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BOBEK v. POLAND - 68761/01 [2007] ECHR 621 (17 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/621.html
Cite as:
[2007] ECHR 621
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SECOND
SECTION
CASE OF
BOBEK v. POLAND
(Application
no. 68761/01)
JUDGMENT
STRASBOURG
17 July
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 Bobek v. Poland,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr V. Zagrebelsky,
Mrs A.
Mularoni,
Mr L. Garlicki,
Mrs D. Jočienė
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 26 June 2007;
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 68761/01) 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 Ms Wanda Bobek.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
The
applicant complained that the lustration proceedings in her case had
been unfair, in violation of Article 6 of the Convention. She
alleged, in particular, that she had not had adequate access to the
case file and that the proceedings were not public. Further, the
written grounds of the judgments given in her case had never been
made public.
By
a decision of 24 October 2006, the Court declared the application
partly admissible. It decided to join to the merits of the case the
examination of the Government's preliminary objection based on
non exhaustion of domestic remedies.
The
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1929 and lives in Rzeszów.
The
applicant, who was an advocate, made a declaration under the
provisions of the Lustration Act 1997 that she had never secretly
collaborated with the communist secret service. She only admitted
that between 1945 and 1953 she had been working at the Security
Office (Urząd Bezpieczeństwa) in Rzeszów as
an office assistant, but in 1953 she had left the job.
On
14 April 1999 the Commissioner of Public Interest (Rzecznik
Interesu Publicznego) applied to the Warsaw Court of Appeal (Sąd
Apelacyjny), acting as the first instance Lustration Court
(sąd lustracyjny), to institute proceedings in the
applicant's case under the Lustration Act (ustawa lustracyjna)
on the ground that the applicant had lied in her declaration by
denying her collaboration with the secret services after 1953. (This
security service was known as Urząd Bezpieczeństwa,
but after 1956 it was called Slużba Bezpieczeństwa.)
On
31 May 1999 the applicant was notified that lustration proceedings
had been instituted concerning her declaration (oświadczenie
lustracyjne).
On
9 September 1999 the Warsaw Court of Appeal, acting as the
first-instance court, held a hearing in the applicant's case. The
Commissioner of Public Interest requested the court to conduct a
public hearing and the applicant supported this motion. She was
questioned by the court and commented on the evidence at the court's
disposal. The file of the case was composed of the applicant's
lustration declaration, copies of certain documents contained in the
applicant's file compiled by the communist secret police and of the
Commissioner's application for lustration proceedings to be
instituted. Towards the end of the hearing, both the Commissioner and
the applicant declared that they had no request for further evidence
to be taken by the court. The court closed the hearing.
However,
on 13 September 1999 the applicant requested the court to take
further evidence. She submitted various documents concerning her
professional career, her character and morality.
On
15 September 1999 the court re-opened the hearing and admitted the
applicant's documents to the case file. It then closed the hearing
again.
On
16 September 1999 the court sent the applicant the operative part of
its judgment of 15 September 1999, by which it had found that the
applicant had submitted an untrue lustration declaration because she
had been an intentional, secret collaborator of the communist secret
services after 1953. It further informed the applicant that the
written grounds of the judgment had been prepared under Article 100 §
5 of the Code of Criminal Procedure and that she could consult them
in the office of its secret registry (kancelaria tajna). As
she had not appointed legal representation, the full written grounds
could only be read by herself, to the exclusion of all other persons,
except the Commissioner of Public Interest.
The
applicant appealed.
On
8 November 1999 the Warsaw Court of Appeal, acting as the
second instance lustration court, dismissed her appeal and
upheld the first instance judgment.
On
22 November 1999 the same court informed the applicant that the
written grounds of that judgment had been prepared under Article 100
§ 5 of the Code of Criminal Procedure, and that she could
consult them at the office of the court's secret registry.
The
applicant lodged a cassation appeal with the Supreme Court, which
held a hearing on 10 October 2000, but the applicant chose not to
attend. The Court allowed the Commissioner's request to examine the
applicant's appeal in camera, having regard to Article 360
§ 1 (3) of the Code of Criminal Procedure. By a
judgment of the same date the Court dismissed the applicant's
cassation appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
18. Article 45
of the Constitution, insofar as relevant, reads:
“Everyone shall have the right to a fair and
public hearing of his case, without undue delay, before a competent,
impartial and independent court. ...”
