CASE OF BOBEK v. POLAND
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
6. The applicant was born in 1929 and lives in Rzeszów. 7. The applicant, who was an advocate, made a declaration under the provisions of the Lustration Act 1997 that she had never secretly collaborated with the communist secret service. She only admitted that between 1945 and 1953 she had been working at the Security Office (Urząd Bezpieczeństwa) in Rzeszów as an office assistant, but in 1953 she had left the job. 8. On 14 April 1999 the Commissioner of Public Interest (Rzecznik Interesu Publicznego) applied to the Warsaw Court of Appeal (Sąd Apelacyjny), acting as the firstinstance Lustration Court (sąd lustracyjny), to institute proceedings in the applicant's case under the Lustration Act (ustawa lustracyjna) on the ground that the applicant had lied in her declaration by denying her collaboration with the secret services after 1953. (This security service was known as Urząd Bezpieczeństwa, but after 1956 it was called Slużba Bezpieczeństwa.) 9. On 31 May 1999 the applicant was notified that lustration proceedings had been instituted concerning her declaration (oświadczenie lustracyjne). 10. On 9 September 1999 the Warsaw Court of Appeal, acting as the first-instance court, held a hearing in the applicant's case. The Commissioner of Public Interest requested the court to conduct a public hearing and the applicant supported this motion. She was questioned by the court and commented on the evidence at the court's disposal. The file of the case was composed of the applicant's lustration declaration, copies of certain documents contained in the applicant's file compiled by the communist secret police and of the Commissioner's application for lustration proceedings to be instituted. Towards the end of the hearing, both the Commissioner and the applicant declared that they had no request for further evidence to be taken by the court. The court closed the hearing. 11. However, on 13 September 1999 the applicant requested the court to take further evidence. She submitted various documents concerning her professional career, her character and morality. 12. On 15 September 1999 the court re-opened the hearing and admitted the applicant's documents to the case file. It then closed the hearing again. 13. On 16 September 1999 the court sent the applicant the operative part of its judgment of 15 September 1999, by which it had found that the applicant had submitted an untrue lustration declaration because she had been an intentional, secret collaborator of the communist secret services after 1953. It further informed the applicant that the written grounds of the judgment had been prepared under Article 100 § 5 of the Code of Criminal Procedure and that she could consult them in the office of its secret registry (kancelaria tajna). As she had not appointed legal representation, the full written grounds could only be read by herself, to the exclusion of all other persons, except the Commissioner of Public Interest. 14. The applicant appealed. 15. On 8 November 1999 the Warsaw Court of Appeal, acting as the secondinstance lustration court, dismissed her appeal and upheld the firstinstance judgment. 16. On 22 November 1999 the same court informed the applicant that the written grounds of that judgment had been prepared under Article 100 § 5 of the Code of Criminal Procedure, and that she could consult them at the office of the court's secret registry. 17. The applicant lodged a cassation appeal with the Supreme Court, which held a hearing on 10 October 2000, but the applicant chose not to attend. The Court allowed the Commissioner's request to examine the applicant's appeal in camera, having regard to Article 360 § 1 (3) of the Code of Criminal Procedure. By a judgment of the same date the Court dismissed the applicant's cassation appeal. “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. ...” Article 79 § 1 of the Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” Under the established caselaw of the Constitutional Court, it has jurisdiction only to examine the compatibility of legal provisions with the Constitution and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases (e.g. SK 4/99, 19 October 1999; Ts 9/98, 6 April 1998; Ts 56/99, 21 June 1999). 19. On 3 August 1997 the Lustration Act (Ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) entered into force. Its purpose was to ensure transparency as regards those people exercising public functions who had been secret collaborators with the secret service during the communist era. It lost its binding force on 15 March 2007. 20. Pursuant to section 4 of the Act, “collaboration” was understood as the “intentional and secret collaboration with the operational or investigative branches of the State's security services as a secret informer or assistant, supplying them with information”. 21. Section 6 (1) of the Act read: “Persons in the categories listed in Article 7 of this law shall submit a declaration concerning work for or service in the State's security services or collaboration with these services between 22 July 1944 and 10 May 1990 (hereafter called 'the declaration').” 