CASE OF MOCZULSKI v. POLAND
Violation of Art. 6-1+6-3
Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
5. The applicant was born in 1930 and lives in Warsaw. 6. On 4 June 1992 the Minister of Internal Affairs, Mr Antoni Macierewicz, submitted to Parliament and made public a “list of secret collaborators with the security services between 1945 and 1990”. The list, unofficially called “the Macierewicz list”, contained names of public officials who appeared in the archives of the Ministry and included the President and many Members of Parliament. The publication of the list sparked uproar in the Sejm, a Chamber of the Polish Parliament, which led to the fall of the government of Jan Olszewski a couple of hours later. 7. The applicant, who had been a Member of Parliament, appeared on the list. 8. 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 19441990 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. 9. On 26 March 1999 the applicant applied to the court to institute the socalled “autolustration” proceedings under section 18a § 3 of the Lustration Act. He submitted his lustration declaration, in which he stated that he had not been an intentional and secret collaborator with the secret services. 10. The applicant was the first of many persons from the Macierewicz list who applied for autolustration claiming that they had not been secret collaborators with the communistera secret services. In some cases the lustration courts agreed and cleared the name of the person concerned. 11. On 6 May 1999 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to institute lustration proceedings in the applicant’s case. 12. On 6 November 2001 the Court of Appeal gave a judgment in which it found that his lustration declaration had been truthful and that the applicant had not been an intentional and secret collaborator with the secret services. The panel of the court was composed of three judges. 13. The Commissioner of the Public Interest (Rzecznik Interesu Publicznego) appealed against the judgment. 14. On 30 July 2002 the Warsaw Court of Appeal, acting as the secondinstance lustration court allowed the appeal and remitted the case. The court was constituted of a panel of three judges which included judge R.K. 15. On 6 April 2005 the Warsaw Court of Appeal acting as the firstinstance lustration court, found that the applicant had been an intentional and secret collaborator with the security services between 1969 and 1977. 16. The applicant appealed against the judgment. 17. On 12 September 2006 the Warsaw Court of Appeal dismissed the appeal and upheld the judgment. The court was constituted of a panel of three judges which again included Judge R.K. 18. The applicant lodged a cassation appeal complaining inter alia about the lack of impartiality of Judge R.K. The applicant submitted that this judge had participated in the preparation of his lustration proceedings and was a member of a lustration court between 1999 and 2000. The latter panel was later dissolved; nevertheless, these factors cast doubt on the judge’s impartiality particularly as he was a member of the panels giving judgment at the secondinstance. 19. The applicant’s cassation appeal was dismissed on 17 April 2008 by the Supreme Court (Sąd Najwyższy). The Supreme Court examined inter alia the applicant’s complaint that Judge R.K. had participated in his trial at the first and, on two occasions, the second instance. It dismissed the argument that such participation had given rise to doubts regarding his impartiality, finding that the judge in question had not been a member of the panel that had given a decision at first instance. As regards the applicant’s complaint that Judge R.K. had been a member of the panel of the second-instance court twice, the court noted that, according to the domestic law, such judge was not ex lege excluded from dealing with the case. It was however open to the party having doubts as to the lack of impartiality of the judge to challenge him or her during the proceedings; the applicant had failed to do that. Since the applicant accepted the composition of the second-instance court which gave the judgment on 12 September 2006, he cannot effectively raise doubts as to the lack of impartiality of one of the judges at the cassation appeal stage. 20. The applicant was barred from being a Member of Parliament for a period of ten years in application of the 1997 Lustration Act. 21. The judgment was notified to the applicant’s representative in June 2008. 22. 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, § 2739, ECHR 2007V.