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LUBOCH v. POLAND - 37469/05 [2008] ECHR 31 (15 January 2008)
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[2008] ECHR 31
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FOURTH
SECTION
CASE OF LUBOCH v. POLAND
(Application
no. 37469/05)
JUDGMENT
STRASBOURG
15
January 2008
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 Luboch v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
Kristaq Traja,
Lech
Garlicki,
Ljiljana Mijović,
Ján
Šikuta,
Päivi Hirvelä, judges,
and
Lawrence Early, Section Registrar,
Having
deliberated in private on 11 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 37469/05) 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 Zbigniew Luboch (“the
applicant”), on 7 October 2005.
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.
On
14 March 2006 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1956 and lives in Rzeszów.
A. Background to the case
The
applicant read law from 1981 to 1986. Subsequently, he did his
four-year advocate training and in 1992 he began to practise as an
advocate.
The
applicant submits that from 1984 onwards he had often gone abroad to
visit his family and to work.
On
one occasion, after his return from abroad, the applicant met with
his old colleague, W.C., who had offered his help in connection with
a letter which had allegedly arrived from abroad and could have
caused problems for the applicant. The applicant was not aware that
W.C., who claimed to be working as a teacher, was in fact an officer
of the Security Service (Służba Bezpieczeństwa).
In
spring 1987 the applicant became aware of that fact. He then threw
W.C. out of his flat and cut off all contacts with him. There were
three witnesses to that event, T.L., B.M. and M.S.
B. Lustration proceedings
On
11 April 1997 the parliament passed the Law 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”). Persons falling under the provisions of the
Lustration Act, i.e. candidates or holders of public office such as
ministers and members of parliament, were required to declare whether
or not they had worked for or collaborated with the security services
during the communist regime. The provisions of the Act extended to,
inter alia, judges, prosecutors and advocates.
Following
the entry into force of the 1997 Lustration Act the applicant
declared that he had not been an intentional and secret collaborator
of the communist-era security services.
On
an unspecified date in 2000 the Commissioner of Public Interest
(Rzecznik Interesu Publicznego) applied to the Warsaw Court of
Appeal to institute proceedings in the applicant's case on the
grounds that he had lied in his lustration declaration by denying his
collaboration with the security services. The Commissioner heard W.C.
as a witness.
On
30 May 2000 the Warsaw Court of Appeal instituted lustration
proceedings in the applicant's case. On 5 June 2000 the applicant was
informed that the lustration proceedings had been instituted and that
he could consult the case file in the court.
On
8 May 2001 the court held a hearing partly in camera. It examined
some archived classified documents.
On
16 June 2001 the court held a hearing partly in camera at which it
examined the applicant's personal record (teczka osobowa). The
applicant stated that he would not make any statements and would not
answer any questions put to him by the court. He requested the court
to call W.C. and M.R. as witnesses.
The
court held hearings in camera on 27 June, 25 September and 25 October
2001. Witness W.C. summoned by the court failed to appear.
On
25 October 2001 the Warsaw Court of Appeal, acting as the
first-instance lustration court, found that the applicant had been an
intentional and secret collaborator with the Security Service and had
therefore lied in his lustration declaration. The operative part of
the judgment was served on the applicant on 20 December 2001. At the
same time, the reasoning was considered “top secret” and,
in accordance with Article 100 § 5 of the Code of
Criminal Procedure, could only be consulted in the Court of Appeal's
secret registry.
On
3 January 2002 the applicant lodged an appeal. He argued that the
Court of Appeal's judgment had been primarily based on the statements
of W.C. who had not been heard by the court. The court had instead
relied on the transcript of W.C.'s statements given before the
Commissioner. Those statements had been given without the applicant
or his lawyer being present. W.C. was an officer of the Security
Service which had allegedly managed the applicant as a secret
collaborator.
On
16 May 2002 the Warsaw Court of Appeal held a hearing at which it
heard W.C. as a witness. The court notified W.C. that the Head of the
State Security Bureau (Urząd Ochrony Państwa) had
discharged him from the obligation of confidentiality in respect of
the subject matter of the proceedings.
