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MATYJEK v. POLAND - 38184/03 [2007] ECHR 317 (24 April 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/317.html
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[2007] ECHR 317
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FOURTH
SECTION
CASE OF
MATYJEK v. POLAND
(Application
no. 38184/03)
JUDGMENT
STRASBOURG
24
April 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Matyjek v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas
Bratza, President,
Mr G. Bonello,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
Mrs P.
Hirvelä, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 30 May 2006 and 3 April 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 38184/03) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Tadeusz Matyjek (“the
applicant”), on 15 October 2003.
The
applicant was represented by Ms M. Gąsiorowska, a lawyer
practising in Warsaw. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
The
applicant alleged that the lustration proceedings in his case had
been unfair, in violation of Article 6 of the Convention.
By
a decision of 30 May 2006 the Court declared the application
admissible.
The
applicant and the Government each filed further written observations
(Rule 59 § 1). In addition, third-party comments were received
from the Helsinki Foundation for Human Rights (Warsaw, Poland), which
had been given leave by the President to intervene in the written
procedure (Article 36 § 2 of the Convention and Rule
44 § 2). The respondent Government replied to those comments
(Rule 44 § 5).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1935 and lives in Warsaw,
Poland.
Following
the entry into force of the Law of 11 April 1997 on disclosing work
for or service in the State's security services or collaboration with
them between 1944 and 1990 by persons exercising public functions
(ustawa o ujawnieniu pracy lub służby w organach
bezpieczeństwa państwa lub współpracy z nimi w
latach 1944-1990 osób pełniących funkcje publiczne)
(the “1997 Lustration Act”) the applicant, who had
been a member of the Sejm,
declared that he had not collaborated with the communist-era secret
services.
On
1 June 1999 the Commissioner of the Public Interest (Rzecznik
Interesu Publicznego) applied to the Warsaw Court of Appeal (Sąd
Apelacyjny) to institute proceedings in the applicant's case on
the grounds that he had lied in his lustration declaration by denying
his cooperation with the secret services. On 14 June 1999 the
applicant was notified that the lustration proceedings had been
instituted.
On
16 September and 25 October 1999 the court held hearings in camera.
On
17 December 1999 the Warsaw Court of Appeal, acting as the
first instance lustration court, found that the applicant had
been a deliberate and secret collaborator with the Security Service
(Slużba Bezpieczeństwa, “the SB”) and
had therefore lied in his lustration declaration. The court relied,
inter alia, on an expert opinion prepared by the Department of
Criminology and Chemistry of the State Security Bureau (Zakład
Kryminalistyki i Chemii Urzedu Ochrony Państwa) which had
confirmed the authenticity of the applicant's signature on a document
in his file. The operative part of the judgment was served on the
applicant on 3 January 2000. However, the reasoning was
considered “secret” and, in accordance with Article 100
§ 5 of the Code of Criminal Procedure, could only be
consulted in the secret registry of that court.
The
applicant lodged an appeal. He argued that the SB must have
registered him as a secret collaborator without his knowledge or
consent. The applicant maintained that his contacts with the Civil
Militia (Milicja Obywatelska) and an SB agent whom he had
known personally had been purely private and had never taken the form
of conscious collaboration. The applicant also requested to call more
witnesses, in particular the friend on whom he had allegedly reported
to the SB, and that an independent opinion be ordered from an expert
who did not belong to an agency of the State Security Bureau.
On
17 February 2000 the Warsaw Court of Appeal, acting as the
second instance lustration court, dismissed the applicant's
appeal. The court established, inter alia, that it was impossible to
hear the SB officer who had allegedly recruited the applicant as he
had died. The court again informed the applicant that, due to the
confidential nature of the case, the written reasoning for the
judgment would not be served on him but could be consulted in the
secret registry.
On
20 April 2000 the applicant lodged a cassation appeal (kasacja)
with the Supreme Court (Sąd Najwyższy).
On
10 October 2000 the Supreme Court quashed the Court of Appeal's
judgment and remitted the case to the second-instance court. The
Supreme Court found that the applicant's request to call two
additional witnesses had been disregarded, which constituted a
serious procedural shortcoming.
On
11 December 2000 the Commissioner of the Public Interest applied to
the Warsaw Court of Appeal to request the Head of the State Security
Bureau to lift the confidentiality restrictions in respect of the
documents in the case file.
