographs, but theythemselves became an object of criticism.67 We have already referred to the controversial study of Lech Wałęsa. Indeed, a major criticism centred on the centrality and uncritical acceptance of the security service files as the key source forthe communist period. The historian Peter Raina accused the

29

authors of the IPN report on Father Hejmo of methodological failures and false conclusions. Some IPN historians were also accused of serving overt political aims. Darius Stola referredto the emergence of a particular type of ‘militant historian’ engaging in symbolic politics and presenting a polarized black-and-white view of history.68

Conclusion

The period after 1997 saw the development of themes that had already emerged after 1989 – identifying the main constituentsof transitional justice. Lustration, former crimes, access to the communist archive, and compensation and restitution were already the subject of debate – and action – from 1989 onwards. None the less it is clear that when right-wing parties took office, they took a very different view from the liberal approach of the first non-communist governments. Lustration became harsher, compensation was extended to greater numbers, and communist wrongdoers were pursued relentlessly through the courts. Then, from the beginning of this century, history itself became a part of this process – mendacious history was both deplorable in its own right and anobstacle to genuine justice. ‘Right’ or ‘real’ or ‘truthful’ history emphasised the evil of the communists and the heroism of the opposition.

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1Notes (some of these notes are incomplete; that will be remedied in due course)

'Projekt nowelizacji ustawy lustracyjnej', Rzeczpospolita, 14 November 1997.2‘Projekt ustawy wniesiony przez Komisję Praw Człowieka i Praworządności o zmianie ustawy o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944 - 1990 pełniących funkcje publiczne’, on-line athttp://ww2.senat.pl/K4/DOK/DR/000/046.HTM3 ‘Ustawa z dnia 18 czerwca 1998 r. o zmianie ustawy o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne oraz o zmianie niektórych innych ustaw’, Dziennik Ustaw 1998 no 131/860.4‘Informacja Rzecznika Interesu Publicznego o działalności w latach 1999-2004’, Druk Sejmowy 4263 30 June 2005, from http://orka.sejm.gov.pl/Druki5ka.nsf/0/2AC61E5EED622DF0C125729E00617958/$file/1509.pdf5 K 39/97, 10/11/1998 & 5/10/2000 KKN 271/006‘Ustawa z dnia 18 grudnia 1998 r. o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu (unified text)’, Dz.U. 1998 nr 155 poz. 1016, from http://orka.sejm.gov.pl/proc3.nsf/ustawy/31_u.htm7‘Projekt ustawy o utworzeniu Archiwum Obywatelskiego oraz o powszechnym udostępnianiu dokumentacji wytworzonej w latach 1944 - 1990 przez organy bezpieczeństwa państwa’, November 1997, Druk Sejmowy 31, from http://orka.sejm.gov.pl/SQL.nsf/projustkom3?OpenAgent&NAD8.Rzeczpospolita. 5 March 1999.9 ‘Ustawa z dnia 13 września 2002 r. o zmianie ustawy o ujawnieniu pracy lub służbyw organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne’, from http://orka.sejm.gov.pl/proc4.nsf/ustawy/765_u.htm10Informacja Rzecznika Interesu Publicznego o działalności w 2006 r., Druk 1509, 7 March 2007, from http://orka.sejm.gov.pl/Druki5ka.nsf/0/2AC61E5EED622DF0C125729E00617958/$file/1509.pdf11 Rzeczpospolita, 21 April 2005.12 ‘Ustawa z 18.10.2006 r. o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat 1944-1990 wraz ze zmianami wprowadzonymi do niej 14.2.2007 r.’, Dz.U. Nr 165, poz. 1171.13 Piotr Semka, ‘Kto się schowa za plecami Ewy Milewicz?’, Rzeczpospolita, 9 March 2007.14 Quoted in Gazeta Wyborcza, 25 April 2007.15 Peter Raina, Anatomia linczu. Sprawa Ojca Konrada Hejmo, Warsaw: Wydawnictwo von Borowiecky, 2006.16 Sławomir Cenckiewicz and Piotr Gontarczyk, SB a Lech Wałęsa. Przyczynek do biografii, Warsaw: IPN, 2008. 17 ‘Oświadczenie Edwarda Graczyka’, Gazeta Wyborcza, 9 December 2008 (on line at http://wiadomosci.gazeta.pl/wiadomosci/1,114873,6043447,Oswiadczenie_Edwarda_Graczy

