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FOURTH
SECTION
CASE OF RASMUSSEN v. POLAND
(Application
no. 38886/05)
JUDGMENT
STRASBOURG
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:
Nicolas Bratza,
President,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
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:
PROCEDURE
- The
case originated in an application (no. 38886/05) 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, Ms
Alicja Rasmussen (“the applicant”), on 5 October 2005.
- 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 that the lustration proceedings in her case had
been unfair, in violation of Article 6 § 1 of the Convention.
She further complained, invoking Article 1 of Protocol No. 1 to the
Convention, that as a result of the lustration proceedings she had
been deprived of her special social insurance status as a retired
judge.
- On
13 September 2007 the President of the Fourth Section
decided to give notice of the application to the Government.
On 7 April 2009 the Court decided to apply Article 29 § 3 of the
Convention with a view to examining the merits of the application at
the same time as its admissibility.
- Mr L. Garlicki, the judge elected in respect of Poland,
withdrew from sitting in the case (Rule 28 of the Rules of Court).
The Government accordingly appointed Mr R. Wieruszewski to sit
as an ad
hoc
judge (Rule 29).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and lives in Szczecin.
- The
applicant had been a judge for twenty seven years. By virtue of
an amendment to the law on the System of Common Courts 1985, which
came into effect on 17 October 1997, the status of a “retired
judge” was created (see paragraph 24 below).
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.
- On
3 August 1997 the Lustration Act entered into force. By a
further amendment to the 1985 Law of 17 December 1997, which came
into effect on 15 August 1998, retired judges who had acquired the
right to a special retirement pension were required to submit a
declaration under that Act. In September 1998 the applicant made a
declaration under the provisions of that Act to the effect that she
had never secretly collaborated with the communist secret services.
- Subsequently,
on an unspecified date, the Commissioner of Public Interest applied
to the Warsaw Court of Appeal, acting as the first instance
lustration court, to institute proceedings in the applicant’s
case under the Lustration Act on the ground that she had lied in her
lustration declaration by denying that she had collaborated with the
secret services. He referred to documents showing that in 1986 the
applicant had agreed to collaborate and from 1986 until 1988 had
submitted fifteen written reports.
- During
the proceedings the applicant was represented by a lawyer. The case
file could be consulted by the applicant and her lawyer in the secret
registry of the lustration court. They were authorised to make notes.
However, the notes could be made only in special notebooks which were
subsequently sealed and deposited in the registry. It was possible
for them to make notes, but not to take the notes from the registry.
- On
an unspecified date the Warsaw Court of Appeal, acting as the
first instance court, held a hearing in the applicant’s
case. The hearing was not public. She was questioned by the court and
commented on the evidence at the court’s disposal. The case
file was composed of the applicant’s lustration declaration,
copies of certain documents contained in the applicant’s file
compiled by the communist secret police and the Commissioner’s
application for lustration proceedings to be instituted.
- On
7 April 2004 the court gave a judgment in which it found that the
applicant had made an untrue lustration declaration because she had
been a willing secret collaborator of the communist secret services.
It observed that the documents in the case file were incomplete, but
that they were nevertheless sufficient to find that the applicant had
been a secret collaborator. The applicant appealed.
- On
4 November 2004 the same court, acting as a court of appeal, upheld
the contested judgment, holding that the evidence in the case file
was sufficient to find that the applicant had knowingly and
intentionally collaborated with the communist secret services. The
applicant submitted a cassation appeal to the Supreme Court, which
dismissed it by a judgment of 7 April 2005.
- From
January 1998 to May 2005 the applicant received 4,614 Polish zlotys
(PLN) per month (PLN 3,738 after tax) as the special retirement
pension.
- Subsequently,
on 19 May 2005, the National Judicial Council, acting upon a request
submitted by the Minister of Justice, instituted proceedings to
divest her of her status as a retired judge. It also decided that
payment of the special retirement pension to the applicant should
cease with effect from 19 May 2005.
- In
her pleadings submitted to the Council the applicant argued that a
decision to divest her of her special pension was unlawful as the
requirements of the Lustration Act did not apply to retired judges.
Even supposing that retired judges were obliged to make a lustration
declaration, they could not be divested of their status under the
provisions of this Act. In any event, such a decision could only be
given after disciplinary proceedings had been conducted under the
provisions of the Act on General Courts, but no such proceedings had
been conducted in her case. She requested that payment of her special
pension be resumed.
