Communicated on 10 April 2018

FIRST SECTION

Application no. 20587/13 Monik a TRACZ-SMOCZYŃSKA against Poland lodged on 27 February 2013

STATEMENT OF FACTS

1. The applicant, Ms Monik a Tracz-Smoczyńska , is a Polish national who was born in 1959 and lives in Wodzisław Śląski . She is a judge.

A. The circumstances of the case

1. The main proceedings

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

3. On 11 April 1997 the Parliament passed the 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 ( ustaw a o ujawnieniu pracy lub służby w organach bezpieczeństw a państw a lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne ; “ the 1997 Lustration Act”). It entered into force on 3 August 1997. Persons falling under the provisions of the 1997 Lustration Act, that is, amongst others, judges, were required to declare whether or not they had worked for or collaborated with the security services during the communist regime. The applicant made a declaration that she had not collaborated with the security services during the communist regime.

4. On an unspecified date the Commissioner of the Public Interest ( Rzecznik Interesu Publicznego ) applied to the Warsaw Court of Appeal ( Sąd Apelacyjny ) to institute lustration proceedings against the applicant on the grounds that she had lied in her lustration declaration by denying that she had collaborated with the secret services. On 29 November 2006 the Warsaw Court of Appeal decided to allow the Commissioner ’ s request and instituted lustration proceedings against the applicant.

5. On 13 March 2007 the Warsaw Court of Appeal, acting as the first ‑ instance lustration court, found that the applicant had submitted an untrue lustration declaration. The applicant and her lawyer appealed.

6. On 27 September 2007 the Katowice Court of Appeal, acting as the second-instance lustration court, quashed the challenged judgment and remitted the case to the Katowice Regional Court ( Sąd Okręgowy ).

7. On 8 October 2008 the Katowice Regional Court found that the applicant had submitted an untrue lustration declaration. The applicant, her lawyer and the prosecutor appealed.

8. On 5 February 2009 the Katowice Court of Appeal quashed the challenged judgment and remitted the case to the Katowice Regional Court.

9. On 17 August 2010 the Katowice Regional Court again found that the applicant had submitted an untrue lustration declaration.

10. On 20 October 2011 the Katowice Court of Appeal upheld the impugned judgment, with a minor amendment regarding the legal basis of the judgment.

11. The applicant lodged a cassation appeal against the judgment. On 6 November 2012 the Supreme Court ( Sąd Najwyższy ) dismissed her cassation appeal as manifestly ill-founded.

12. As a consequence, the applicant was removed from the position of President of the civil division in the Wodzislaw Śląski District Court ( Sąd Rejonowy ) and her delegation to the Gliwice Regional Court was not extended. She also states that before she obtained a final judgment in her case, the National Remembrance Institute ’ s spokesman informed the press of the details of the case, although it was being examined in camera , and a series of publications in the medi a followed, which allegedly discredited her as a judge.

2. Other proceedings instituted by the applicant

13. The applicant lodged a constitutional complaint. On 17 May 2012 the Constitutional Court ( Trybunał Konstytucyjny ) refused to entertain it. The applicant appealed. On 10 July 2012 the Constitutional Court did not allow her appeal.

14. On 12 August 2015 the applicant applied to the Supreme Court for reopening of the lustration proceedings, relying on the Constitutional Court ’ s judgment of 2 April 2015 (see paragraph 18 below). On 19 November 2015 the Supreme Court dismissed this request.

B. Relevant domestic law and practice

1. The 1997 Lustration Act

15 . The relevant law and practice concerning lustration proceedings in Poland until 15 March 2007 is set out in the Court ’ s judgments in the cases of Matyjek v. Poland , cited above, §§ 27-39, Bobek v. Poland , no. 68761/01, §§ 18-43, 17 July 2007 and Luboch v. Poland , no. 37469/05, §§ 28-39, 15 January 2008.

2. The 2006 Lustration Act

16. On 15 March 2007 the Law of 18 October 2006 on disclosing information about documents of the State ’ s security services from 1944 ‑ 1990 and the content of those documents ( ustaw a o dokumentach organów bezpieczeÅ„stw a paÅ„stw a z lat 1944-1990 oraz treÅ›ci tych dokumentów ) (the “2006 Lustration Act”) entered into force.

3. The lustration authorities

17. The 1998 Act on the National Remembrance Institute – Commission for the Prosecution of Crimes against the Polish Nation ( ustaw a z dni a 18 grudni a 1998 r. o Instytucie Pamięci Narodowej - Komisji Ścigani a Zbrodni przeciwko Narodowi Polskiemu ) in Article 52f (which came into force on 15 March 2007) provided, as far as relevant:

“ A prosecutor of the Lustration Office, a prosecutor of a regional lustration office ... shall have full access to the documents, registries and informatio n aids regardless of their form ...”

4. Relevant domestic practice

18 . In a judgment of 2 April 2015 the Constitutional Court ruled, having regard to the judgment in the case Matyjek (cited above) that since lustration proceedings constituted criminal proceedings, the judge ’ s immunity should be waived beforehand by a competent authority

COMPLAINTS

19. The applicant complains under Article 6 §§ 1 and 3 of the Convention of the unfairness of the proceedings, the infringement of her defence rights and the lack of equality of arms. She refers, inter alia, to the case of Matyjek v. Poland . She alleges that she was not given sufficient access to the case file and was prohibited from taking and keeping her notes. The same restrictions applied to her lawyer. She could not make use of her notes during hearings or outside them. The files concerning the case codenamed “the Crypt” (“ Krypta ”) were not adduced to evidence and she could not consult them, even though the Commissioner, the prosecutor and the national courts referred to the documents from that case. These files were destroyed in 2011; the applicant never had the possibility to consult them. The applicant also complains that, due to the passage of time, she was unable to call witnesses to pursue her line of defence.

20. Finally, the applicant complains that she was subjected to the lustration proceedings without the consent of the Disciplinary Court for Judges ( SÄ…d Dyscyplinarny ).

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charge against her, in accordance with Article 6 § 1 in conjunction with Article 6 § 3 of the Convention? Reference is made to the Court ’ s judgment in the case of Matyjek v. Poland (no. 38184/03, §§ 59-61, ECHR 2007).

2. In particular, was the applicant afforded a reasonable opportunity to defend herself in accordance with the principle of equality of arms, regard being had to the refusal to call witnesses, confidentiality of the case file, limitations on the applicant ’ s access to it, restrictions on her taking notes from it and lack of consent of the Disciplinary Court for instituting of the proceedings against her?