22. Section 7 (1) contained a list of public functions and professions, the holders of which must make the declaration under Article 6. 23. Under section 7 (1) item 10 (a) as amended in 1998, candidates to the bar and advocates were also obliged to make such declarations. Their declarations were to be submitted to the Minister of Justice. 24. The declarations were also transmitted to the Lustration Court. Pursuant to section 1 of the Act, the Warsaw Court of Appeal was vested with powers to conduct lustration proceedings. Such proceedings could be instituted at the request of the Commissioner of Public Interest (rzecznik interesu publicznego). 25. The Commissioner would institute proceedings before the Lustration Court when he or she had doubts whether the declaration of noncollaboration was truthful. 26. According to section 17(d), the duties of the Commissioner included in particular: “1. i) analysing the lustration declaration submitted to the court; ii) collecting the information necessary for a correct assessment of the declaration; iii) lodging an application with the court with a view to initiating lustration proceedings; ... 2. In carrying out his or her duties enumerated in points 1 and 2 above, the Commissioner may require to be sent or shown the relevant case files, documents and written explanations, and if necessary may hear witnesses, order expert opinions or conduct searches; in this respect, and as regards the duties described in section 17(1), the provisions of the Code of Criminal Procedure concerning the prosecutor shall likewise apply to the Commissioner.” Pursuant to section 17 (e), the Commissioner had full access to all documents and other sources of information, regardless of the form in which they were recorded, created before 10 May 1990 by organs specified in that provision, including sources within the Ministry of Internal Affairs. 27. Under section 19, matters not covered by the Act and relating to lustration proceedings were governed by the provisions of the Code of Criminal Procedure. 28. According to section 20, the person under scrutiny was afforded the same defence rights as an accused in criminal proceedings. The proceedings before the Lustration Court terminated with a decision on whether the declaration made by the person concerned was true. A decision of this court could be appealed to the second-instance Lustration Court. Such an appeal was examined by a different panel of three judges of the Warsaw Court of Appeal. 29. Pursuant to section 23, the decisions of the Lustration Court were to be served on the person concerned with their written grounds. 30. A cassation appeal to the Supreme Court lay against the secondinstance judgment. 31. The final judgment, finding a particular declaration untrue, was immediately made public in the “Official Law Gazette” (Monitor Polski). 32. Pursuant to section 30, the final judgment of an untrue declaration established the loss of moral qualifications which were, according to the relevant laws, necessary for the exercise of certain public functions, including the profession of advocate. It therefore entailed disbarment. 33. Article 156 § 4 of the Code provides that, when a danger arises that State secrets may be revealed to the public, access to the case files, making notes and copying documents from such files shall only be allowed under special arrangements provided for by the president of the court or by the court. 34. Article 100 § 5, which concerns the delivery of a judgment, provides: “If the case has been heard in camera because of the substantial interests of the State, instead of reasons, notice will be served to the effect that the reasons have been prepared.” 35. Article 360 § 1 (3) of the Code provides that the court shall order a hearing to be held in camera if its public character could disclose circumstances which should remain secret in the light of important State interests. 36. Section 2 (1) of the Protection of State Secrets Act 1982 (Ustawa o ochronie tajemnicy państwowej i służbowej), which was in force until 11 March 1999, read as follows: “A State secret is information which, if divulged to an unauthorised person, might put at risk the State's defence, security or other interest, and concerns in particular: ... 2) the organisation of the services responsible for the protection of security and public order, their equipment and working methods, and the data enabling the identification of their officers and persons collaborating with the security services...” 37. Section 86 of the Protection of Classified Information Act 1999 (Ustawa o ochronie informacji niejawnych), in its relevant part, provided as follows: “2. Persons referred to in section 21 (1) [those authorised to sign the document and to assign a confidentiality rating], or their legal successors in relation to documents containing information classified as a State secret, created before 10 May 1990, shall within 36 months from the date of enactment of this Act, review these documents with the purpose of adjusting their current security classification to the classifications provided by this Act. Until then, these documents shall be considered classified under the provisions of paragraph 1 unless otherwise provided by law...” Appendix No. 1 to the Act provided, in so far as relevant: “I. Information that can be classified as 'top secret': ... 