CEDH · CASELAW;CLIN;ENG — 24 avril 2007

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Poland - 38184/03 Judgment 24.4.2007 [Section IV] Article 6 Criminal proceedings Article 6-1 Fair hearing Restrictions on access to case file in lustration proceedings resulting in politician’s temporary disqualification from public office: violation   Facts : A 1997 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 (the “Lustration Act”) provided for sanctions if the lustration court found a declaration made pursuant to the Act to be untrue. These included dismissal from public office and a ten-year ban on holding certain legal or political posts. Separate legislation restricted access to classified information. The applicant, who had been a member of the parliament, declared that he had not collaborated with the communist-era secret services. In 1999 proceedings were instituted against him on the ground that he had lied in his declaration by denying his cooperation with the secret services. In order to consult the case file the applicant had to attend the so-called “secret registry” of the lustration court. He was not permitted to make copies of documents or to take away any notes. Following hearings in camera a court of appeal, sitting as a first-instance lustration court, found in December 1999 that he had lied in his declaration and had in fact collaborated with the secret services. The operative part of the judgment was served on him but the reasoning was deemed “secret” and so could only be consulted at the “secret registry”. In February 2000 the same court of appeal, now acting as the second-instance lustration court, dismissed an appeal by the applicant. Following a further appeal in cassation the Supreme Court quashed the judgment and remitted the case for rehearing by the second-instance lustration court on the ground that a motion by the applicant to call two additional witnesses had been disregarded. Later in 2000 the head of the state security bureau lifted the confidentiality restrictions in respect of all the existing case materials. In 2001, following a hearing in public, the court of appeal quashed the judgment and remitted the case to the first-instance lustration court. In a judgment following hearings held partly in camera that court again found the applicant to have lied in his declaration. The applicant’s further appeals were dismissed. Law : States adopting lustration measures had to ensure that persons affected thereby enjoyed full procedural guarantees. While there could be situations in which there was a compelling State interest in keeping documents produced under the former Communist regime secret, this would only arise exceptionally given the considerable time that had elapsed since the documents were created. It was for the Government to prove the existence of such an interest in the individual case. A system, under which the outcome of the trial depended to a considerable extent on the reconstructed actions of former secret services, while most of the relevant materials continued to be classified secret and any decision to declassify was in the hands of the current secret services, put the person concerned at a clear disadvantage. Four factors pointed to a lack of adequate safeguards in the instant case. Firstly, at least part of the documents relating to the applicant’s case had been classified “top secret” and the power to lift that rating lay with the head of the state security bureau. That situation was inconsistent with procedural fairness. Secondly, although after the institution of the proceedings the applicant was given access to his court file, this had been subject to a number of restrictions: he could make no copies of documents and could only consult confidential documents in the secret registry of the lustration court. Any notes had to be made in special notebooks that were subsequently sealed and deposited in the secret registry and could not be used before the lustration court. Similar rules applied to notes taken during hearings, the vast majority of which were held in camera . Identical restrictions applied to the applicant’s lawyer. Even though the confidentiality of some of the documents was lifted in December 2000, limitations had continued to apply to new documents subsequently added to the case file. Regard being had to what was at stake for the applicant in the lustration proceedings – his good name and the risk of a ban on holding public office for ten years – it was important for him to be given unrestricted access to the files, unrestricted use of his notes and the possibility of obtaining copies of relevant documents. Thirdly, the Government’s argument that the Commissioner of the Public Interest was subject to like restrictions on access to confidential documents at the trial stage was rejected, as under domestic law he had the same powers as a public prosecutor, including a right of access to all documentation relating to the person concerned created by the former security services. Lastly, despite the fact that the judgments of December 1999 and February 2000 were of crucial importance to the applicant, in that the latter judgment triggered the loss of his parliamentary seat, he had only been notified of their operative parts and had had no alternative but to attend the secret registry if he wished to consult the written reasons. The confidentiality of the documents and the limitations on the applicant’s access to the case file, as also the privileged position of the Commissioner of the Public Interest in the proceedings, had severely curtailed the applicant’s ability to refute the allegations against him. Accordingly, the lustration proceedings and the cumulative application of the rules had placed an unrealistic burden on the applicant in practice and did not respect the principle of equality of arms. Conclusion : violation of Article 6(1) taken together with Article 6(3) (unanimously). Article   41 – Finding of a violation in itself sufficient just satisfaction. See also Turek v. Slovakia (no. 57986/00), reported in Information Note no.   83.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes