(Application no. 38886/05)
28 April 2009
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 Rasmussen v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Ledi Bianku, judges,
Roman Wieruszewski, ad hoc judge,
and Lawrence Early, Section Registrar,
Having deliberated in private on 7 April 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
On 4 December 1997 the applicant who had retired on 8 July 1997 on grounds of ill health acquired the status of a “retired judge”. Under the applicable provisions of domestic law retired judges were entitled, as from 1 January 1998, to a special retirement pension equivalent to seventy five per cent of their last full salary (sędziowski stan spoczynku) every month.
II. RELEVANT DOMESTIC LAW AND PRACTICE
23. 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. The relevant domestic law and practice have been extensively summarised in the following judgments: Matyjek v. Poland, no. 38184/03, §§ 27-38, 24 April 2007 ; Bobek v. Poland, no. 68761/01, §§ 18 43, 17 July 2007; and Luboch v. Poland, no. 37469/05, §§ 28-39, 15 January 2008).
“Article 78 .... § 1. A retired judge shall be obliged to keep the dignity of the position of a judge.
§ 2. A retired judge shall take disciplinary responsibility for a failure to maintain the dignity of the position of judge after having retired and for any failures to maintain such dignity when serving as a judge.”
“Article 7 § 6. Judges ... who have acquired the right to the retirement pension or disability pension shall submit the declaration envisaged under section 18 of [the Lustration Act 1997].
Article 8 § 1. Retired judges ... who worked for or served in the [State’s security services] or who have submitted untrue declarations concerning such service or employment or collaboration with [such services] shall lose the right to retired judge status and to remuneration in the retired status.
§ 3. The circumstances referred to in § 1 shall be ascertained according to the procedure laid down in [the Lustration Act 1997]. The loss of the rights shall occur from the date of issue of the decision.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“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: …
(b) to have adequate time and facilities for the preparation of his defence”
30. The Court reiterates that if an applicant raises outside the six-month time-limit complaints which are particular aspects of the initial complaints submitted in compliance with the six-month requirement, they should be deemed to have been submitted within that time-limit (see Paroisse gréco-catholique Sâmbăta Bihor v. Romania (dec.), no. 48107/99, 25 May 2004). The Court is of the view that in the present case the reference to the general unfairness of the proceedings was sufficient to hold that the applicant had complied with the time limit. It follows that the Government’s objection must therefore be dismissed.
35. 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.
1. The parties’ submissions
2. The Court’s assessment
Those considerations remain relevant to the instant case despite some differences with the lustration proceedings in Poland (see also Matyjek, cited above, § 56; Bobek, cited above, § 57; and Luboch, cited above, § 62).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”.
1. The parties’ submissions
2. The Court’s assessment
73. The Court observes that under domestic law, the status of a “retired judge” which was created on 17 October 1997 was a special status. The status, which was voluntary and which a former judge could at any time resign, carried with it certain obligations including the obligation to comply with the lustration declaration requirements applicable to a sitting judge. The Government argued that, under domestic law, the status was linked with the constitutional principle of judicial independence and irremovability and that, even though a retired judge who acquired the privileged status no longer occupied a judicial post and had no active judicial role to play, he or she was regarded in domestic law as continuing to exercise a public function and the application of the lustration laws to the holder of such status was accordingly justified.
The Court does not find it necessary to determine whether the application of the lustration laws to those who were no longer in active service served a legitimate aim since, for the reasons which appear below, it finds that that there was in any event no interference with the applicant’s possessions for the purposes of Article 1 of Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
80. 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.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
FOR THESE REASONS, THE COURT UNANIMOUSLY
2. Declares the application admissible;
5. Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention;
Done in English, and notified in writing on 28 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza