BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF ZABŁOCKI v. POLAND
(Application
no. 10104/08)
JUDGMENT
STRASBOURG
31 May
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Zabłocki v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Sverre Erik
Jebens,
Päivi Hirvelä,
Ledi
Bianku,
Vincent A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10104/08) against
the Republic of Poland lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a Polish
national, Mr Grzegorz Zabłocki (“the
applicant”), on 26 February 2008.
- The
applicant was represented by Mr M. Pietrzak, a lawyer practising
in Warsaw. The Polish Government (“the Government”) were
represented by their Agent, Mr J. Wołąsiewicz of
the Ministry of Foreign Affairs.
- The
applicant alleged, inter alia, that the lustration proceedings
in his case had been unfair, in violation of Article 6 of the
Convention.
- On
24 November 2008 the President of the Fourth Section decided to
give notice of the application to the Government. It was also decided
to rule on the admissibility and merits of the application at the
same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Koszalin.
- On
11 April 1997 the parliament passed the Law on disclosing work
for or service in the State's security services or collaboration with
them between 1944 and 1990 by persons exercising public functions
(ustawa o ujawnieniu pracy lub służby w organach
bezpieczeństwa państwa lub współpracy z nimi w
latach 1944 1990 osób pełniących funkcje
publiczne; “the 1997 Lustration Act”). It entered
into force on 3 August 1997. Persons falling under the
provisions of the 1997 Lustration Act, i.e. candidates or holders
of public office such as ministers and members of parliament, were
required to declare whether or not they had worked for or
collaborated with the security services during the communist regime.
The provisions of the Act extended to, inter alia,
judges, prosecutors, advocates and members of the supervisory boards
and boards of directors of the “Polish Television SA” and
“Polish Radio SA” as well as their local branches.
- On
15 December 1998 the applicant, a member of the supervisory
board of the Koszalin Branch of the National Radio (Rada
Nadzorcza Rozgłośni Regionalnej Polskiego Radia,
Radio Koszalin SA) declared that he had not collaborated with the
communist era secret services.
- In
2002 the applicant became a member of the board of directors of the
same radio (Zarząd).
- In
February 2005 the Commissioner of the Public Interest (Rzecznik
Interesu Publicznego) informed the applicant that he had doubts
as to the truthfulness of his lustration declaration.
- On
23 September 2005 the Warsaw Court of Appeal (Sąd Apelacyjny)
decided to institute lustration proceedings against the applicant
following a request made by the Commissioner on the grounds that
the applicant had lied in his lustration declaration by denying that
he had cooperated with the secret services.
- The
Court of Appeal held hearings on 23 November, 8 December
2005 and 25 July and 20 September 2006. The applicant, who
was not represented, attended the hearings although he lived in
Koszalin, 450 kilometres away from the court. The hearings were
not open to the public.
- On 20 September 2006 the Warsaw Court of Appeal,
acting as the first instance lustration court, found that the
applicant had submitted an untrue lustration declaration since
he had been an intentional and secret collaborator with the State's
secret services. The court established that between 1971 and 1974 the
applicant, at that time a student at Torun University, had been a
secret collaborator (TW, tajny współpracownik) and
had signed a so called collaboration commitment
(zobowiązanie do współpracy). The court
based its findings on the statements made by Mr A.W., an officer
of the Security Service (Służba Bezpieczeństwa,
“the SB”) who had recruited him. The court established
that the applicant had met with Mr A.W. several times and had
once received financial payment. All the documents collected in the
case were classified as confidential and could be consulted by the
applicant in the secret registry of the lustration court.
- The applicant appealed against the decision. He
submitted that he had never collaborated with the SB and had not
passed any information to it. He contested the authenticity of the
documents, the originals of which had been destroyed and only
microfilms of which had been preserved.
- On
10 January 2007 the Warsaw Court of Appeal, acting as the
second instance lustration court, upheld the impugned judgment.
The court established that the evidence in the case had not been
extensive but had obviously pointed to the fact that the applicant
had been an intentional and secret collaborator with the SB.