Article 79
§ 1 of the Constitution provides as follows:
“In accordance with principles specified by
statute, everyone whose constitutional freedoms or rights have been
infringed, shall have the right to appeal to the Constitutional Court
for a judgment on the conformity with the Constitution of a statute
or another normative act on the basis of which a court or an
administrative authority has issued a final decision on his freedoms
or rights or on his obligations specified in the Constitution.”
Under
the established case law of the Constitutional Court, it has
jurisdiction only to examine the compatibility of legal provisions
with the Constitution and is not competent to examine the way in
which courts interpreted applicable legal provisions in individual
cases (e.g. SK 4/99, 19 October 1999; Ts 9/98, 6 April
1998; Ts 56/99, 21 June 1999).
B. The Lustration Act
19. On
3 August 1997 the Lustration Act (Ustawa o ujawnieniu pracy lub
służby w organach bezpieczeństwa państwa lub
współpracy z nimi w latach 1944-1990 osób
pełniących funkcje publiczne) entered into force. Its
purpose was to ensure transparency as regards those people exercising
public functions who had been secret collaborators with the secret
service during the communist era. It lost its binding force on
15 March 2007.
Pursuant
to section 4 of the Act, “collaboration” was understood
as the “intentional and secret collaboration with the
operational or investigative branches of the State's security
services as a secret informer or assistant, supplying them with
information”.
Section 6
(1) of the Act read:
“Persons in the categories listed in Article 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
(1) contained a list of public functions and professions, the holders
of which must make the declaration under Article 6.
Under
section 7 (1) item 10 (a) as amended in 1998, candidates to the bar
and advocates were also obliged to make such declarations. Their
declarations were to be submitted to the Minister of Justice.
The
declarations were also transmitted to the Lustration Court. Pursuant
to section 1 of the Act, the Warsaw Court of Appeal was vested with
powers to conduct lustration proceedings. Such proceedings could be
instituted at the request of the Commissioner of Public Interest
(rzecznik interesu publicznego).
The
Commissioner would institute proceedings before the Lustration Court
when he or she had doubts whether the declaration of
non collaboration was truthful.
According
to section 17(d), the duties of the Commissioner included in
particular:
“1. i) analysing the lustration declaration
submitted to the court;
ii) collecting the 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 or her 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.”
Pursuant
to section 17 (e), the Commissioner had full access to all documents
and other sources of information, regardless of the form in which
they were recorded, created before 10 May 1990 by organs specified in
that provision, including sources within the Ministry of Internal
Affairs.
Under
section 19, matters not covered by the Act and relating to lustration
proceedings were governed by the provisions of the Code of Criminal
Procedure.
According
to section 20, the person under scrutiny was afforded the same
defence rights as an accused in criminal proceedings.
The
proceedings before the Lustration Court terminated with a decision on
whether the declaration made by the person concerned was true. A
decision of this court could be appealed to the second-instance
Lustration Court. Such an appeal was examined by a different panel of
three judges of the Warsaw Court of Appeal.
Pursuant
to section 23, the decisions of the Lustration Court were to be
served on the person concerned with their written grounds.
A
cassation appeal to the Supreme Court lay against the second instance
judgment.
The
final judgment, finding a particular declaration untrue, was
immediately made public in the “Official Law Gazette”
(Monitor Polski).
Pursuant
to section 30, the final judgment of an untrue declaration
established the loss of moral qualifications which were, according to
the relevant laws, necessary for the exercise of certain public
functions, including the profession of advocate. It therefore
entailed disbarment.
C. Code of Criminal Procedure
Article
156 § 4 of the Code provides that, when a danger arises that
State secrets may be revealed to the public, access to the case
files, making notes and copying documents from such files shall only
be allowed under special arrangements provided for by the president
of the court or by the court.
Article 100
§ 5, which concerns the 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 will be served to the effect that the reasons have
been prepared.”
Article
360 § 1 (3) of the Code provides that the court shall
order a hearing to be held in camera if its public character
could disclose circumstances which should remain secret in the light
of important State interests.
D. Laws on classified information
Section
2 (1) of the Protection of State Secrets Act 1982 (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) the 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 Protection of Classified Information Act 1999 (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 the 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.”