W.C.
was heard again at the hearing held on 18 November 2003. The court
refused the applicant's request to call two additional witnesses
(M.S. and J.S.) on the ground that their evidence would not be
relevant for the determination of the case.
On
3 September 2004 the court held a hearing. It refused the applicant's
request to call two further witnesses (B.M. and T.L.), considering
their evidence irrelevant for the case.
On
3 September 2004 the Warsaw Court of Appeal, acting as the
second-instance lustration court, upheld the original decision. It
appears that the judgment and its reasoning were served on the
applicant.
On
15 November 2004 the applicant lodged a cassation appeal with the
Supreme Court. He submitted, inter alia, that the Court of
Appeal had refused to call three crucial witnesses for the applicant
whose evidence was to rebut the fact of his alleged collaboration
with the security services. The applicant further submitted that the
Court of Appeal had disregarded his arguments to the effect that his
contacts with W.C. had been of a private nature. He submitted that
his contacts with W.C. had not constituted secret and intentional
collaboration. He also challenged the fact that he could not consult
the file in the proceedings before the Commissioner or adduce any
evidence at that stage of the proceedings.
On
14 April 2005 the Supreme Court dismissed the applicant's cassation
appeal. The applicant was served with the operative part of the
judgment. The written reasoning was designated “secret”
by the Supreme Court and the applicant could consult it at the
Institute of National Remembrance (Instytut Pamięci
Narodowej).
On
19 May 2005 the President of the Court of Appeal, pursuant to the
1997 Lustration Act, ordered the publication in the Official Law
Gazette (Monitor Polski) of the information that according to
the Warsaw Court of Appeal's final judgment of 25 October 2001 the
applicant had lied in his lustration declaration.
Consequently,
on 9 June 2005 the President of the Rzeszów Regional Bar
Council issued a decision depriving the applicant of the right to
practise as an advocate.
On
11 November 2005 the applicant requested the President of the
Republic of Poland to grant him a pardon. He was informed, however,
that a pardon could only be granted in respect of a person who had
been convicted of a criminal offence.
II. RELEVANT LAW
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 advocates...”
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”
(oświadczenie lustracyjne”):
“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
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.”
D. 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
A. The Government's submissions
The
Government submitted that the applicant had not exhausted all
relevant domestic remedies as required under Article 35 § 1 of
the Convention. They argued that neither at the appellate nor at the
cassation stage had the applicant alleged, even in substance, any
infringement of his right to a fair hearing as presented in his
subsequent complaint to the Court. In particular, the applicant had
not questioned the alleged restrictions on his access to the case
file and on taking notes from it. Nor had he complained that he could
not present his arguments in accordance with the principles of an
adversarial hearing and equality of arms.
The
Government emphasised that Article 6 of the Convention was
directly applicable under Polish law and the applicant could,
therefore, have relied on that provision before the Polish courts,
complaining of a violation thereof in his case. However, in his
appeal on points of law to the Supreme Court the applicant had put
forward arguments which had been based solely on domestic law, had
concerned the merits of the case and had not been related to the
question of access to the case file.
The
Government further argued that the applicant had failed to lodge a
constitutional complaint with the Constitutional Court. Had the
applicant been of the opinion that the legal provisions on which the
courts had based their decisions or their interpretation –
namely Articles 100 § 5 and 156 § 4 of the Code of Criminal
Procedure in conjunction with section 52 § 2 of the Lustration
Act – had breached his rights, in particular his right to a
fair hearing enshrined in Article 45 of the Constitution, he should
have lodged a constitutional complaint. In particular, the applicant
should have requested the Constitutional Court to examine whether the
rules imposed by those provisions had violated his right to a fair
trial. The Government also maintained that the applicant could have
requested the Constitutional Court to give a so-called
“interpretative judgment” (orzeczenie interpretacyjne)
which would indicate the correct way of construing the relevant
provisions which, in turn, would have to be taken into consideration
by the courts applying them.