On
20 December 2000 the Head of the State Security Bureau lifted the
confidentiality restrictions in respect of the applicant's personal
record (teczka osobowa) that had been included in the case
file.
On
19 January 2001 the Warsaw Court of Appeal held a hearing at which it
examined the witnesses called by the applicant.
On
25 January 2001 the Warsaw Court of Appeal quashed the impugned
judgment and remitted the case to the first-instance court.
Subsequently,
the court requested the State Security Bureau to submit additional
documents to it. On 28 March 2001 the Bureau transmitted to the court
personal information concerning some officers of the security
services. On 30 May 2001 the court received from the State Security
Bureau additional documents concerning the applicant, namely excerpts
from the files of the former Civil Militia (Milicja Obywatelska).
On
1 June 2001 the court held a public hearing at which it heard the
applicant. A subsequent hearing on 28 June 2001 was only partly
public as the court decided to examine witnesses in camera on the
ground that they would testify on matters involving State secrets.
The court further ordered the preparation of an expert opinion by the
Institute of Criminology of Warsaw University.
On
8 October 2001, on the Commissioner's request, the State Security
Bureau submitted to the court more documents from the file of another
secret collaborator, “R”, but which related to the
applicant.
On
4 December 2001 another hearing was held, in camera. On the same day
the Warsaw Court of Appeal gave judgment, finding that the applicant
had lied in his lustration declaration.
The
applicant appealed, reiterating inter alia, that as a member
of the national sports team, he had automatically been employed at
the Civil Militia, a fact which should have been taken into
consideration by the trial court.
On
2 October 2002 the Warsaw Court of Appeal dismissed his appeal.
On
16 May 2003 the Supreme Court dismissed a cassation appeal lodged by
the applicant.
According
to the domestic law in force at the material time, the judgment of
the Court of Appeal of 17 February 2000 was considered final.
Therefore, on that date the applicant lost his mandate as a Member of
Parliament. The applicant is prevented from being a candidate in
elections and from holding other public functions for a period of 10
years.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Lustration Act
On
3 August 1997 the 1997 Lustration Act entered into force. The
relevant provisions of this Act, in the version in force at the
material time, are the following:
Section
3 reads, in so far as relevant:
“1. Persons exercising public functions
within the meaning of this law are: the President of the Republic of
Poland, deputies, senators ... judges, prosecutors and barristers...”
Section
4 provides the following definition of the term “collaboration”:
“1. Collaboration within the meaning of
this law is intentional and secret collaboration with operational or
investigative branches of the State's security services as a secret
informer or assistant in the process of gathering information.
2. Collaboration within the meaning of this
law is not an action which was obligatory under the law in force at
the material time. ...”
Section
6 concerns the obligation to submit a “lustration declaration”:
“1. Persons in the categories listed in
section 7 of this law shall submit a declaration concerning work for
or service in the State's security services or collaboration with
these services between 22 July 1944 and 10 May 1990 (hereafter called
'the declaration').”
Section
7 provides:
“Declarations shall be submitted by
...
2) candidates for election as deputy or
senator...”
Section
40 requires such a declaration to be submitted also by those who at
the date of entry into force of the 1997 Lustration Act are holding a
public function.
Section
17 et seq. concerns the office of the Commissioner of the Public
Interest. It reads, in so far as relevant:
“1. The Commissioner of the Public
Interest (Rzecznik Interesu Publicznego), hereafter called
'the Commissioner', represents the public interest in lustration
proceedings.”
Section
17(d) provides, in so far as relevant:
“1. The duties of the Commissioner
shall include in particular
i) analysing the lustration declaration
submitted to the court;
ii) collecting information necessary for a
correct assessment of the declaration;
iii) lodging an application with the court
with a view to initiating lustration proceedings;
....
2. In carrying out his duties enumerated in
points 1 and 2 above, the Commissioner may require to be sent or
shown the relevant case files, documents and written explanations,
and if necessary may hear witnesses, order expert opinions or conduct
searches; in this respect, and as regards the duties described in
section 17(1), the provisions of the Code of Criminal Procedure
concerning the prosecutor shall likewise apply to the Commissioner.”
