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FOURTH
SECTION
CASE OF ZAWISZA v. POLAND
(Application
no. 37293/09)
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 Zawisza 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 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37293/09) 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 Jerzy Zawisza (“the
applicant”), on 10 July 2009.
- The
applicant was represented by Ms M. Gąsiorowska, 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 his case had
been unfair.
- On
10 May 2010 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 1943 and lives in Warsaw. He is a retired
professional soldier.
- 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.
- In
2002 the applicant became involved in politics. In 2004 he intended
to stand as a candidate in the elections for the European Parliament
on behalf of the Self defence party. However, the party withdrew
its support for the applicant after he informed it that during his
military service he had collaborated with the counter-intelligence
agency.
- At
the end of 2004 the Institute of National Remembrance drew up a list
of officials, collaborators and candidates for collaborators of the
communist security services. In November 2004 the list was published
on the Internet and unofficially named “the Wildstein list”
after a journalist who had allegedly removed it from the Institute.
The name “Jerzy Zawisza” was on the list and the
applicant asked the Institute whether it concerned him. The Institute
informed the applicant that it did not concern him.
- The
applicant was elected a Member of Parliament in the elections held in
September 2005.
- On
9 October 2005 the applicant in his lustration declaration stated
that he had not collaborated, served or worked for the
communist-era security services. On 12 October 2005 he informed the
Speaker of the Sejm that he had had contacts with the military
counter-intelligence.
- On
an unspecified date the Commissioner of Public Interest (Rzecznik
Interesu Publicznego) informed the applicant that he had doubts
as to the truthfulness of his lustration declaration
and invited him for an interview on 10 October 2006. At the
next interview the applicant was invited to read the records
concerning his alleged collaboration.
- On
21 December 2006 the Commissioner applied to the Warsaw Court
of Appeal to institute lustration proceedings against
the applicant on the grounds that he had lied in his lustration
declaration by denying that he had collaborated with the secret
services.
- On
28 December 2006 the Warsaw Court of Appeal decided to allow
the Commissioner’s request and instituted lustration
proceedings against the applicant.
- On 17 and 24 January 2007 the applicant’s
lawyers consulted the classified part of the case file in the secret
registry of the court. On both occasions the lawyers were entitled to
take notes in the special notebook kept by the Head of the secret
registry. However, they did not avail themselves of that possibility.
- On
7 March 2007 the Warsaw Court of Appeal, acting as the first instance
lustration court, found that between 1964 and 1975 the applicant had
been an intentional and secret collaborator of the military
counter-intelligence service and had therefore submitted an untrue
lustration declaration. One judge from the panel of three expressed a
dissenting opinion. The judgment was served on the Commissioner of
Public Interest, the applicant and his lawyer.
- The
applicant lodged an appeal in which he maintained, in particular,
that as a member of the armed forces he had been ordered to
collaborate with the military counter-intelligence agency and that,
therefore, his collaboration did not fall within the ambit of the
Lustration Act. Alternatively, he argued that when submitting his
declaration he had made a justifiable error. According to the
Government, the applicant’s appeal did not concern the issue of
restrictions on access to the case file.
- On
19 September 2007 the Katowice Court of Appeal, acting
as the second instance lustration court, upheld the
impugned judgment.
- The
applicant lodged a cassation appeal against the judgment. The
Government submitted that the applicant had not invoked the issue of
restrictions on access to the case file in his cassation appeal.
- On
1 December 2008 the Supreme Court dismissed the cassation appeal
as manifestly ill-founded. The decision was served on the applicant
on 19 February 2009.
- The
applicant is prevented from standing in elections and from holding
other public functions for a period of 10 years.
- According
to the Government, in the course of the proceedings before the
Katowice Court of Appeal and the Supreme Court neither the applicant
nor his lawyer availed themselves of the possibility to consult the
case file or to take notes of it.
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 proceedings, the
infringement of his defence rights and the lack of equality of arms.
He alleged that he had not been given sufficient access to the
case file and had been prohibited from taking and retaining his
notes. Further, he could not make use of his notes during hearings or
outside them. The applicant invoked Article 6 of the Convention
which, in so far as relevant, provides:
“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 claimed that the applicant had not exhausted relevant
domestic remedies. Firstly, he had never raised before the domestic
courts the issue of restrictions on access to the case file and had
not alleged that his defence rights had been infringed. Secondly, the
applicant had not lodged a constitutional complaint, challenging the
constitutionality of the provisions of the Protection of Classified
Information Act which had been applied in his case.
- The
applicant disagreed. He argued that in his appeals he had challenged
the fairness of the proceedings but to no avail. Moreover, the
appellate courts could examine ex officio the issue of
unfairness in the proceedings (Article 440 of the Code of Criminal
Procedure). As regards the constitutional complaint, the applicant
argued that the Government had failed to demonstrate that it would
have been an effective remedy in his case.
- 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
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, amongst others, 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 applicant’s submissions
- The
applicant admitted that his lawyer had consulted the case file.
However, the access to the case file had been limited and
insufficient to ensure the rights of the defence. The applicant and
his lawyer were allowed to consult the case file only in the secret
registry of the court. They were prohibited from taking any notes
they made outside the secret registry and from using them during the
hearings. Furthermore, they were not permitted to make copies or to
show the file to any independent expert. In conclusion, the rights of
the defence were unduly restricted.
