FIRST SECTION

DECISION

Application no. 80959/17 Mateusz Andrzej PISKORSKI against Poland

The European Court of Human Rights (First Section), sitting on 22 October 2019 as a Committee composed of:

Armen Harutyunyan, President, Krzysztof Wojtyczek, Pere Pastor Vilanova, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 20 November 2017,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Mateusz Andrzej Piskorski, is a Polish national, who was born in 1977 and lives in Szczecin. He is represented before the Court by Mr M. Pietrzak, Mr P. Osik and Ms M. MÄ…czka-Pacholak, lawyers practising in Warsaw.

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

3 . The applicant is a politician, radio journalist, publicist, university teacher and a founder of a geo-political think tank.

4 . On 18 May 2016 the applicant was arrested and charged with the offence of taking part in the operations of Russia ’ s intelligence against Poland.

5 . The two-page document presenting the charge may be summarised as follows.

6 . Since an unspecified date no later than 2013, the applicant had been participating, in Warsaw, other Polish cities and in Russia, in the activities of the Russian civilian secret intelligence. In particular, the applicant had had multiple operational meetings in Russia with identified agents of the Foreign Intelligence Service (“ FSB ”) and Federal Security Service (“ SVR ”) who worked under the cover of official representatives of Russian non ‑ governmental organisations. The applicant, aware of the real status of those persons, had accepted operational assignments in the context of the Russian “information warfare” in order to disseminate theories in Russia ’ s interests and to manipulate social attitudes in Poland. The applicant had accepted funds for the realisation of those operations as well as remuneration. And so, in March 2014, the applicant had organised an international meeting of election observers under the umbrella of the European Observatory of Democracy and Elections, a NGO with its seat in Brussels which was controlled and funded by Russia. The goal of that mission was to present an opinion on the elections in the Crimea in line with that of Russia and contrary to the official views on the subject of the Polish government. The applicant had ensured the participation of two Polish Parliamentarians in that meeting, thus exposing them to pressure at the hands of the Russian intelligence. The applicant had led to the creation of a political party “Change” and associations: “Ukrainian Committee” and “ Kresy Trusteeship” ( Powiernictwo Kresowe ), all of which organisations were controlled and funded by Russian secret services. The applicant had used those organisations to carry out his operational activities (demonstrations and pickets) aimed at antagonising Polish-Ukrainian relations. To that end, on 28 February 2015 the applicant had organised and coordinated the acts of vandalism carried out by the members of the Change party at the statue of Stepan Bendera, a head of a militant wing of Ukrainian nationalist independence movement, situated in the village of Huta Pienacka in Ukraine. The applicant had transmitted the photos of that action to the Russian intelligence. On 27 June 2015 the applicant had organised, under the umbrella of the Ukrainian Committee, a picket at the Ukrainian Embassy in Warsaw.

7 . This charge was amended on 18 October 2017. The relevant document has not been submitted to the Court.

8 . On 14 June or July 2017 the applicant was presented with an additional charge of taking part in the operations of China ’ s intelligence. The relevant document has not been submitted to the Court.

9 . It appears that this charge related to the allegation that on 23 October 2015 the applicant had drafted and, using a secure communication channel, transmitted an intelligence report to the Chinese authorities. That report allegedly concerned the possible implications of the Polish parliamentary elections in 2015 for Polish-Chinese relations, in particular opportunities for and threats to Chinese regional cooperation initiatives in Central and Eastern Europe, and proposed directions of action.

10 . The charges against the applicant have been investigated as a part of a broader inquiry (no. PK V WZ Ds 29.2016), carried out by the Polish Internal Security Agency ( Agencja Bezpieczeństwa Wewnętrznego ) under a prosecutor ’ s supervision. A part of the investigation file is classified and accessible to the applicant ’ s lawyers upon authorisation, in the secret registry on the premises of the domestic courts or public prosecutor ’ s office ( kancelaria tajna ). Copying the documents which comprise the classified file is not permitted. Notes can be taken by the lawyers. They cannot be taken away and must be stored in the so-called secret file register ( zbiór dokumentów ). The investigation file comprises 170 volumes of both classified and non-classified materials.

