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FOURTH
SECTION
CASE OF TOMASZ
KWIATKOWSKI v. POLAND
(Application
no. 24254/05)
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 Tomasz Kwiatkowski
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. 24254/05) 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,
Mr Tomasz Kwiatkowski (“the applicant”), on
24 June 2005.
- 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
8 October 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 1948 and lives in Konstancin Jeziorna.
- 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 and advocates.
- On
an unspecified date the applicant, who was an advocate, declared that
he had not collaborated with the communist era secret services.
- On
an unspecified date in 2000 the Warsaw Court of Appeal
(Sąd Apelacyjny) decided to institute lustration
proceedings against the applicant following a request made by
the Commissioner of the Public Interest (Rzecznik Interesu
Publicznego) on the grounds that the applicant had lied in his
lustration declaration by denying that he had co operated with
the secret services.
- On
27 June 2002 the Warsaw Court of Appeal, acting as
the first instance lustration court, found that the
applicant had submitted an untrue lustration declaration. The
operative part of the judgment was served on the applicant. However,
the reasoning was considered “secret” and, in accordance
with Article 100 § 5 of the Code of Criminal
Procedure, could only be consulted in the secret registry of that
court.
- The
applicant lodged an appeal in which he maintained, in particular,
that his rights had been breached because he could not freely consult
the reasoning of the judgment.
- On
16 May 2003 the Warsaw Court of Appeal, acting as
the second instance lustration court, upheld the impugned
judgment.
- The
applicant lodged a cassation appeal against the judgment.
- On
9 December 2004 the Supreme Court (Sąd Najwyższy)
dismissed the applicant’s cassation appeal as being manifestly
ill founded. The applicant was removed from the Bar
Association with the result that he is unable to practise as an
advocate for a period of ten years in application of the 1997
Lustration Act.
- The
judgment was notified to the applicant’s representative
on 17 January 2005.
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. They argued that a constitutional complaint should
be considered an adequate domestic remedy in the applicant’s
case.
- The
applicant disagreed.
- 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; Górny v.
Poland, no. 50399/07, § 22, 8 June 2010) 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. Moreover, the reasoning of the
first instance court’s judgment was also confidential and
the rules applicable to the consultation of the file in the secret
registry made it difficult for him to prepare his appeal. 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 21 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 applicant’s
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. Moreover, the written reasons of
the first instance judgment, albeit prepared, could only be
consulted in the secret registry of the court.
- Furthermore,
it has not been disputed by the parties that, 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 fact that 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.
Regard being had to what was at stake for the applicant in the
lustration proceedings not only his good name but also his
right to practise as an advocate – 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,
cited above, § 37).
- 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained that the proceedings were unfair as the
lustration courts wrongly assessed the evidence and the case had been
examined at two instances by the Warsaw Court of Appeal. The
applicant also complained about the principle underlying lustration,
claiming that the 1997 Lustration Act had been incompatible
with the rule of law and breached Resolution 1096 (1996) of the
Parliamentary Assembly of the Council of Europe. He maintained
that lustration of persons exercising public functions after
31 December 1999 should have been forbidden.
- 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 court (see, García
Ruiz v. Spain [GC], no. 30544/96, § 28,
ECHR 1999 I, with further references).
In so
far as the applicant contests the principle underlying lustration
proceedings, the Court recalls that it has examined and declared
inadmissible as manifestly ill founded similar allegations
raised in the case of Chodynicki v. Poland ((dec.),
no. 17625/05, 2 September 2008).
- 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 in total over 1,000,000 Polish zlotys (PLN) in
respect of pecuniary damage. This sum corresponded, inter alia,
to the loss of his earnings related to his participation in the
lustration hearings. The applicant submitted no claim in respect
of non pecuniary damage.
- The
Government submitted that there was no causal link between the
alleged violation and the claim for pecuniary damage.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It therefore rejects this claim
(see, Matyjek, § 69; Luboch, § 83,
Górny § 49, all cited above).
B. Costs and expenses
- The
applicant did not claim reimbursement of costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint 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;
- Dismisses 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
