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FOURTH
SECTION
CASE OF MOCZULSKI v. POLAND
(Application
no. 49974/08)
JUDGMENT
STRASBOURG
19 April
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 Moczulski
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,
Zdravka
Kalaydjieva,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 29 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 49974/08) 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 Robert Leszek Moczulski (“the applicant”),
on 9 October 2008.
- The
applicant was represented by Mr P. Rybiński, 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
15 December 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 1930 and lives in Warsaw.
- On
4 June 1992 the Minister of Internal Affairs,
Mr Antoni Macierewicz, submitted to Parliament and made
public a “list of secret collaborators with the security
services between 1945 and 1990”. The list, unofficially
called “the Macierewicz list”, contained names of public
officials who appeared in the archives of the Ministry and
included the President and many Members of Parliament. The
publication of the list sparked uproar in the Sejm, a Chamber of the
Polish Parliament, which led to the fall of the government
of Jan Olszewski a couple of hours later.
- The
applicant, who had been a Member of Parliament, appeared on the list.
- 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.
- On
26 March 1999 the applicant applied to the court to institute the
so called “auto lustration” proceedings under
section 18a § 3 of the Lustration Act. He submitted
his lustration declaration, in which he stated that he had not been
an intentional and secret collaborator with the secret services.
- The
applicant was the first of many persons from the Macierewicz list who
applied for auto lustration claiming that they had not been
secret collaborators with the communist era secret services. In
some cases the lustration courts agreed and cleared the name of
the person concerned.
- On
6 May 1999 the Warsaw Court of Appeal (Sąd Apelacyjny)
decided to institute lustration proceedings in the applicant’s
case.
- On
6 November 2001 the Court of Appeal gave a judgment in which it found
that his lustration declaration had been truthful and
that the applicant had not been an intentional and secret
collaborator with the secret services. The panel of the court
was composed of three judges.
- The
Commissioner of the Public Interest (Rzecznik Interesu
Publicznego) appealed against the judgment.
- On
30 July 2002 the Warsaw Court of Appeal, acting as
the second instance lustration court allowed the appeal and
remitted the case. The court was constituted of a panel of three
judges which included judge R.K.
- On
6 April 2005 the Warsaw Court of Appeal acting as the
first instance lustration court, found that the applicant had
been an intentional and secret collaborator with the security
services between 1969 and 1977.
- The
applicant appealed against the judgment.
- On
12 September 2006 the Warsaw Court of Appeal dismissed
the appeal and upheld the judgment. The court was constituted of
a panel of three judges which again included Judge R.K.
- The
applicant lodged a cassation appeal complaining inter alia about
the lack of impartiality of Judge R.K. The applicant submitted that
this judge had participated in the preparation of his lustration
proceedings and was a member of a lustration court between 1999
and 2000. The latter panel was later dissolved; nevertheless, these
factors cast doubt on the judge’s impartiality particularly as
he was a member of the panels giving judgment at the second instance.
- The
applicant’s cassation appeal was dismissed on 17 April
2008 by the Supreme Court (Sąd Najwyższy).
The Supreme Court examined inter alia the applicant’s
complaint that Judge R.K. had participated in his trial at
the first and, on two occasions, the second instance. It dismissed
the argument that such participation had given rise to doubts
regarding his impartiality, finding that the judge in question had
not been a member of the panel that had given a decision at
first instance. As regards the applicant’s complaint that Judge
R.K. had been a member of the panel of the second-instance court
twice, the court noted that, according to the domestic law, such
judge was not ex lege excluded from dealing with the case. It
was however open to the party having doubts as to the lack of
impartiality of the judge to challenge him or her during the
proceedings; the applicant had failed to do that. Since the applicant
accepted the composition of the second-instance court which gave the
judgment on 12 September 2006, he cannot effectively raise doubts as
to the lack of impartiality of one of the judges at the cassation
appeal stage.
- The
applicant was barred from being a Member of Parliament for a period
of ten years in application of the 1997 Lustration Act.
- The
judgment was notified to the applicant’s representative in June
2008.
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 28 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 and 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,
it appears that, at least at the first stage of the proceedings, when
consulting his case file, the applicant had been authorised to make
notes. However, any notes he took could be made only in special
notebooks that were subsequently sealed and deposited in the secret
registry. The notebooks could not be removed from this registry
and could be opened only by the person who had made them.
- 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 applicant
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 bar on holding public
functions – 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; Chodynicki
v. Poland (dec.), no. 17625/05, 2 September 2008).
- 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant raised several other complains under Article 6 of
the Convention. He alleged that the lustration courts had not
been impartial and had wrongly assessed the evidence, and that the
proceedings lasted an unreasonably long time.