21. information concerning documents that make it impossible to establish data identifying officers, soldiers or employees of State bodies, services and institutions authorised to engage in operational activities or on the resources that they use in their operational activities.” Section 52 (2) of the 1999 Act concerned the organisation of the secret registry. It provided in so far as relevant: “Documents marked “top secret” and “secret” (ściśle tajne i tajne) can be released from the secret registry only if the recipient can secure the protection of those documents from unauthorised disclosure. In case of doubts regarding the conditions of protection, the document can be made available only in the secret registry.” 38. Certain limited aspects of the Lustration Act 1997 have been examined by the Constitutional Court as to their compatibility with the Constitution. In a judgment of 10 November 1998, the Constitutional Court recalled the historical background to the Lustration Act and explained its purpose: “As can be seen from the legislative history, the main aim of the Act was to 'make it impossible to use a person's political past', the fact of cooperating with the secret services, 'for the purpose of blackmailing ... persons holding key decisionmaking functions in the Polish State'... The concept of lustration as adopted by the legislator, in respect of the subject of scrutiny, decision-making and possible sanction in lustration proceedings, is the truthfulness of the declaration submitted under Article 6 of the [Lustration Act]. Thus, as follows directly from the Act and from the Constitutional Court's judgment of 21 October 1998, the law does not associate criminal or quasi-criminal liability with the sole fact of past collaboration with the State's security services... The legislator's intention is that persons who are exercising public functions or standing for election to posts involving the exercise of public functions shall submit a declaration regarding cooperation. The purpose of such regulation is to secure the open nature of public life, to eliminate [the possibility of] blackmail because of facts from the past which can be considered as compromising, and to submit those facts for public consideration. The collaboration itself does not prevent any citizen from exercising public functions, and lustration proceedings are designed only to scrutinise the truthfulness of those who exercise or wish to exercise public functions. It is therefore not the collaboration, but the submission of a false declaration which has negative consequences for those affected.” 39. In a judgment of 21 October 1998 (K 24/98), the court examined the constitutionality of certain provisions of the Lustration Act as amended in 1998. These amendments concerned the provisions regulating the position of the Commissioner of Public Interest and, also, provisions to the effect that certain categories of persons, if found to have made a false lustration declaration, were to be regarded as having lost the moral qualifications necessary for the exercise of certain public functions. 40. In a judgment of 19 June 2002 (K 11/02), the court held that certain amendments to the Lustration Act, enacted on 15 February 2002, were incompatible with the Constitution because Parliament (Seym) had failed to respect the legislative procedure provided for by the relevant constitutional provisions. 41. In its judgment of 5 March 2003 ( K 7/01), the Constitutional Court examined the compatibility with the Constitution of certain provisions of the Lustration Act which created the obligation to publish a lustration declaration made by candidates to certain public functions insofar as they did not make any distinction between various categories of collaboration with the secret services. 42. In its judgment of 28 May 2003 (K 44/02), the court examined the scope of the notion of secret collaboration as provided for by Article 4 of the Lustration Act as amended in September 2002. 43. The court also dealt with other problems concerning the Lustration Act in its judgments K 39/97, P 3/00, SK 10/99 and SK 28/01. 44. The following are extracts from Parliamentary Assembly of the Council of Europe Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems: “9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services... 11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or 'decommunisation' laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now. 12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy. 13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process. Please see the "Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law" as a reference text.”