Section
17(e) provides:
“The Commissioner, his deputies and the authorised
employees of his office shall have full access to documentation and
other information sources, regardless of the form in which they were
recorded, provided that they were created before 10 May 1990 by
1. The Minister of Defence, the Minister of
the Interior, the Minister of Justice, the Minister of Foreign
Affairs, or by the services under their authority; or
2. The Head of the State Security Bureau.”
Sections
19 and 20 refer to the Code of Criminal Procedure. Section 19
reads as follows:
“Matters not covered by this law and relating to
lustration proceedings, including the appeal and cassation phase,
shall be governed by the Code of Criminal Procedure.”
The
amendment to section 19, which entered into force on 8 March
2002, provides that the proceedings can also be conducted in camera
on an application by the person subject to lustration. This
provision replaced the one contained in section 21(4), which provided
that the court could decide to conduct the proceedings in camera of
its own motion or on an application by a party.
Section
20 provides:
“The provisions of the Code of Criminal Procedure
relating to the accused shall apply to the person subject to
lustration (hereafter called 'the subject').”
Section
23 provides for service of the judgment:
“1. The court's judgment, together with
the written reasons, shall be served on the parties to the
proceedings without delay....”
Section
28, amended with effect from 8 March 2002, provides:
“A final judgment finding that the declaration
submitted by the subject was untrue shall be published immediately in
the Official Law Gazette (Dziennik Urzędowy RP Monitor
Polski) if
1) no cassation appeal has been lodged within
the prescribed time-limit; or
2) the cassation appeal has been left
unexamined; or
3) the cassation appeal has been dismissed.”
Section
30 lists the consequences of the judgment for a person subject to
lustration who has submitted an untrue declaration. It reads, in so
far as relevant:
“1. A final judgment finding that the
subject has submitted an untrue declaration shall result in the loss
of the moral qualifications necessary for exercising public
functions, described according to the relevant laws as: unblemished
character, immaculate reputation, irreproachable reputation, good
civic reputation, or respectful of fundamental values. After 10 years
the judgment shall be considered to be of no legal effect.
2. A final judgment finding that the subject
has submitted an untrue declaration shall entail dismissal from the
functions exercised by that person if the moral qualifications
mentioned above are necessary for exercising it.
3. A final judgment finding that the subject
has submitted an untrue declaration shall deprive that person of the
right to stand for election as President for a period of 10 years.”
On 8 March 2002 sub-section 4 was added, which provides:
“The consequences enumerated in sub-sections 1-3
above shall take place if
1) no cassation appeal has been lodged
within the prescribed time-limit; or
2) the cassation appeal has been left
unexamined; or
3) the cassation appeal has been dismissed.”
B. Code of Criminal Procedure
Article
100 § 5, which concerns delivery of a judgment, provides:
“If the case has been heard in camera because of
the substantial interests of the State, instead of reasons notice
shall be served to the effect that the reasons have actually been
prepared.”
Article
156, which deals with access to the case file, in so far relevant
provides as follows:
“1. The court files pertaining to a
case shall be made available to the parties, their defence counsels,
legal representatives and guardians who shall have possibility to
obtain copies from them. Other persons may access the case file
provided that the president of the court agrees to it.
2. Upon a request from the accused or his
defence counsel, photocopies of the documents of the case shall be
provided at their expense.
3. The president of the court may on
justifiable grounds, order certified copies to be made from the files
of the case.
4. If there is a danger of revealing a state
secret, inspection of files, making certified copies and photocopies
shall be done under conditions imposed by the president of the court
or by the court. Certified copies and photocopies shall not be
released unless provided otherwise by law....”
C. Laws on classified information
Section
2 (1) of the 1982 Protection of State Secrets Act (Ustawa o
ochronie tajemnicy państwowej i służbowej), which
was in force until 11 March 1999, read as follows:
“A State secret is information which, if divulged
to an unauthorised person, might put at risk the State's defence,
security or other interest, and concerns in particular:
...
2) organisation of the services responsible
for the protection of security and public order, their equipment and
working methods, and the data enabling the identification of their
officers and persons collaborating with the security services...”