11 . On 19 May 2016 the prosecutor applied to the Warsaw District Court ( Sąd Rejonowy ) for the applicant ’ s detention on remand. The application enumerated the original charge and did not contain any reasoning. It was accompanied by 17 volumes of classified documents.

12 . On 20 May 2016 the Warsaw District Court detained the applicant on remand.

13 . The applicant lodged an interlocutory appeal, arguing inter alia that the court had erred in considering that the applicant ’ s public activity in the exercise of his freedom of expression and freedom of assembly constituted the elements of the offence of taking part in the operations of a foreign intelligence against Poland.

14 . On 27 June 2016 the Warsaw Regional Court ( Sąd Okręgowy ) dismissed that appeal, holding that the preventive measure was lawful and justified in the circumstances of the case. The appellate court did not refer to the applicant ’ s argument concerning his freedom of expression and freedom of assembly.

15 . Subsequently, the preventive measure was extended on the basis of the following decisions issued by the regi onal court: 10 August 2016, 8 November 2016 and 7 February 2017. These decisions were upheld by the Warsaw Court of Appeal ( Sąd Apelacyjny ) on: 27 September 2016, 15 December 2016 and 15 March 2017, respectively. The measure was then extended by the Warsaw Court of Appeal ’ s decisions of: 11 May 2017 (upheld on 8 June 2017), 4 Augu st 2017 (upheld on 21 September 2017), 6 November 2017 (upheld on 14 December 2017), 17 January 2018 (upheld on 6 March 2018), 6 March 2018 (u pheld on 15 May 2018), 25 April 2018 (upheld on 29 May 2018), and 15 May 2018 (changed on appeal by decision of 25 June 2018).

16 . Throughout the material time, the following reasons were given by the domestic courts to justify the above-mentioned decisions: (1) a reasonable suspicion that the applicant had committed the offences with which he was charged; (2) the severity of the punishment which was likely to be imposed if the applicant were convicted; (3) the need to ensure the proper conduct of the proceedings against the threat that the applicant would abscond which was considered real in view of the applicant ’ s international connections (i.e. he would take refuge in Russia) or collude witnesses, which was considered likely in view of the severity of the punishment; (4) the complexity of the investigation and the number of activities planned to be undertaken, as enumerated by the prosecutor in the classified part of his application.

17 . In their interlocutory appeals against decisions on the extension of the applicant ’ s detention, the applicant ’ s lawyers raised various arguments concerning the applicant ’ s defence rights and the legitimacy of the preventive measure in the context of Articles 5 § 1 and 3 and 6 of the Convention. They also reiterated the argument that the applicant ’ s public activity in the exercise of his freedom of expression and freedom of assembly, as protected by Articles 10 and 11 of the Convention, should not have been perceived as taking part in the operations of a foreign i ntelligence against Poland.

18 . In reply to the applicant ’ s interlocutory appeals, the domestic courts observed that taking part in the operations of a foreign intelligence against Poland could take various forms and it was therefore impossible to have it strictly defined in the Criminal Code. In light of the evidence in the applicant ’ s case, it was justified to suspect the applicant of the offence of taking part in the operations of a foreign intelligence against Poland in the context of his activities, as described by the prosecutor. The courts also essentially considered that the applicant and his lawyers had had sufficient access to the investigation file and the prosecutor ’ s classified submissions, hence the applicant ’ s defence rights had been respected.

19 . The regional court ’ s decisions extending the preventive measure contained reasoning which referred to the public elements of the investigation. They did not, for the most part, refer to the classified elements of the investigation. The only decision to be accompanied by classified reasoning was that of 7 February 2017.

