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FOURTH
SECTION
CASE OF JAŁOWIECKI v. POLAND
(Application
no. 34030/07)
JUDGMENT
STRASBOURG
17
February 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Jałowiecki v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 27 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34030/07) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Stanisław Jałowiecki
(“the applicant”), on 3 August 2007.
- The
applicant was represented by Ms I. Kornaś-Pierzak, a lawyer
practising in Cracow. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged, inter alia, that the lustration proceedings
in his case had been unfair, in violation of Article 6 of the
Convention.
- On
25 February 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1946 and lives in Stronie Śląskie.
- 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
14 April 2004 the applicant, a candidate for the European Parliament,
declared that he had not collaborated with the communist-era secret
services. He was subsequently elected as a Member of the European
Parliament.
- On
9 December 2004 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 cooperated with the secret services.
- On
17 February 2006 the Warsaw Court of Appeal, acting as the
first instance lustration court, found that the applicant had
submitted an untrue lustration declaration since he had been an
intentional and secret collaborator with the State's secret services.
The court established that the applicant had met on probably two
occasions in 1973 with agents of the secret services and had agreed
to help them as a consultant.
- The
applicant appealed against the decision. He submitted that he had
never collaborated with the secret services and the meeting in
question had been in connection with the preparation of an article.
The applicant also referred to his subsequent activity in the
“Solidarność” movement for which he had
been persecuted and detained by the communist authorities.
Subsequently, he was allowed to leave Poland and between 1985 and
1994 he was a deputy of the Polish Section of Radio Free Europe in
Munich.
- On
6 June 2006 the Warsaw Court of Appeal, acting as the second instance
lustration court, upheld the impugned judgment.
- On
1 February 2007 the Supreme Court (Sąd Najwyższy)
dismissed the applicant's cassation appeal. That decision was
notified to the applicant on 8 March 2007.
II. 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, ECHR 2007 ...
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
A. The parties' submissions
- The Government submitted that the applicant had not
exhausted all relevant domestic remedies as required under Article 35
§ 1 of the Convention. They argued that neither at the appellate
nor at the cassation stage had the applicant alleged, even in
substance, any infringement of his right to a fair hearing as
presented in his subsequent complaint to the Court. In particular,
the applicant had not questioned the alleged restrictions on his
access to the case file and on taking notes from it. Nor had he
complained that he could not present his arguments in accordance with
the principles of an adversarial hearing and equality of arms.
- The
Government further argued that the applicant had failed to lodge a
constitutional complaint with the Constitutional Court. Had the
applicant been of the opinion that the legal provisions on which the
courts had based their decisions or their interpretation –
namely Article 156 § 4 of the Code of Criminal Procedure in
conjunction with section 52 § 2 of the Lustration Act –
had breached his rights, in particular his right to a fair hearing
enshrined in Article 45 of the Constitution, he should have lodged a
constitutional complaint. In particular, the applicant should have
requested the Constitutional Court to examine whether the rules
imposed by those provisions had violated his right to a fair trial.
- The
Government further submitted that the application had been lodged
outside the time-limit of six months as the final decision in the
applicant's case had been given on 1 February 2007 while he had
lodged his application with the Court on 3 August 2007.
- The
applicant disagreed. He submitted that the rules governing access to
the case file and the manner in which the lustration proceedings had
been conducted could not have been effectively challenged in an
appeal or cassation appeal as they were provided for by the domestic
law. As regards the constitutional complaint, he submitted that it
had been an extraordinary remedy which he had not been obliged to
exhaust. Finally, he submitted that the decision of 1 February 2007
had been notified to him on 8 March 2007, and that he had lodged his
application with the Court within less than six months from that
date. The applicant provided a copy of an envelope from the Supreme
Court, and a delivery receipt, confirming that the reasoned decision
of the Supreme Court of 1 February 2007 had been notified to him on 8
March 2007.
B. The Court's assessment
- The
Court firstly observes that it has already found that Article 6 of
the Convention under its criminal head applied to lustration
proceedings (see, Matyjek v. Poland (dec.), no. 38184/03,
ECHR 2006 ... and Bobek v. Poland (dec.),
no. 68761/01, 24 October 2006).