- On
20 July 2005 the National Judicial Council adopted a resolution
by which the applicant was divested of the special pension to which
she was entitled on account of her status as a retired judge. The
applicant appealed, essentially reiterating the arguments which she
had raised in her pleadings submitted to the Council.
- On
7 December 2005 the Supreme Court dismissed her appeal against
this resolution.
- In
August 2005 the applicant requested the social insurance authority to
grant her an ordinary retirement pension. Her request was refused by
a decision of 28 November 2005 on the ground that the applicant
had not been working for the statutory period of thirty years
necessary for an entitlement to a retirement pension to accrue.
- Later
on, in April 2006, she was granted a partial disability pension
(renta z tytułu częściowej niezdolności do
pracy) from 1 August 2005, the first day of the month when
she had lodged a request for an ordinary social insurance pension, to
31 October 2008, when the applicant was to reach the statutory
retirement age, in a monthly amount of PLN 1,351 (PLN 1,124
after tax).
- As
from 1 March 2008 the applicant’s pension was reassessed
against inflation. From then on she was paid PLN 1,438 per
month (PLN 1,196 after tax).
- As
from 1 October 2008 the applicant has received her monthly retirement
pension in the amount of PLN 2,062 (PLN 1,693 after tax).
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).
- On
17 October 1997 amendments of 28 August 1997 to the Law on the System
of Common Courts 1985 (“the 1985 Law”) entered into force
(“the October amendments”). The amendments introduced the
status of a “retired judge”. By a further amendment which
entered into force on 1 January 1998 it was provided that a
judge, with the status of a retired judge, who had retired on
grounds, inter alia, of age or ill health should be
entitled to remuneration equal to seventy-five per cent of his or her
basic salary plus a bonus calculated on the basis of the years of
service.
- On
15 August 1998 further amendments of 17 December 1997 to the 1985 Law
came into effect (“the December amendments”). The
amendments provided, so far as relevant:
“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.”
- The
December amendments further provided, inter alia, as follows:
“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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the proceedings concerning her lustration
declaration had been unfair. She relied on Article 6 § 1
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”
A. Admissibility
- The
Government argued firstly that the applicant had made a specific
complaint concerning access to the file and the possibility of making
notes and copies only in her letter of 9 July 2007. They were of the
view that her initial complaints related to the substantive issues
involved in the lustration proceedings, namely to the assessment of
the evidence and the application of substantive law on being a secret
and willing collaborator with the security services. They concluded
that this part of the application should be declared inadmissible for
failure to comply with the six-month time limit provided for by
Article 35 § 1 of the Convention.
- The
applicant submitted that she had already, in her initial statement of
application dated 5 October 2005, expressly complained that the
lustration proceedings were unfair. She had also argued then that the
procedural violations complained of had included, inter alia,
a violation of the presumption of innocence. Her subsequent
submissions were by way of supplementing and refining the substance
of the complaint. They did not constitute a new complaint and did not
extend the scope of the original one.
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.
- The
Government further submitted that the applicant had failed to exhaust
the domestic remedies available to her, as required under Article 35
§ 1 of the Convention. They argued that she had not raised
before the domestic courts, even in substance, specific allegations
regarding the unfairness of the lustration proceedings. In
particular, neither at the appellate nor at the cassation stage had
she challenged the restrictions on her access to the case files and
the alleged restrictions of her defence rights. The Government
pointed out that this provision could be directly relied on in the
proceedings before the domestic courts.
- The
Government argued that the applicant had not availed herself of the
remedy under Article 79 §1 of the Constitution. They
maintained that the Court had recognised that, even if the
Constitutional Court was not competent to quash individual decisions
because its role was to rule on the constitutionality of laws, its
judgments declaring a statutory or other provision unconstitutional,
gave rise to a right to have the relevant proceedings reopened in an
individual case, or to have a final decision quashed (see
Szott-Medyńska v. Poland, no. 47414/99,
9 October 2003).
- The
applicant disagreed with the Government’s arguments and
submitted that in her case the individual constitutional complaint
would not have been an effective remedy.
- 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 Bobek, cited above,
§ 48, and Matyjek, cited above, § 42). 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.
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.