Section
86 of the 1999 Protection of Classified Information Act (Ustawa o
ochronie informacji niejawnych), in its relevant part, provided
as follows:
“2. Persons referred to in section 21
(1) [those authorised to sign the document and to assign a
confidentiality rating], or their legal successors in relation to
documents containing information classified as a State secret,
created before 10 May 1990, shall within 36 months from the date of
enactment of this Act, review these documents with the purpose of
adjusting their current security classification to the
classifications provided by this Act. Until then, these documents
shall be considered classified under the provisions of paragraph 1
unless otherwise provided by law...”
Appendix
No. 1 to the Act provided, in so far as relevant:
“I. Information that can be classified
as «top secret»:
21. information concerning documents that
make it impossible to establish data identifying officers, soldiers
or employees of State bodies, services and institutions authorised to
engage in operational activities or on the resources that they use in
their operational activities.”
Section
52 (2) of the 1999 Act concerned organisation of the secret registry.
It provided in so far as relevant:
“Documents marked “top secret” and
“secret” (ściśle tajne i tajne) can be
released from the secret registry only if the recipient can secure
the protection of those documents from unauthorised disclosure. In
case of doubts regarding the conditions of protection, the document
can be made available only in the secret registry.”
III. RELEVANT INTERNATIONAL INSTRUMENTS
The
following are extracts from Parliamentary Assembly of the Council of
Europe Resolution 1096 (1996) on measures to dismantle the heritage
of former communist totalitarian systems:
“9. The Assembly welcomes the opening
of secret service files for public examination in some former
communist totalitarian countries. It advises all countries concerned
to enable the persons affected to examine, upon their request, the
files kept on them by the former secret services...
11. Concerning the treatment of persons who
did not commit any crimes that can be prosecuted in accordance with
paragraph 7, but who nevertheless held high positions in the former
totalitarian communist regimes and supported them, the Assembly notes
that some states have found it necessary to introduce administrative
measures, such as lustration or decommunisation laws. The aim of
these measures is to exclude persons from exercising governmental
power if they cannot be trusted to exercise it in compliance with
democratic principles, as they have shown no commitment to or belief
in them in the past and have no interest or motivation to make the
transition to them now.
12. The Assembly stresses that, in general,
these measures can be compatible with a democratic state under the
rule of law if several criteria are met. Firstly, guilt, being
individual, rather than collective, must be proven in each individual
case - this emphasises the need for an individual, and not
collective, application of lustration laws. Secondly, the right of
defence, the presumption of innocence until proven guilty, and the
right to appeal to a court of law must be guaranteed. Revenge may
never be a goal of such measures, nor should political or social
misuse of the resulting lustration process be allowed. The aim of
lustration is not to punish people presumed guilty - this is the task
of prosecutors using criminal law - but to protect the newly emerged
democracy.
13. The Assembly thus suggests that it be
ensured that lustration laws and similar administrative measures
comply with the requirements of a state based on the rule of law, and
focus on threats to fundamental human rights and the democratisation
process. Please see the "Guidelines to ensure that lustration
laws and similar administrative measures comply with the requirements
of a state based on the rule of law" as a reference text.”
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
The
Government alleged that the applicant had not exhausted domestic
remedies as he had not raised before the domestic courts, even in
substance, the particular allegations regarding the unfairness of the
lustration proceedings. In particular, neither at the appellate nor
at the cassation stage had the applicant questioned the restrictions
imposed on him concerning access to the case files; nor had he
complained that he had been unable to submit his arguments in
accordance with the principles of an adversarial hearing and equality
of arms.
The
applicant contested this view. He submitted that the rules governing
access to the case file and the manner in which the lustration
proceedings had been conducted could not have been effectively
challenged in an appeal or cassation appeal as they were provided for
by the domestic law. The applicant observed that the Government had
not pointed to any particular additional domestic remedy that would
have been effective in challenging the fairness of the proceedings.
In
its decision on admissibility the Court considered that the question
of whether the applicant could effectively challenge the legal rules
governing access to the case file and setting out the features of
lustration proceedings was linked to the Court's assessment of
Poland's compliance with the requirements of a “fair trial”
under Article 6 § 1 of the Convention and that it should
therefore be joined to the examination of the merits of the case. The
Court confirms its approach to this issue.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant alleged a violation of Article 6, which provides in so far
as relevant:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair and
public hearing ...by [a] ... tribunal...
