Published on 19 April 2021

FIRST SECTION

Application no. 38813/17 NOWOCZESNA against Poland lodged on 15 May 2017 communicated on 1 April 2021

STATEMENT OF FACTS

The applicant party, Nowoczesna , is a political party registered in Poland with the headquarters in Warsaw (the “applicant party”).

The facts of the case, as submitted by the applicant party, may be summarised as follows.

The applicant party is an opposition party founded in May 2015. It was initially registered under the name Partia Nowoczesna Ryszarda Petru ( Ryszard Petru ’ s Modern Party) and subsequently renamed in 2017 as Nowoczesna (Modern). In the parliamentary elections held on 25 October 2015 the applicant party obtained 7.6% of votes cast which resulted in winning 28 seats in the lower house of the parliament ( Sejm ).

Before the 2015 parliamentary elections, as required by the relevant regulations, the applicant party set up an Electoral Fund Nowoczesna Ryszarda Petru ( Fundusz Wyborczy Nowoczesnej Ryszarda Petru ) (“Electoral Fund”). A separate bank account was opened for that entity.

Subsequently, in order to participate in the elections, the applicant party also set up an Electoral Committee Nowoczesna Ryszarda Petru ( Komitet Wyborczy Nowoczesna Ryszarda Petru ) (“Electoral Committee”). Again, a separate bank account was opened for this entity.

On 23 October 2015 the applicant party transferred 1,971,500 Polish zlotys (PLN) (approx. EUR 500,000) from the party ’ s bank account directly to the bank account of the Electoral Committee. The transfer request indicated “FW NOWOCZESNA RP”. The party obtained that sum by taking out a loan from the PKO BP bank.

Following the parliamentary elections, the Electoral Committee submitted its financial report, relating to the period between 26 August 2015 and 18 January 2016, to the National Electoral Commission.

In a resolution of 18 July 2016, the National Electoral Commission rejected the report on the ground that the Electoral Committee had accepted funding from other source than the Electoral Fund. The commission noted that the sum of PLN 1,975,000 was transferred directly from the applicant party ’ s bank account to the Electoral Committee, with the omission of the intermediary step: the bank account of the Electoral Fund. This fact amounted to a breach of Article 132 § 1 of the Electoral Code, which provided that an electoral committee could obtain financial means only from an electoral fund. Consequently, pursuant to Article 144 § 1 (3) (c) of the Electoral Code, when an electoral committee accepted funds from other source than the electoral fund, its financial report could not be accepted.

The applicant party lodged an interlocutory appeal with the Supreme Court. It stressed that the bank transfer directly from the party ’ s account to the account of the Electoral Committee had resulted from a purely technical mistake made by a tired employee. The transfer had been executed electronically and the person in charge had erroneously indicated the bank account number of the Electoral Committee instead of the account number of the Electoral Fund.

On 22 September 2016 the Supreme Court dismissed the applicant party ’ s appeal. The court noted that it was undisputable that the Electoral Committee had accepted funds from other source than the Electoral Fund. This fact could not be viewed as a “technical” mistake. Hence, the financial report had to be rejected under 144 § 1 (3) (c) of the Electoral Code. In so far as the applicant party relied on the constitutional principle of proportionality, the court stressed that when a financial report was rejected such decision resulted only in partial reduction of the public funding, proportionally to the amount which had been acquired in contravention of the relevant provisions. Moreover, even if, as alleged by the applicant party, the bank transfer had resulted from a “technical” mistake, such an error should have been immediately spotted and corrected. The court concluded that political parties given their significant role in the State ’ s system should consider possible limitations in the field of acquiring and disposing of their assets. The decision was served on the applicant party ’ s lawyer on 15 November 2016.

In direct consequence of this decisions, the applicant party had to reimburse the sum of PLN 1,975,000 to the State Treasury. In addition, on 1 August 2016, the Minister of Finance informed the applicant party that under Article 148 § 2 of the Electoral Code the annual public funding (to which the party was entitled based on its election results) had been reduced by 75% – from PLN 6,207,895.14 (approx. EUR 1,551,974) to PLN 1,551,973.78 (approx. EUR 387,993).

On 3 October 2016 the State Electoral Commission rejected the applicant party ’ s annual financial report for 2015 report relying on the grounds given in its resolution of 18 July 2016. It appears that the applicant party failed to lodge an interlocutory appeal with the Supreme Court.

Subsequently, in accordance with section 38 (d) of the Political Parties Acta ( Ustawa o partiach politycznych ) the applicant party was deprived of the State funding (based on its election results) for the following three years.

The applicant party submits that after the 2015 elections it received only PLN 1,551,973.78 in State funding, instead of PLN 24,831,580.56 which it should have received, had the financial reports been accepted.

The financial rules for the political parties applicable in Poland are set out in detail in the Political Parties Act of 1997 ( Ustawa o partiach politycznych ) (“the 1997 Act”) and in the Electoral Code of 2011 ( Kodeks Wyborczy ).

Supervision of finances of political parties in Poland is entrusted to the National Electoral Commission ( Państwowa Komisja Wyborcza ). Its d ecisions may in principle by appealed to the Supreme Court. All political parties are obliged to submit their consolidated final accounts annually to the National Electoral Commission, which verifies whether their revenues and expenditure are in compliance with the law. Various administrative and criminal sanctions are envisaged for failure to comply with the requirements regarding reporting of financial activities of political parties.

In addition, under section 35 of the 1997 Act, a political party wishing to participate in parliamentary, presidential, local or European elections is required to set up an electoral fund ( Fundusz Wyborczy ). All funding for the elections has to be firstly transferred to the bank account of the electoral fund and only then to the bank account of the electoral committee.

Three months after the date of elections an electoral committee is obliged to submit its financial statement to the National Electoral Commission, (Article 142 of the Electoral Code). The commission rejects the financial statement , in particular, when an electoral committee obtained funds from a different source than the electoral fund (Article 144 § 1 (3) (c) of the Electoral Code and section 38(a) of the 1997 Act). Rejection of the statement results in the party partially losing the right to public funding (based on its election results) up to three times the amount obtained in contravention of the relevant provisions but not more than 75% of the amount to which it was entitled (Article 148 of the Electoral Code).

COMPLAINTS

The applicant party complains under Article 11 of the Convention that the refusal to accept the financial statement of its Electoral Committee resulted in a significant loss of public funding. Moreover, by putting a substantial financial strain on the party those decisions violated its right to freedom of association under Article 11 of the Convention.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of association, contrary to Article 11 of the Convention (compare Parti nationaliste basque – Organisation régionale d ’ Iparralde v. France , no. 71251/01, ECHR 2007 ‑ II and Cumhuriyet Halk Partisi v. Turkey , no. 19920/13, 26 April 2016)?