14 October 2008

FOURTH SECTION
Application no. 24254/05
by Tomasz KWIATKOWSKI
against Poland
lodged on 24 June 2005

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Tomasz Kwiatkowski, is a Polish national who was born in 1948 and lives in Konstancin-Jeziorna.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 3 August 1997 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 służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) (the “1997 Lustration Act”) entered into force.
On an unspecified date the applicant, who was an advocate, declared that he had not collaborated with the communist-era secret services.
On an unspecified date in 2000 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to institute lustration proceedings against the applicant following a request made by the Commissioner of the Public Interest (Rzecznik Interesu Publicznego) on the grounds that the applicant had lied in his lustration declaration by denying that he had co-operated with the secret services.
On 27 June 2002 the Warsaw Court of Appeal, acting as the first‑instance lustration court, found that the applicant had submitted an untrue lustration declaration. The operative part of the judgment was served on the applicant. However, the reasoning was considered “secret” and, in accordance with Article 100 § 5 of the Code of Criminal Procedure, could only be consulted in the secret registry of that court.
The applicant lodged an appeal in which he maintained, in particular, that his rights had been breached because he could not freely consult the reasoning of the judgment.
On 16 May 2003 the Warsaw Court of Appeal, acting as the second‑instance lustration court, upheld the impugned judgment.
The applicant lodged a cassation appeal against the judgment.
On 28 August 2004 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal as being manifestly ill-founded. The applicant was removed from the Bar Association with the result that he is unable to practise as an advocate for a period of ten years in application of the 1997 Lustration Act.
The judgment was notified to the applicant’s representative on 17 January 2005.
B.  Relevant domestic law
A detailed rendition of the provisions of the relevant domestic law is set out in the Court’s judgment in the case of Matyjek v. Poland, no. 38184/03, 2007‑...
COMPLAINTS
1.  The applicant complains under Article 6 of the Convention of the unfairness of the proceedings, the infringement of his right of defence and the lack of equality of arms. He complains that the material in his case was classified as confidential, which limited his right of access to it. The applicant could consult the documents only in the secret registry of the lustration court and the file at his disposal did not contain all the relevant documents on which the courts based their rulings. He complains that he could not freely consult confidential documents and was prevented from removing any notes he had made in the secret registry. Moreover, the fifty-pages long reasoning of the first-instance court’s judgment was also confidential and the rules applicable to the consultation of the file in the secret registry made it difficult for him to prepare his appeal. These limitations were not applicable to the Commissioner of the Public Interest. It placed him at a significant disadvantage vis-à-vis the Commissioner who had unlimited access to the file in his secret registry.
2.  The applicant further complains that he did not have a right to appeal as his case had been decided by the Warsaw Court of Appeal at both instances. He submits that this resulted in the lustration courts lacking impartiality and independence. The applicant submits that the proceedings were unfair as the lustration courts wrongly assessed the evidence. In particular the courts found him guilty on the basis of an incomplete file of the security services. The applicant complains that, in reality, the domestic courts applied to him “a presumption of guilt”.
The applicant also complains under Articles 1 and 6 of the Convention about the principles of lustration, claiming that the 1997 Lustration Act was not compatible with a democratic State based on the rule of law and breached Resolution 1096 (1996) of the Parliamentary Assembly of the Council of Europe. He complains that the lustration law did not cover all public servants in a uniform manner and that it applied to events that took place between 1944 and 1990.
QUESTIONS TO THE PARTIES

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

2.  In particular, was the applicant afforded a reasonable opportunity to defend himself in accordance with the principle of equality of arms, regard being had to the confidentiality of the case file, limitations on the applicant’s access to it and restrictions on taking notes from it?