SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68761/01 by Wanda BOBEK against Poland

The European Court of Human Rights ( Second Section), sitting on 24 October 2006 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr R. Türmen , Mr M. Ugrekhelidze , Mr L. Garlicki , Mrs E. Fura-Sandström , Ms D. Jočienė, judges , and Mr S. Dolle , Section Registrar ,

Having regard to the above application lodged on 19 January 2001 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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, Mrs Wanda Bobek, is a Polish national who was born in 1929 and lives in Rzeszów . The respondent Government are represented by their Agent, Mr J. Woł ąsiewicz, of the Ministr y of Foreign Affairs.

A. The circumstances of the case

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

The applicant, who was an advocate, made a declaration under the provisions of the Lustration Act 1997 [1] that she had never collaborated with the communist secret service. Between 19 4 5 and 1953 she had been working at the Security Office ( Urząd Bezpieczeństwa ) in Rzeszów as an office assistant , but in 1953 she had left the job.

On 1 4 April 1999 the Commissioner of Public Interest ( Rzecznik Interesu Publicznego ) applied to the Warsaw Court of Appeal ( SÄ…d Apelacyjny ), acting as the first-instance Lustration Court ( sÄ…d lustracyjny ), to institute proceedings under the Lustration Act ( ustawa lustracyjna ), arguing that the applicant had lied in her declaration as she had collaborated with the secret services after 1953.

On 31 May 1999 the applicant was notified that lustration proceedings had been instituted concerning her declaration ( oświadczenie lustracyjne ).

On 9 September 1999 the Warsaw Court of Appeal held a hearing in the applicant ’ s case. The Commissioner of Public Interest requested the court to conduct a public hearing and the applicant supported this motion. She was questioned by the court and commented on the evidence at the court ’ s disposal. Towards the end of the hearing, both the Commissioner and the applicant declared that they did not have any request for further evidence to be taken by the court. The court closed the hearing.

However, on 13 September 1999 the applicant requested the court to take further evidence. She submitted various documents concerning her professional career, her character and morality.

On 15 September 1999 the court re-opened the hearing and admitted the applicant ’ s documents to the case file. On the same date it closed the hearing.

On 16 September 1999 the Court sent the applicant the operative part of its judgment of 15 September 1999 , by which it had found that the applicant had submitted an untrue lustration declaration because she had been an intentional, secret collaborator of the communist secret services after 1953. It further informed the applicant that the written grounds of the judgment had been prepared under Article 100 § 5 of the Code of Criminal Procedure and that the applicant could consult them in the office of its registry reserved for classified documents ( kancelaria tajna ).

The applicant appealed.

On 8 November 1999 the Warsaw Court of Appeal, acting as the second-instance lustration court, dismissed her appeal and upheld the first-instance judgment.

On 22 November 1999 the same court informed the applicant that the written grounds of that judgment had been prepared under Article 100 § 5 of the Code of Criminal Procedure, and that the applicant could consult them at the office of the court ’ s registry reserved for classified documents.

The applicant lodged a cassation appeal with the Supreme Court.

On 10 October 2000 the Supreme Court held a hearing, which the applicant chose not to attend. The Court allowed the Commissioner ’ s request to examine the applicant ’ s appeal in camera , having regard to Article 360 § 1 (3) of the Code of Criminal Procedure. By a judgment of the same date , the Court dismissed the applicant ’ s cassation appeal.

B. Relevant domestic law

1. The Lustration Act

On 3 August 1997 the Lustration Act ( Ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 19 4 4 -1990 osób pełniących funkcje publiczne ) entered into force. Its purpose was to ensure transparency as regards those people exercising public functions who had been secret collaborat ors with the sec re t service during the communist era .

Pursuant to Article 4 of the Act, “collaboration” is understood as the “intentional and secret collaboration with the operational or investigative branches of the State ’ s security services as a secret informer or assistant, supplying them with information”.

Article 6 (1) of the Act reads:

“Persons in the categories listed in Article 7 of this law shall submit a declaration concerning work for or service in the State ’ s security services or collaboration with these services between 22 July 1944 and 10 May 1990 (hereafter called ‘ the declaration ’ ).”

Article 7 (1) contains a list of public functions and professions, the holders of which must make the declaration under Article 6.

Under Article 7 (1) item 10 (a), candidates to the bar are also obliged to make such declarations. Their declarations are to be submitted to the Minister of Justice.