E. Judgments of the Constitutional Court
Certain limited aspects of the Lustration Act 1997 have been examined
by the Constitutional Court as to their compatibility with the
Constitution. In a judgment of 10 November 1998, the
Constitutional Court recalled the historical background to the
Lustration Act and explained its purpose:
“As can be seen from the legislative history, the
main aim of the Act was to 'make it impossible to use a person's
political past', the fact of cooperating with the secret services,
'for the purpose of blackmailing ... persons holding key
decision making functions in the Polish State'...
The concept of lustration as adopted by the legislator,
in respect of the subject of scrutiny, decision-making and possible
sanction in lustration proceedings, is the truthfulness of the
declaration submitted under Article 6 of the [Lustration Act]. Thus,
as follows directly from the Act and from the Constitutional Court's
judgment of 21 October 1998, the law does not associate criminal
or quasi-criminal liability with the sole fact of past collaboration
with the State's security services... The legislator's intention is
that persons who are exercising public functions or standing for
election to posts involving the exercise of public functions shall
submit a declaration regarding cooperation. The purpose of such
regulation is to secure the open nature of public life, to eliminate
[the possibility of] blackmail because of facts from the past which
can be considered as compromising, and to submit those facts for
public consideration. The collaboration itself does not prevent any
citizen from exercising public functions, and lustration proceedings
are designed only to scrutinise the truthfulness of those who
exercise or wish to exercise public functions. It is therefore not
the collaboration, but the submission of a false declaration which
has negative consequences for those affected.”
In
a judgment of 21 October 1998 (K 24/98), the court examined the
constitutionality of certain provisions of the Lustration Act as
amended in 1998. These amendments concerned the provisions regulating
the position of the Commissioner of Public Interest and, also,
provisions to the effect that certain categories of persons, if found
to have made a false lustration declaration, were to be regarded as
having lost the moral qualifications necessary for the exercise of
certain public functions.
In
a judgment of 19 June 2002 (K 11/02), the court held that certain
amendments to the Lustration Act, enacted on 15 February 2002,
were incompatible with the Constitution because Parliament (Seym)
had failed to respect the legislative procedure provided for by the
relevant constitutional provisions.
In
its judgment of 5 March 2003 ( K 7/01), the Constitutional Court
examined the compatibility with the Constitution of certain
provisions of the Lustration Act which created the obligation to
publish a lustration declaration made by candidates to certain public
functions insofar as they did not make any distinction between
various categories of collaboration with the secret services.
In
its judgment of 28 May 2003 (K 44/02), the court examined the
scope of the notion of secret collaboration as provided for by
Article 4 of the Lustration Act as amended in September 2002.
The
court also dealt with other problems concerning the Lustration Act in
its judgments K 39/97, P 3/00, SK 10/99 and SK 28/01.
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 submitted that the applicant had failed to exhaust the
domestic remedies available to her, as required under Article 35
§ 1 of the Convention. They argued that she had not raised
before the domestic courts, even in substance, specific allegations
regarding the unfairness of the lustration proceedings. In
particular, neither at the appellate nor at the cassation stage, had
she challenged the restrictions concerning her access to the case
files. Nor had she complained that the proceedings had not been
public, as required by Article 6 of the Convention. The
Government pointed out that this provision could be directly relied
on in the proceedings before the domestic courts.
The
Government further argued that the applicant had not availed herself
of the remedy under Article 79 § 1 of the Constitution. They
maintained that the Court had recognised that, even if the
Constitutional Court was not competent to quash individual decisions
because its role is to rule on the constitutionality of laws, its
judgments declaring a statutory or other provision unconstitutional,
gave rise to a right to have the impugned proceedings re-opened in an
individual case, or to have a final decision quashed (cf.
Szott-Medyńska v. Poland, no. 47414/99,
9 October 2003). Consequently, the Government argued that, if
the applicant had been of the opinion that certain Articles of the
Code of Criminal Procedure and the Lustration Act, as applied in her
case, had violated her right to a fair hearing, she should have
availed herself of the possibility of requesting the Constitutional
Court to decide whether those provisions were compatible with the
Constitution.
The
applicant disagreed with the Government's arguments and submitted
that, in her case, the individual constitutional complaint would not
have been an effective remedy.