A. The lack of impartiality of a judge
- The
applicant complained that he had not had a fair trial because Judge
R.K. had been involved in his trial on three occasions, including at
the pre trial stage. He submitted that he had learned about
his prior involvement only at the appellate stage of the proceedings
and thus could only raise this objection in his cassation appeal. The
Government contested this allegation. They argued that the applicant
had never challenged Judge R.K. and that there had been no evidence
of any lack of impartiality of the judge in question.
- The
Court notes that Judge R.K. did not sit in any of the panels which
gave first instance judgments in this case. It is also not
disputed that Judge R.K. had participated in the preparation of the
case at the pre trial stage as he was a member of a
first instance panel of judges; however, this panel was
subsequently dissolved and had not issued a decision in the
applicant’s lustration trial. The Court has held on many
occasions that the mere fact that a trial judge has made previous
decisions concerning the same offence cannot of itself justify fears
as to his impartiality (see Schwarzenberger v. Germany,
no. 75737/01, § 42, 10 August 2006 with further
references; and Jasiński v. Poland,
no. 30865/96, §§ 55-56, 20 December 2005).
- Admittedly, Judge R.K. had sat in both second-instance
courts in the applicant’s case. However, this fact is not in
itself capable of giving rise to legitimate doubts as to the
impartiality of this judge. In the first of these judgments the court
quashed the first-instance judgment and remitted the case. Thus, it
cannot be said that by deciding the first case Judge R.K. necessarily
prejudged the outcome of the second (see Gillow v. the United
Kingdom, 24 November 1986, § 73, Series A no. 109; and
Aleksey Petrov v. Bulgaria (dec.), no. 27103/04, 2
November 2010).
Moreover,
since this situation did not call for the ex lege exclusion of
Judge R.K. according to the domestic law, it was for the applicant to
challenge or raise an objection to the participation of Judge R.K. in
the appellate proceedings (see paragraph 19 above). The Court
considers that by failing to do so the applicant deprived the
domestic courts of the opportunity to examine whether Judge R.K.’s
participation in the proceedings cast doubts on his impartiality.
- Regard
being had to the above, and regardless of other possible grounds of
inadmissibility, the Court finds 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.
B. The unreasonable length of the proceedings
- The
applicant alleged a breach of his right to trial within a reasonable
time in violation of Article 6 § 1 of the Convention.
The
Court observes that after the entry into force, on 17 September
2004, of the Law of 17 June 2004 on complaints about a breach of
the right to a trial within a reasonable time (Ustawa o
skardze na naruszenie prawa strony do rozpoznania sprawy w
postępowaniu sądowym bez nieuzasadnionej zwłoki
– “the 2004 Act”) it was open to persons involved
in judicial proceedings to lodge a complaint about their unreasonable
length with the relevant domestic court.
- The
Court notes that the Government submitted that it had been open
to the applicant to lodge a complaint under the 2004 Act and
that by failing to do so he had not exhausted domestic remedies. The
applicant submitted that the complaint would have been ineffective in
his case.
- The Court has already examined that remedy for the
purposes of Article 35 § 1 of the Convention and
found it to be effective in respect of complaints about the
excessive length of judicial proceedings in Poland. In particular, it
has considered that that remedy is capable both of preventing
the alleged violation of the right to a hearing within a reasonable
time or its continuation, and of providing adequate redress for any
violation that has already occurred (see Charzyński v. Poland
(dec.), no. 15212/03, §§ 36 42,
ECHR 2005 V). The applicability of this remedy to the
lustration proceedings has not been contested by the parties.
- It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non exhaustion of domestic remedies.
C. Other allegations under Article 6 of the Convention
- As
regards the applicant’s complaint about assessment of evidence,
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).
- 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.
III. 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 1,000,000 Polish zlotys (PLN) 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 claimed 6,100 Polish zlotys (approximately EUR 1,500)
for the costs and expenses incurred in connection with
the proceedings before the Court. The applicant’s lawyer
submitted an invoice to that effect.
- The
Government contested the amount of the claim.
- According
to the Court’s case law, an applicant is entitled to
the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
were reasonable as to quantum. In the present case, regard being had
to the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,500 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 6 of
the Convention regarding the unfairness of the proceedings admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention taken in conjunction
with Article 6 § 3;
3. Holds that the finding of a violation constitutes in itself
sufficient just satisfaction for any non pecuniary damage
sustained;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 1,500 (one thousand five hundred euros), plus
any tax that may be chargeable, in respect of costs and expenses, to
be converted into Polish zlotys at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 April 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of
Court.
Lawrence Early Nicolas Bratza
Registrar President
