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FOURTH
SECTION
CASE OF MOŚCICKI v. POLAND
(Application
no. 52443/07)
JUDGMENT
STRASBOURG
14 June
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 Mościcki 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,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 52443/07) 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 Jacek Mościcki (“the applicant”), on
19 November 2007.
- 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 brought against him
had been unfair.
- On
12 March 2009 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.
- Written
submissions were received from the Helsinki Foundation for Human
Rights in Warsaw, which had been granted leave by the President to
intervene as a third party (Article 36 § 2 of the
Convention and Rule 44 § 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1939 and lives in Koszalin. He began to
practise as an advocate in 1971.
- 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”). Persons falling under
the provisions of the 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
May 1999 the applicant in his lustration declaration stated that he
had not been an intentional and secret collaborator of the
communist-era security services.
- On
11 May 2005 the Commissioner of Public Interest (Rzecznik
Interesu Publicznego) notified the applicant that he had
instituted proceedings aimed at verifying the truthfulness of the
applicant's declaration.
- The
Commissioner heard the applicant on 2 June 2005. The applicant
stated that in the 1980s he had been harassed by two officers of the
security service. However, he averred that his contacts with the
security service had not amounted to secret and conscious
collaboration. He stated that he had ceased all the contacts with the
security services in August 1984. The applicant unsuccessfully
requested the Commissioner to hear eight advocates of the Koszalin
Regional Bar Association.
- On
8 August 2005 the Commissioner made an application to the
Lustration Chamber of the Warsaw Court of Appeal, in which he
challenged the truthfulness of the applicant's declaration.
- On
11 August 2005 the Warsaw Court of Appeal instituted lustration
proceedings in the applicant's case.
- On
15 September 2005 the court held a hearing. The applicant stated
that he would not make any statements and would not answer any
questions put to him by the court. He upheld his statements given
before the Commissioner on 2 June 2005. The applicant did not
request the court to call advocates of the Koszalin Bar as witnesses.
However, the court decided to hear two of those advocates (K.G. and
R.K.). They stated that the applicant had informed them about the
meetings with the security services but not about their contents.
- On
5 January 2006 the Warsaw Court of Appeal, acting as the
first instance lustration court, held that the applicant's
declaration had been untruthful. The court relied, in particular, on
evidence given by J.B., an officer of the security services who had
managed the applicant as a secret collaborator. It further had regard
to the applicant's statements given before the Commissioner and
documentary evidence. It found that the applicant, albeit for a
limited period of time, had been an intentional and secret
collaborator with the security services within the meaning of the
Lustration Act.
- The
applicant lodged an appeal. He argued that his meetings with the
officers of the security services had not amounted to secret
collaboration as he had informed his fellow advocates (K.G. and R.K.)
about those meetings. Furthermore, he had never consented to
collaborate with the security services and there had been no material
evidence of his alleged collaboration. The applicant also argued that
he had been registered as a “secret collaborator” without
his knowledge. He requested the court to call further witnesses.
- On
25 April 2006 the Warsaw Court of Appeal agreed to hear four
witnesses called by the applicant (M.C., A.B.-S., J.T. and W.W.). It
refused to hear the remaining witnesses since their evidence was not
strictly related to the applicant's alleged collaboration with the
security services and thus would be irrelevant for the case.
- On
30 May 2006 the Warsaw Court of Appeal heard three witnesses
called by the applicant (M.C., J.T. and W.W.). It did not hear
A.B.-S. as the applicant withdrew his request to hear that witness.
- On
30 May 2006 the Warsaw Court of Appeal, acting as the
second instance lustration court, upheld the judgment of
5 January 2006. It found that the first-instance court had duly
assessed all relevant evidence and provided sufficient reasons for
its findings which were confirmed by the additional witnesses heard
by the appellate court. It held that according to the evidence given
by J.B. the applicant had not signed a collaboration declaration, but
had been orally providing information to the security services about
advocates of the Koszalin Bar.
- The
applicant lodged a cassation appeal with the Supreme Court. He
contested, amongst others, the Court of Appeal's refusal to hear some
of his witnesses. On 22 May 2007 the Supreme Court dismissed the
cassation appeal. It found that the Court of Appeal's refusal to hear
certain witnesses had been justified and duly reasoned.