20 . On 20 April 2018 the applicant was indicted of two counts of taking part in the operations of Russia and China ’ s intelligence. The first charge makes reference to the applicant ’ s public and political activities, such as demonstrations, pickets, protests and information campaigns which were organised within the framework of his political party and two associations and which concerned Polish and Ukrainian relations and North Atlantic Treaty Organisation. The second charge read that on 23 October 2015 the applicant, using unofficial and not public information, had written and transmitted to China ( via a safe channel) an intelligence report entitled “Polish Parliamentary Elections 2015 ‑ Possible Consequences for Polish-Chinese relations”. In the report the applicant recommended certain parliamentarians from various political parties for the work for the Chinese intelligence service. He had also informed that some politicians (unclear whether identified or not) within the Law and Justice party were a threat for the Polish-Chinese relations and indicated one such person as a collaborator of the United States ’ secret service. The prosecutor ’ s reasoning of the indictment is classified.

21 . On 27 April 2018 the Human Rights Council ’ s Working Group on Arbitrary Detention (“the Working Group”) issued its Opinion no. 18/2018 in respect of the applicant (“the Opinion”). The Working Group found that the applicant ’ s detention on remand was arbitrary. In accordance with paragraph 33 (a) of its methods of work, the Working Group referred the case to the Special Rapporteur on freedom of expression and the Special Rapporteur on freedom of peaceful assembly and of association, for appropriate action (see paragraph 62 of the Opinion).

22 . It appears that on an unspecified date in December 2018 the Warsaw Court of Appeal decided that the applicant could be released on bail in the amount of 300,000 Polish zlotys (PLN, approximately 75,000 euros, EUR).

23 . It appears that on 24 January 2019 the appellate court changed that decision by increasing the bail to PLN 500,000 (approximately EUR 125,000).

24 . It appears that in February 2019 a private fundraising campaign was organised to bail the applicant out.

25 . On 16 May 2019 the applicant was released from detention on bail.

26 . The offence of taking part in the operations of a foreign intelligence against the Republic of Poland is laid down in Article 130 of the Polish Criminal Code which reads as follows:

Ҥ 1. Whoever takes part in the operation of foreign intelligence against the Republic of Poland, shall be subject to the penalty of deprivation of liberty from one year to ten years.

§ 2. Whoever, by taking part in or acting for the benefit of a foreign intelligence, provides this intelligence service with information the transmission of which may cause damage to the Republic of Poland, shall be subject to the penalty of imprisonment for a period not shorter than 3 years.

§ 3. Whoever, in order to provide a foreign intelligence with information specified in § 2, collects or stores [this information], enters into the IT system in order to obtain [such information] or declares readiness to act for foreign intelligence against the Republic of Poland, shall be subject to imprisonment from 6 months to 8 years.

§ 4. Anyone who organizes or directs foreign intelligence activity shall be punished by imprisonment for a period not shorter than 5 years or by imprisonment of 25 years.”

COMPLAINTS

27 . The applicant complained that his detention and trial for taking part in the operations of a foreign intelligence against Poland in the context of the exercise of his political activity and the expression of his political views, constituted a restriction on his rights guaranteed under Articles 10 and 11 of the Convention.

28 . The applicant also complained that his detention on remand was unlawful and thus in breach of Article 5 § 1 of the Convention. In particular, given the vague and imprecise elements of the crime of taking part in the operations of a foreign intelligence against Poland under Article 130 of the Polish Criminal Code, his public activity had wrongly been taken for serving Russian and Chinese secret intelligence.

29 . He also complained under Article 5 § 3 of the Convention essentially that his detention on remand had not been justified by any relevant and sufficient reasons, either when it had first been imposed on 18 May 2016 or when it had subsequently been reviewed.

30 . Moreover, the applicant complained, invoking Article 6 § 1 and 3 of the Convention in conjunction with Article 5 § 1 of the Convention, that the procedure for review of his pre-trial detention had been marked with a number of shortcomings and had therefore been in breach of his defence rights.

31 . The applicant also complained that his detention on remand and the criminal proceedings against him were in breach of Article 7 § 1 of the Convention on account of allegedly wrong classification of his public activity as the criminal offence of taking part in the operations of a foreign intelligence against Poland.

32 . Lastly, the applicant complained under Article 6 of the Convention about the allegedly unreasonable length of the criminal proceedings against him.