- The
Court also considers that the question of whether the applicant could
effectively challenge the set of legal rules governing access to the
case file and setting out the features of the lustration proceedings
is linked to the Court's assessment of Poland's compliance with the
requirements of a “fair trial” under Article 6 § 1
of the Convention (see Matyjek v. Poland, cited above, § 42,
Luboch v. Poland, no. 37469/05, § 46, 15 January
2008).
- The
Court accordingly joins the Government's plea of inadmissibility on
the ground of non-exhaustion of domestic remedies to the merits of
the case.
- The Court further notes that the Government alleged
that the applicant had introduced his application out of time and
that it should be rejected in accordance with Article 35 §§
1 and 4 of the Convention. However, the Court observes that it
appears from the documents provided by the applicant that the Supreme
Court's decision of 1 February 2007 had been notified to him on 8
March 2007. The Court reiterates that where an applicant is entitled
to be served ex officio with a written copy of the final
domestic decision, the object and purpose of Article 35 § 1 of
the Convention are best served by counting the six-month period as
running from the date of service of the written judgment (see Worm
v. Austria, § 33, 29 August 1997, Reports of
Judgments and Decisions 1997-V). The applicant lodged his
application with the Court on 3 August 2007 thus within less than six
months from the date of notification. It could not be therefore said
that the application was introduced out of time. The Government's
objection should be dismissed.
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention that the
lustration proceedings had been unfair. Article 6 of the Convention
provides, in so far as relevant:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair and
public hearing ...by [a] ... tribunal...
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 speak the language used in
court.”
A. The applicant's submissions
- The
applicant argued that the principle of equality of arms had not been
respected in his case. He had been hindered in his access to the case
file and thus could not defend himself properly against the
allegations raised by the Commissioner of the Public Interest.
Furthermore, he had been entirely deprived of a possibility to
participate in the proceedings before the Commissioner and to access
the case file prepared by him. He could not question the
Commissioner's decision to choose the documents to be considered as
evidence against him. He also complained about his lustration trial,
in particular, about the rules governing the consultation of the case
file in the secret registry. He referred to the case of Matyjek v.
Poland and complained that he could not freely consult
confidential documents and had been prevented from removing any notes
he had made in the secret registry. The applicant submitted that he
had been placed at a significant disadvantage vis-à-vis the
Commissioner who had had access to all documents and archives.
- The
applicant considered misleading the Government's assessment that the
evidence classified as secret had constituted only a minor part of
his file. He submitted that some very important documents remained
classified as secret and that he had a very limited access to them.
These included the Militia's files which had constituted the main
evidence against the applicant, receipts that he had accepted the
money, the documents in which he had allegedly agreed to cooperate
etc. Moreover, all the documents presented to the court by the
Commissioner had been photocopies made from microfilms, which raised
doubts as to their quality and genuineness. The applicant maintained
that the classified evidence in his case covered documents produced
by the former security services a long time ago which were no longer
important for protecting the State's interest. Their confidentiality,
however severely curtailed the applicant's rights of defence in the
lustration proceedings. As a result, he could not challenge the
version of events put forward by the Commissioner.
B. The Government's submissions
- The
Government argued that the applicant's right to a fair trial had been
respected in the instant case. They submitted that part of the
evidentiary material in the applicant's case had been classified as
“top secret” under the 1982 Protection of State Secrets
Act. Afterwards, the State Security Bureau upheld the “secret”
classification of those documents on the basis of the 1999 Protection
of Classified Information Act. The classified character of those
documents had influenced the course of the proceedings; however it
had had no adverse effect on the fairness of the proceedings.
Moreover, most of the evidence collected in the case file and the
reasoning of the court judgments had not been classified.
- The
Government argued that under the 1999 Protection of Classified
Information Act and Article 156 § 4 of the Code of Criminal
Procedure, the evidence in the case, having been regarded as
classified information, had been available to the parties only in the
secret registry of the lustration court. They maintained that both
parties to the proceedings, that is, the applicant and the
Commissioner of the Public Interest, had been subject to the same
strict rules governing access to the file deposited in the secret
registry, in particular those regarding the taking of notes. The
notes from the case file had to be made in a special notebook which
was subsequently placed in an envelope, sealed and deposited in the
secret registry.