- On
28 August 2007 the Supreme Court (Sąd Najwyższy)
dismissed the applicant's cassation appeal as being manifestly
ill founded. The applicant was barred from holding public
office for a period of ten years in application of the 1997
Lustration Act.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant law and practice concerning lustration proceedings in Poland
are set out in the Court's judgment in the case of Matyjek v. Poland,
no. 38184/03, § 27 39, ECHR 2007 V.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
REGARDING UNFAIRNESS OF THE PROCEEDINGS
- The
applicant complained about the unfairness of the lustration
proceedings, the infringement of his right of defence and the lack
of equality of arms. He invoked Article 6 of the Convention
which, in so far as relevant, reads:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair and
public hearing ...by [a] ... tribunal...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to
have adequate time and facilities for the preparation of his defence;
...”
- The Government contested that argument.
A. Admissibility
- The
Government claimed that the applicant had not exhausted relevant
domestic remedies. First, he had never raised before the domestic
courts allegations regarding the unfairness of the proceedings as
presented in his subsequent application to the Court. Secondly, a
constitutional complaint should be considered an adequate domestic
remedy in the applicant's case.
- The
applicant disagreed.
- The
Court recalls that it has already considered the question of whether
the applicant could effectively challenge the set of legal rules
governing access to the case file and setting out the features of the
lustration proceedings. The Court notes that the arguments raised by
the Government are similar to those already examined and rejected by
the Court in previous cases against Poland (see Matyjek v. Poland,
no. 38184/03, § 64, ECHR 2007 V; Luboch
v. Poland, no. 37469/05, §§ 69 72,
15 January 2008; Rasmussen v. Poland, no. 38886/05,
§§ 52 55, 28 April 2009) and the Government
have not submitted any new arguments which would lead the Court to
depart from its previous findings.
For
these reasons, the Government's plea of inadmissibility on the ground
of non exhaustion of domestic remedies must be dismissed.
- The
Court further observes that it has already found that Article 6
of the Convention under its criminal head applied to lustration
proceedings (see Matyjek v. Poland (dec.), no. 38184/03,
ECHR 2006 VII).
- The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant argued that the proceedings in his case had been unfair. In
particular, he alleged that the material in his case had been
classified as confidential, which had limited his right of
access to it. Before the institution of the proceedings he had had no
access to the case file prepared by the Commissioner of the
Public Interest. After the lustration proceedings had been instituted
by the Warsaw Court of Appeal the applicant could consult
the documents only in the secret registry of the lustration
court. The limitations on access were not applicable to
the Commissioner of the Public Interest. Thus, the applicant was
placed at a significant disadvantage vis à vis
the Commissioner who had unlimited access to the file in his
secret registry.
- The
Government submitted that the applicant had access to all evidence
and all decisions given in the case. The only limitations which
applied to him were a consequence of the fact that part of the
evidence was considered as secret. The applicant could consult the
case file in the secret registry but could not use his notes based on
the file outside the secret registry. The same restrictions applied
to the Commissioner of Public Interest and the judges examining the
case.
- The
Government observed that the applicant had benefited from an
examination of his case at two instances by ordinary courts with full
jurisdiction to assess the relevant facts and law. He further availed
himself of an extraordinary appeal to the Supreme Court. For the
Government there had been no appearance of a violation of the
applicant's right to a fair trial in the impugned proceedings.
- The
Government concluded that there had been no breach of Article 6
§ 1 in the present case.
2. The Court's assessment
- The
Court reiterates that the procedural guarantees of Article 6 of
the Convention under its criminal head apply to lustration
proceedings (see paragraph 22 above). The Court had
already dealt with the issue of lustration proceedings in Turek v.
Slovakia (no. 57986/00, § 115, ECHR 2006 II
(extracts)) and in several cases against Poland (see, Matyjek,
§ 56; Luboch, § 61; Rasmussen,
§ 43, all cited above). In the latter cases it considered
it appropriate to examine the applicants' complaints under Article 6
§§ 1 and 3 taken together. The relevant
case law concerning the principle of equality of arms is
stated in the above cited judgments.
- Turning
to the instant case, the Court observes firstly that the Government
have admitted that part of the evidence had been secret. In the
previous cases concerning lustration proceedings in Poland the Court
observed that under the series of successive laws the communist era
security services' materials continued to be regarded as a State
secret. The confidential status of such materials had been
upheld by the State Security Bureau. Thus, at least part of the
documents relating to the applicant's lustration case had been
classified as “top secret”. The Head of the State
Security Bureau was empowered to lift the confidentiality rating.