B. The applicant's submissions
The
applicant disagreed. As regards the argument that he had not relied
on the Convention in the domestic proceedings, he maintained that he
had raised in his appeal and cassation appeal the issue of
restrictions in his access to the case file. He had contested the
fact that he could not take notes from the file, make photocopies of
documents and read hand-written documents produced by the Security
Service. As regards the constitutional complaint, he submitted that
the Constitutional Court had jurisdiction to examine the
constitutionality of legal provisions which had served as a basis for
a final ruling but not to examine the way in which those provisions
had been applied in a given case.
C. The Court's assessment
The
Court considers that the question of whether the applicant could
effectively challenge the set of legal rules governing access to the
case file and setting out the features of the lustration proceedings
is linked to the Court's assessment of Poland's compliance with the
requirements of a “fair trial” under Article 6 § 1
of the Convention (see Matyjek v. Poland, no. 38184/03, § 42,
ECHR 2007 ...).
The
Court accordingly joins the Government's plea of inadmissibility on
the ground of non-exhaustion of domestic remedies to the merits of
the case.
The
Court further observes that it has already found that Article 6 of
the Convention under its criminal head applied to lustration
proceedings (see, Matyjek v. Poland (dec.), no. 38184/03,
ECHR 2006 ... and Bobek v. Poland (dec.), no. 68761/01,
24 October 2006).
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
REGARDING UNFAIRNESS OF THE PROCEEDINGS
The
applicant complained under Article 6 of the Convention that the
lustration proceedings had been unfair. He contested their outcome
and alleged that the courts had refused to call all his witnesses.
The applicant further complained that he had been required to
formally undertake that everything which he had learned during the
proceedings would be kept confidential. In this respect he submitted
that all notes taken from the case file and during the hearings had
to be deposited with the court and could not be taken away.
Article
6 of the Convention 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 argued that the principle of equality of arms had not been
respected in his case. He had been hindered in his access to the case
file and thus could not defend himself properly against the
allegations raised by the Commissioner of the Public Interest.
Furthermore, he had been entirely deprived of a possibility to
participate in the proceedings before the Commissioner who had failed
to inform him about the institution of the proceedings against the
applicant. He could not question witnesses heard by the Commissioner
and had had no access to the case file at that stage. The applicant
averred that the evidence obtained by the Commissioner, without any
knowledge or possibility of mounting a challenge on his part, had
been of crucial importance in the lustration proceedings. The
applicant's situation had been more detrimental than that of a
suspect in the pre-trial investigation. The applicant had been placed
at a significant disadvantage vis-à-vis the Commissioner who
had had access to all documents and archives.
As
regards the judicial stage of the proceedings, the applicant
complained that all his requests to call important witnesses, who
were to rebut the allegation of his supposed collaboration with the
security services, had been refused. As a result, he could not
challenge the version of events put forward by the Commissioner. He
contested the fact that a key witness W.C. had not been heard in the
first-instance lustration proceedings. Furthermore, he argued that
the rights of the defence in the lustration proceedings had been
severely curtailed. In this respect, he submitted that the notes made
in the secret registry of the lustration court could not be taken
away and that he had not been allowed to make any copies. At hearings
he could not use any notes or other materials. The applicant
maintained that the classified evidence in his case covered documents
produced by the former security services which had concerned trivial
information, such as his results at university, his material status,
whether he had been going to restaurants and church etc.
B. The Government's submissions
The
Government argued that the applicant's right to a fair trial had been
respected in the instant case. They admitted that at the relevant
time the Lustration Act had not provided for a possibility that a
person concerned be heard by the Commissioner of the Public Interest
and be allowed to consult the documents underlying the Commissioner's
request for the lustration proceedings to be instituted. However, all
the materials relied on by the Commissioner had been subsequently
accessible to the applicant in the court proceedings.