- Furthermore,
the Government observed that the need to protect the public interest
may justify withholding certain evidence from the defence in criminal
proceedings (Edwards and Lewis v. the United Kingdom,
nos. 39647/98 and 40461/98, § 53, 22 July 2003).
However, they underlined that in the present case all evidence had
been disclosed to the applicant. The only difficulty had been related
to the classified nature of the evidence which had resulted in the
application of particular arrangements as far as access to the case
file had been concerned.
- The
Government concluded that there had been no violation of Article 6 §
1 in the present case.
C. The Court's assessment
- The
Court firstly reiterates that the guarantees in paragraph 3 of
Article 6 are specific aspects of the right to a fair trial set forth
in general in paragraph 1. For this reason it considers it
appropriate to examine the applicant's complaint under the two
provisions taken together (see Edwards v. the United Kingdom,
judgment of 16 December 1992, Series A no. 247 B, p.
34, § 33).
- According to the principle of equality of arms, as one
of the features of the wider concept of a fair trial, each party must
be afforded a reasonable opportunity to present his case under
conditions that do not place him at a substantial disadvantage
vis à vis his opponent (see, for example,
Jespers v. Belgium, no. 8403/78, Commission decision of
15 October 1980, Decisions and Reports (DR) 27, p. 61;
Foucher v. France, judgment of 18 March 1997,
Reports of Judgments and Decisions 1997 II, § 34;
and Bulut v. Austria, judgment of 22 February 1996,
Reports 1996 II, p. 380-81, § 47). The
Court further reiterates that in order to ensure that the accused
receives a fair trial any difficulties caused to the defence by a
limitation on its rights must be sufficiently counterbalanced by the
procedures followed by the judicial authorities (see Doorson v.
the Netherlands, judgment of 26 March 1996, Reports
1996 II, p. 471, § 72, and Van Mechelen
and Others v. the Netherlands, judgment of 23 April 1997,
Reports 1997 III, p. 712, § 54).
- The
Court had already dealt with the issue of lustration proceedings in
the Turek v. Slovakia case (no. 57986/00, § 115,
ECHR 2006 ... (extracts)) and in Ādamsons v. Latvia
(no. 3669/03, 24 June 2008). In the Turek case the Court held
in particular that, unless the contrary is shown on the facts of a
specific case, it cannot be assumed that there remains a continuing
and actual public interest in imposing limitations on access to
materials classified as confidential under former regimes. This is
because lustration proceedings are, by their very nature, oriented
towards the establishment of facts dating back to the communist era
and are not directly linked to the current functions and operations
of the security services. Lustration proceedings inevitably depend on
the examination of documents relating to the operations of the former
communist security agencies. If the party to whom the classified
materials relate is denied access to all or most of the materials in
question, his or her possibilities of contradicting the security
agency's version of the facts will be severely curtailed.
Those
considerations remain relevant to the instant case despite some
differences with the lustration proceedings in Poland (see
Matyjek, cited above, § 56)
- Turning
to the instant case, the Court observes firstly that the Government
have pointed to the series of successive laws on the basis of which
the communist-era security services' materials continued to be
regarded as a State secret. Thus, at least part of the documents
relating to the applicant's lustration case had been classified as
“top secret”. The Court has considered the powers vested
in the Head of the State Security Bureau, in particular to uphold or
lift the confidentiality rating, inconsistent with the fairness of
lustration proceedings, including with the principle of equality of
arms (see Matyjek, cited above, § 57).
- Secondly,
the Court notes that, at the pre-trial stage, the Commissioner of the
Public Interest had a right of access, in the secret registry of his
office or of the Institute of National Remembrance, to all materials
relating to the lustrated person created by the former security
services. After the institution of the lustration proceeding, the
applicant could also access his court file. However, pursuant to
Article 156 of the Code of Criminal Procedure and section 52 (2) of
the 1999 Protection of Classified Information Act, no copies could be
made of materials contained in the court file and confidential
documents could be consulted only in the secret registry of the
lustration court.
Furthermore,
it has not been disputed by the parties that, when consulting his
case file, the applicant had been authorised to make notes. However,
any notes he took could be made only in special notebooks that were
subsequently sealed and deposited in the secret registry. The
notebooks could not be removed from this registry and could be opened
only by the person who had made them (see Matyjek, cited
above, § 58).