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed
promptly, in a language which he understands and in detail, of the
nature and cause of the accusation against him;
(b) to have adequate time
and facilities for the preparation of his defence;
(c) to defend himself in
person or through legal assistance of his own choosing or, if he has
not sufficient means to pay for legal assistance, to be given it free
when the interests of justice so require;
(d) to examine or have
examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as
witnesses against him;
(e) to have the free assistance of an
interpreter if he cannot understand or speak the language used in
court.”
A. The applicant's submissions
The
applicant challenged before the Court the very essence of the
lustration proceedings, in particular their allegedly unequal and
secret nature, the confidentiality of the documents and the unfair
procedures governing access to the case file and the conduct of
hearings.
The
applicant argued that the lustration proceedings had been unfair,
that the principle of equality of arms had not been respected, and
that he had not been able to defend himself properly. Moreover, he
had been placed at a significant disadvantage vis-à-vis
the Commissioner of the Public Interest given that the State had
access to all the archives and had at its disposal the technical and
financial means to examine the necessary materials and to choose
those that were to be included in the file. Most of the documents
were considered secret and lifting the confidentiality of materials
was in itself arbitrary. The applicant further argued that the
lustration court had failed to examine the case diligently and that
he had not been allowed to challenge the evidence adduced by the
Commissioner or call independent experts.
The
applicant complained that, while acquainting himself with his file in
the secret registry of the lustration court he had not been allowed
to make any copies, to take the notes made in the registry away with
him, to show the notes to anyone or to use them at the hearings. This
had not changed after December 2000, when the confidentiality of his
personal file had been lifted, as other documents added to the file
at a later stage had continued to be regarded as classified.
B. The Government's submissions
The
Government submitted that the difficulties that the applicant might
have encountered during the proceedings were a consequence of the
fact that some documents concerning the case were considered as State
secrets according to section 2 (2) of the 1982 Protection of State
Secrets Act. Afterwards, the State's Security Bureau upheld the
“secret” classification of those documents on the basis
of section 86 (2) of the 1999 Protection of Classified Information
Act taken together with section 21 of the appendix No. 1 (see
paragraphs 37 – 38 of the domestic law above).
The
Government argued that the principle of equality of arms had been
respected in the instant case. They submitted that under
section 52 (2) of the Protection of Classified Information
Act and Article 156 § 4 of the Code of Criminal Procedure, the
evidence concerning the case was available to the parties only in the
secret registry of the lustration court. They maintained that both
parties to the proceedings, that is, the applicant and the
Commissioner of the Public Interest, had been subject to the same
strict rules governing access to the file deposited in the secret
registry, in particular those regarding the taking of notes. The
notes from the case file had to be made in a special notebook which
was subsequently placed in an envelope, sealed and deposited in the
secret registry. The same procedure applied to any notes made during
hearings. The envelope with the notebooks inside could be opened only
by the person who had made the notes in it.
The
Government further submitted that on 20 December 2000 the Head
of the State Security Bureau had lifted the confidentiality
classification in respect of the materials in the applicant's file,
namely his personal record. Nevertheless, after that date further
documents had been added as they had been provided by the State
Security Bureau on the order of the court. Those documents had been
classified, placed in the secret registry and had been accessible to
the parties in accordance with the above mentioned rules.
Finally,
the Government maintained that the lustration proceedings in the
applicant's case had been conducted diligently. The court had
examined evidence adduced by both parties, examined numerous
witnesses and ordered opinions from two handwriting experts. At the
end of the trial neither the applicant nor the Commissioner had
lodged an application to adduce further evidence.
C. The third party's submissions
The
third party maintained that the general purpose of the Lustration Act
was to reveal the truth about the collaboration of certain categories
of public officials with the State's security organs. Given the
social importance of the lustration proceedings and severe
consequences for an individual who had made an untrue declaration,
the principles of the rule of law and procedural guarantees for the
lustrated person must be scrupulously observed. In the light of the
principles embodied in Article 6 of the Convention, which was
obviously applicable to lustration proceedings, they should comply
with the following standards: impartial and independent tribunal,
reasonable time, presumption of innocence, giving the defendant the
benefit of the doubt, public hearings, access to the files and
possibility of making notes.
