FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1379/06 by Józef OLEKSY against Poland

The European Court of Human Rights ( Fourth Section), sitting on 16 June 2009 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Ján Šikuta , Mihai Poalelungi , Nebojša Vučinić , judges,

and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 24 November 2005,

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

The applicant, Mr Józef Oleksy , is a Polish national who was born in 1946 and lives in Warsaw . He is represented before the Court by Mr W. Tomczyk, a lawyer practising in Warsaw . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wo łą siewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

Following the entry into force of the Law of 11 April 1997 “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 s ł użby w organach bezpiecze ń stwa pa ń stwa lub wsp ół pracy z nimi w latach 1944-1990 os ó b pe ł ni ą cych funkcje publiczne) (the “1997 Lustration Act”), the applicant, a former Prime Minister who at the material time had been a member of the Sejm [1] , declared that he had not collaborated with the Communist-era secret services.

On 25 June 1999 the Commissioner of the Public Interest ( Rzecznik Interesu Publicznego ), Mr B. Nizieński, applied to the Warsaw Court of Appeal ( Sąd Apelacyjny ) for proceedings to be instituted in the applicant ’ s case on the grounds that he had lied in his lustration declaration by denying that he had cooperated with the secret services.

On 25 June 1999 the Warsaw Court of Appeal decided to institute lustration proceedings against the applicant. The court was composed of three judges: a judge rapporteur A.L. and judges Z.B. and R.K. The decision contained the following reasons:

“The Commissioner of the Public Interest lodged with the Warsaw Court of Appeal an application for lustration proceedings to be instituted in respect of Józef Oleksy.

The Court of Appeal finds that the application should be granted. The materials submitted together with the application point to the assessment ( wskazuj ą na ocen ę ) that Józef Oleksy lodged an untrue lustration declaration.

In those circumstances it has been decided as above.”

On 25 October 2000 the Warsaw Court of Appeal, acting as the first ‑ instance lustration court, found that the applicant had submitted an untrue lustration declaration because he had not revealed that he had intentionally and secretly collaborated with the State ’ s secret services. The operative part of the judgment was served on the applicant; however, the reasoning was considered “top secret” and, in accordance with Article 100 § 5 of the Code of Criminal Procedure, could only be consulted in the secret registry of the court.

The applicant lodged an appeal.

On 27 June 2000 the Warsaw Court of Appeal, acting as the second ‑ instance lustration court, allowed the applicant ’ s appeal and quashed the impugned judgment.

On 13 June 2004 the magazine Newsweek-Polska published an article on the applicant ’ s lustration case and his alleged cooperation with the secret services. According to the applicant, the article relied on documents and information in the case file that had been classified “top secret” and was presented in a manner that made him believe that they had been obtained from the Commissioner of the Public Interest.

On 17 June 2004 the applicant applied to have the Commissioner, Mr B. Nizieński, excluded from dealing with his case on the grounds that there was reasonable doubt as to his impartiality.

On 24 June 2004 the First President of the Supreme Court decided that under domestic law he did not have the right to examine the applicant ’ s challenge of the Commissioner as he could not be considered his superior within the meaning of Article 48 § 1 of the Code of the Criminal Procedure.

The applicant lodged a constitutional complaint against that decision. On 21 September 2004 the Constitutional Court ( Trybunał Konstytucyjny ) refused to hear the complaint, mainly on the ground that it was not competent to decide on issues concerning gaps in the law. It reiterated its role as a “negative legislator”, in that it was called on to strike down laws that breached the Constitution, but had no legislative powers. An appeal by the applicant against that decision was dismissed on 19 May 2005. The applicant ’ s lawyer was notified of this decision on 24 May 2005. On 19 May 2005 the Constitutional Court decided to inform the Sejm that the case disclosed a gap in the law in that it had not provided for a procedure for challenging the Commissioner of the Public Interest, nor an authority to which such a challenge could be directed. The closing of such a gap in the law was, in the court ’ s opinion, indispensable to ensure the integrity of the legal system, and respect for the rule of law, defence rights and the right to court. The Commissioner of the Public Interest, Mr B. Nizienski, took part in the proceedings up to the end of the applicant ’ s lustration trial on 22 December 2004.

On 22 December 2004 the Warsaw Court of Appeal gave a judgment in which it found the applicant guilty of lying in his lustration declaration. The court was composed of three judges, including a judge rapporteur, R.K.

The written reasons, numbering 189 pages, were considered “top secret” and could be consulted only in the secret registry.

On 4 March 2005 the applicant ’ s lawyer lodged an appeal. He complained, inter alia , that the judge, R.K., who dealt with the case at the initial stage of the proceedings, should have been disqualified from dealing with the case as there was reasonable doubt as to his impartiality.

On 21 October 2005 the Warsaw Court of Appeal, acting as a second ‑ instance lustration court, upheld the impugned judgment. The applicant could consult the written reasons for the judgment in the secret registry of the court.

On 26 January 2006 the applicant ’ s lawyer consulted the file and complained to the court that the reasoned judgment did not contain the dissenting opinion. The dissenting opinion, which was 50 pages long, was submitted to the parties on 21 February 2006, only three days before the expiry of the time-limit for lodging a cassation appeal.

On 24 February 2006 the applicant ’ s lawyer lodged a cassation appeal with the Supreme Court ( Sąd Najwyższy ). He argued that the applicant had not been aware of an obligation to disclose his activities for the Agenturalny Wywiad Operacyjny , “AWO”, a separate agency, which according to information in his possession could not be considered as belonging to the secret services within the meaning of the Lustration Act.