- On
17 September 2007 the Koszalin Regional Bar Association struck
the applicant off the roll of advocates. It found that in accordance
with section 30 of the Lustration Act the applicant had lost his
right to practise as an advocate following the dismissal of his
cassation appeal by the Supreme Court. On 23 October 2007 the
National Bar Association upheld the impugned decision. The applicant
appealed to the Minister of Justice who however dismissed his appeal
on 13 May 2008.
- The
applicant filed an appeal against the Minister's decision with the
Warsaw Regional Administrative Court. On 13 August 2008 the
applicant requested the court to stay the proceedings on the ground
that the Ombudsman had challenged the constitutionality of a relevant
section of the amended Lustration Act and proceedings had been
instituted before the Constitutional Court. On 11 December 2008
that court stayed the proceedings as requested. On 16 March 2010
the court resumed the proceedings at the applicant's request. On
10 June 2010 the court again stayed the proceedings. On
8 November 2010 the applicant filed a complaint with the Supreme
Administrative Court under the Law of 17 June 2004 on complaints
about a breach of the right to a trial within a reasonable time (“the
2004 Act”). On 30 November 2010 the Supreme Administrative
Court dismissed his complaint. The proceedings before the
Constitutional Court appear to be pending.
- By
a letter dated 9 March 2009 the Szczecin Branch of the Institute
of National Remembrance notified the applicant that doubts had arisen
as to the truthfulness of his lustration declaration. He was summoned
for 17 April 2009. The applicant has submitted no further
information as regards the notification.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Lustration laws
- 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.
B. Resolution no 9/1999 of the National Bar
Association of 17 April 1999 (amended by Resolution no. 17/1999
of 9 October 1999).
- In
the Resolution the National Bar Association expressed the view that a
secret and conscious collaboration of advocates with the security
services between 1944 and 1990 amounted to a betrayal of the basic
moral values and fundamental principles of advocates' ethics. It
called on advocates who had collaborated with the security services
to leave the Bar.
The
Resolution stated further that:
“The Bar will resort to all legally available
means within the framework of disciplinary proceedings aimed at
removing from the Bar all those advocates who by their work or
service for or collaboration with the security services have lost the
public trust [...] and who do not guarantee that they will correctly
exercise their profession.
[...]
III. The National Bar Association obliges the
organs of the Bar to carry out disciplinary investigations in the
form of explanatory actions or disciplinary proceedings, or to
institute proceedings under section 74 of the Bar Association Act,
while respecting the principle of individual responsibility.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
REGARDING UNFAIRNESS OF THE PROCEEDINGS
- The
applicant complained under Article 6 of the Convention about the
unfairness of the lustration proceedings. He alleged that he had had
restricted access to the classified documents in the case file and
could not take and use notes from it.
The
Court raised, of its own motion, the appropriateness of examining
under Articles 6 § 1 and 8 of the Convention
the significant delay which occurred between the date of the lodging
of the applicant's lustration declaration and the date of the
institution of the proceedings by the Commissioner. It further raised
of its own motion the question of whether the fact that the applicant
was likely to be disbarred, pursuant to the Resolution of the
National Bar Association, if he had admitted collaboration with the
security services, amounted to a breach of Articles 6 § 1, 8
and Article 1 of Protocol No. 1 of the Convention.
The
Court considers that the applicant's principal grievances concern the
alleged unfairness of the lustration proceedings. For this reason it
is appropriate to examine this complaint under Article 6 of the
Convention. Article 6, 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 the alleged unfairness of the lustration
proceedings which he subsequently brought before the Court. He had
not complained about the alleged hindrance in his access to the case
file or restrictions on taking notes from it. In his appeal and
cassation appeal the applicant contested the assessment of evidence
by the courts, but had not raised the issue of access to the case
file. Had he raised such objections, it was not excluded that that
the case could have been remitted to the first-instance lustration
court with a view to applying the necessary arrangements to
facilitate the applicant's access to the case file. 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.
- 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 alleged that the principle of equality of arms had been
breached in the proceedings since the Commissioner of Public
Interest, contrary to the applicant's position, had had a statutory
right of access to all relevant documents. Furthermore, the applicant
was prohibited from taking notes from the case file and from making
copies of it.
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 (see, 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 Government rejected
as unsubstantiated the applicant's allegation that he could not take
notes from the case file.
- 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 its judgment of 9 December 2004 (case no. II
KK 342/03). The Supreme Court stated that the application of
those rules could possibly 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 an infringement of the rights of the defence.