The
third party stressed the crucial importance of the right of access to
relevant files in lustration proceedings. If a party, to whom
classified materials related, was denied access to all or most of the
materials in question, his or her ability to contradict the security
agency's version of the facts would be severely curtailed. Lack of
access to the file and the impossibility of obtaining a copy of a
document contained in it violated the right to prepare an adequate
defence and the principle of equality of arms. Finally, the third
party maintained that taking into account the importance of the right
to a fair trial for a person accused of cooperation with the secret
services, the right to a public hearing and access to the relevant
files should be restricted only in exceptional cases.
D. The Court's assessment
1. Scope of the case before the Court
The
scope of the case before the Court is to determine whether in the
proceedings instituted against the applicant under the 1997
Lustration Act he had a “fair trial” within the meaning
of Article 6 of the Convention. The Court recalls that in its
admissibility decision of 30 May 2006 it established, in the light of
the Engel criteria, that the applicant was facing a criminal charge.
Accordingly, the procedural guarantees of Article 6 of the Convention
under its criminal head applied to his lustration proceedings (see
Matyjek v. Poland (dec.), no. 38184/03, ECHR 2006 ...).
The
Court observes further that the guarantees in paragraph 3 of
Article 6 are specific aspects of the right to a fair trial set
forth in general in paragraph 1. For this reason it considers it
appropriate to examine the applicant's complaint under the two
provisions taken together (see Edwards v. the United Kingdom,
judgment of 16 December 1992, Series A no. 247 B, p.
34, § 33).
2. Compliance with Article 6 of the Convention
The Court reiterates that according to the principle
of equality of arms, as one of the features of the wider concept of a
fair trial, each party must be afforded a reasonable opportunity to
present his case under conditions that do not place him at a
substantial disadvantage vis à vis his
opponent (see, for example, Jespers v. Belgium, no. 8403/78,
Commission decision of 15 October 1980, Decisions and Reports
(DR) 27, p. 61; Foucher v. France, judgment of 18 March
1997, Reports of Judgments and Decisions 1997 II, § 34;
and Bulut v. Austria, judgment of 22 February 1996,
Reports 1996 II, p. 380-81, § 47). The
Court further reiterates that in order to ensure that the accused
receives a fair trial any difficulties caused to the defence by a
limitation on its rights must be sufficiently counterbalanced by the
procedures followed by the judicial authorities (see Doorson
v. the Netherlands, judgment of 26 March 1996, Reports
1996 II, p. 471, § 72, and Van Mechelen
and Others v. the Netherlands, judgment of 23 April 1997,
Reports 1997 III, p. 712, § 54).
The
Court had already dealt with the issue of lustration proceedings in
the Turek v. Slovakia case (no. 57986/00, § 115,
ECHR 2006 ... (extracts)). In particular the Court held in that
case that, unless the contrary is shown on the facts of a specific
case, it cannot be assumed that there remains a continuing and actual
public interest in imposing limitations on access to materials
classified as confidential under former regimes. This is because
lustration proceedings are, by their very nature, oriented towards
the establishment of facts dating back to the communist era and are
not directly linked to the current functions and operations of the
security services. Lustration proceedings inevitably depend on the
examination of documents relating to the operations of the former
communist security agencies. If the party to whom the classified
materials relate is denied access to all or most of the materials in
question, his or her possibilities of contradicting the security
agency's version of the facts will be severely curtailed.
Those
considerations remain relevant to the instant case despite some
differences with the lustration proceedings in Poland.
Turning
to the instant case, the Court observes firstly that the Government
have pointed to the series of successive laws on the basis of which
the communist-era security services' materials continued to be
regarded as a State secret (see paragraph 47 above). The confidential
status of such materials had been upheld by the State Security
Bureau. Thus, at least part of the documents relating to the
applicant's lustration case had been classified as “top
secret”. The Head of the State Security Bureau was also
empowered to lift the confidentiality rating, which, with respect to
some materials relating to the applicant's case, took place in
December 2000. The Court observes that it has considered the
existence of a similar power of a State security agency inconsistent
with the fairness of lustration proceedings, including with the
principle of equality of arms (see Turek, cited above, §
115).