The declarations are also transmitted to the Lustration Court . Pursuant to Article 1 of the Act, the Warsaw Court of Appeal is vested with powers to conduct lustration proceedings. Such proceedings may be instituted at the request of the Commissioner of Public Interest ( rzecznik interesu publicznego ).

The Commissioner shall institute proceedings before the Lustration Court when he or she has doubts whether the declaration of non-collaboration is truthful.

According to Article 17(e), the Commissioner of Public Interest shall have full access to all documents and other sources of information, regardless of the form in which they were recorded, created before 10 May 1990 by organs specified in that provision, including sources within the Ministry of Internal Affairs.

Under Article 19, matters not covered by the Act and relating to lustration proceedings shall be governed by the provisions of the Code of Criminal Procedure.

According to Article 20, the person under scrutiny is afforded the same defence rights as an accused in criminal proceedings.

The proceedings before the Lustration Court terminate with a decision on whether the declaration made by the person concerned was true. A decision of this court can be appealed to the second-instance Lustration Court . Such an appeal is examined by a different panel of three judges of the Warsaw Court of Appeal.

Pursuant to Article 23, the decisions of the Lustration Court are to be served on the person concerned with written grounds.

A cassation appeal to the Supreme Court lies against the second-instance judgment.

The final judgment, finding a particular declaration untrue, shall immediately be made public in the “Official Law Gazette” ( Monitor Polski ) .

Pursuant to Article 30, the final judgment of an untrue declaration establishes the loss of moral qualifications which are, according to the relevant laws, necessary for the exercise of certain public functions, including the profession of advocate. It therefore entails disbarment.

Under Article 83 of the Code of Criminal Procedure, an accused may appoint a lawyer to represent him or her in criminal proceedings. If he or she cannot afford lawyers ’ fees, a request for the grant of legal aid may be made under Article 78.

Article 156 § 4 of the Code provides that, when a danger arises that State secrets may be revealed to the public, access to the case files, making notes and copying documents from such files shall only be allowed under special arrangements provided for by the president of the court or by the court.

Article 100 § 5, which concerns the delivery of a judgment, provides:

“ If the case has been heard in camera because of the substantial interests of the State, instead of reasons , noti ce will be served to the effect that the reasons have been prepared . ”

Article 360 § 1 (3) of the Code of Criminal Procedure provides that the court shall order a hearing to be held in camera , if its public character could disclose circumstances which should remain secret in the light of important State interests.

3. Judgments of the Constitutional Court

Legal issues involved in lustration have been the subject of litigation for many years. Various aspects of the Lustration Act 1997, as amended, have been examined by the Constitutional Court as to their compatibility with the Constitution.

In a judgment of 10 November 1998 the Constitutional Court recalled the historical background to the Lustration Act and explained its purpose:

“As can be seen from the legislative history, the main aim of the Act was to ‘ make it impossible to use a person ’ s political past ’ , the fact of cooperating with the secret services, ‘ for the purpose of blackmailing ... persons holding key decision ‑ making functions in the Polish State ’ ...

The concept of lustration as adopted by the legislator, in respect of the subject of scrutiny, decision-making and possible sanction in lustration proceedings, is the truthfulness of the declaration submitted under Article 6 of the [Lustration Act]. Thus, as follows directly from the Act and from the Constitutional Court ’ s judgment of 21 October 1998 , the law does not associate criminal or quasi-criminal liability with the sole fact of past collaboration with the State ’ s security services... The legislator ’ s intention is that persons who are exercising public functions or standing for election to posts involving the exercise of public functions shall submit a declaration regarding cooperation. The purpose of such regulation is to secure the open nature of public life, to eliminate [the possibility of] blackmail because of facts from the past which can be considered as compromising, and to submit those facts for public consideration. The collaboration itself does not prevent any citizen from exercising public functions, and lustration proceedings are designed only to scrutinise the truthfulness of those who exercise or wish to exercise public functions. It is therefore not the collaboration, but the submission of a false declaration which has negative consequences for those affected.”

In a judgment of 21 October 1998 (K 24/98) , the c ourt examined the constitutionality of certain provisions of the Lustration Act as amended in 1998. These amendments concerned the provisions regulating the position of the Commissioner of Public Interest and, also, provisions to the effect that certain categories of persons, if found to have made a false lustration declaration, were to be regarded as having lost the moral qualifications necessary for the exercise of certain public functions.