The
Government submitted that part of the evidentiary material in
the applicant's case had been classified as “top secret”
under the 1982 Protection of State Secrets Act. Afterwards, the State
Security Bureau upheld the “secret” classification of
those documents on the basis of the 1999 Protection of Classified
Information Act. The classified character of those documents had
influenced the course of the proceedings; however it had had no
adverse effect on the fairness of the proceedings.
The
Government argued that under the 1999 Protection of Classified
Information Act and Article 156 § 4 of the Code of Criminal
Procedure, the evidence in the case, having been regarded as
classified information, had been 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 emphasised
that the above rules had enabled the applicant to actively
participate in the hearings.
Furthermore,
the Government observed that the need to protect the public interest
may justify withholding certain evidence from the defence in criminal
proceedings (Edwards and Lewis v. the United Kingdom,
nos. 39647/98 and 40461/98, § 53, 22 July 2003).
However, they underlined that in the present case all evidence had
been disclosed to the applicant. The only difficulty had been related
to the classified nature of the evidence which had resulted in
application of particular arrangements as far as access to the
case-file had been concerned.
The
Government submitted that, having regard to the nature of the
evidence in the case, the reasoning for the Court of Appeal's
judgment of 25 October 2001 and for the Supreme Court's judgment
of 14 April 2005 had been also classified. Consequently, the
applicant could consult the written reasoning for those judgments in
the Court of Appeal's secret registry. That procedure was applied in
all cases involving State secrets. The Government submitted that the
reasoning for the judgments had been also served on the secret
registry of the Commissioner of the Public Interest's Office. The
staff of the Commissioner's Office who had been preparing pleadings
on his behalf had been subject to the same rules concerning access to
the reasoning as the applicant. On account of the above
considerations, the Government could not produce, despite the Court's
request, copies of the reasoning for those judgments.
The
Government maintained that the applicant's requests to call certain
witnesses had not been – contrary to his submissions –
aimed at rebutting the allegation of his assumed collaboration. They
had been refused by the court since they had concerned the facts that
had been already established or that had not been in dispute. In any
event, the question of admissibility of evidence was primarily a
matter for national courts to assess.
The
Government concluded that there had been no violation of Article 6 §
1 in the present case.
C. The Court's assessment
The
Court recalls that the procedural guarantees of Article 6 of the
Convention under its criminal head apply to lustration proceedings
(see paragraph 47 above). It further observes 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).
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, Bulut v. Austria, judgment of
22 February 1996, Reports 1996 II, p. 380-81,
§ 47 and Foucher v. France, judgment of 18
March 1997, Reports of Judgments and Decisions 1997 II,
§ 34). 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 paragraphs 38-39 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. However, the Court
recalls 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 and Matyjek, cited,
§ 57).
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 37, 39 and 54 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, of which some 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 and Matyjek,
cited above, § 59). 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 his right to
practise as an advocate – 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 31 and 32 above).
Finally,
the Court notes that as regards the judgments given on 25 October
2001 and 14 April 2005, 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. Furthermore, the
Government did not produce copies of the written reasons in the
proceedings before the Court, invoking their classified character.
The
Court has recognised 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 and
Matyjek, cited above, § 62). 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 (see Matyjek, cited above, § 62).
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 (see Matyjek, cited
above, § 63).
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.
In
so far 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 Matyjek
v. Poland (dec.),
cited above). 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; Wiącek v.
Poland (dec.), no. 19795/02, 17 January 2006; Palusiński
v. Poland (dec.), no. 62414/00, ECHR 2006 ... and
Tereba v. Poland (dec.), no. 30263/04,
21 November 2006).
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, Article
156 § 4 of the Code of Criminal Procedure, allowing the
President of the Lustration Court to limit the applicant's access to
the case file and his possibilities of taking notes and copying
documents (see Bobek,
cited above, § 73). In that connection the Court points
to the established case-law of the Constitutional Court, according to
which constitutional complaints based solely on the allegedly
wrongful interpretation of a legal provision are excluded from its
jurisdiction (see Palusiński v. Poland (dec.), cited
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 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION REGARDING LACK OF PUBLIC HEARING
The
applicant also complained under Article 6 § 1 of the Convention
that the proceedings in his case had not been public. Article 6 §
1 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...”