- The
Government submitted that the Commissioner's initial assessment of
the classified evidence had not been in any way binding on the
lustration courts. Those courts conducted the proceedings anew and
were entitled to assess freely all evidence before them. The
applicant was guaranteed the right to challenge all the documents in
his 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.
They 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 29 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 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.
- The
applicant has claimed that he had not been authorised to take notes
from his case file, while the Government have disputed that
assertion. Even accepting the Government's argument, the Court
observes that the applicant's possibility of taking notes was
considerably restricted. Any notes which 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 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 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 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).
- The
Court notes that in the present case the applicant lost his right to
practise as an advocate following the standard lustration proceedings
in which the domestic courts established that his lustration
declaration, in which he had denied collaboration with the security
services, had been untruthful. In those circumstances there is no
need for the Court to examine issues related to the Resolution of the
National Bar Association which provided that advocates who admitted
collaboration would be disbarred.
- 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 ARTICLE 6 OF THE
CONVENTION
- The
applicant complained under Article 6 of the Convention that the
Commissioner of Public Interest had refused to call advocates of the
Koszalin Regional Bar as witnesses for him. Furthermore, the
lustration courts had refused to hear a number of the applicant's
witnesses who were to testify that he had not been a secret and
conscious collaborator of the security service. He also complained
that he had been deprived of the right to practise as an advocate for
ten years and accordingly sustained significant moral and pecuniary
damage. Lastly, the applicant alleged that judges of the Lustration
Chamber of the Warsaw Court of Appeal had not been permanently
assigned to either the first or the second-instance lustration court
but had heard cases sometimes sitting on the first-instance court and
sometimes sitting on the second-instance court.
- 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). The applicant took
issue with the Court of Appeal's refusal to hear some of his
witnesses. However, it was convincingly established by the Court of
Appeal that the evidence of those witnesses would not be relevant to
determine the fact of the applicant's collaboration with the security
services. Furthermore, the Supreme Court confirmed the Court of
Appeal's decision and found that it had been duly reasoned.
In so
far as the applicant appears to contest the principles 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). As regards the
sanction imposed on the applicant in consequence of the outcome of
the lustration proceedings, the Court finds no grounds on which that
sanction could be contested under Article 6 of the Convention.
Lastly, in respect of the complaint concerning the position of judges
of the Lustration Chamber, the Court considers that the applicant
failed to demonstrate how his Article 6 rights were effected in
this respect.
- It
follows, notwithstanding other possible grounds of inadmissibility,
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. ALLEGED VIOLATION OF ARTICLE 4 OF THE PROTOCOL
No. 7 TO THE CONVENTION
- In
his observations of 23 October 2009 the applicant complained of
the institution of the second set of lustration proceedings against
him by the Szczecin Branch of the Institute of National Remembrance
which amounted to a breach of Article 4 of the Protocol No. 7
to the Convention.
- The
Court notes that the applicant submitted a copy of the notification
of 9 March 2009 made by the Szczecin Branch of the Institute of
National Remembrance in which he was informed about doubts concerning
the truthfulness of his lustration declaration. It notes that the
applicant has submitted no further information regarding any
follow-up to the said notification.
- 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.
IV. 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 23,827.94 Polish zlotys (PLN) (EUR 5,950)
in respect of pecuniary damage for lost earnings. He further claimed
EUR 100,000 in respect of non-pecuniary damage for suffering and
stress related to the breach of the Convention.
- The
Government submitted that there was no causal link between the
alleged violation and the claim for pecuniary damage. In respect of
the 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.
It considers that in the particular circumstances of the case
the finding of a violation constitutes in itself sufficient just
satisfaction for any non pecuniary damage which may have been
sustained by the applicant (see Matyjek, § 69;
Luboch, § 83, both cited above).
B. Costs and expenses
- The
applicant claimed in total 16,259.56 PLN (EUR 4,000) for
costs and expenses, broken down as follows:
a) PLN 2,100
for the costs of his defence counsel in lustration proceedings;
b) PLN 3,045.56
for fees incurred in the lustration proceedings;
c) PLN 1,114
for the costs of photocopying the case file in respect of related
criminal proceedings against the officers of the former security
services;
d) PLN 10,000
for preparation of his application and his submissions to the Court.
- 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 of his legal representation
in the lustration proceedings and fees incurred in those proceedings
(PLN 5,145.56). It observes that the costs claimed under c)
were not relevant for the issues raised in his application to the
Court. Consequently, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 1,500 covering costs under all heads.
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 14 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of
Court.
Lawrence Early Nicolas Bratza
Registrar President