However, the Court recalls that it has considered the existence of a
similar power of a State security agency inconsistent with the
fairness of lustration proceedings, including with the principle of
equality of arms (see, Turek, § 115;
Matyjek, § 57; Luboch, § 62;
Rasmussen, § 44, all cited above).
- Secondly,
the Court notes that, at the pre trial stage, the Commissioner
of Public Interest had a right of access, in the secret registry of
his office or of the Institute of National Remembrance, to all
materials relating to the lustrated person created by the former
security services. After the institution of the lustration
proceeding, the applicant could also access his court file. However,
pursuant to Article 156 of the Code of Criminal Procedure and
section 52 (2) of the 1999 Protection of Classified
Information Act, no copies could be made of materials contained in
the court file and confidential documents could be consulted only in
the secret registry of the lustration court.
- Furthermore,
the Court reiterates that the accused's effective participation in
his criminal trial must equally include the right to compile notes in
order to facilitate the conduct of his defence, irrespective of
whether or not he is represented by counsel (see, Pullicino v. Malta
(dec.), no 45441/99, 15 June 2000 and Matyjek,
cited above, § 59). The Court has held that the fact that,
when consulting his case file, the lustrated person could not remove
his own notes, taken in the secret registry, in order to show them to
an expert or to use them for any other purpose, effectively prevented
him from using the information contained in them as he had to rely
solely on his memory (see Matyjek, cited above, § 58).
Regard being had to what was at stake for the applicant in the
lustration proceedings – not only his good name but also a
possible ten-year ban on holding public offices – the Court
considers that it was important for him to have unrestricted access
to those files and unrestricted use of any notes he made, including,
if necessary, the possibility of obtaining copies of relevant
documents (see Górny v. Poland, no. 50399/07,
§ 37, 8 June 2010).
- Thirdly,
the Court is not persuaded by the Government's argument that at the
trial stage the same limitations as regards access to confidential
documents applied to the Commissioner of Public Interest. Under
the domestic law, the Commissioner, who was a public body, had
been vested with powers identical to those of a public prosecutor.
Under section 17(e) of the 1997 Lustration Act, the Commissioner
of Public Interest had a right of access to full documentation
relating to the lustrated person created by, inter alia,
the former security services. If necessary, he could hear witnesses
and order expert opinions. The Commissioner also had at his disposal
a secret registry with staff who obtained official clearance allowing
them access to documents considered to be State secrets and were
employed to analyse lustration declarations in the light of the
existing documents and to prepare the case file for the lustration
trial.
- The
Court has held that lustration measures are by their nature temporary
and the necessity to continue such proceedings diminishes with time.
It has recognised that at the end of the 1990s the State had an
interest in conducting lustration proceedings in respect of persons
holding the most important public functions. However, it reiterates
that if a State is to adopt lustration measures, it must ensure that
the persons affected thereby enjoy all procedural guarantees under
the Convention in respect of any proceedings relating to the
application of such measures (see, Turek, § 115
and Matyjek, § 62, both cited above).
- The
Court accepts that there may be a situation in which there is
a compelling State interest in maintaining the secrecy of some
documents, even those produced under the former regime. Nevertheless,
such a situation will only arise exceptionally given the considerable
time that has elapsed since the documents were created. It is for the
Government to prove the existence of such an interest in the
particular case because what is accepted as an exception must
not become a norm. The Court considers that a system under which the
outcome of lustration trials depended to a considerable extent on the
reconstruction of the actions of the former secret services, while
most of the relevant materials remained classified as secret and the
decision to maintain the confidentiality was left within the powers
of the current secret services, created a situation in which the
lustrated person's position was put at a clear disadvantage (see,
Matyjek, § 62; Luboch, § 67;
Rasmussen, § 50, Górny § 40,
all cited above).
- In
the light of the above, the Court considers that due to
the confidentiality of the documents and the limitations on
access to the case file by the lustrated person, as well as the
privileged position of the Commissioner of the Public Interest
in the lustration proceedings, the applicant's ability to prove
that the contacts he had had with the communist era secret
services did not amount to “intentional and secret
collaboration” within the meaning of the 1997 Lustration Act
were severely curtailed. Regard being had to the particular context
of the lustration proceedings, and to the cumulative application of
those rules, the Court considers that they placed an unrealistic
burden on the applicant in practice and did not respect the principle
of equality of arms (see, Matyjek, cited above, § 63).