In a judgment of 19 June 2002 (K 11/02) , the c ourt held that certain amendments to the Lustration Act, enacted on 15 February 2002, were incompatible with the Constitution because Parliament ( Seym ) had failed to respect legislative procedure provided for by the relevant constitutional provisions.

In its judgment of 5 March 2003 ( K 7/01) , the Constitutional Court examined the compatibility with the Constitution of certain provisions of the Lustration Act which created the obligation to publish a lustration declaration made by candidates to certain public functions insofar as they did not make any distinction between various categories of collaboration with the secret services.

In its judgment of 28 May 2003 (K 44/02) , the c ourt examined the scope of the notion of secret collaboration as provided for by Article 4 of the Lustration Act as amended in September 2002.

The c ourt also dealt with other problems concerning the Lustration Act in its judgments K 39/97, P 3/00, SK 10/99 and SK 28/01.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the proceedings in her case were unfair. She argues that she has never been a secret police agent. She worked in the Security Office from 19 4 6 to 1953. After she left, she never secretly collaborated with the communist police.

She submits that she did not have access to the case file before the only hearing held by the Lustration Court . She argues that she was therefore not aware of the nature and cause of the proceedings.

The applicant further complained that the taking of evidence was limited to the speech of the Commissioner of Public Interest and to the files of the secret police he had submitted to the court. This made it possible for the court to accept as decisive the defamatory and fabricated notes of a secret police agent, P., in those files. The applicant did not have any possibility to challenge this evidence in the proceedings before the courts. Her requests that evidence be produced to the effect that she had indeed been collaborating, such as her submissions, any notes or statements made by herself for the purpose of the alleged collaboration, or proof that she had been taking money from the secret service, were disregarded by the courts.

As a result, the courts gave biased decisions on the basis of evidence to which she had no access and which she could not challenge.

She did not have a lawyer, so she could not defend herself through legal assistance.

The applicant argues that she could not take notes in the proceedings before the courts, which made the proceedings unfair and rendered her defence ineffective.

She submits that no written grounds were given for any of the judicial decisions in her case.

The applicant complained that the order in which the proceedings were instituted in respect of persons obliged by the Lustration Act to submit declarations, was arbitrary and dictated by the mere whim of the Commissioner of Public Interest.

The applicant further invokes Articles 3, 7, 8 and 13 of the Convention.

THE LAW

1. The applicant alleges a violation of Article 6, which provides:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or sp eak the language used in court.”

2. The applicant first submits that she did not have adequate access to the case file to ensure the fairness of the proceedings, and that the proceedings were not public within the meaning of Article 6 of the Convention. In particular, the written grounds of the judgments, explaining the motives of the judicial decisions given in her case, with specific reference to the evidence on which the courts relied, were never made public.

T he Government contend that the application is incompatible ratione materiae with the provisions of the Convention . They maintain that Article 6 is not applicable to lustration proceedings as they d o not r elate to “the determination of civil rights and obligations” or of a “criminal charge” .

The applicant disagrees. She is of the view that Article 6 is applicable to such proceedings.

The Court recalls that it has previously examined this question in the case of Matyjek v. Poland ( no. 3818 4 /03, dec ision of 30 May 2006 ) and held that the criminal limb of Article 6 is applicable to lustration proceedings, given in particular the nature and severity of the possible penalty which can be imposed. It finds no grounds to hold otherwise in the present case. It follows that the application cannot be rejected as being incompatible ratione materiae with the provisions of the Convention.

The Government submit that the applicant failed to exhaust the domestic remedies available to h er , as required under Article 35 § 1 of the Convention. They argue that she did not raise before the domestic courts, even in substance, specific allegations regarding the unfairness of the lustration proceedings. In particular, neither at the appellate nor at the cassation stage, did the applicant question the restrictions imposed on her concerning access to the case files. Nor did she complain that the proceedings were not public, as required by Article 6 of the Convention. The Government point out that this provision could be directly relied on in the proceedings before the domestic courts.

The Government further argue that the applicant did not avail herself of the remedy under Article 79 § 1 of the Constitution. They maintain that the Court has recognised that, even if the Constitutional Court was not competent to quash individual decisions as its role is to rule on the constitutionality of laws, its judgments declaring a statutory or other provision unconstitutional, give rise to a right to have the impugned proceedings re-opened in an individual case, or to have a final decision quashed (cf. Szott-Medyńska v. Poland , no. 47414/99, 9 October 2003). Consequently, the Government argue that, if the applicant was of the opinion that certain Articles of the Code of Criminal Procedure and the Lustration Act, as applied in her case, violated her right to a fair hearing, she should have availed herself of the possibility of requesting the Constitutional Court to decide whether those provisions were compatible with the Constitution.