THE LAW

33 . The applicant complained that his detention and trial for taking part in the operations of a foreign intelligence against Poland in the context of the exercise of his political activity and the expression of his political views, constituted a restriction on his rights guaranteed under Articles 10 and 11 of the Convention.

34 . The relevant provisions read as follows:

Article 10 of the Convention

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime ...”

Article 11 of the Convention

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others ...

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime ...”

35 . The Court reiterates that a State action that amounts to an interference with the right to freedom of expression, and by analogy with the right to freedom of assembly, encompasses a wide variety of measures – mainly in the form of a “formality, condition, restriction or penalty” (see, on Article 10 of the Convention, Wille v. Liechtenstein [GC], no. 28396/95, § 43, ECHR 1999 ‑ VII) – and may include, depending on the circumstances, criminal proceedings not culminating in a criminal conviction (see Altu ğ Taner Ak ç am v. Turkey , no. 27520/07, §§ 65-83, 25 October 2011, and Dilipak v. Turkey , no. 29680/05, §§ 40-51, 15 September 2015).

36 . To that end, the Court has already found that certain circumstances which have a chilling effect on freedom of expression do in fact confer on those concerned – persons who have not been finally convicted – the status of victim of interference in the exercise of their right to that freedom (see Dilipak v. Turkey , cited above, §§ 44-51 , and Döner and Others v. Turkey , no. 29994/02, § 85-89, 7 March 2017).

37 . The first case of reference is that of a journalist tried for publishing an article allegedly denigrating armed force (see Dilipak , cited above). His criminal trial lasted over six years and he faced a prison sentence. The proceedings ended with a ruling that the prosecution of the offence was time-barred. The specific criminal legislation broadly suppressing the expression of specific types of opinion, nevertheless remained in place. That put the applicant at risk of being prosecuted unless he modified his conduct, that is, adopted a kind of self-censorship or stopped writing on the subject of the relationship between the armed forces and national policy (see Dilipak , cited above, §§ 45-48).

38 . The other reference case concerned the arrest and the prosecution of parents petitioning for right for their children to receive education in Kurdish. The applicants ’ houses were searched on suspicion that their action had been instigated by an illegal armed organisation, PKK. Although no incriminating materials were found, the applicants were arrested and detained. All but one of the applicants were charged and tried before a State Security Court with aiding and abetting an illegal armed organisation. They were eventually acquitted ( Döner and Others , cited above, §§ 4-29).

39 . Both Turkish cases were lodged before the Court while the criminal proceedings against the applicants were on-going. They were examined by the Court following their final resolution by the domestic courts.

40 . In this context, the interference was considered to exist on account of the chilling effect of the measures in question. In the first case, those were the effects of the criminal proceedings against the applicant which, irrespective of their final outcome, had comprised in themselves real and effective constraints for a considerable period of time (see, Dilipak , cited above, §§ 50 and 51). In the other case, the interference was derived from the string of measures such as the applicants ’ arrest and deprivation of liberty for merely petitioning the State authorities on a matter of “public interest” (see Döner and Others , cited above, §§ 88 and 89).

41 . Against the above-described elements, the present case is clearly distinguishable from these cases.

42 . Firstly, the applicant was arrested and detained on suspicion of committing several counts of taking part in the operations of a foreign intelligence against the Republic of Poland (see paragraphs 4-10 and 12 above). The elements of this offence, which are laid out in the Polish Criminal Code, are specific in so far as they refer to various forms of benefiting a “foreign intelligence” (see paragraph 26 above).

44 . In consequence, the Court finds that it would be inconsistent with the subsidiarity principle to accept the application for substantive examination without requiring the applicant to await the final outcome of the main criminal proceedings against him. It lies in the nature of things that the activity which has potentially given rise to a criminal offence, in this case, the offence of taking part in the operations of a foreign intelligence against Poland, becomes hampered on account of the applicant ’ s prosecution.

45 . In these circumstances, it the Court is not satisfied that the applicant faces a string of measures which have at this stage amounted to an interference with the exercise of his right to freedom of expression and his right to freedom of assembly, which would warrant the examination of the merits of the case when the impugned criminal proceedings have not yet come to an end.