B. Merits
1. The parties’ submissions
- The
applicant complained that the proceedings concerning her lustration
declaration had been unfair. They had not been held in public. The
applicant had not had access to the case file to an extent sufficient
to ensure equality of arms between her and the Commissioner of the
Public Interest. She could not make and retain notes in the
proceedings as the case file could be consulted only in the secret
registry of the lustration court and she had not been allowed to take
the notes out of the registry. Nor could she make copies of the
documents in the case file and take them out of the court, other than
the minutes of the court hearings. This had rendered her defence
ineffective.
- The
Government argued that the applicant’s right to a fair trial
and the principle of quality of arms had been fully respected. The
applicant had had full access to all documents constituting evidence
in her case, could take notes from them and use these notes at the
hearings. Under the provisions of the Lustration Act procedural
guarantees provided for by the Code of Criminal Proceedings were
applicable to the lustration proceedings. The Constitutional Court
had examined these guarantees on several occasions and found that
they were compatible with the requirements of the fair hearing.
Likewise, in her appeals the applicant complained about the alleged
unfairness of the proceedings, but her appeals were dismissed by the
domestic courts.
- The
Government acknowledged that under the 1999 Protection of Classified
Information Act and Article 156 § 4 of the Code of
Criminal Procedure, the evidence in the case had been regarded as
classified information. However, the applicant had had full access to
these documents throughout the proceedings. All documents on which
the Commissioner of the Public Interest had relied when preparing the
case against the applicant had been included in the case file. The
only restriction imposed on the applicant and her lawyer was that
they had to consult the file in the secret registry of the lustration
court. There were no restrictions on how long the applicant and her
lawyer could spend consulting and examining these documents at the
registry. At the lustration court’s request, originals of the
documents from the file of the communist secret police had also been
submitted to the court and the applicant had had access to the
originals.
- The
Government further submitted that the applicant had been allowed to
make notes from the case file. The notes had 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
all 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 and that both her
lawyer and herself had actively availed themselves of this
possibility. Moreover, all evidence had been disclosed to the
applicant and her lawyer during the hearings. To sum up, the only
restriction imposed on the applicant, namely an obligation to consult
the classified documents in a secret registry of the lustration court
and to deposit her notebook there, did not affect her ability to
examine the evidence against her in a way that would have impaired
her defence rights.
- The
Government concluded that there had been no violation of Article 6
§ 1 in the present case.
2. The Court’s assessment
- The
Court first observes that its task is to determine whether in the
proceedings instituted against the applicant under the Lustration Act
1997 she had a “fair hearing” within the meaning of
Article 6 of the Convention. The Court reiterates that the procedural
guarantees of Article 6 of the Convention under its criminal head
apply to lustration proceedings (see Matyjek, cited 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; and also the judgment in Matyjek, cited
above, §§ 53-54).
- According to the principle of equality of arms, as one
of the features of the wider concept of a fair trial, each party must
be afforded a reasonable opportunity to present his or her case under
conditions that do not place the individual at a substantial
disadvantage vis à vis the opponent (see, for
example, Jespers v. Belgium, no. 8403/78, Commission decision
of 15 October 1980, Decisions and Reports (DR) 27, p. 61;
Foucher v. France, judgment of 18 March 1997,
Reports of Judgments and Decisions 1997 II, § 34;
and Bulut v. Austria, judgment of 22 February 1996,
Reports 1996 II, p. 380-81, § 47). The
Court further notes 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 has already dealt with the issue of lustration proceedings in
the Turek v. Slovakia case (no. 57986/00, § 115,
ECHR 2006 ... (extracts)). In particular the Court held in that
judgment that, unless the contrary is shown on the facts of a
specific case, it cannot be assumed that there remains a continuing
and actual public interest in imposing limitations on access to
materials classified as confidential under former regimes. This is
because lustration proceedings are, by their very nature, oriented
towards the establishment of facts dating back to the communist era
and are not directly linked to the current functions and operations
of the security services. Lustration proceedings inevitably depend on
the examination of documents relating to the operations of the former
communist security agencies, the selection and disclosure of which
documents is at the discretion of the current security service. If
the party to whom the classified materials relate is denied access to
all or most of the materials in question, the possibility of his or
her contradicting the security agency’s version of the facts
will be severely curtailed.
