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FOURTH SECTION

CASE OF ZABŁOCKI v. POLAND

(Application no. 10104/08)

JUDGMENT

STRASBOURG

31 May 2011

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 Zabłocki v. Poland,

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

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
Sverre Erik Jebens,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 10 May 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 10104/08) 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 Grzegorz Zabłocki (“the applicant”), on 26 February 2008.

The applicant was represented by Mr M. Pietrzak, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The applicant alleged, inter alia, that the lustration proceedings in his case had been unfair, in violation of Article 6 of the Convention.

On 24 November 2008 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1949 and lives in Koszalin.

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”). It entered into force on 3 August 1997. Persons falling under the provisions of the 1997 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, advocates and members of the supervisory boards and boards of directors of the “Polish Television SA” and “Polish Radio SA” as well as their local branches.

On 15 December 1998 the applicant, a member of the supervisory board of the Koszalin Branch of the National Radio (Rada Nadzorcza Rozgłośni Regionalnej Polskiego Radia, Radio Koszalin SA) declared that he had not collaborated with the communist era secret services.

In 2002 the applicant became a member of the board of directors of the same radio (Zarząd).

In February 2005 the Commissioner of the Public Interest (Rzecznik Interesu Publicznego) informed the applicant that he had doubts as to the truthfulness of his lustration declaration.

On 23 September 2005 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to institute lustration proceedings against the applicant following a request made by the Commissioner on the grounds that the applicant had lied in his lustration declaration by denying that he had cooperated with the secret services.

The Court of Appeal held hearings on 23 November, 8 December 2005 and 25 July and 20 September 2006. The applicant, who was not represented, attended the hearings although he lived in Koszalin, 450 kilometres away from the court. The hearings were not open to the public.

On 20 September 2006 the Warsaw Court of Appeal, acting as the first instance lustration court, found that the applicant had submitted an untrue lustration declaration since he had been an intentional and secret collaborator with the State's secret services. The court established that between 1971 and 1974 the applicant, at that time a student at Torun University, had been a secret collaborator (TW, tajny współpracownik) and had signed a so called collaboration commitment (zobowiązanie do współpracy). The court based its findings on the statements made by Mr A.W., an officer of the Security Service (Służba Bezpieczeństwa, “the SB”) who had recruited him. The court established that the applicant had met with Mr A.W. several times and had once received financial payment. All the documents collected in the case were classified as confidential and could be consulted by the applicant in the secret registry of the lustration court.

The applicant appealed against the decision. He submitted that he had never collaborated with the SB and had not passed any information to it. He contested the authenticity of the documents, the originals of which had been destroyed and only microfilms of which had been preserved.

On 10 January 2007 the Warsaw Court of Appeal, acting as the second instance lustration court, upheld the impugned judgment. The court established that the evidence in the case had not been extensive but had obviously pointed to the fact that the applicant had been an intentional and secret collaborator with the SB.

On 28 August 2007 the Supreme Court (Sąd Najwyższy) dismissed the applicant's cassation appeal as being manifestly ill founded. The applicant was barred from holding public office for a period of ten years in application of the 1997 Lustration Act.

II. RELEVANT DOMESTIC LAW AND PRACTICE

The relevant 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 39, ECHR 2007 V.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION REGARDING UNFAIRNESS OF THE PROCEEDINGS

The applicant complained about the unfairness of the lustration proceedings, the infringement of his right of defence and the lack of equality of arms. He invoked Article 6 of the Convention which, in so far as relevant, reads:

“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;

...”

The Government contested that argument.

A. Admissibility

The Government claimed that the applicant had not exhausted relevant domestic remedies. First, he had never raised before the domestic courts allegations regarding the unfairness of the proceedings as presented in his subsequent application to the Court. Secondly, a constitutional complaint should be considered an adequate domestic remedy in the applicant's case.

The applicant disagreed.

The Court recalls that it has already considered 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. The Court notes that the arguments raised by the Government are similar to those already examined and rejected by the Court in previous cases against Poland (see Matyjek v. Poland, no. 38184/03, § 64, ECHR 2007 V; Luboch v. Poland, no. 37469/05, §§ 69 72, 15 January 2008; Rasmussen v. Poland, no. 38886/05, §§ 52 55, 28 April 2009) and the Government have not submitted any new arguments which would lead the Court to depart from its previous findings.

For these reasons, the Government's plea of inadmissibility on the ground of non exhaustion of domestic remedies must be dismissed.

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 VII).

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.

B. Merits

1. The parties' submissions

The applicant argued that the proceedings in his case had been unfair. In particular, he alleged that the material in his case had been classified as confidential, which had limited his right of access to it. Before the institution of the proceedings he had had no access to the case file prepared by the Commissioner of the Public Interest. After the lustration proceedings had been instituted by the Warsaw Court of Appeal the applicant could consult the documents only in the secret registry of the lustration court. The limitations on access were not applicable to the Commissioner of the Public Interest. Thus, the applicant was placed at a significant disadvantage vis à vis the Commissioner who had unlimited access to the file in his secret registry.

