PROCEDURE

The case originated in an application (no. 37293/09) 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 Jerzy Zawisza (“the applicant”), on 10 July 2009.

The applicant was represented by Ms M. Gąsiorowska, a lawyer practising in Warsaw. 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 in his case had been unfair.

On 10 May 2010 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.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1943 and lives in Warsaw. He is a retired professional soldier.

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”). It entered into force on 3 August 1997. Persons falling under the provisions of the 1997 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.

In 2002 the applicant became involved in politics. In 2004 he intended to stand as a candidate in the elections for the European Parliament on behalf of the Self‑defence party. However, the party withdrew its support for the applicant after he informed it that during his military service he had collaborated with the counter-intelligence agency.

At the end of 2004 the Institute of National Remembrance drew up a list of officials, collaborators and candidates for collaborators of the communist security services. In November 2004 the list was published on the Internet and unofficially named “the Wildstein list” after a journalist who had allegedly removed it from the Institute. The name “Jerzy Zawisza” was on the list and the applicant asked the Institute whether it concerned him. The Institute informed the applicant that it did not concern him.

The applicant was elected a Member of Parliament in the elections held in September 2005.

On 9 October 2005 the applicant in his lustration declaration stated that he had not collaborated, served or worked for the communist-era security services. On 12 October 2005 he informed the Speaker of the Sejm that he had had contacts with the military counter-intelligence.

On an unspecified date the Commissioner of Public Interest (Rzecznik Interesu Publicznego) informed the applicant that he had doubts as to the truthfulness of his lustration declaration and invited him for an interview on 10 October 2006. At the next interview the applicant was invited to read the records concerning his alleged collaboration.

On 21 December 2006 the Commissioner applied to the Warsaw Court of Appeal to institute lustration proceedings against the applicant on the grounds that he had lied in his lustration declaration by denying that he had collaborated with the secret services.

On 28 December 2006 the Warsaw Court of Appeal decided to allow the Commissioner’s request and instituted lustration proceedings against the applicant.

On 17 and 24 January 2007 the applicant’s lawyers consulted the classified part of the case file in the secret registry of the court. On both occasions the lawyers were entitled to take notes in the special notebook kept by the Head of the secret registry. However, they did not avail themselves of that possibility.

On 7 March 2007 the Warsaw Court of Appeal, acting as the first‑instance lustration court, found that between 1964 and 1975 the applicant had been an intentional and secret collaborator of the military counter-intelligence service and had therefore submitted an untrue lustration declaration. One judge from the panel of three expressed a dissenting opinion. The judgment was served on the Commissioner of Public Interest, the applicant and his lawyer.

The applicant lodged an appeal in which he maintained, in particular, that as a member of the armed forces he had been ordered to collaborate with the military counter-intelligence agency and that, therefore, his collaboration did not fall within the ambit of the Lustration Act. Alternatively, he argued that when submitting his declaration he had made a justifiable error. According to the Government, the applicant’s appeal did not concern the issue of restrictions on access to the case file.

On 19 September 2007 the Katowice Court of Appeal, acting as the second‑instance lustration court, upheld the impugned judgment.

The applicant lodged a cassation appeal against the judgment. The Government submitted that the applicant had not invoked the issue of restrictions on access to the case file in his cassation appeal.

On 1 December 2008 the Supreme Court dismissed the cassation appeal as manifestly ill-founded. The decision was served on the applicant on 19 February 2009.

The applicant is prevented from standing in elections and from holding other public functions for a period of 10 years.

According to the Government, in the course of the proceedings before the Katowice Court of Appeal and the Supreme Court neither the applicant nor his lawyer availed themselves of the possibility to consult the case file or to take notes of it.