PROCEDURE

The case originated in an application (no. 52443/07) 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 Jacek Mościcki (“the applicant”), on 19 November 2007.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The applicant alleged that the lustration proceedings brought against him had been unfair.

On 12 March 2009 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time.

Written submissions were received from the Helsinki Foundation for Human Rights in Warsaw, which had been granted leave by the President to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 2).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1939 and lives in Koszalin. He began to practise as an advocate in 1971.

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 (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”). Persons falling under the provisions of the Lustration Act, i.e. candidates or holders of public office such as ministers and members of parliament, were required to declare whether or not they had worked for or collaborated with the security services during the communist regime. The provisions of the Act extended to, inter alia, judges, prosecutors and advocates.

In May 1999 the applicant in his lustration declaration stated that he had not been an intentional and secret collaborator of the communist-era security services.

On 11 May 2005 the Commissioner of Public Interest (Rzecznik Interesu Publicznego) notified the applicant that he had instituted proceedings aimed at verifying the truthfulness of the applicant’s declaration.

The Commissioner heard the applicant on 2 June 2005. The applicant stated that in the 1980s he had been harassed by two officers of the security service. However, he averred that his contacts with the security service had not amounted to secret and conscious collaboration. He stated that he had ceased all the contacts with the security services in August 1984. The applicant unsuccessfully requested the Commissioner to hear eight advocates of the Koszalin Regional Bar Association.

On 8 August 2005 the Commissioner made an application to the Lustration Chamber of the Warsaw Court of Appeal, in which he challenged the truthfulness of the applicant’s declaration.

On 11 August 2005 the Warsaw Court of Appeal instituted lustration proceedings in the applicant’s case.

On 15 September 2005 the court held a hearing. The applicant stated that he would not make any statements and would not answer any questions put to him by the court. He upheld his statements given before the Commissioner on 2 June 2005. The applicant did not request the court to call advocates of the Koszalin Bar as witnesses. However, the court decided to hear two of those advocates (K.G. and R.K.). They stated that the applicant had informed them about the meetings with the security services but not about their contents.

On 5 January 2006 the Warsaw Court of Appeal, acting as the first‑instance lustration court, held that the applicant’s declaration had been untruthful. The court relied, in particular, on evidence given by J.B., an officer of the security services who had managed the applicant as a secret collaborator. It further had regard to the applicant’s statements given before the Commissioner and documentary evidence. It found that the applicant, albeit for a limited period of time, had been an intentional and secret collaborator with the security services within the meaning of the Lustration Act.

The applicant lodged an appeal. He argued that his meetings with the officers of the security services had not amounted to secret collaboration as he had informed his fellow advocates (K.G. and R.K.) about those meetings. Furthermore, he had never consented to collaborate with the security services and there had been no material evidence of his alleged collaboration. The applicant also argued that he had been registered as a “secret collaborator” without his knowledge. He requested the court to call further witnesses.

On 25 April 2006 the Warsaw Court of Appeal agreed to hear four witnesses called by the applicant (M.C., A.B.-S., J.T. and W.W.). It refused to hear the remaining witnesses since their evidence was not strictly related to the applicant’s alleged collaboration with the security services and thus would be irrelevant for the case.

On 30 May 2006 the Warsaw Court of Appeal heard three witnesses called by the applicant (M.C., J.T. and W.W.). It did not hear A.B.-S. as the applicant withdrew his request to hear that witness.

On 30 May 2006 the Warsaw Court of Appeal, acting as the second‑instance lustration court, upheld the judgment of 5 January 2006. It found that the first-instance court had duly assessed all relevant evidence and provided sufficient reasons for its findings which were confirmed by the additional witnesses heard by the appellate court. It held that according to the evidence given by J.B. the applicant had not signed a collaboration declaration, but had been orally providing information to the security services about advocates of the Koszalin Bar.

The applicant lodged a cassation appeal with the Supreme Court. He contested, amongst others, the Court of Appeal’s refusal to hear some of his witnesses. On 22 May 2007 the Supreme Court dismissed the cassation appeal. It found that the Court of Appeal’s refusal to hear certain witnesses had been justified and duly reasoned.

On 17 September 2007 the Koszalin Regional Bar Association struck the applicant off the roll of advocates. It found that in accordance with section 30 of the Lustration Act the applicant had lost his right to practise as an advocate following the dismissal of his cassation appeal by the Supreme Court. On 23 October 2007 the National Bar Association upheld the impugned decision. The applicant appealed to the Minister of Justice who however dismissed his appeal on 13 May 2008.

The applicant filed an appeal against the Minister’s decision with the Warsaw Regional Administrative Court. On 13 August 2008 the applicant requested the court to stay the proceedings on the ground that the Ombudsman had challenged the constitutionality of a relevant section of the amended Lustration Act and proceedings had been instituted before the Constitutional Court. On 11 December 2008 that court stayed the proceedings as requested. On 16 March 2010 the court resumed the proceedings at the applicant’s request. On 10 June 2010 the court again stayed the proceedings. On 8 November 2010 the applicant filed a complaint with the Supreme Administrative Court under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”). On 30 November 2010 the Supreme Administrative Court dismissed his complaint. The proceedings before the Constitutional Court appear to be pending.

By a letter dated 9 March 2009 the Szczecin Branch of the Institute of National Remembrance notified the applicant that doubts had arisen as to the truthfulness of his lustration declaration. He was summoned for 17 April 2009. The applicant has submitted no further information as regards the notification.