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FOURTH
SECTION
CASE OF GÓRNY v. POLAND
(Application
no. 50399/07)
JUDGMENT
STRASBOURG
8 June
2010
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 Górny v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 18 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 50399/07) 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 Kazimierz Górny
(“the applicant”), on 8 November 2007.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that the lustration proceedings had
been unfair, in breach of Article 6 of the Convention.
- On
20 January 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Katowice.
- 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.
- In
December 1998 the applicant, who was an advocate, declared
that he had not collaborated with the communist-era
security services.
- On
30 March 2004 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 19 April 2004.
- On
12 May 2004 the Commissioner dismissed the applicant's request for
access to the case file.
- On 8 December 2004 the Commissioner applied to the
Warsaw Court of Appeal (Sąd Apelacyjny) 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
20 December 2004 the Warsaw Court of Appeal decided to allow
the Commissioner's request and instituted lustration proceedings
against the applicant. The applicant was informed that he could
consult the case file in the secret registry of the Court of Appeal.
- On
9 March 2005 the Warsaw Court of Appeal, acting as the first instance
lustration court, found that between 1987 and 1989 the applicant had
been an intentional and secret collaborator with the Security Service
and had therefore submitted an untrue lustration declaration.
- The
applicant lodged an appeal in which he maintained, in particular,
that the lustration proceedings had been in breach of
the Resolution 1096 (1996) of the Parliamentary
Assembly of the Council of Europe. He also complained that the
Commissioner had applied to the court to institute the
lustration proceedings after the expiry of the time-limit
of six months, calculated from the date he had notified the applicant
about his doubts regarding the truthfulness of his declaration.
- On
10 January 2006 the Warsaw Court of Appeal, acting
as the second instance lustration court, upheld the
impugned judgment. In particular the court established that the
time-limit had been of a non binding nature and its expiry had
not precluded the institution of the proceedings.
- The
applicant lodged a cassation appeal against the judgment. On 22 May
2007 the Supreme Court (Sąd Najwyższy) dismissed his
cassation appeal.
- 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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant law and practice concerning lustration proceedings in Poland
are set out in the Court's judgments 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. 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.
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 applicant 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;
...”
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. In particular, the applicant had not questioned the alleged
restrictions on his access to the case file and on taking notes from
it. Nor had he complained that he could not present his arguments in
accordance with the principles of adversarial hearing and equality of
arms. The Government submitted that Article 6 of the Convention was
directly applicable under Polish law and the applicant could have
relied on this provision before the domestic courts. However, in his
appeals he had not put forward arguments related to the question of
access to the case file.
- It
was hardly acceptable for the Government that the applicant would be
exempted from the obligation to exhaust domestic remedies when other
potential applicants in similar cases attempted to make use of them.
They referred to the lustration case of a certain T.K. who had raised
in his appeals the issue of the alleged hindrance in access to the
case file. In that case the appellate lustration court and the
Supreme Court had not upheld that argument. Subsequently, T.K. lodged
a constitutional complaint in which he challenged, inter alia,
certain provisions of the Protection of Classified Information Act.
On 9 December 2008 the Constitutional Court discontinued the
proceedings on formal grounds as the complaint had been filed outside
the statutory three-month time-limit (no. SK 94/06). The Government
argued that a constitutional complaint should be considered an
adequate domestic remedy in the applicant's case.
- The
applicant disagreed. He referred to the Court's judgments in the
cases of Matyjek v. Poland and Bobek v. Poland in
which similar arguments had been rejected. As regards the
constitutional complaint, the applicant contended that the
Constitutional Court had no jurisdiction to review the manner in
which the courts had applied statutory law to an individual case. The
1997 Lustration Act was unsuccessfully challenged before the
Constitutional Court on numerous occasions. In his view, the
Government did not demonstrate that he had had any domestic remedy
whereby he could effectively challenge the legal framework governing
the lustration proceedings. The applicant maintained that he had
raised the issue of restricted access to the case file in his
cassation appeal and other grievances before the Court of Appeal.
- 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. In so far as the Government argued, relying on the
Constitutional Court's decision of 9 December 2008, that a
constitutional complaint could be regarded as an adequate remedy, the
Court notes that in the above decision the Constitutional Court
discontinued the constitutional complaint proceedings on formal
grounds and thus it is not persuaded by the Government's argument.
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 argued that the proceedings in his case had been unfair.
The Commissioner of Public Interest and the officials employed in his
office had access to all the classified materials concerning him. The
applicant and his lawyers, on the other hand, had restricted access
to those materials. They were allowed to consult them only in the
secret registry of the lustration court. The notes taken in the
secret registry could not be removed and the applicant was not
allowed to make copies of any classified documents with a view to
conducting his defence.