Those
considerations remain relevant to the instant case despite some
differences with the lustration proceedings in Poland (see also
Matyjek, cited above, § 56; Bobek, cited
above, § 57; and Luboch, cited above, § 62).
- Turning
to the circumstances of the present case, the Court will first
examine the applicant’s complaints relating to equality of arms
in the proceedings concerned. In this connection, the Court first
observes that it is not in dispute that materials from the
communist-era security services were regarded as State secrets. The
confidential status of such materials had been upheld by the State
Security Bureau. Thus, at least part of the documents relating to the
applicant’s lustration case had been covered by official
secrecy. However, the Court reiterates that it has previously held
that such a situation is inconsistent with the fairness of lustration
proceedings, including the principle of equality of arms (see Turek,
cited above, § 115; Matyjek, cited above, § 57;
and Bobek, cited above, § 58).
- Secondly,
the Court notes that, at the pre-trial stage, the Commissioner of
Public Interest had a right of access, in the secret registry of his
office or of the Institute of National Remembrance, to all materials
relating to the lustrated person created by the former security
services. After the institution of the lustration proceedings, the
applicant could also access her court file. However, pursuant to
Article 156 of the Code of Criminal Procedure and section 52 (2) of
the Protection of Classified Information Act 1999, no copies could be
made of materials contained in the court file and confidential
documents could be consulted only in the secret registry of the
lustration court. The Court further notes that this was acknowledged
by the Government.
- The
Court is not persuaded by the Government’s argument that at the
trial stage the same limitations as regards access to confidential
documents applied to the Commissioner of Public Interest. Under the
domestic law, the Commissioner, who was a public body, had been
vested with powers identical to those of a public prosecutor. Under
section 17(e) of the Lustration Act, the Commissioner of Public
Interest had a right of access to full documentation relating to the
lustrated person created by, inter alia, the former security
services. If necessary, he or she could hear witnesses and order
expert opinions. The Commissioner also had at his or her disposal a
secret registry, with staff who had obtained official clearance,
allowing them access to documents considered to be State secrets, and
were employed to analyse lustration declarations in the light of the
existing documents and to prepare the case file for the lustration
trial.
- Furthermore,
it was not in dispute between the parties that, when consulting her
case file, the applicant had been authorised to make notes. However,
any notes she took could be made only in special notebooks which were
subsequently sealed and deposited in the registry’s secret
section. The notebooks could not be removed from this registry and
could be opened only by the person who had made notes in them.
Similar constraints were imposed on any notes taken during the
hearings. The Court observes that the Government did not rely on any
provision of domestic law which would have given the applicant the
right to remove the notebooks from the secret registry.
- The
Court reiterates that the accused’s effective participation in
the criminal trial must equally include the right to compile notes in
order to facilitate the conduct of the defence, irrespective of
whether or not he or she is represented by counsel (see Pullicino
v. Malta (dec.), no 45441/99, 15 June 2000). The
fact that the applicant could not remove from the court her own
notes, taken whether at the hearing or in the secret section of the
registry, effectively prevented her from using the information
contained in them fully and effectively, as in preparation of her
defence she and her lawyer had to rely solely on her memory.
- Regard
being had to what was at stake for the applicant in the lustration
proceedings - not only her good name but also her special status as a
retired judge (see paragraphs 14-16 above) - the Court considers that
it was important for her to have unrestricted access to the court
files and unrestricted use of any notes she had made, including, if
necessary, the possibility of obtaining copies of relevant documents
(see Foucher, cited above, § 36).
- The
Court reiterates that, if a State adopts lustration measures, it must
ensure that the persons affected thereby enjoy all the procedural
guarantees of the Convention (see Turek, cited above, § 115;
Matyjek, cited above, § 62; and Bobek, cited
above, § 69). 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 arise only
exceptionally, given the considerable time which has elapsed since
the documents were created. It is for the Government to prove the
existence of such an interest in the particular case, because what is
accepted as an exception must not become the norm. The Court
considers that a system under which the outcome of lustration trials
depends to a considerable extent on the reconstruction of the actions
of the former secret services, while most of the relevant materials
remain classified as secret and the decision to maintain their
confidentiality falls within the powers of the current secret
services, creates a situation in which the lustrated person is put at
a clear disadvantage.