In
its decision on admissibility (see paragraph 4 above), the Court
considered that the question of whether the applicant could
effectively challenge the legal rules governing access to the case
file and the lustration proceedings was linked to the Court's
assessment of Poland's compliance with the requirements of a “fair
hearing” 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 and will consider
the matter below (see paragraphs 70 73).
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant alleged a breach of Article 6 of the Convention 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 parties' submissions
1. The applicant's submissions
The applicant argued that she had not had access to the file to an
extent sufficient to ensure the fairness of the proceedings. She
could not make and retain full notes in the proceedings before the
courts which had made the proceedings unfair and rendered her defence
ineffective.
She
further complained that the proceedings had not been public in that
the written grounds of the judgments, explaining the full reasons of
the judicial decisions given in her case had never been served on her
or made accessible to the public.
2. The Government's submissions
The
Government argued that the documents in the applicant's case file had
been protected by official secrecy under the provisions of the
Protection of Classified Information Act (see paragraphs 36 37
above). They had been classified as “top secret”.
However, throughout the proceedings, the applicant had had full
access to that file. Any restrictions on her access to the court file
had been imposed pursuant to the provisions of the Code of Criminal
Procedure, applicable in the lustration proceedings. Such
restrictions had been necessary due to the danger of revealing State
secrets. The manner in which the applicant could have had access to
the case file had been regulated by Article 156 § 4 of the Code
of Criminal Procedure. Under this provision, access to a case file
containing classified documents, and making copies thereof, was
subject to the conditions determined by the president of the court or
by the court itself. Further, under the provisions of the Protection
of Classified Information Act, documents classified as top secret or
secret had been accessible to the applicant and to the Commissioner
of Public Interest only at the office of the secret registry of the
Lustration Court.
The
Government submitted that the written grounds of the judgments given
in the applicant's case could neither be made public nor served on
her because the evidence in the case file on which these judgments
had been based had been covered by official secrecy. The applicant
could read them in the office of the court's secret registry.
B. The Court's assessment
1. The 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 Lustration Act
1997 she had a “fair hearing” within the meaning of
Article 6 of the Convention. The Court recalls that in its
admissibility decision of 24 October 2006 it established that the
applicant was facing a criminal charge. Accordingly, the procedural
guarantees of Article 6 of the Convention under its criminal head
applied to her lustration proceedings (see also the admissibility
decision in Matyjek v. Poland, 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; see also the judgment in the case Matyjek v.
Poland, referred to above, §§ 53-54).
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 or her case under conditions that do not
place the individual at a substantial disadvantage vis à vis
the 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; Bulut v. Austria, judgment of 22 February
1996, Reports 1996 II, p. 380-81, § 47).
The Court further recalls 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; 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
judgment 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, the selection and disclosure of which
documents is at the discretion of the current security service. 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 (see also
Matyjek v. Poland, cited above, § 56).
Turning
to the circumstances of the present case, the Court will first
examine the applicant's complaints relating to the equality of arms
in the proceedings concerned. In this connection, the Court first
observes that the Government have pointed to the series of successive
laws on the basis of which the materials from the communist-era
security services continued to be regarded as State secrets (see
paragraphs 35 36 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 covered by official secrecy. However, the Court recalls
that it has previously held that such a situation is inconsistent
with the fairness of lustration proceedings, including the principle
of equality of arms (see Turek, cited above, § 115;
Matyjek, cited above, § 57).
Secondly,
the Court notes that, at the pre-trial stage, the Commissioner of
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 proceedings, the
applicant could also access her court file. However, pursuant to
Article 156 of the Code of Criminal Procedure and section 52 (2) of
the Protection of Classified Information Act 1999, 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 (paragraphs 33, 37 and 53 above).
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 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 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 or she could hear witnesses and order
expert opinions. The Commissioner also had at his or her disposal a
secret registry with staff who had 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 paragraph 26 above).
Furthermore,
it was not in dispute between the parties that, when consulting her
case file, the applicant had been authorised to make notes. However,
any notes she took could be made only in special notebooks which were
subsequently sealed and deposited in the registry's secret section.
The notebooks could not be removed from this registry and could be
opened only by the person who had made them. Similar constraints were
imposed on any notes taken during the hearings. The Court observes
that the Government did not invoke any provision of domestic law
which would have given the applicant a right to remove the notebooks
from the secret registry.
The
Court reiterates that the accused's effective participation in the
criminal trial must equally include the right to compile notes in
order to facilitate the conduct of the defence, irrespective of
whether or not he or she is represented by counsel (Pullicino
v. Malta (dec.), no 45441/99, 15 June 2000). The
fact that the applicant could not remove her own notes, taken either
at the hearing or in the secret section of the registry, in order to
seek advice from an expert or for some similar legitimate purpose,
effectively prevented her from using the information contained in
them fully and effectively, as she had to rely solely on her memory.
The
Court observes that the applicant's good name was at stake in the
proceedings. It further notes that, under the provisions of the
Lustration Act, the judgment finding an untrue declaration was
regarded as a loss of moral qualifications which were, according to
the relevant laws, necessary for the exercise of certain professions,
including the profession of advocate. In this connection the Court
refers to its findings made in the cases of Sidabras and
DZiautas v. Lithuania (nos. 55480/00 and 59330/00, ECHR
2004 VIII) and Rainys and Gasparavičius v. Lithuania
(nos. 70665/01 and 74345/01, § 36, 7 April 2005).
It observed therein that the State-imposed restrictions on a person's
opportunity to exercise employment in a private sector for reasons of
a lack of loyalty to the State in the past could not be justified
from the Convention perspective in the same manner as restrictions on
access to their employment in the public service, in particular in
the light of the long period which had elapsed since the fall of the
communist regime (loc. cit., § 36). Hence, having
regard to what was at stake for the present applicant, the Court
considers that it was important for her to have unrestricted access
to the court files and unrestricted use of any notes she had made,
including, if necessary, the possibility of obtaining copies of
relevant documents (see Foucher, cited above, § 36).
Furthermore,
the Court notes that only the operative parts of the judgments given
in the applicant's case were notified to her (paragraphs 13 and
16 above). Pursuant to section 31 of the Lustration Act, the
operative parts of the judgments of the Lustration Court were also
published in the Official Gazette. The applicant could only consult
the reasoned judgments in the office of the secret registry. As she
had not appointed a lawyer, the written grounds could only be read by
herself, to the exclusion of all other persons, except the
Commissioner of Public Interest.
In
this connection, the Court reiterates that the holding of court
hearings in public constitutes a fundamental principle enshrined in
paragraph 1 of Article 6. This public character protects litigants
against the administration of justice in secret with no public
scrutiny; it is also one of the means whereby confidence in the
courts can be maintained. By rendering the administration of justice
transparent, publicity contributes to the achievement of the aim of
Article 6 § 1, namely a fair hearing, the guarantee of which is
one of the fundamental principles of any democratic society, within
the meaning of the Convention (see, for example, Diennet
v. France, judgment of 26 September 1995, Series A
no. 325-A, pp. 14–15, § 33).
The
principles governing the holding of hearings in public also apply,
mutatis mutandis, to the public delivery of judgments and have
the same purpose of a fair hearing. In the Pretto and Others v.
Italy judgment the Court held, having regard to the Court of
Cassation's limited jurisdiction, that depositing the judgment in the
court registry, which made the full text of the judgment available to
everyone, was sufficient to satisfy the requirement (Pretto and
Others v. Italy, judgment of 8 December 1983, Series A
no. 71, p. 11, §§ 21 and 26 in fine).
In another case the Court held that the public delivery of a decision
of the Military Court of Cassation was unnecessary, as public access
to that decision was ensured by other means, namely the possibility
of seeking a copy of the judgment from the court registry and its
subsequent publication in an official collection of case-law (Sutter
v. Switzerland, judgment of 22 February 1984, Series A
no. 74, pp. 14–15, § 34).
However,
the Court observes that in the present case no public access to the
grounds of the judgments concerned was possible. The operative part
of the lustration judgments in the applicant's case was limited to a
succinct statement that the person concerned had made a false
lustration declaration within the meaning of the Lustration Act.
Neither the findings of fact nor any reference to the evidence on
which the courts had based their findings were to be found therein.
Likewise, the parts of the judgments accessible to the public did not
contain any judicial reasoning specifying the grounds on which the
courts had reached their decisions.
In
the light of its case-law and bearing in mind that it is through
access to judicial decisions, including their grounds, that the
public is able to scrutinise the administration of justice, the Court
is of the view that the scope of public access to the lustration
judgments was insufficient to ensure the transparency of the
proceedings and an effective assessment of the way in which the
courts had examined the applicant's case.