- The
Court reiterates that the accused's effective participation in his
criminal trial must equally include the right to compile notes in
order to facilitate the conduct of his defence, irrespective of
whether or not he is represented by counsel (see Pullicino v.
Malta (dec.), no 45441/99, 15 June 2000 and Matyjek,
cited above, § 59). The fact that the applicant could not remove
his own notes, taken in the secret registry, in order to show them to
an expert or to use them for any other purpose, effectively prevented
him from using the information contained in them as he had to rely
solely on his memory.
Regard
being had to what was at stake for the applicant in the lustration
proceedings - not only his good name but also a ban on being a Member
of Parliament or holding public office for 10 years - the Court
considers that it was important for him to have unrestricted access
to those files and unrestricted use of any notes he made, including,
if necessary, the possibility of obtaining copies of relevant
documents (see Foucher, cited above, § 36).
- Thirdly,
the Court is not persuaded by the Government's argument that at the
trial stage the same limitations as regards access to confidential
documents applied to the Commissioner of the Public Interest. Under
the domestic law, the Commissioner, who was a public body, had been
vested with powers identical to those of a public prosecutor. Under
section 17(e) of the Lustration Act, the Commissioner of the
Public Interest had a right of access to full documentation relating
to the lustrated person created by, inter alia, the former
security services. If necessary, he could hear witnesses and order
expert opinions. The Commissioner also had at his disposal a secret
registry with staff who obtained official clearance allowing them
access to documents considered to be State secrets and were employed
to analyse lustration declarations in the light of the existing
documents and to prepare the case file for the lustration trial.
- The
Court has held that lustration measures are by their nature temporary
and the necessity to continue such proceedings diminishes with time
(see Ādamsons, cited above, § 116). It has been
recognised by the Court that at the end of the 1990s the State had an
interest in carrying out lustration in respect of persons holding the
most important public functions. The Court has also accepted that a
similar interest was still legitimate at the beginning of the current
decade, at least in respect of parliamentary elections (see
Chodynicki v. Poland (dec.), no 17625/05, 2 September 2008).
However, it reiterates that if a State adopts lustration measures, it
must ensure that the persons affected thereby enjoy all procedural
guarantees under the Convention in respect of any proceedings
relating to the application of such measures (see Turek, cited
above, § 115, Matyjek, cited above, § 62 and
Ādamsons, cited above, § 116).
The
Court accepts that there may be a situation in which there is a
compelling State interest in maintaining secrecy of some documents,
even those produced under the former regime. Nevertheless, such a
situation will only arise exceptionally given the considerable time
that has elapsed since the documents were created. It is for the
Government to prove the existence of such an interest in the
particular case because what is accepted as an exception must not
become a norm. The Court considers that a system under which the
outcome of lustration trials depends to a considerable extent on the
reconstruction of the actions of the former secret services, while
most of the relevant materials remains classified as secret and the
decision to maintain the confidentiality is left within the powers of
the current secret services, creates a situation in which the
lustrated person's position is put at a clear disadvantage.
- In
the light of the above, the Court considers that due to the
confidentiality of the documents and the limitations on access to the
case file by the lustrated person, as well as the privileged position
of the Commissioner of the Public Interest in the lustration
proceedings, the applicant's ability to prove that the contacts he
had had with the communist era secret services did not amount to
“intentional and secret collaboration” within the meaning
of the Lustration Act were severely curtailed. Regard being had to
the particular context of the lustration proceedings, and to the
cumulative application of those rules, the Court considers that they
placed an unrealistic burden on the applicant in practice and did not
respect the principle of equality of arms.