ka.html) , accessed 12 August 201418 ‘Klub PO złożył w czwartek w Sejmie projekt zmian w ustawie o IPN’ Polish Press Agency, 3 December 2009, from http://www.tvs.pl/informacje/klub-po-zlozyl-w-sejmie-projekt-zmian-w-ustawie-o-ipn-2009-12-03 (accessed 17 August 2014)19 ‘Ustawa z dnia 18 marca 2010 r.o zmianie ustawy o Instytucie Pamięci Narodowej –Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu oraz ustawy o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat 1944-1990 oraz treścitych dokumentów’, Dz.U. nr 79, poz. 522.20 http://niezaleznemediapodlasia.pl/lista-1706-agentow-sb-na-stanowiskach-publicznych/#more-518821 IPN, 2013 report IPN, p. 16422 Cezary Gmyz, ‘IPN utajnia agentów’, Do Rzeczy no. 26, 24 July 2013. 23Postanowieniem z dnia 8 listopada 1999 r. sygn. III Ko 106/9924 The 49-page report was summarised in the Sejm, session 90, day 3, 11 October 1996, on-line at http://orka2.sejm.gov.pl/Debata2.nsf/9a905bcb5531f478c125745f0037938e/df89b122b0b5a3dbc12574ef004afeb6?OpenDocument25 Akt oskarżenia przeciwko Wojciechowi J., Tadeuszowi T., Stanisławowi K., Florianowi S., Czesławowi K., Emilowi K. Krystynie M.- M., Eugenii K., Tadeuszowi S., on-line from the IPN at Akt oskarżenia przeciwko Wojciechowi J., Tadeuszowi T.,Stanisławowi K., Florianowi S., Czesławowi K., Emilowi K. Krystynie M.- M., EugeniiK., Tadeuszowi S.26 This was a prominent theme of right-wing journalism; see for example Sylwia Krasnodębska, Czy jeszcze warto rozmawiac. Jan Pospieszalski, Pawel Nowacki, Maciej Pawlicki odpowiadajana pytania Sylwii Krasnodebskiej, Krakow: Wydawnictwo M, 2011, pp. 90-92. 27 IPN, 2009 report28 The 1957 Mazur Report was published by Gazeta Wyborcza, 22 January 1999, and later made available on-line: ‘Sprawozdanie komisji dla zbadania odpowiedzialności b. pracowników Głównego Zarządu Informacji, Naczelnej Prokuratury Wojskowej i Najwyższego Sądu Wojskowego’, http://wyborcza.pl/1,76842,7603376,Raport_komisji_Mazura.html#ixzz3F4iHx0Pf29 Fifty of these military judges and procurators are profiled in Krzysztof Szwagrzyk, Zbrodnie w majestacie prawa 1944-1955', Warsaw: ABC Future Spolka, 2000.30 uchwale SN z dnia 25 maja 2010 r. sygn. I KZP 5/10; przestępstwa stanowiące zbrodnie komunistyczne zagrożone karą pozbawienia wolności do lat 5 uległy przedawnieniu z dniem 1 stycznia 1995 r.31 http://ipn.gov.pl/wydzial-prasowy/komunikaty/prokurator-okszpnp-w-krakowie-przedstawil-zarzuty-ryszardowi-c.,-bylemu-funkcjonariuszowi-wydzialu-iii-sluzby-bezpieczenstwa-komendy-wojewodzkiej-mo-w-krakowie32 http://historia.wp.pl/title,IPN-umorzyl-sledztwo-ws-katastrofy-lotniczej-w-ktorej-zginal-gen-Wladyslaw-Sikorski,wid,16291932,wiadomosc.html?ticaid=1134ab33 http://wpolityce.pl/historia/194847-zamach-na-papieza-sledztwo-zostalo-umorzone-przez-prokuratorow-ipn-w-katowicach-najwazniejszym-celem-sledztwa-bylo-ustalenie-okolicznosci-przygotowania-do-zamachu