Secondly,
the Court notes that, at the pre-trial stage, the Commissioner of the
Public Interest had a right of access, in the secret registry of his
office or of the Institute of National Remembrance, to all materials
relating to the lustrated person created by the former security
services. After the institution of the lustration proceeding, the
applicant could also access his court file. However, pursuant to
Article 156 of the Code of Criminal Procedure and section 52 (2) of
the 1999 Protection of Classified Information Act, no copies could be
made of materials contained in the court file and confidential
documents could be consulted only in the secret registry of the
lustration court (see paragraphs 36, 38 and 48 above).
Furthermore,
it has not been disputed by the parties that, when consulting his
case file, the applicant had been authorised to make notes. However,
any notes he took could be made only in special notebooks that were
subsequently sealed and deposited in the secret registry. The
notebooks could not be removed from this registry and could be opened
only by the person who had made them. Similarly, the notes taken
during the hearings, the great majority of which were held in camera,
were to be made in special notebooks which were later kept in the
court's secret registry. The Government acknowledged that the
applicant could not remove the notes taken during the hearings from
the courtroom and that he had to hand them to a designated person
after the hearing. The Court further observes that although the
applicant had been represented in the lustration proceedings, it has
not been disputed that identical restrictions applied to his lawyer.
Moreover,
the applicant also maintained that he could not use before the
lustration court the notes he had made in the secret registry. The
Court observes that the Government did not contest the applicant's
allegation and agreed that the notebooks could not be removed from
the secret registry. Nor did they invoke any provision of domestic
law that would give him a right to do so.
The
Court reiterates that the accused's effective participation in his
criminal trial must equally include the right to compile notes in
order to facilitate the conduct of his defence, irrespective of
whether or not he is represented by counsel (see Pullicino v.
Malta (dec.), no 45441/99, 15 June 2000). The fact that the
applicant could not remove his own notes, taken either at the hearing
or in the secret registry, in order to show them to an expert or to
use them for any other purpose, effectively prevented him from using
the information contained in them as he had to rely solely on his
memory.
Regard
being had to what was at stake for the applicant in the lustration
proceedings - not only his good name but also a ban on being a Member
of Parliament or holding public office for 10 years - the Court
considers that it was important for him to have unrestricted access
to those files and unrestricted use of any notes he made, including,
if necessary, the possibility of obtaining copies of relevant
documents (see Foucher, cited above, § 36).
Thirdly,
the Court is not persuaded by the Government's argument that at the
trial stage the same limitations as regards access to confidential
documents applied to the Commissioner of the Public Interest. Under
the domestic law, the Commissioner, who was a public body, had been
vested with powers identical to those of a public prosecutor. Under
section 17(e) of the Lustration Act, the Commissioner of the
Public Interest had a right of access to full documentation relating
to the lustrated person created by, inter alia, the former
security services. If necessary, he could hear witnesses and order
expert opinions. The Commissioner also had at his disposal a secret
registry with staff who obtained official clearance allowing them
access to documents considered to be State secrets and were employed
to analyse lustration declarations in the light of the existing
documents and to prepare the case file for the lustration trial (see
paragraphs 30 and 31 above).
Finally,
the Court notes that as regards the judgments given on 17 December
1999 and 17 February 2000, only their operative part was notified to
the applicant. The written reasons, albeit prepared, could only be
consulted in the secret registry of the court. The Court observes
that this first stage of the proceedings was crucial for the
applicant as the judgment of 17 February 2000 was considered
final under the domestic law. On that date the sanctions provided by
the Lustration Act were imposed on the applicant, entailing, most
notably, loss of his seat in Parliament.
Afterwards,
in December 2000, the confidentiality of some documents was lifted.
However, although the applicant's access to his personal record
appeared to be without restrictions after that date, the limitations
were still applicable to newly included documents (see paragraphs 19
and 21 above). The Government acknowledged that after this date some
new documents had been added to the case file and deposited with the
secret registry of the lustration court.
The
Court recognises that at the end of the 1990s the State had an
interest in carrying out lustration in respect of persons holding the
most important public functions. However, it reiterates that if a
State is to adopt lustration measures, it must ensure that the
persons affected thereby enjoy all procedural guarantees under the
Convention in respect of any proceedings relating to the application
of such measures (see Turek, cited above, § 115).
