European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17625/05
by Ryszard CHODYNICKI
against Poland

The European Court of Human Rights (Fourth Section), sitting on 2 September 2008 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 18 April 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ryszard Chodynicki, is a Polish national who was born in 1947 and lives in Włocławek. He was represented before the Court by Mr W. Tomczyk, a lawyer practising in Warsaw.

A.  The circumstances of the case

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

On 13 August 2001 the applicant, who had been a candidate for Parliament, submitted a lustration declaration as required by the Law of 11 April 1997 on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944 1990 osób pełniących funkcje publiczne – “the 1997 Lustration Act”). In the declaration he admitted that he had served (pełnił służbę) in the State’s security services. In the explanatory “B” section of the declaration he stated that he had been a company commander in the Military Internal Service (Wojskowa Służba Wewnętrzna – “the WSW”).

Afterwards, the National Electoral Commission (Państwowa Komisja Wyborcza) published information that the applicant had served in the State’s security services within the meaning of the 1997 Lustration Act. The applicant was elected as a member of Parliament.

On 27 June 2002 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to institute proceedings in the applicant’s case on the ground that he had lied in his lustration declaration by stating that he had served in the WSW, whereas in reality he had secretly cooperated with this service.

On 16 December 2003 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 WSW and had therefore lied in his lustration declaration. The court established that in 1974, while serving in the army as a professional soldier, the applicant had been recruited as a secret collaborator with the military counter-intelligence service of the WSW. The applicant had thus lied in his declaration. He must have known that he had served as a commander of a platoon of the Warsaw Pontoon Regiment in Włocławek (Warszawski Pułk Pontonowy) and not the WSW.

The applicant lodged an appeal against the decision. He argued that he had admitted to having had ties with the security service – the WSW – but had mistakenly characterised the nature of his contacts as “service”. The applicant pointed to the lengthy period of time that had elapsed since the events in question and to the lack of clarity of the declaration, which he had had difficulties in filling out.

On 17 March 2004 the Warsaw Court of Appeal, acting as the second instance lustration court, dismissed the applicant’s appeal. The court reiterated that the purpose of the lustration declaration was to reflect the truth. The content of the declaration should be exhaustive and its form should comply with legal requirements. The court agreed with the first instance court that the applicant had denied having been an intentional and secret collaborator with the WSW, which had been the State’s security service within the meaning of the law. Lastly, the court dismissed the applicant’s assertion that he had committed a mistake while filling out the declaration. The court found that there had been no mistake as to the facts because the applicant had obviously known that his place of service was the Warsaw Pontoon Regiment and not the WSW. Nor could he claim that there had been a mistake as to the law, as it had been his duty to acquaint himself with the 1997 Lustration Act and the explanatory note on the declaration.

The applicant lodged a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy).

On 4 October 2004 the Supreme Court dismissed the cassation appeal as manifestly ill-founded. The Supreme Court followed the lower courts’ findings that the applicant had undoubtedly been an intentional and secret collaborator with the secret service, the WSW. This collaboration had nothing in common with the official contacts the applicant had had with the WSW while serving in the army, but had been a secret collaboration initiated by his signing a collaboration declaration. The Supreme Court reiterated that the purpose of the Lustration Act had also been to disclose the past of politicians, who in a democratic State should be transparent and whose past should be known. Finally, the court dismissed the applicant’s allegations that the form of the declaration had been confusing or open to contradictory interpretations. As a consequence of this judgment of the Supreme Court, on 4 October 2004 the applicant lost his seat in Parliament.

The applicant’s lawyer submitted that he had been notified of that decision on 22 October 2004.

B.  Relevant domestic law

The relevant domestic law and practice concerning lustration proceedings in Poland are set out in the Court’s judgment in the case of Matyjek v. Poland (no. 38184/03, §§ 27-38, ECHR 2007 ...).

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that the lustration proceedings had been unfair on the grounds that the 1997 Lustration Act had not been compatible with a democratic State under the rule of law. The 1997 Lustration Act did not take into consideration whether the person in question had committed acts that had been socially harmful and did not introduce limitation periods. The applicant complained that the lustration process in Poland breached Resolution 1096 (1996) of the Parliamentary Assembly of the Council of Europe on measures to dismantle the heritage of former communist totalitarian systems.

As a result of those deficient legal regulations, the applicant had been punished for having collaborated with the security services between 1974 and 1979 in spite of the fact that his behaviour had never led to a breach of human rights and had not hurt other people. Moreover, he had admitted to having had contacts with the security services, and that information had been made public. By mistake, he had stated in the declaration that he had served in the services instead of admitting to having collaborated with them. Nevertheless, the domestic courts had found him guilty of having lied in the lustration declaration and he had lost his seat in Parliament.

