CEDH · CASELAW;CLIN;ENG — 30 mai 2006

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Poland (dec.) - 38184/03 Decision 30.5.2006 [Section IV] Article 6 Criminal proceedings Article 6-1 Criminal charge Lustration proceedings resulting in politician’s temporary disqualification from certain public functions and legal professions: admissible   Fair hearing Fairness of lustration proceedings: admissible   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 “1997 Lustration Act”) provides for sanctions if the lustration court finds that the submitted declaration is untrue. Having been considered a “lustration liar” entails dismissal from public functions exercised by the person and prevents him or her from applying for the posts in question for a period of 10   years. The public functions, which the “lustration liar” cannot exercise, include legal professions such as those of barrister, judge, prosecutor and public servant and political ones such as those of Member of Parliament or President of the Republic of Poland. The applicant, who had been a member of the Sejm , declared that he had not collaborated with the communist-era secret services. In 1999 proceedings were taken against him on the ground that he had lied in his declaration by denying his cooperation with the secret services. Following hearings in camera the Warsaw Court of Appeal, acting as the first-instance lustration court, found that the applicant had submitted an untrue declaration because he had been an intentional and secret collaborator with the State’s secret services. The operative part of the judgment was served on the applicant but the reasoning was considered “secret” and could only be consulted in the secret registry of the court. In 2000 the same court of appeal, now acting as the second-instance lustration court, dismissed the applicant’s appeal. Following the applicant’s appeal in cassation the Supreme Court quashed the judgment and remitted the case as the applicant’s motion to hear two additional witnesses had been disregarded. Later in 2000 the Head of the State Security Bureau lifted the confidentiality restrictions in respect of all 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. – According to the applicant, he had been allowed to consult his case-file during the proceedings, but had been prevented from making any notes that he could take away with him. Applicability of Article 6(1) under its criminal head – As for the classification of the proceedings under domestic law, the Court noted that the facts alleged against the applicant amounted to submission by him of an untrue lustration declaration in which he stated that he had not cooperated with the State’s security services. In Poland the organisation and the course of lustration proceedings are based on the model of a criminal trial and the rules of the Code of Criminal Procedure are directly applicable to lustration proceedings. Although under the domestic law the lustration proceedings are not qualified as “criminal”, they possess features which have a strong criminal connotation. – As regards the nature of the offence, making an untrue statement in a lustration declaration is analogous to the offence of perjury, which, outside the lustration context, would normally have led to prosecution under the criminal-law provisions. In the circumstances the offence in question is not devoid of purely criminal characteristics. – As regards the nature and degree of severity of the penalty, the 1997 Lustration Act provides for an automatic and uniform sanction if the person subject to lustration has been considered by a final judgment to have lied in his or her declaration. A final judgment to that effect entails the dismissal of the person subject to lustration from the public function exercised by him or her and prevents this person from applying for a large number of public posts for the period of 10 years. It is true that neither imprisonment nor a fine can be imposed on someone who has been found to have submitted a false declaration. Nevertheless, the prohibition on practising certain professions for a long period of time may have a very serious impact on a person, depriving him or her of the possibility of continuing professional life. This sanction should thus be regarded as having at least partly punitive and deterrent character. In the instant case the applicant, who is a politician, as a result of having been deemed a “lustration liar” by a final judgment, lost his seat in Parliament and cannot be a candidate for future elections for ten years. In the overall circumstances the nature of the offence, taken together with the nature and severity of the penalties, was such that the charges against the applicant constituted “criminal charges” within the meaning of Article 6 of the Convention. Admissible .   © 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