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 the procedural guarantees of the
Convention (see Turek, cited above, § 115; Matyjek,
cited above, § 62). The Court accepts that there may be a
situation in which there is a compelling State interest in
maintaining the secrecy of some documents, even those produced under
the former regime. Nevertheless, such a situation will only arise
exceptionally given the considerable time which 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 the norm. The Court
considers that a system under which the outcome of lustration trials
depends to a considerable extent on the reconstruction of the actions
of the former secret services, while most of the relevant materials
remain classified as secret and the decision to maintain their
confidentiality falls within the powers of the current secret
services, creates a situation in which the lustrated person is 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 - in particular compared with the
privileged position of the Commissioner of Public Interest in such
proceedings - the applicant's ability to have her case examined
fairly was 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 satisfy
the requirements of a fair hearing or equality of arms between the
parties to the proceedings.
It
remains to be ascertained whether the applicant could have
successfully challenged the features of the lustration proceedings in
her 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 by the relevant
provisions of the Code of Criminal Procedure, and that those legal
provisions were complied with in this case, the Court is not
persuaded that the applicant, in her appeals or cassation appeals,
could have successfully challenged the decisions given in her case.
Insofar
as the Government rely on the constitutional complaint, the Court
points, firstly, to the fact that the Lustration Act had on several
occasions been unsuccessfully challenged before the Constitutional
Court (see paragraphs 38-43 above; Matyjek v. Poland
(dec.), cited above). The Court further notes that the Government
have failed to indicate which provisions of domestic law the
applicant should have been challenged by way of a constitutional
complaint. Moreover, the Court has held that a constitutional
complaint was an effective remedy for the purposes of Article 35 §
1 of the Convention only in situations where the alleged violation of
the Convention resulted from the direct application of a legal
provision considered by the complainant to be unconstitutional (see
Szott-Medyńska v. Poland (dec.),
no. 47414/99, 9 October 2003; Pachla v. Poland (dec.),
no 8812/02, 8 November 2005; Wypych v. Poland
(dec.), no. 2428/05,
25 October 2005).
In
this connection, the Court observes that the breach of the Convention
complained of in the present case cannot be said to have originated
from any single legal provision or even from a well-defined set of
provisions. It rather resulted from the way in which the relevant
laws were applied to the applicant's case and, in particular, from
the “special arrangements” referred to in Article 156 §
4 of the Code of Criminal Procedure, allowing the President of the
Lustration Court to limit the applicant's access to case files and
her possibilities of taking notes and copying documents (see
paragraph 33 above).
However, it follows from the case-law of the Polish Constitutional
Court that it lacks jurisdiction to examine the way in which the
provisions of domestic law were applied in an individual case (see
paragraph 18 above).
The Government did not refer to any other domestic remedy which could
have been successful in this case.
It
follows that it has not been shown that the applicant had an
effective remedy at her 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 must be rejected.
In
these circumstances the Court concludes that the lustration
proceedings against the applicant, taken as a whole, cannot be
considered to have been fair, within the meaning of Article 6
§ 1 of the Convention in conjunction 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 PLN 6,000,000 in respect of pecuniary and
non-pecuniary damage.
The
Government considered the claims 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 (see the aforementioned Matyjek
v. Poland judgment, § 69).
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 the fairness requirements of Article 6 (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 the applicant
may have sustained.
B. Costs and expenses
The
applicant also claimed PLN 31,532 for the costs and expenses incurred
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 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
the applicant submitted three invoices documenting the costs of
translation incurred in connection with the proceedings before the
Court in the amount of PLN 1,532. However, although the
applicant's lawyer submitted a claim for her fee, it was not
accompanied by any documents, other than an invoice dated 10 January
2007 in the amount of PLN 30,000. This invoice did not specify the
acts which the representative had performed. The Court notes in this
connection that the applicant only appointed her lawyer in January
2007, after the decision on the admissibility of the case had already
been given.
Consequently,
regard 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 1,400 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 any
non pecuniary damage sustained by the applicant;
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 1,400 (one
thousand four hundred euros) in respect of costs and expenses, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(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 17 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S.
Dollé F.
Tulkens
Registrar President
