CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 4 février 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s9EADC58A { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s5442DDD { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s6DD35890 { width:19.77pt; display:inline-block } .sFD36CD5D { width:126.41pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION DECISION Application no. 20587/13 Monika TRACZ-SMOCZYŃSKA against Poland   The European Court of Human Rights (First Section), sitting on 4   February 2020 as a Committee composed of:   Pere Pastor Vilanova, President,   Krzysztof Wojtyczek,   Pauliine Koskelo, judges, and Renata Degener, Deputy Section Registrar, Having regard to the above application lodged on 27 February 2013, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Monika Tracz-Smoczyńska, is a Polish national, who was born in 1959 and lives in Wodzisław Śląski. She was represented before the Court by Mr Z. Stęchły, a lawyer practising in Rybnik. 2.     The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. Facts known prior to communication 4.     On 11 April 1997 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 – that is to say judges, among others – were required to   declare whether or not they had worked for or collaborated with the security services during the communist regime. The applicant made a   declaration that she had not collaborated with the security services during the communist regime. 5.     On an unspecified date the Commissioner of the Public Interest ( Rzecznik Interesu Publicznego ) applied to the Warsaw Court of Appeal ( Sąd Apelacyjny ) to institute lustration proceedings against the applicant on the grounds that she had lied in her lustration declaration by denying that she had collaborated with the secret services. On 29 November 2006 the Warsaw Court of Appeal decided to allow the Commissioner’s application and instituted lustration proceedings against the applicant. 6.     On 13 March 2007 the Warsaw Court of Appeal, acting as the first ‑ instance lustration court, found that the applicant had submitted an untrue lustration declaration. The applicant and her lawyer appealed. 7.     On 27 September 2007 the Katowice Court of Appeal, acting as the second-instance lustration court, quashed the challenged judgment and remitted the case to the Katowice Regional Court ( Sąd Okręgowy ). 8.     On 8 October 2008 the Katowice Regional Court found that the applicant had submitted an untrue lustration declaration. The applicant, her lawyer and the prosecutor all appealed. 9.     On 5 February 2009 the Katowice Court of Appeal quashed the challenged judgment and remitted the case to the Katowice Regional Court. 10.     On 17 August 2010 the Katowice Regional Court again found that the applicant had submitted an untrue lustration declaration. 11.     On 20 October 2011 the Katowice Court of Appeal upheld the impugned judgment, with a minor amendment regarding the legal basis of that judgment. 12.     The applicant lodged a cassation appeal against the judgment. On 6   November 2012 the Supreme Court ( Sąd Najwyższy ) dismissed her cassation appeal as manifestly ill-founded. 13 .     By a letter of 12 August 2015 the applicant lodged a request with the Supreme Court for the reopening of the lustration proceedings. She relied on a Constitutional Court judgment of 2 April 2015, which had ruled that a judge’s immunity had to be waived by the relevant authority before the institution of lustration proceedings. On 19   November 2015 the Supreme Court refused that request, ruling that it had not been lodged in a manner in accordance with formal requirements.   Facts submitted by the Government after the communication 14.     On an unspecified later date the applicant, represented by a court-appointed lawyer, lodged a second request with the Supreme Court for the reopening of the lustration proceedings. 15.     On 26 April 2016 the Supreme Court reopened the proceedings, quashed all the previous judgments, and discontinued the lustration proceedings against the applicant. The Supreme Court cited the Constitutional Court’s judgment of 2 April 2015 and found that in the applicant’s case the required waiver of her above-mentioned immunity had not been issued (see paragraph 13 above). Relevant domestic law and practice 16.     The relevant law and practice concerning lustration proceedings in Poland until 15 March 2007 is set out in the Court’s judgments in the cases of Matyjek v. Poland , no. 38184/03, §§ 27-39, 24 April 2007, Bobek v. Poland , no. 68761/01, §§ 18-43, 17 July 2007, and Luboch v. Poland , no.   37469/05, §§   28-39, 15 January 2008. COMPLAINTS 17.     The applicant complained under Article 6 §§ 1 and 3 of the Convention of the unfairness of the lustration proceedings, the infringement of her defence rights and the lack of equality of arms. THE LAW 18.     The Government raised three preliminary objections. Firstly, referring to the final discontinuation of the proceedings ordered by the Supreme Court on 26 April 2016, they submitted that the applicant had lost her victim status. Secondly, the Government stated that the applicant’s failure to inform the Court of such a crucial development in her case had amounted to an abuse of the right of individual petition, within the meaning of Article 35   §   3 of the Convention. Thirdly, the Government maintained that the applicant had failed to raise in the domestic proceedings – even in substance – her complaints about the alleged unfairness of the proceedings. 19.     In reply, the applicant’s representative, apart from maintaining the complaint on the merits, briefly commented on the objections regarding non-exhaustion of the domestic remedies and the applicant’s victim status. The applicant’s representative did not comment on the Government’s objection regarding her having allegedly abused the right of petition due to the applicant’s failure to inform the Court of the Supreme Court’s judgment discontinuing the case. 20.     The Court reiterates that an application may be rejected as abusive under Article 35 § 3 of the Convention if it was knowingly based on “untrue facts” (see, among other authorities,   Jian v. Romania   (dec.), no.   46640/99, and   Keretchashvili v. Georgia   (dec.), no.   5667/02, 2 May 2006) or if incomplete and therefore misleading information was submitted to the Court (see, among other authorities,   Hüttner v. Germany   (dec.), no.   23130/04, 9   June 2006, and   Basileo v. Italy   (dec.), no.   11303/02, 23 August 2011). Similarly, an application can be rejected as abusive if applicants – despite their obligation under Article 47 of the Rules of Court – fail to inform the Court about new, important developments regarding their pending applications, given that such conduct prevents the Court from ruling on the matter in question with full knowledge of the facts (see   Pirtskhalaishvili v.   Georgia (dec.), no. 44328/05, 29 April 2010, and Bekauri v.   Georgia   (dec.), no. 14102/02, §§ 21-23, 10 April 2012). 21.     Turning to the present case, the Court notes that in her application, which was lodged on 27 February 2013, the applicant complained of a violation of her right to a fair trial in the lustration proceedings that ended on 6 November 2012. On 10 April 2018 the Court communicated the applicant’s complaint under Article 6 §§ 1 and 3 of the Convention to the respondent Government. 22.     The Court learned of the reopening of the proceedings before the Supreme Court (and the decision of 26 April 2016 discontinuing the lustration proceedings in the applicant’s case) only from the Government’s observations. 23.     The Court considers that this information concerns the very essence of the applicant’s complaint (see Predescu v. Romania , no. 21447/03, §§   25-27, 2 December 2008, and Tatalović and Dekić v. Serbia (dec.), no.   15433/07, 29 May 2012). The Court has held within the context of lustration proceedings in Poland that “any defects which may have existed at the time of the applicant’s trial must be considered to have been rectified by the discontinuation of the lustration proceedings” (see Józef Oleksy v.   Poland (dec.), no. 1379/06, 16 June 2009). Moreover, the applicant’s representative did not furnish any explanation whatsoever for her failure to inform the Court of new developments in the case for the period of two years which elapsed between the judgment in question and the communication of the case. Therefore, having regard to the importance of that failure on the part of the applicant for the proper determination of the present case, and in the absence of any comment by her on the matter, the Court finds that such conduct was contrary to the purpose of the right of individual petition, as provided in Article   34 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 27 February 2020.   Renata Degener   Pere Pastor Vilanova   Deputy Registrar   President