47 . The applicant complained that his detention on remand was unlawful and thus in breach of Article 5 § 1 of the Convention. In particular, given the vague and imprecise elements of the crime of taking part in the operations of a foreign intelligence against Poland under Article 130 of the Polish Criminal Code, his public activity had wrongly been taken for serving Russian and Chinese secret intelligence.

48 . He also complained under Article 5 § 3 of the Convention essentially that his detention on remand had not been justified by any relevant and sufficient reasons, either when it had first been imposed on 18 May 2016 or when it had subsequently been reviewed.

49 . Moreover, the applicant complained, invoking Article 6 § 1 and 3 of the Convention in conjunction with Article 5 § 1 of the Convention, that the procedure for review of his pre-trial detention had not been adversarial and had therefore been in breach of his defence rights.

50 . The Court, being the master of characterisation to be given in law to the facts of the case, considers that the latter complaint, given its context of detention on remand, would fall to be examined under Article 5 § 4 of the Convention.

51 . However, the Court notes that these complaints should be declared inadmissible for the following reasons.

52 . Article 35 of the Convention, in so far as relevant, reads as follows:

“...

2. The Court shall not deal with any application submitted under Article 34 that

...

(b) is substantially the same as a matter that ... has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.

...”

53 . The Court notes that on 27 April 2018 the Human Rights Council ’ s Working Group on Arbitrary Detention issued its Opinion no. 18/2018 in respect of the applicant. The Opinion was formed in the absence of a response from the Polish Government. The Working Group abstained from expressing opinion on whether the applicant ’ s pre-trial detention had a legal basis but stated that the applicant ’ s deprivation of liberty, being in contravention of Articles 2, 7, 9, 10, 11 (1), 19, 20 and 21 (1) of the Universal Declaration of Human Rights and of articles 2 (1), 9, 14, 19, 21, 22, 25 (a) and 26 of the Covenant, “ [was] arbitrary and [fell] within categories II and III” (see paragraph 58 of Opinion no. 18/2018).

54 . The Court has already examined the procedure followed by the Working Group on Arbitrary Detention and concluded that it constituted “another procedure of international investigation or settlement” for the purposes of Article 35 § 2 (b) of the Convention (see Peraldi v. France (dec.), no. 2096/05, 7 April 2009; Gürdeniz v. Turkey (dec.), no. 59715/10, § 39, 18 March 2014); Uça v. Turkey (dec.), no. 73489/12, § 42, 30 September 2014 ; and Hilal Mammadov v. Azerbaijan , no. 81553/12 , § 106, 4 February 2016 ). There is no reason to depart from that conclusion in the instant case.

55 . The opinion no. 18/2018 of the Working Group on Arbitrary Detention of 27 April 2018 concerned the same applicant and his detention on remand within the criminal proceedings instituted against him following his arrest on 18 May 2016.

56 . In these circumstances, all three of the applicant ’ s complaints under Article 5 of the Convention concerning his detention on remand raised in his application before the Court are substantially the same as the matter submitted to the Working Group on Arbitrary Detention and dealt with in its opinion no. 18/2018 of 27 April 2018.

57 . This part of the application is therefore inadmissible under Article 35 § 2 (b).

58 . Lastly, the applicant complained under Article 6 of the Convention about the allegedly unreasonable length of the criminal proceedings against him and, under Article 7 § 1 of the Convention, that the authorities had erred in classifying his public activity as the criminal offence of taking part in the operations of a foreign intelligence against Poland.

59 . Article 35 of the Convention lays down the following admissibility criterion, in so far as relevant to the application at hand:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted ...”

60 . The Court notes that the applicant failed to bring before a domestic court a length complaint under the 2004 Act. His Article 6 complaint is therefore inadmissible for non-exhaustion of domestic remedies.

61 . Moreover, the applicant ’ s trial on charges of taking part in the operations of a foreign intelligence against Poland is currently on-going before the first-instance court. The Article 7 complaint is therefore premature.

62 . It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 November 2019 .

Renata Degener Armen Harutyunyan Deputy Registrar President