The Government submitted that the applicant had access to all evidence and all decisions given in the case. The only limitations which applied to him were a consequence of the fact that part of the evidence was considered as secret. The applicant could consult the case file in the secret registry but could not use his notes based on the file outside the secret registry. The same restrictions applied to the Commissioner of Public Interest and the judges examining the case.

The Government observed that the applicant had benefited from an examination of his case at two instances by ordinary courts with full jurisdiction to assess the relevant facts and law. He further availed himself of an extraordinary appeal to the Supreme Court. For the Government there had been no appearance of a violation of the applicant's right to a fair trial in the impugned proceedings.

The Government concluded that there had been no breach of Article 6 § 1 in the present case.

2. The Court's assessment

The Court reiterates that the procedural guarantees of Article 6 of the Convention under its criminal head apply to lustration proceedings (see paragraph 22 above). The Court had already dealt with the issue of lustration proceedings in Turek v. Slovakia (no. 57986/00, § 115, ECHR 2006 II (extracts)) and in several cases against Poland (see, Matyjek, § 56; Luboch, § 61; Rasmussen, § 43, all cited above). In the latter cases it considered it appropriate to examine the applicants' complaints under Article 6 §§ 1 and 3 taken together. The relevant case law concerning the principle of equality of arms is stated in the above cited judgments.

Turning to the instant case, the Court observes firstly that the Government have admitted that part of the evidence had been secret. In the previous cases concerning lustration proceedings in Poland the Court observed that under the series of successive laws the communist era security services' materials continued to be regarded as a State secret. 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 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, § 115; Matyjek, § 57; Luboch, § 62; Rasmussen, § 44, all cited above).

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 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.

Furthermore, 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 Court has held that the fact that, when consulting his case file, the lustrated person could not remove his own notes, taken 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 (see Matyjek, cited above, § 58). Regard being had to what was at stake for the applicant in the lustration proceedings – not only his good name but also a possible ten-year ban on holding public offices – 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 Górny v. Poland, no. 50399/07, § 37, 8 June 2010).

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 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 1997 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 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.

The Court has held that lustration measures are by their nature temporary and the necessity to continue such proceedings diminishes with time. It has recognised that at the end of the 1990s the State had an interest in conducting lustration proceedings 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, § 115 and Matyjek, § 62, both cited above).

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 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, § 62; Luboch, § 67; Rasmussen, § 50, Górny § 40, all cited above).

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 1997 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).

Having regard to the foregoing, 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 taken together with Article 6 § 3. There has accordingly been a breach of those provisions.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 REGARDING LACK OF A PUBLIC HEARING

The applicant complained under Article 6 § 1 of the Convention that the proceedings in his case had not been public.

The Government contested that argument. They submitted that the partial exclusion of the public in the present case had been justified on national security grounds.

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 taken together with Article 6 § 3 on account of the unfairness of the lustration proceedings, and the reasons underlying that finding (see paragraphs 29-36 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 (see Luboch, cited above, § 77).

III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

The applicant alleged that he should not have been subjected to lustration as a member of the board of directors of the local branch of a public radio. The Court considers that the complaint falls to be examined under Article 10 of the Convention which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Government submitted that there had been no violation of Article 10 of the Convention but did not comment any further on the question whether the fact that the applicant had been subjected to lustration proceedings raised an issue under this provision.

The Court notes that this complaint is linked to the complaint regarding unfairness of the proceedings examined above and must therefore likewise be declared admissible.

Having regard to the finding of a violation of Article 6 § 1 taken together with Article 6 § 3 on account of the unfairness of the lustration proceedings (see paragraphs 29-36 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 10 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant further raised some general complaints under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1. He alleged that the lustration courts' judges had not been impartial, wrongly assessed the evidence, and that he had not been informed of his rights, in particular, as regards legal aid.

The Court reiterates that, in accordance with Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I, with further references).

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 is manifestly ill founded and 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 1,000 euros (EUR) in respect of non pecuniary damage.

The Government invited the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction.

The Court 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, § 69; Luboch, § 83, both cited above).

B. Costs and expenses

The applicant, who was represented by a lawyer, did not claim reimbursement of costs and expenses.

FOR THESE REASONS, THE COURT

Declares unanimously the complaints under Article 6 of the Convention regarding the unfairness of the proceedings and the lack of a public hearing, and the complaint under Article 10 of the Convention, admissible and the remainder of the application inadmissible;

Holds unanimously that there has been a violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3;

Holds unanimously that there is no need to examine the complaint under Article 6 § 1 of the Convention regarding the lack of a public hearing;

Holds by six votes to one that there is no need to examine the complaint under Article 10 of the Convention;

Holds unanimously that the finding of a violation constitutes in itself sufficient just satisfaction for any non pecuniary damage sustained.

Done in English, and notified in writing on 31 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Nicolas Bratza
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Garlicki is annexed to this judgment.

N.B.
T.L.E.

PARTLY DISSENTING OPINION OF JUDGE GARLICKI

I have voted against point 4 of the operative part of the judgment because, in my view, Article 10 of the Convention raises a separate and distinct question.