34 IPN, ‘Informacja o działalności Instytutu Pamięci Narodowej – Komisja Ścigania Zbrodni preciwko Narodowi Polskiemu w okresie 1 lipca 2000 r. – 30 czerwca 2001 r.’, Warsaw, 19 November 2002, Druk Sejmowu no. 1117, p. 10, from

http://orka.sejm.gov.pl/Druki4ka.nsf/0/F2BF9B382E5A490FC1256C7C004C10A5/$file/1117.PDF35 ‘Ustawa z dnia 14 lutego 2007 r.o zmianie ustawy o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat 1944-1990 oraz treści tych dokumentów i ustawy o Instytucie Pamięci Narodowej - Komisji Ścigania Zbrodniprzeciwko Narodowi Polskiemu, Dz.U. z 2007 r. Nr 25, poz. 162 from http://dziennikustaw.gov.pl/DU/2007/162/136 ‘Ustawa z dnia 29 czerwca 2007 r. o zmianie ustawy o Instytucie Pamięci Narodowej — Komisji Scigania Zbrodni przeciwko Narodowi Polskiemu’, Dziennik Ustaw 2007, Nr 140, poz. 983 from http://dziennikustaw.gov.pl/DU/2007/983/137Druk no. 2625, Warsaw, 2 December 2009, from http://orka.sejm.gov.pl/Druki6ka.nsf/wgdruku/262538 ‘Ustawa z dnia 18 marca 2010 r. o zmianie ustawy o Instytucie Pamięci Narodowej — Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu oraz ustawy o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat 1944—1990 oraz treścitych dokumentów’, Dziennik Ustaw 2010, nr 79 poz 522.39Many people did publicise their own files and relevant documents. One example is Antoni Kluzik who was refused access to the names of informers for this reason. Seehttp://www.stopkorupcji.org/aktualnosci/antoniklusik.html 40 Wyrokiem z 20 października 2010 r., sygn. P 37/0941 Quoted in Gazeta Wyborcza, 25 March 2014.42 Syg P37/09 43 Druk 32144 See, for example, ‘Wojna na teczki: TW "Zenek” rozgrzał Łęczną’ from http://www.dziennikwschodni.pl/apps/pbcs.dll/article?AID=/20140329/LECZNA/14032952045 It should be noted that we are not concerned with the period of Nazi occupation,but of course the IPN also responded to requests for confirmation of ‘the fact of extermination or forced denationalization’.46 ‘Ustawa z dnia 17 grudnia 1998 r. o emeryturach i rentach z Funduszu UbezpieczeńSpołecznych’, Dziennik Ustaw 1998, no 62, position 1118, from http://dziennikustaw.gov.pl/DU/1998/1118/147‘ Ustawa z dnia 19 września 2007 r. o zmianie ustawy o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległegobytu Państwa Polskiego’48 ‘Ustawa z dnia 7 maja 2009 r. o zadośćuczynieniu rodzinom ofiar zbiorowych wystąpień wolnościowych w latach 1956—1989’, Dziennik Ustaw, 2009, no 91, position 741, from http://dziennikustaw.gov.pl/DU/2009/741/149 Cezary Łazarewicz and Mariusz Janicki, ‘Zbrodnia, Kara, Odszkodowania’. Polityka50, 7 December 2011.50 sygnatura akt P 21/09.51 Stanisław Tyszka, ‘Restytucja mienia i pamięć zbiorowa w Polsce i w Czechach po 1989 roku’ from Joanna Zamecka (ed.), Normy, Dewiacje i Kontrola Społeczna, Tom XIII, Uniwersytet Warszawski, Instytut Profilaktyki Społecznej i Resocjalizacji, issue: 13 / 2012, pp. 217-236.52 ‘Ustawa z dnia 8 lipca 2005 o realizacji prawa do rekompensaty z tytułu pozostawienianieruchomości poza obecnymi granicami Rzeczypospolitej Polskiej’