- In
light of the above, the Court considers that, due to the
confidentiality of the documents and the limitations on access to the
case file by the lustrated person - in particular compared with the
privileged position of the Commissioner of Public Interest in such
proceedings - the applicant’s ability to have her case examined
fairly was severely curtailed. Regard being had to the particular
context of the lustration proceedings and to the cumulative
application of those rules, the Court considers that they placed an
unrealistic burden on the applicant in practice and did not satisfy
the requirements of a fair hearing or equality of arms between the
parties to the proceedings.
- It
remains to be ascertained whether the applicant could have
successfully challenged the features of the lustration proceedings in
her appeal and cassation appeal. Given the Government’s
assertion that the rules on access to the materials classified as
secret were regulated by the successive laws on State secrets and by
the relevant provisions of the Code of Criminal Procedure, and that
those legal provisions were complied with in this case, the Court is
not persuaded that the applicant, in her appeals or cassation
appeals, could have successfully challenged the decisions given in
her case.
- In
so far as the Government rely on the constitutional complaint, the
Court points, firstly, to the fact that the Lustration Act was on
several occasions unsuccessfully challenged before the Constitutional
Court (see Matyjek,
cited above, and Bobek,
cited above, §§ 38-43).
The Court further notes that the Government have failed to indicate
which provisions of domestic law the applicant should have challenged
by way of a constitutional complaint. Moreover, the Court has held
that a constitutional complaint was an effective remedy for the
purposes of Article 35 § 1 of the Convention only in situations
where the alleged violation of the Convention resulted from the
direct application of a legal provision considered by the complainant
to be unconstitutional (see
Szott-Medyńska,
cited above; Pachla
v. Poland (dec.),
no 8812/02, 8 November 2005; Wypych
v. Poland (dec.),
no. 2428/05,
25 October 2005; 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,
from the “special arrangements” referred to in
Article 156 § 4 of the Code of Criminal Procedure,
allowing the President of the Lustration Court to limit the
applicant’s access to case files and her opportunities to take
notes and copy documents. However, it follows from the case-law of
the Polish Constitutional Court that it lacks jurisdiction to examine
the way in which the provisions of domestic law were applied in an
individual case.
- It
follows that it has not been shown that the applicant had an
effective remedy at her disposal under domestic law by which to
challenge the legal framework setting out the features of lustration
proceedings. Consequently, the Government’s objection as to the
exhaustion of domestic remedies must be rejected.
- In
these circumstances the Court concludes that the lustration
proceedings against the applicant, taken as a whole, cannot be
considered to have been fair, within the meaning of Article 6
§ 1 of the Convention taken in conjunction with Article 6 §
3. There has accordingly been a breach of those provisions.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
TO THE CONVENTION
- The
applicant complained that as a result of the judgments given in her
case she had subsequently been deprived of the social insurance
entitlement which the relevant domestic laws guaranteed to retired
judges. She relied on Article 1 of Protocol No. 1 to the
Convention, which reads:
“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.”.
A. Admissibility
- The
Government argued that the applicant had failed to exhaust relevant
domestic remedies. She had not lodged an appeal against the decision
of the Social Insurance Authorities of 28 November 2005 refusing
to grant her an ordinary early entitlement pension (see paragraph
19 above). The applicant did not address this aspect of the
case.
- The
Court notes that this part of the application does not relate to the
proceedings which concerned the applicant’s entitlement to an
ordinary retirement pension. It is focused solely on the decisions
which resulted in the applicant’s being divested of her status
as a retired judge and the consequential loss of her entitlements to
a special pension. It has not been shown or argued that the applicant
had any further remedies available to her in this respect after her
cassation appeal was decided by the Supreme Court on 7 December 2005
(see paragraph 18 above).
-
For these reasons, the Government’s plea of inadmissibility on
the ground of non-exhaustion of domestic remedies must be dismissed.
- The
Court notes that this part of the application 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
Government emphasised that there had been no interference with the
applicant’s rights guaranteed by Article 1 of Protocol
No. 1, because the special pension she received prior to the
lustration decision was a special privilege attached to her position
as a retired judge. Hence, its removal should not be regarded as an
interference with an inalienable and irrevocable right. It should
rather be seen as a refusal by the State to honour, in cases such as
the applicant’s, the special privilege given to judges upon the
termination of their service on condition that they continued to
fulfil the moral qualifications that a judge should possess.