- Having
regard to the foregoing, the Court concludes that the lustration
proceedings against the applicant, taken as a whole, cannot be
considered to have been fair within the meaning of Article 6 § 1
of the Convention taken together with Article 6 § 3.
There has accordingly been a breach of those provisions.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 REGARDING LACK
OF A PUBLIC HEARING
- The
applicant complained under Article 6 § 1 of the
Convention that the proceedings in his case had not been public.
- The
Government contested that argument. They submitted that the partial
exclusion of the public in the present case had been justified on
national security grounds.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to the finding of a violation of Article 6 § 1
taken together with Article 6 § 3 on account of the
unfairness of the lustration proceedings, and the reasons underlying
that finding (see paragraphs 29-36 above), the Court considers
that it is not necessary to examine whether, in this case, there has
been a violation of this provision as regards the lack of a
public hearing (see Luboch, cited above, § 77).
III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant alleged that he should not have been subjected to
lustration as a member of the board of directors of the local branch
of a public radio. The Court considers that the complaint falls to be
examined under Article 10 of the Convention which reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- The
Government submitted that there had been no violation of Article 10
of the Convention but did not comment any further on the question
whether the fact that the applicant had been subjected to lustration
proceedings raised an issue under this provision.
- The
Court notes that this complaint is linked to the complaint regarding
unfairness of the proceedings examined above and must therefore
likewise be declared admissible.
- Having
regard to the finding of a violation of Article 6 § 1
taken together with Article 6 § 3 on account of the
unfairness of the lustration proceedings (see paragraphs 29-36
above), the Court considers that it is not necessary to examine
whether, in this case, there has been a violation of Article 10 of
the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant further raised some general complaints
under Articles 6 and 8 of the Convention and Article 1 of
Protocol No. 1. He alleged that the lustration courts'
judges had not been impartial, wrongly assessed the evidence,
and that he had not been informed of his rights, in particular,
as regards legal aid.
- The
Court reiterates that, in accordance with Article 19 of the
Convention, its duty is to ensure the observance of the engagements
undertaken by the Contracting Parties to the Convention. In
particular, it is not its function to deal with errors of fact or law
allegedly committed by a national court unless and in so far as
they may have infringed rights and freedoms protected by the
Convention. Moreover, while Article 6
of the Convention guarantees the right to a fair hearing,
it does not lay down any rules on the admissibility of evidence or
the way it should be assessed, which are therefore primarily matters
for regulation by national law and the national courts
(see, García Ruiz v. Spain [GC],
no. 30544/96, § 28, ECHR 1999 I, with
further references).
- The
Court has examined the remainder of the complaints as submitted by
the applicant. However, having regard to all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that the applicant has failed to
substantiate his complaints.
- It
follows that this part of the application is manifestly ill founded
and must be rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 1,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government invited the Court to rule that the finding of a violation
constituted in itself sufficient just satisfaction.
- The Court considers that in the particular
circumstances of the case the finding of a violation constitutes in
itself sufficient just satisfaction for any non pecuniary damage
which may have been sustained by the applicant (see, Matyjek,
§ 69; Luboch, § 83, both cited above).
B. Costs and expenses
- The
applicant, who was represented by a lawyer, did not claim
reimbursement of costs and expenses.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaints under
Article 6 of the Convention regarding the unfairness of the
proceedings and the lack of a public hearing, and the complaint under
Article 10 of the Convention, admissible and the remainder of the
application inadmissible;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention taken in
conjunction with Article 6 § 3;
- Holds unanimously that there is no need to
examine the complaint under Article 6 § 1 of the
Convention regarding the lack of a public hearing;
- Holds by six votes to one that there is no need
to examine the complaint under Article 10 of the Convention;
- Holds unanimously that the finding of a
violation constitutes in itself sufficient just satisfaction for any
non pecuniary damage sustained.
Done in English, and notified in writing on 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of
Court.
Lawrence
Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Garlicki is annexed to this judgment.
N.B.
T.L.E.
PARTLY DISSENTING OPINION OF JUDGE GARLICKI
I
have voted against point 4 of the operative part of the judgment
because, in my view, Article 10 of the Convention raises a separate
and distinct question.