The Government contested that argument. They submitted
that partial exclusion of the public in the present case had been
justified on national security grounds. The Government argued that
the course of the proceedings had been determined by the fact that a
part of the evidence examined by the court had been considered “top
secret” under the applicable legislation. Consequently, some of
the hearings, at which the court had examined classified documents or
heard witnesses whose statements had to be kept confidential, had
been held without the public. On the other hand, other hearings had
been public. Furthermore, W.C., the main witnesses in the case, had
been discharged from the obligation of confidentiality in respect of
the subject matter of the proceedings, so he could be heard during a
public hearing. The applicant disagreed with the Government's
submissions.
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
Having
regard to the finding of a violation of Article 6 § 1 on account
of unfairness of the lustration proceedings, and the reasons
underlying that finding (see paragraphs 62-68 and 73 above), the
Court considers that it is not necessary to examine whether, in this
case, there has been a violation of this provision as regards the
lack of a public hearing.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant alleged that the Lustration Act had violated Article 7
of the Convention. Relying on the Resolution 1096 (1996) on measures
to dismantle the heritage of former communist totalitarian systems of
the Parliamentary Assembly of the Council of Europe, the applicant
complained that the lustration process should not have lasted longer
than 10 years after the fall of the communist regimes and that there
had been no statute of limitations in the Lustration Act. He further
alleged a violation of Articles 1, 4, 8, 13 and 17 of the Convention.
The
Court has examined the remainder of the complaints as submitted by
the applicant. However, having regard to all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that the applicant has failed to
substantiate his complaints. It follows that this part of the
application must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
V. 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 840,000 Polish zlotys ((PLN); approximately 210,000
euros (EUR)) in respect of pecuniary damage. This sum corresponded to
the loss of his earnings during the next 10 years covered by the ban
on his practising as an advocate. He also claimed EUR 20,000 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. If
the Court were to find a violation in the present case, 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. Alternatively, they asked to assess the
amount of just satisfaction on the basis of its case-law in similar
cases and having regard to national economic circumstances.
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 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 may have been
sustained by the applicant (see, Matyjek, cited above, §
69).
B. Costs and expenses
The
applicant claimed 11,573.07 Polish zlotys (approximately EUR 3,000)
for the costs and expenses incurred in the domestic proceedings. This
amount included PLN 6,732.07 for costs of the proceedings before the
Court of Appeal, PLN 750 for court fees before the Supreme Court and
PLN 4,100 for his lawyer's fees. The applicant also claimed PLN 1,800
(approximately EUR 450) for the costs of translation incurred in
connection with the proceedings before the Court.
The
Government submitted that the applicant had not shown that the costs
and expenses claimed had been incurred in order to prompt the
domestic courts to comply with the requirements of Article 6 §
1.
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 the applicant
produced copies of invoices documenting his claim in respect of the
costs which he was ordered to pay by the Court of Appeal (PLN
6,732.07) and in respect of the costs of translation (PLN 1,800). He
did not submit any document to substantiate his claim as regards the
order for costs issued by the Supreme Court. In respect of the
lawyer's fees incurred in the domestic proceedings, the Court notes
that the applicant produced copies of postal transfers made to a
private address of his lawyer in the amount of PLN 4,100. However, it
observes that he did not submit a copy of the invoice issued by the
lawyer.
Consequently,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the sum of EUR
2,100 covering costs under all heads.
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
Joins to the merits the Government's preliminary
objection;
Declares the complaints under Article 6 of the
Convention regarding the unfairness of the proceedings and the lack
of a public hearing admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of
Article 6 § 1 of the Convention taken in conjunction
with Article 6 § 3 and dismisses, in consequence, the
Government's preliminary objection;
Holds that there is no need to examine the
complaint under 6 § 1 of the Convention regarding the lack of a
public hearing;
Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained;
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 2,100 (two
thousand one 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 15 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