On 31 January 2007, after a hearing, the Supreme Court quashed both previous judgments of the Warsaw Court of Appeal of 21 October 2005 and 22 December 2004 and discontinued the lustration proceedings against the applicant ( umorzył postępowanie ).

It established that the lustration declaration submitted by the applicant had been “subjectively untrue but objectively true” ( obiektywnie nieprawdziwe lecz prawdziwe subiektywnie oświadczenie lustracyjne ) . When submitting his declaration the applicant had been misled by the two most competent persons in the field, the Minister of Defence and the Head of Military Information Services ( Szef Wojskowych Służb Informacyjn ych ), who had inf ormed him that he was not obliged to disclose his activities for the AWO in the lustration declaration. In the circumstances of the case, the court considered that the mistake had been justified ( błąd usprawiedliwiony ) and the applicant was not found to have been a “lustration liar”.

B. Rele vant domestic law

Section 28 of the 1997 Lustration Act, amended with effect from 8 March 2002, provides:

“A final judgment finding that the declaration submitted by the subject was untrue shall be published immediately in the Official Law Gazette ( Dziennik Urzędowy RP Monitor Polski) if

1) no cassation appeal has been lodged within the prescribed time-limit; or

2) the cassation appeal has been left unexamined; or

3) the cassation appeal has been dismissed.”

Section 30 lists the consequences of such a judgment for a person subject to lustration who has submitted an untrue declaration. It reads, in so far as relevant:

“1. A final judgment finding that the subject has submitted an untrue declaration shall result in the loss of the moral qualifications necessary for exercising public functions, described according to the relevant laws as: unblemished character, immaculate reputation, irreproachable reputation, good civic reputation, or respectful of fundamental values. After 10 years the judgment shall be considered to be of no legal effect.

2. A final judgment finding that the subject has submitted an untrue declaration shall entail dismissal from the functions exercised by that person if the moral qualifications mentioned above are necessary for exercising it.

3. A final judgment finding that the subject has submitted an untrue declaration shall deprive that person of the right to stand for election as President for a period of 10 years.”

The detailed rendition of the provisions of the domestic law is set out in the Court ’ s judgment in the case Matyjek v. Poland , no. 38184/03 , ECHR 2007 ‑ ...

COMPLAINTS

The applicant complained under Article 6 §§ 1, 2 and 3 (b) of the Convention of unfairness in the lustration proceedings, of the infringement of his defence rights and of a lack of equality of arms. He further complained about the confidentiality of the file and the limitations on his access to it; that all the court hearings had been held in camera; that the written reasons for the Warsaw Court of Appeal ’ s judgments had not been notified to him or his lawyers and that he had been prevented from challenging the Commissioner of the Public Interest for bias. He also alleged that the principle of impartiality and the presumption of innocence had not been respected in that the composition of the lustration court on 22 December 2004 had included Judge R.K., one of the judges of the court of appeal who had instituted the lustration proceedings against him.

The applicant also complained that the facts of the case gave rise to a violation of Article 13 of the Convention, as he did not have a right to an effective domestic remedy against the alleged violation of his right to a fair trial, and of Article 14, as he had been treated differently from an accused in a criminal trial.

THE LAW

The Government stated that the applicant could not claim to be a victim of a violation of his Convention rights and that his application was therefore incompatible ratione personae with the Convention. They submitted that the applicant had ultimately not been found to have lied in his lustration declaration. They argued that the final decision of the Supreme Court to discontinue the proceedings had consequences identical to an acquittal so that the applicant had lost his victim status.

The applicant disagreed with the Government and considered that, taking into account the autonomous concept of victim status under the Convention, he could still be considered a victim of a violation of the Convention. He claimed that in the eyes of the public he had been considered a “lustration liar” because on three occasions the Warsaw Court of Appeal had found that he had lied in his declaration.

The Court reiterates that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, took place in the course of proceedings in which he was acquitted or which were discontinued (see X v. the United Kingdom , no. 8083/77, Commission decision of 13 March 1980, DR 19, p. 223; EÄŸinlioÄŸlu v. Turkey , no. 31312 / 96 , Commission decision of 21 October 1998, unreported; and Osmanov and Husseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003; and Witkowski v Poland (dec.), no. 53804/00, 3 February 2003).

In the present case the applicant was found to be a “lustration liar” on three occasions by the Warsaw Court of Appeal. However, these judgments were quashed by the Supreme Court, which on 31 January 2007 discontinued the lustration proceedings against the applicant. The applicant therefore has not been sanctioned by the loss of the “moral qualifications necessary for exercising public functions” for a period of 10 years. These negative consequences of the judgments finding that the applicant had lied in his lustration declaration would only have arisen if the cassation appeal had not been brought or had been dismissed (section 30 of the Act).

The Court reiterates that in order to be able to claim to be a victim of a violation of the Convention, an applicant must be able to show that he or she has been directly affected by the impugned measure. However, the Court notes that the applicant in the present case does not appear to argue that he is still affected by the lustration proceedings following the Supreme Court ’ s decision to discontinue them.

In this connection, the Court observes that the essence of the applicant ’ s complaints concerned alleged procedural unfairness and that he did not complain of the length of the proceedings, the effect of which might not be eliminated by the discontinuation of the proceedings (see Osmanov and H useinov v. Bulgaria , (dec.), cited above).

The Court considers that any defects which may have existed at the time of the applicant ’ s trial, including any lack of impartiality on the part of the court, any failure to respect the presumption of innocence and any breaches of Articles 13 and 14, must be considered to have been rectified by the discontinuation of the lustration proceedings. Thus, the applicant can no longer claim to be the victim of the alleged violations of the Convention , as required by Article 34.

Accordingly, his application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President

[1] The Polish Parliament consists of two houses: the Sejm and the Senat