- The
Government further argued that, should the Court find that there had
been an interference with the applicant’s rights, such
interference was in the general interest within the meaning of
Article 1 of Protocol No. 1. The applicant had not been
penalised for the fact that she had been a collaborator with the
secret police. Rather, the purpose of the 1997 Lustration Act was to
castigate those persons holding public office who had made untrue
lustration declarations. Collaboration itself had not barred citizens
from access to public office; only the truthfulness of the lustration
declaration was in issue in the lustration proceedings. The
principle of the protection of the citizen’s confidence in the
State and law also militated in favour of the solution adopted in the
applicant’s case. The requirements of social justice,
guaranteed by Article 2 of the Constitution, had made it necessary to
draw a distinction between judges who had made true declarations and
those who had not. Trustworthiness was one of the values which
deserved special protection by the State, especially in respect of
judges.
- The
Government finally submitted that the interference had not been
disproportionate. The applicant had lost her special status, but she
remained eligible for social insurance protection under the general
system. When she had applied for benefits under this system, her case
had been examined on the basis of the generally applicable provisions
of social insurance laws. Her request for an earlier retirement
pension had been dismissed, because she had not been working for the
requisite period of thirty years. She had also retained the right to
apply again for an ordinary retirement pension when she reached the
statutory retirement age of sixty. In any event, by a decision of 25
April 2006 she had been awarded the right to a disability pension on
the basis of her partial disability, for the entire period between
1 August 2005 (when she lodged her request to be covered by the
general insurance system) until October 2008. She had therefore not
been deprived of her means of subsistence. The loss of the status of
a retired judge had resulted only in the fact that the general rules
of the social insurance system became applicable to her.
- The
applicant complained that as a result of the judgments given in her
case she had been deprived of the social insurance entitlement which
the relevant domestic laws guaranteed to retired judges. Retired
judges received retirement pensions in the amount of seventy-five
percent of their last full salary. After the resolution of the
National Judicial Council of 20 July 2005 (paragraph 17
above) she lost her entitlement to that pension. Her position in
society suffered greatly as a result. She had been working as a judge
throughout her entire professional life. As a result of the decisions
complained of she lost her privileged status and had not acquired an
entitlement to the ordinary retirement pension provided for by the
social insurance law.
- The
applicant argued that under the Parliamentary Assembly of the Council
of Europe’s Resolution 1096 (1996) on measures to dismantle the
heritage of former communist totalitarian systems, lustration should
not have been construed as a form of revenge or punishment. The
purpose of lustration was to prevent people who had collaborated with
the communist secret services in the past from holding public office.
In her case, the institution of the lustration proceedings had been
unjustified, because when the 1997 Act had entered into force
she no longer occupied a judicial post. Hence, none of the reasons
for which the Lustration Act had been enacted, namely to exclude
persons from exercising governmental power if they could not be
trusted to exercise it in compliance with democratic principles, had
applied to her situation. The fact that she had been deprived of her
status as a retired judge had to be regarded as an act of a punitive
character, incompatible with the above mentioned 1996
Resolution.
- The
applicant submitted that the requirement for a retired judge to
undergo lustration proceedings fifteen years after the fall of the
communist regime had to be seen as an unnecessary and unacceptable
limitation of her right to the peaceful enjoyment of her possessions.
The essential aim of lustration was to protect a newly emerged
democracy, not to punish people presumed guilty. No one could
reasonably contest after 1996 that Poland was a stable and relatively
mature democracy, no longer threatened by the possibility of a
post-communist coup d’état. Therefore, the
severity and scope of acceptable lustration measures adopted in 1997
should have been less than what might have been acceptable in the
early 1990s. In any event, in 1997 and later, the subjection to this
requirement of retired judges, who no longer decided cases, could not
be justified by the need to secure a new democracy.
2. The Court’s assessment
- The
Court has interpreted the applicant’s complaint under Article 1
of Protocol No. 1 as having two aspects – first, that the
application to her, as a retired judge, of the provisions of the
Lustration Law, with the resulting loss of her entitlement to a
special retirement pension, amounted to a breach of her rights
guaranteed by this provision; and, secondly, that the proceedings
which led to such deprivation in her case were, in any event,
vitiated by unfairness in breach of the procedural requirements of
Article 1.