THE LAW

The applicant alleged a violation of Article 6, which provides, in so far as relevant:

“1.  In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ...by [a] ... tribunal...”

The Court has already dealt with the issue of lustration (see, for instance, Turek v. Slovakia, no. 57986/00, ECHR 2006 ...; Matyjek, cited above; and Luboch v. Poland, no. 37469/05, 15 January 2008). As regards the Polish 1997 Lustration Act, the Court has held that Article 6 applies to these proceedings under its criminal limb (see Matyjek v. Poland (dec.), no. 38184/03, ECHR 2006 VII). The Court has also examined the fairness of lustration trials, in particular the rules providing for the confidentiality of documents and governing access to the case file by the person concerned, as well as the position of the Commissioner of the Public Interest in lustration proceedings. In Matyjek the Court held that those rules, applied cumulatively, placed an unrealistic burden on the applicant in practice and did not respect the principle of equality of arms; thus, the lustration proceedings in the applicant’s case were found not to have been fair within the meaning of Article 6 §§ 1 and 3 of the Convention (see Matyjek, cited above, §§ 63-65).

However, the present case differs substantially from the cases referred to above mainly because the applicant here did not allege a violation of the principle of equality of arms. Nor did he claim that the confidentiality of the file, or the rules governing his access to it, made it impossible for him to defend himself or placed him at a significant disadvantage vis-à-vis the Commissioner of the Public Interest.

The Court notes that the applicant’s complaints were twofold. Firstly, he challenged the principles of lustration, claiming that the 1997 Lustration Act was not compatible with a democratic State under the rule of law and breached Resolution 1096 (1996) of the Parliamentary Assembly of the Council of Europe. He complained that the Act had made it possible to prosecute persons who had not committed acts that had been socially harmful or criminal offences, and to impose severe penalties on them.

Secondly, he complained that the domestic courts had wrongly found that he had lied in the lustration proceedings. The essence of his complaint was that the domestic law provided for the same sanction if a person subject to lustration proceedings falsely denied having had any contact with the communist-era security services, as well as if he or she submitted a “positive” lustration declaration which turned out to be untruthful. Thus, at his trial the applicant was found to have been a liar, in spite of having admitted to contact with the security services, because he had described such contact as service and not as collaboration.

The Court observes that there is no uniform approach among the High Contracting Parties as to the measures to dismantle the heritage of former communist totalitarian systems (see Matyjek (dec.), cited above, § 36). The Court has also recognised that Poland at the end of the 1990s had an interest in carrying out lustration in respect of persons holding the most important public functions (see Matyjek, cited above, § 62). The Court considers that such interest may have persisted at the beginning of the current decade, at least in respect of parliamentary elections. The 1997 Lustration Act did not impose a prohibition on taking up or holding public functions on the grounds of former work, service or collaboration with the communist-era secret services but introduced an obligation to inform the public of it, in the form of a lustration declaration. The Court observes that the distinction between three different types of cooperation with the security services – work, service or collaboration – which had to be disclosed in the declaration was justified by the legislature by the need to ensure the accuracy of the declarations so that the public could receive correct information about the past of those carrying out public functions. Moreover, from an ethical standpoint, the behaviour of a person subject to lustration proceedings might be judged differently depending on whether he or she openly worked or served in the security services or, on the other hand, was a secret and intentional collaborator with such services. Thus, Polish lustration law allowed for verification of all lustration declarations, both “positive” and “negative” ones, finding that any untruthfulness submitted in them entailed the loss of the moral qualifications necessary for exercising public functions. Moreover, the transparency of the process of parliamentary elections requires that voters should have access to all relevant information about the candidates. Since the applicant stated that he had served in the security service, which had been found to be untrue during his lustration trial, and denied that he had been a secret and intentional collaborator, he submitted an untrue declaration, thereby incurring sanctions. Given the margin of appreciation afforded to the State, the Court does not find that such domestic regulation could amount to a breach of the applicant’s right to a fair trial.

In this connection the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the undertakings of the Contracting States to the Convention. In particular, it is not its function to act as a court of appeal and to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Furthermore, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, with further references).

Finally, the Court finds unsubstantiated the applicant’s complaint that the lustration declaration was ambiguously worded, making it difficult for him to fill it out properly. The Court considers that the domestic courts dealt adequately with this argument in finding that the applicant must have known what his place of service had been.

It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Nicolas Bratza
Deputy Registrar President