The applicant disagrees with the Government ’ s arguments and submits that, in her case, the individual constitutional complaint would not have been an effective remedy.

The Government next contend that the documents in the applicant ’ s case file were protected by official secrecy under the provisions of the Protection of Classified Information Act. They were classified as “top secret”. However, throughout the proceedings, the applicant had full access to the case file. Any restrictions on her access to the court file were imposed pursuant to the provisions of the Code of Criminal Procedure, which was applicable in the lustration proceedings. Such restrictions were necessary due to the danger of revealing State secrets. The manner in which the applicant could have had access to the case file was regulated by Article 156 § 4 of the Code of Criminal Procedure. Under this provision, access to a case file containing classified documents, and making copies thereof, is subject to the conditions determined by the president of the court or by the court. Further, under the provisions of the Protection of Classified Information Act, documents classified as top secret or secret were accessible to the applicant and to the Commissioner of Public Interest only at the office of the registry reserved for classified documents in the Lustration Court .

The Government submit that the written grounds of the judgments given in the applicant ’ s case could not be served on her because the evidence in the case file, on which these judgments were based, was covered by official secrecy. However, the applicant could read them in the office of the registry reserved for classified documents in the courts.

The applicant disagrees. She argues that she did not have access to the file to an extent sufficient to ensure the fairness of the proceedings, and that the proceedings were not public within the meaning of Article 6 of the Convention. In particular, the written grounds of the judgments, explaining the motives of the judicial decisions given in her case, with specific reference to the evidence on which the courts relied, were never made public.

The Court considers that the questions whether the applicant could have effectively challenged the set of legal rules governing access to the case file, or those establishing the lustration procedure, are linked to the Court ’ s assessment of Poland ’ s compliance with the requirements of a “fair hearing” under Article 6 § 1 of the Convention. Accordingly, these matters would be more appropriately examined together with the merits of the applicant ’ s complaint under Article 6 of the Convention .

Consequently, t he Court joins the Government ’ s plea of inadmissibility on the ground of non-exhaustion of domestic remedies to the merits of the case.

T he Court further considers, in the light of the parties ’ submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this part of th e application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicant complained that she did not have a lawyer, so she could not defend herself with legal assistance.

The Court observes that, pursuant to Article 20 of the Lustration Act, the person under scrutiny is afforded the same defence rights as an accused in criminal proceedings. Under Article 83 of the Code of Criminal Procedure, an accused may appoint a lawyer to represent him or her in criminal proceedings. Hence, the applicant could have nominated a lawyer to represent her in the proceedings before the Lustration Courts. If she could not afford lawyers ’ fees, it was open to her to request a grant of legal aid under Article 78 of the Code. The Court notes that she did not avail herself of these possibilities.

It follows that this aspect of the case is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

4. The applicant next complained under Article 6 of the Convention that the order in which lustration proceedings were instituted was arbitrary and dictated by the mere whim of the Commissioner of Public Interest.

The Court notes that, under Article 15 of the Lustration Act, the Commissioner of Public Interest was obliged to examine the declarations made under Article 6 of that Law. The latter provision lists all public functions, the holders of which are obliged to make such declarations. Hence, the applicable law at the material time clearly specified the conditions under which a person holding public office or exercising a given public function was to make such declaration. The Court is not convinced that the fact that the law at that time did not specify the order in which such examinations were to be carried out by the Commissioner rendered the proceedings in the applicant ’ s case unfair.

It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5. The applicant further invokes Articles 3, 7, 8 and 13 of the Convention.

The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate her complaints. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6. In the circumstances of the present case, the Court now finds it appropriate to discontinue the application of Article 29 § 3 of the Convention .

For these reasons, the Court unanimously

Joins the question of exhaustion of domestic remedies to the merits of the applicant ’ s complaints under Article 6 of the Convention about the applicant ’ s effective access to the case file and the publicity of the lustration proceedings;

Declares the se complaints admissible, without pr ejudging the merits of the case;

Declares the remainder of the application inadmissible.

S. DOLLE J. - P. COSTA Registrar President

[1] Oxford dictionary definition of “lustration” : the “ purification by expiatory sacrifice, ceremonial washing, or other such rite ”