2. The Government's submissions
- The Government submitted that each case had to be
assessed by the Court taking into account its special circumstances.
In the present case, the applicant had never raised before the
domestic authorities the issue of unfairness, allegedly caused by the
confidentiality of the case file, limitations on his access to it and
the restrictions on taking notes from it. Secondly, the applicant had
access to all evidence and all decisions given in the case. The only
limitations which applied to him with regard to taking notes were of
a technical nature. 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 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 confidential.
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
situation where the lustration court had to apply the rules
concerning the use of classified documents had been assessed by the
Supreme Court in the above-mentioned case of T.K. There, the Supreme
Court in its judgment of 9 December 2004 stated that the application
of those rules could somewhat hinder the preparation of an appeal by
the lustrated person; however it rejected the view that the procedure
followed could deprive or even restrict the rights of the defence.
The Supreme Court further stressed that the application by the
lustration court of a procedure provided for by the law could not be
considered as infringement of the rights of the defence.
- 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.
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 26 above). It further observes that the
guarantees in paragraph 3 of Article 6 are specific aspects
of the right to a fair trial set forth in general in paragraph 1.
For this reason it considers it appropriate to examine the
applicant's complaint under the two provisions taken together (see,
Edwards v. the United Kingdom, 16 December 1992, § 33,
Series A no. 247 B).
- According to the principle of equality of arms, as one
of the features of the wider concept of a fair trial, each party must
be afforded a reasonable opportunity to present his case under
conditions that do not place him at a substantial disadvantage
vis à vis his opponent (see, Bulut
v. Austria, 22 February 1996, § 47, Reports
1996 II; Foucher v. France, 18 March 1997, §
34, Reports 1997 II). The Court reiterates that in order
to ensure that the accused receives a fair trial any difficulties
caused to the defence by a limitation on its rights must be
sufficiently counterbalanced by the procedures followed by the
judicial authorities (see, Doorson v. the Netherlands,
26 March 1996, Reports 1996 II, § 72; Van
Mechelen and Others v. the Netherlands, 23 April 1997,
Reports 1997 III, § 54).
- The
Court had 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, § 116, 24 June 2008). In the Turek case the
Court held in particular 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, all cited above).
- 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 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 further observes that
although the applicant had been represented in the lustration
proceedings, it has not been disputed that identical restrictions
applied to his lawyer.
- 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, Foucher, cited above, § 36).
- 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
(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's position was put at a clear disadvantage (see,
Matyjek, § 62; Luboch, § 67; Rasmussen,
§ 50, 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 VIOLATIONS OF THE CONVENTION
- The
applicant alleged that the Commissioner of Public Interest had
breached the domestic law as he had lodged an application for
institution of the proceedings after the expiry of the
six-month time-limit provided by the 1997 Lustration Act. The
applicant also complained about the principles of
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 notes that the applicant's argument as to the alleged breach of
the domestic law in the lustration proceeding was examined and
dismissed by the domestic courts. It recalls that it is not the
Court's function to act as a court of appeal and to deal with errors
of fact or of law allegedly committed by a national court unless and
in so far as they may have infringed rights and freedoms protected by
the Convention (see, García Ruiz v. Spain
[GC], no. 30544/96, § 28, ECHR 1999-I, with further
references). In so far as the applicant contests the principles of
lustration process, 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 5,000 Polish zlotys (PLN) (approximately 1,200
euros (EUR)) in respect of pecuniary damage. This sum corresponded to
the loss of his earnings related to the participation in the
lustration hearings. He also claimed PLN 20,000 (approximately EUR
5,100) 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. In respect of
claim for non-pecuniary damage, they invited the Court to rule that
the finding of a violation constituted in itself sufficient just
satisfaction.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It therefore rejects this claim.
The Court also 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 PLN 5,000 for travel expenses related to
hearings which took place in Warsaw and PLN 1,585,76 (approximately
EUR 400) for costs of the lustration proceedings.
- The
Government requested the Court to make an award, if any, only in so
far as the costs and expenses were actually and necessarily incurred
and were reasonable as to quantum.
- 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. The Court notes that the applicant produced
copies of documents related to the costs which he was ordered to pay
by the Court of Appeal (PLN 1,585,76). On the other hand, he did not
submit any documents to substantiate his claim for travel expenses.
Consequently, regard being had to the information in its possessions
and the above criteria, the Court considers it reasonable to award
the sum of EUR 400 for costs and expenses in the domestic
proceedings.
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 400 (four
hundred euros) in respect of costs and expenses, plus any tax that
may be chargeable, 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 8 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