53Stanisław Tyszka, ‘Restytucja mienia i pamięć zbiorowa w Polsce i w Czechach po 1989 roku’ from Joanna Zamecka (ed.), Normy, Dewiacje i Kontrola Społeczna, Tom XIII, Uniwersytet Warszawski, Instytut Profilaktyki Społecznej i Resocjalizacji, issue: 13 / 2012, pp. 217-236. 54 Restytucja Mienia w Polsce, Portal Informacyjny, Ministry of Foreign Affairs, 2012, from http://propertyrestitution.pl/Restytucja,w,pytaniach,i,odpowiedziach,Q,A,15.html55 ustawą z dnia 30 sierpnia 1996 r. o komercjalizacji i prywatyzacji56 Grazyna Skąpska, ‘Paying for past injustices and creating new ones: on property rights restoration in Poland as an element of the unfinished transformation’ in Susanne Karstedt ed., Legal Institutions and Collective Memories, Oxford and Portland, Oregon: Hart Publishing, 2009, p. 278.57 Restytucja Mienia w Polsce, Portal Informacyjny, Ministry of Foreign Affairs, 2012, from http://propertyrestitution.pl/Restytucja,w,pytaniach,i,odpowiedziach,Q,A,15.html58Andrzej Friszke, ‘Spór o PRL w III Rzeczypospolitej (1989–2001)’, Pamięć i Sprawiedliwość 1(1)/2002, Warsaw: Instytut Pamięci Narodowej, pp. 9-28.59 Anna Wolff-Powęska, ‘Polskie spory o historię i pamięć. Polityka historyczna’, Przegląd Zachodni, 2007, no. 1, p. 10; from http://www.iz.poznan.pl/pz/pz/15_2007_1_wybrany_art.pdfAccessed 9 August 2014.60 Anna Wolff-Powęska, ‘Polskie spory o historię i pamięć. Polityka historyczna’, Przegląd Zachodni, 2007, no. 1, p. 14; from http://www.iz.poznan.pl/pz/pz/15_2007_1_wybrany_art.pdfAccessed 9 August 2014.

61Filip Musiał, ‘Polityka historyczna czy historyczna świadomość? Działalność Instytutu Pamięci Narodowej’, Horyzonty Polityki, 2011, Issue 03, p. 157. 62Filip Musiał, ‘Polityka historyczna czy historyczna świadomość? Działalność Instytutu Pamięci Narodowej’, Horyzonty Polityki, 2011, Issue 03, p. 154.63 Gowin, Dariusz, ‘Co to jest polityka historyczna?’, Wywiad z Dariuszem Gowinem’,Rozmowy Wiadomości Historyczne, Wiadomości Historyczne, September-October 2006, pp. 46-8, from http://www.edupress.pl/archiwalne-numery/wiadomosci-historyczne/wrzesien-pazdziernik-2006/ , accessed 3 September 201464 See, for example, Wojciech Roszkowski, ‘O potrzebie polskiej polityki historycznej’, p. 125; Dariusz Gowin,’O pożytkach i szkodliwosci historycznego rewizjonizmu’, p. 22-3; both in Dariusz Gowin, Dariusz Karłowicz, Robert Kostro, Zdzisław Krasnodębski, Tomasz Merta, Łukasz Mikalski, Wojciech Roszkowski, Pawel Skibiński, Kazimierz Michal Ujazdowski, and Jan Wróbel, Pamięc i Odpowiedzialność, Krakow: Ośrodek Myśli Politycznej, Centrum Konserwatywne, nd.65 Zdzisław Krasnodębski, ‘Zwyciężcy i pokonani’, in Dariusz Gowin, Dariusz Karłowicz, Robert Kostro, Zdzisław Krasnodębski, Tomasz Merta, Łukasz Mikalski, Wojciech Roszkowski, Pawel Skibiński, Kazimierz Michal Ujazdowski, and Jan Wróbel, Pamięc i Odpowiedzialność, Krakow: Ośrodek Myśli Politycznej, Centrum Konserwatywne, nd.,pp. 55-70.66 Filip Musiał, ‘Polityka historyczna czy historyczna świadomość? Działalność

Instytutu Pamięci Narodowej’, Horyzonty Polityki, 2011, Issue 03, p. 165.67 See for example Paweł Machcewicz , ‘Poland’s way of coming to terms with the legacy of Communism’- (Institute of Political Studies), c 2006 from http://www.eurhistxx.de/spip.php%3Farticle40&lang=en.html68Dariusz Stola, ‘Poland’s Institute of National Remembrance: A Ministry of Memory?’ in A. Miller and M. Lipman (eds.), The Convolutions of Historical Politics, Budapest (Central European University Press) 2012, p. 56.