- It
is not in dispute that, following the lustration decision in her
case, the applicant lost her entitlement to her special status as a
retired judge and, in consequence, to the special retirement pension
which attached to that status. The Government argued that the removal
from the applicant of that special status was not to be regarded as
an interference with a property right but, rather, as a refusal by
the State to honour, in cases such as the applicant’s, the
special privilege given to judges upon termination of their service
on condition that they continued to fulfil the moral qualifications
that a judge should possess. The applicant disagreed. She argued that
there had been an interference with her property rights in that, as a
result of the application of the measures in question, she had been
deprived of a valuable pecuniary benefit. In her view, the purpose of
lustration was to prevent people who had collaborated with the
communist secret services in the past from holding public office and
that the institution of lustration proceedings against her served no
legitimate purpose and was unjustified since she no longer occupied a
judicial post when the Lustration Act came into effect.
-
The question which the Court must determine is whether the loss of
her entitlement to the special retirement pension in the particular
circumstances of this case amounted to an interference with the
applicant’s right to the peaceful enjoyment of her possessions
within the meaning of Article 1 of Protocol No. 1 to the Convention.
- The
Court recalls that Article 1 of Protocol No. 1 does not create a
right to acquire property. It places no restriction on the
Contracting States’ freedom to decide whether or not to have in
place any form of social security system, or to choose the type or
amount of benefits to provide under any such scheme However, where a
Contracting State has in force legislation providing for the payment
as of right of a welfare benefit – whether conditional or not
on the prior payment of contributions – that legislation must
be regarded as generating a proprietary interest falling within the
ambit of Article 1 for persons satisfying its requirements (Stec
and Others v the United Kingdom, [GC], (dec.) no. 65731/01
and 65900/01, § 54, ECHR 2006-). Further, where the amount
of a benefit is reduced or discontinued, this may constitute an
interference with possessions which requires to be justified in the
general interest (Kjartan Ásmundsson v. Iceland,
judgment of 12 October 2004, ECHR 2004-IX). Where, however, the
person concerned does not satisfy, or ceases to satisfy, the legal
conditions laid down in domestic law for the grant of such benefits,
there is no interference with the rights under Article 1 of
Protocol No. 1 (Bellet, Huertas and Vialatte
v. France, (dec.) no. 40832/98 27 April 1999).
- The
Court notes that in the present case the applicant lost her
entitlement to a special retirement pension as a result of being
divested of her status as a “retired judge” on the basis
of the provisions of the Lustration Act 1997, which provisions were
applied to those holding such status by virtue of the December
amendments to the Law on the System of Common Courts 1985 (see
paragraph 24 above). It further notes that the loss of her special
pension did not deprive the applicant of any means of subsistence.
She retained her rights to ordinary social security benefits,
including, initially, disability benefits and, thereafter, a
retirement pension. Moreover, the applicant does not in fact appear
to have lost her special rights until December 2005 when the National
Judicial Council decided that payment of the special retirement
pension should cease (see paragraph 18 above).
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.
- The
Court observes that the applicant retired on 8 July 1997 shortly
before the Lustration Act came into effect on 3 August 1997. On
4 December 1997 the applicant acquired the status of retired
judge. On 17 December 1997 it became apparent from the amendment
to the 1985 Act that those who wished to maintain the status and to
enjoy the special pension rights attached to it would be required to
submit a lustration declaration. The applicant was thus aware from an
early stage, and before she had received any part of the pension,
that her status as a retired judge and her right to receive a special
retirement pension was conditional on her submitting a lustration
declaration and that her special pension rights were defeasible if
she were found to have submitted a false declaration. This was
ultimately the case, as it was established in the lustration
proceedings that the applicant did not satisfy the conditions which
domestic law attached to the acquisition and retention of the status
of a “retired judge” and to the related pension rights.