2. The Government’s submissions
- The
Government submitted that the classified character of part of the
evidence in the case had obviously influenced the proceedings.
Nonetheless, the rights of the applicant had been fully guaranteed as
the domestic courts had proceeded in accordance with the law.
According to section 52 § 2 of the Protection of Classified
Information Act the classified evidence in the case could be
consulted by the applicant and other parties to the proceedings (the
Commissioner) only in the secret registry of the court. The applicant
as well as the Commissioner could take notes from the classified
material only in the special notebooks that could not be taken
outside the court building (secret registry or the court room). In
the Government’s view, the said rules had enabled the applicant
to actively participate in the hearings. They stressed that the notes
taken by the applicant in the secret registry or during the hearing
could be consulted only by the applicant. That arrangement was aimed
at the protection of the applicant’s rights.
- The
manner of proceeding described above was applicable to all
proceedings where the issue of the protection of State secrets arose.
The relevant rules were applied to both parties to the proceedings as
well as the judges adjudicating the case.
- The
Government noted that during the whole proceedings at issue the
applicant had had full access to the case file. They underlined that
during the proceedings before the second-instance court and the
Supreme Court, neither the applicant nor his lawyer had availed
themselves of the possibility to consult the case file or to take
notes of it. In the proceedings before the Warsaw Court of Appeal
(first-instance) the applicant’s lawyers had not taken any
notes from the case file.
- The
Government referred to the Court’s case-law which recognised
that the need to protect the public interest may justify withholding
certain evidence from the defence in criminal proceedings (amongst
others, Edwards and Lewis v. the United Kingdom, nos.
39647/98 and 40461/98, § 53, 22 July 2003). In this
respect, they underlined that in the instant case all evidence had
been disclosed to the applicant. The only difficulty for the
applicant had been related to the fact that part of the evidence had
been classified. However, the rules applied by the domestic courts
regarding arrangements on access to the case file had respected the
principle of equality of arms.
- 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.
They stressed that, when challenging the judgments in the case, the
applicant had not referred to the issue of restrictions on access to
the case file. Neither had he alleged that the rights of the defence
had been infringed on account of the procedure applied by the courts.
The Government concluded that there had been no breach of Article 6 §
1 in the present case.
3. The Court’s assessment
- The
Court recalls that the procedural guarantees of Article 6 of the
Convention under its criminal head apply to lustration proceedings
(see paragraph 27 above). In several cases against Poland
concerning fairness of those proceedings (see, inter alia,
Matyjek, § 56; Luboch, § 61;
Rasmussen, § 43; Górny, § 31, all
cited above) 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.
- The Court has already dealt with the issue of
lustration proceedings in Turek v. Slovakia (no. 57986/00,
§ 115, ECHR 2006 ... (extracts)) and in Ādamsons
v. Latvia (no. 3669/03, 24 June 2008). In Ādamsons
the Court has underlined that if a State is to
adopt lustration measures, they must fulfil certain conditions in
order to be compatible with the Convention.
Firstly, the lustration law should be
accessible to the person concerned and foreseeable as to its effects,
such conditions being inherent in the expression “in accordance
with the law” within the meaning of the Convention. Secondly,
lustration should not exclusively serve the purpose of retribution or
revenge, as the punishment of offenders should be limited to the
criminal law sphere. Thirdly, if domestic law allows restrictions on
the rights guaranteed under the Convention, it must be precise enough
to allow for the individualisation of the responsibility of each
person affected thereby and contain adequate procedural safeguards.
Finally, the national authorities should keep in mind that lustration
measures are by their nature temporary and that the objective
need to restrict individual rights as a result of such
proceedings diminishes over time (see Ādamsons,
cited above, § 116). The
Court confirms that the above principles are also applicable to the
Polish lustration laws.
- In
the Turek judgment the Court held 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.
If the party to whom the classified materials relate is denied access
to all or most of the materials in question, his or her possibilities
of 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, Matyjek, § 56; Luboch,
§ 61; Rasmussen, § 43; Górny, §
33, all cited above).
- In
the present 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; Górny, § 34, 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 proceedings, 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 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 has not been disputed by the parties that, when consulting his
case file, the applicant had been authorised to take 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 same restrictions applied
to the applicant’s lawyers.
- 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 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,
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 that 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
(see, Ādamsons, cited above, § 116). It has
recognised that at the end of the 1990s the State had an interest in
carrying out lustration 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 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 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 as 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 VIOLATION OF THE CONVENTION
- The
applicant also complained that the decisions given in his case had
been based on incomplete evidence as part of his personal records had
been destroyed. Further, due to the passage of time he had been
unable to call witnesses to pursue his line of defence.
- 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, Garćia 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 3,000 euros (EUR) in respect of non pecuniary
damage for the breach of his Convention rights in the case.
- 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 also claimed EUR 3,000 for the costs and expenses incurred
before the Court. He submitted two invoices issued by his lawyer for
the amount of PLN 4,880 (EUR 1,220) and PLN 6,100 (EUR 1,525)
respectively.
- The
Government requested the Court to decide on this claim on the basis
of its relevant case-law.
- 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 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;
- 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 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