The Court accepts that there may be a situation in which there is a
compelling State interest in maintaining secrecy of some documents,
even those produced under the former regime. Nevertheless, such a
situation will only arise exceptionally given the considerable time
that has elapsed since the documents were created. It is for the
Government to prove the existence of such an interest in the
particular case because what is accepted as an exception must not
become a norm. The Court considers that a system under which the
outcome of lustration trials depended to a considerable extent on the
reconstruction of the actions of the former secret services, while
most of the relevant materials remained classified as secret and the
decision to maintain the confidentiality was left within the powers
of the current secret services, created a situation in which the
lustrated person's position was put at a clear disadvantage.
In
the light of the above, the Court considers that due to the
confidentiality of the documents and the limitations on access to the
case file by the lustrated person, as well as the privileged position
of the Commissioner of the Public Interest in the lustration
proceedings, the applicant's ability to prove that the contacts he
had had with the communist era secret services did not amount to
“intentional and secret collaboration” within the meaning
of the Lustration Act were severely curtailed. Regard being had to
the particular context of the lustration proceedings, and to the
cumulative application of those rules, the Court considers that they
placed an unrealistic burden on the applicant in practice and did not
respect the principle of equality of arms.
It
remains to be ascertained whether the applicant could have
successfully challenged the features of the lustration proceedings in
his appeal and cassation appeal. Given the Government's assertion
that the rules on access to the materials classified as secret were
regulated by the successive laws on State secrets and Article 156 of
the Code of the Criminal Procedure and that those legal provisions
were complied with in this case, the Court is not persuaded that the
applicant, in his appeals or cassation appeals, could have
successfully challenged the domestic law in force. The Court points
out that the Lustration Act had on several occasions been
unsuccessfully challenged before the Constitutional Court (see
Matyjek v. Poland (dec.), cited above). The Government
did not refer to any other domestic remedy that could have been
successful in this case.
It
follows that it has not been shown that the applicant had an
effective remedy at his disposal under domestic law by which to
challenge the legal framework setting out the features of lustration
proceedings. Consequently, the Government's objection as to the
exhaustion of domestic remedies should be rejected.
In
these circumstances the Court concludes that the lustration
proceedings against the applicant, taken as a whole, cannot be
considered as fair within the meaning of Article 6 § 1 of the
Convention taken together with Article 6 § 3. There
has accordingly been a breach of those provisions.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 58,000 euros (EUR) in respect of pecuniary damage.
This sum covered loss of remuneration as a Member of Parliament for
the period between the loss of his seat due to the final judgment
given in the lustration proceedings and the end of the parliamentary
term. The applicant also claimed EUR 60,000 in respect of
non-pecuniary damage.
The
Government contested the claim in respect of pecuniary damage and
considered the claim in respect of non-pecuniary damage excessive.
Alternatively, they invited the Court to rule that the finding of a
violation constituted in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It is not for the Court to
speculate on what might have been the outcome of the proceedings had
they complied with Article 6 of fairness requirements (Jalloh
v. Germany [GC], no. 54810/00, § 128, ECHR
2006 ...). It therefore rejects this claim. The Court also
considers that in the particular circumstances of the case the
finding of a violation constitutes in itself sufficient just
satisfaction for any non pecuniary damage which may have been
sustained by the applicant.
B. Costs and expenses
The
applicant also claimed EUR 20,000 for the costs and expenses incurred
before the domestic courts and before the Court.
The
Government contested this claim on the ground that the applicant had
failed to submit any documents proving those costs either at the
domestic level or before the Court.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case the Court observes that although the
applicant's lawyer submitted her claim together with the written
observations of 31 July 2006 she failed to differentiate between the
amount sought in respect of the costs incurred in the domestic
proceedings and those incurred before the Court. The claim was not
accompanied by any documents, other than one invoice of 31 October
2005 in the amount of EUR 1,220 for lawyer's fees for the
proceedings before the Court.
Regard
thus being had to the information in its possession and the above
criteria, the Court rejects the claim for costs and expenses in the
domestic proceedings and considers it reasonable to award the sum of
EUR 1,220 for the proceedings before the Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the Government's preliminary
objection;
Holds that there has been a violation of
Article 6 § 1 of the Convention taken in conjunction
with Article 6 § 3;
Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for non-pecuniary
damage;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,220 (one
thousand two hundred and twenty euros) in respect of costs and
expenses, plus any tax that may be chargeable, to be converted into
Polish zlotys at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