- In
this regard, the case bears a similarity to a series of cases against
Poland in which the Commission declared inadmissible claims under
Article 1 of Protocol No. 1 by applicants who had been deprived of
their “veteran status” and related social insurance
benefits under a law passed in 1991, many years after the grant of
such status, on the grounds of their previous service as
collaborators with the former internal security service. In rejecting
the applications, the Commission recalled that Article 1 of
Protocol No. 1 could not be interpreted as conferring a right to a
pension of a particular amount and noted that, although being
deprived of their special social insurance benefits, the applicants
had retained their rights to their ordinary retirement benefits due
under the general social insurance system. It was observed that the
1991 Act was partly intended as a condemnation of the political role
which the communist security service had played in repressing
political opposition to the communist system and that such
considerations of public policy, even if they resulted in the
reduction of social insurance benefits, did not affect the property
rights stemming from the social insurance system in a manner contrary
to Article 1 of Protocol No. I. (see Styk v. Poland
(dec.), no. 28356/95, 16 April 1998; Szumilas
v. Poland (dec.), no 35187/97, 1 July 1998;
Bieńkowski v. Poland (dec.), no. 33889/97, 9
September 1998). The same approach was followed by the Court itself
in the case of Domalewski, in which it was noted that “the
applicant’s pecuniary rights stemming from the contributions
paid into her pension scheme remained the same” and that “the
applicant’s right to derive benefits from the social insurance
scheme was [not] infringed in a manner contrary to Article 1 of
Protocol No. 1, especially as the loss of “veteran status”
did not result in the essence of his pension rights being impaired
(see Domalewski v. Poland (dec.), no. 34610/97, ECHR
1999 V; see also, Slavičinsky v. the Czech
Republic (dec. ), no. 10072/05, 20 November 2006).
- In
these circumstances, the Court finds that the loss of the applicant’s
status as a retired judge and of the special retirement pension
attached to that status, as a result of the submission of a false
lustration declaration, did not amount to an interference with the
property rights of the applicant under Article 1 of Protocol
No. 1.
- As
regards the second aspect of the applicant’s complaint, the
Court notes that the applicant was held to have submitted a false
declaration following a procedure which the Court has found above to
have been unfair and to have violated Article 6 § 1 of
the Convention. The Court recalls in this regard that, although
Article 1 contains no explicit procedural requirements, an
applicant who is liable to be deprived of property rights must be
afforded a reasonable opportunity of putting his or her case (see,
AGOSI v. the United Kingdom, 24 October 1986, § 55).
The Court has found above that the applicant was not deprived of a
property right. Insofar as the applicant complains that the
procedures which led to the finding by the National Judicial Council
that she had submitted a false declaration were unfair, and that she
was not afforded a reasonable opportunity to assert her claim to
retain her special status and retirement pension, the Court considers
that the complaint is directly connected with that already examined
under Article 6 of the Convention. Having regard to its conclusion
that there was an infringement of the applicant’s right to a
fair hearing for the reasons stated above, the Court finds that it is
not necessary to examine the applicant’s further complaint
based on Article 1 of Protocol No. 1 (see, for example,
Glod v. Romania, no. 41134/98, § 46,
16 September 2003; Albina v. Romania,
no. 57808/00, § 43, 28 April 2005; Mitrevski v. The
Former Yugoslav Republic of Macedonia, no. 33046/02,
§ 41, 21 June 2007).
- Having
regard to the circumstances of the case seen as a whole, the Court
therefore finds that there has been no violation of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 § 1 of the
Convention that the courts had failed to take sufficient account of
the definition of collaboration with the communist secret services
formulated in the case-law of the Constitutional Court. The evidence
before the courts had been insufficient to find that she had been a
willing collaborator and the courts had, in any event, failed to
assess the evidence correctly and failed to take into account the
fact that she had been coerced into collaborating.
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.
- However, the Court, having regard to its reasons for
finding a violation of Article 6 (paragraphs 41-56 above) does
not consider it necessary to examine this complaint separately.
IV. 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 5,000 euros (EUR) in respect of non pecuniary
damage for distress and anguish which she had suffered as a result of
the lustration proceedings conducted against her.
- The
Government contested that claim and considered it excessive.
- 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 the applicant
may have sustained (Matyjek, cited above, § 69;
Bobek, cited above, § 79).
B. Costs and expenses
- The
applicant made no claim for costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government’s
preliminary objection to the admissibility of the complaint under
Article 6 § 1 taken in conjunction with Article 6 § 3 (b)
of the Convention;
2. Declares the application admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention taken in conjunction
with Article 6 § 3 (b) of the Convention and dismisses in
consequence the Government’s preliminary objection;
- Holds that it is not necessary to examine
separately the applicant’s other complaints under Article 6
§ 1 of the Convention;
5. Holds that there has been no violation of
Article 1 of Protocol No. 1 to the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non pecuniary damage sustained by the applicant.
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
Registrar President