- It remains to be ascertained whether the applicant
could have successfully challenged the features of the lustration
proceedings in his appeal and cassation appeal. Given the
Government's assertion that the rules on access to the materials
classified as secret were regulated by the successive laws on State
secrets and Article 156 of the Code of the Criminal Procedure and
that those legal provisions were complied with in this case, the
Court is not persuaded that the applicant, in his appeals or
cassation appeals, could have successfully challenged the domestic
law in force. In so far as the
Government rely on the constitutional complaint, the Court points,
firstly, to the fact that the Lustration Act had on several occasions
been unsuccessfully challenged before the Constitutional Court (see
Matyjek
v. Poland (dec.),
cited above). Moreover, the Court has held that a constitutional
complaint was an effective remedy for the purposes of Article 35 §
1 of the Convention only in situations where the alleged violation of
the Convention resulted from the direct application of a legal
provision considered by the complainant to be unconstitutional (see,
Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October
2003; Pachla v. Poland (dec.), no. 8812/02, 8 November
2005). In this connection, the
Court observes that the breach of the Convention complained of in the
present case cannot be said to have originated from any single legal
provision or even from a well defined set of provisions. It
rather resulted from the way in which the relevant laws were applied
to the applicant's case and, in particular, Article 156 § 4 of
the Code of Criminal Procedure, allowing the President of the
Lustration Court to limit the applicant's access to the case file and
his possibilities of taking notes and copying documents (see Bobek,
cited above, § 73 and Luboch,
cited above, § 71). In that connection the Court points
to the established case-law of the Constitutional Court, according to
which constitutional complaints based solely on the allegedly
wrongful interpretation of a legal provision are excluded from its
jurisdiction (see Palusiński v. Poland (dec.), cited
above). The Government did not refer to any other domestic remedy
which could have offered reasonable prospects of success in this
case.
- It
follows that it has not been shown that the applicant had an
effective remedy at his disposal under domestic law by which to
challenge the legal framework setting out the features of lustration
proceedings. Consequently, the Government's objection as to the
exhaustion of domestic remedies should be rejected.
- In
these circumstances the Court concludes that the lustration
proceedings against the applicant, taken as a whole, cannot be
considered as fair within the meaning of Article 6 § 1 of the
Convention taken together with Article 6 § 3. There
has accordingly been a breach of those provisions.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant alleged that the Lustration Act had violated Article 7
of the Convention in that the definitions employed by it had been
ambiguous. He complained about a violation of Article 8 of the
Convention in that the Lustration Act had required him to self-assess
his moral and ethical conduct from a few decades ago. The applicant
also submitted that the fact that decision-making in the lustration
proceedings had been vested in specially established courts had given
rise to a breach of Article 2 of Protocol No. 7 to 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 his complaints (see Chodynicki v. Poland (dec),
no. 17625/05 , 2 September 2008 and Luboch, cited above,
§ 79). It follows that this part of the application must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 50,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested the claim in respect of pecuniary damage. If the
Court were to find a violation in the present case, they invited the
Court to rule that the finding of a violation constituted in itself
sufficient just satisfaction for any non-pecuniary damage sustained
by the applicant.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged. It is not for the
Court to speculate on what might have been the outcome of the
proceedings had they complied with the fairness requirements of
Article 6 (Jalloh v. Germany [GC], no. 54810/00, § 128,
ECHR 2006-...). It therefore rejects this claim. The Court also
considers that in the particular circumstances of the case the
finding of a violation constitutes in itself sufficient just
satisfaction for any non-pecuniary damage which may have been
sustained by the applicant (see, Matyjek, cited above, §
69).
B. Costs and expenses
- The
applicant also claimed 17,400 Polish zlotys (PLN) (approximately EUR
4,600) for the costs and expenses incurred before the domestic courts
and PLN 13,300 (approximately EUR 3,500) for those incurred before
the Court. As regards the first amount, it included court fees for
the cassation and appeal proceedings in the amount of PLN 1,681 and
PLN 750 respectively and PLN 15,000 for the costs of legal
representation of the applicant before the domestic courts at three
instances as documented by the copies of invoices. With respect to
the costs of the proceedings before the Court the applicant's lawyer
provided copies of invoices for the costs of legal representation,
travel and translation.
- The
Government considered that these claims were excessive.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,000 covering costs
under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government's preliminary
objection concerning non-exhaustion of domestic remedies;
- Declares the complaint under Article 6 of the
Convention regarding the unfairness of the proceedings admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention taken in conjunction with Article 6 §
3 and dismisses, in consequence, the Government's preliminary
objection;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000 (three thousand
euros), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses, to be converted into Polish zlotys at
the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 17 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
