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.
NOT_CONFIDENTIAL
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CODE
DIRECT
37293/09
NOT_CONFIDENTIAL
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001-104927_a4_e2
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ORG
NO_MASK
Republic of Poland
ETHNIC
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DEM
NO_MASK
Polish national
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PERSON
DIRECT
Mr Jerzy Zawisza
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DATETIME
QUASI
10 July 2009
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001-104927_a4_em6
PERSON
QUASI
Ms M. Gąsiorowska
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LOC
NO_MASK
Warsaw
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001-104927_a4_em8
ORG
NO_MASK
Polish Government
NOT_CONFIDENTIAL
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001-104927_a4_em9
PERSON
NO_MASK
Mr J. Wołąsiewicz
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001-104927_a4_em10
ORG
NO_MASK
Ministry of Foreign Affairs
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001-104927_a4_em11
DATETIME
QUASI
10 May 2010
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001-104927_a4_e12
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DATETIME
QUASI
1943
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LOC
QUASI
Warsaw
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DEM
QUASI
professional soldier
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001-104927_a4_e14
001-104927_a4_em15
DATETIME
QUASI
11 April 1997
NOT_CONFIDENTIAL
insert
001-104927_a4_e15
001-104927_a4_em16
MISC
QUASI
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”)
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001-104927_a4_e16
001-104927_a4_em17
DATETIME
QUASI
3 August 1997
NOT_CONFIDENTIAL
insert
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001-104927_a4_em18
MISC
QUASI
001-104927_a4_em16
1997 Lustration Act
NOT_CONFIDENTIAL
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001-104927_a4_e17
001-104927_a4_em19
DATETIME
QUASI
2002
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001-104927_a4_e18
001-104927_a4_em20
DATETIME
QUASI
2004
POLITICS
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001-104927_a4_e19
001-104927_a4_em21
ORG
NO_MASK
European Parliament
POLITICS
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001-104927_a4_e20
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ORG
QUASI
Self‑defence party
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DATETIME
QUASI
end of 2004
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ORG
NO_MASK
Institute of National Remembrance
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DATETIME
QUASI
November 2004
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insert
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MISC
QUASI
the Wildstein list
NOT_CONFIDENTIAL
correct
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PERSON
DIRECT
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Jerzy Zawisza
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ORG
NO_MASK
001-104927_a4_em24
Institute
POLITICS
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001-104927_a4_em29
DEM
NO_MASK
Member of Parliament
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001-104927_a4_e26
001-104927_a4_em30
DATETIME
QUASI
September 2005
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001-104927_a4_em31
DATETIME
QUASI
9 October 2005
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001-104927_a4_e28
001-104927_a4_em32
MISC
QUASI
lustration declaration
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001-104927_a4_em33
DATETIME
QUASI
12 October 2005
POLITICS
insert
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001-104927_a4_em34
DEM
NO_MASK
Speaker of the Sejm
POLITICS
insert
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001-104927_a4_em35
DEM
NO_MASK
Commissioner of Public Interest (Rzecznik Interesu Publicznego)
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001-104927_a4_e28
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MISC
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lustration declaration
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DATETIME
QUASI
10 October 2006
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001-104927_a4_em38
DATETIME
QUASI
21 December 2006
NOT_CONFIDENTIAL
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001-104927_a4_em39
DEM
NO_MASK
001-104927_a4_em35
Commissioner
NOT_CONFIDENTIAL
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001-104927_a4_e34
001-104927_a4_em40
ORG
NO_MASK
Warsaw Court of Appeal
NOT_CONFIDENTIAL
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001-104927_a4_e28
001-104927_a4_em41
MISC
QUASI
lustration declaration
NOT_CONFIDENTIAL
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001-104927_a4_e35
001-104927_a4_em42
DATETIME
NO_MASK
28 December 2006
NOT_CONFIDENTIAL
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001-104927_a4_e34
001-104927_a4_em43
ORG
NO_MASK
Warsaw Court of Appeal
NOT_CONFIDENTIAL
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001-104927_a4_e31
001-104927_a4_em44
DEM
NO_MASK
Commissioner
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001-104927_a4_em45
DATETIME
QUASI
17 and 24 January 2007
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DATETIME
QUASI
7 March 2007
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ORG
NO_MASK
Warsaw Court of Appeal
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001-104927_a4_em48
ORG
QUASI
first‑instance lustration court
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001-104927_a4_em49
DATETIME
QUASI
between 1964 and 1975
POLITICS
insert
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001-104927_a4_em50
MISC
QUASI
intentional and secret collaborator of the military counter-intelligence service
NOT_CONFIDENTIAL
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001-104927_a4_em51
MISC
QUASI
lustration declaration
NOT_CONFIDENTIAL
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001-104927_a4_e31
001-104927_a4_em52
DEM
NO_MASK
001-104927_a4_em35
Commissioner of Public Interest
NOT_CONFIDENTIAL
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MISC
QUASI
001-104927_a4_em16
Lustration Act
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001-104927_a4_em54
DATETIME
QUASI
19 September 2007
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001-104927_a4_em55
ORG
NO_MASK
Katowice Court of Appeal
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001-104927_a4_em56
ORG
QUASI
second‑instance lustration court
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001-104927_a4_em57
DATETIME
QUASI
1 December 2008
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001-104927_a4_em58
ORG
NO_MASK
Supreme Court
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001-104927_a4_em59
DATETIME
QUASI
19 February 2009
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001-104927_a4_e47
001-104927_a4_em60
DATETIME
NO_MASK
10 years
NOT_CONFIDENTIAL
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001-104927_a4_e42
001-104927_a4_em61
ORG
NO_MASK
Katowice Court of Appeal
NOT_CONFIDENTIAL
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001-104927_a4_e45
001-104927_a4_em62
ORG
NO_MASK
Supreme Court
Jerzy Zawisza
POL
CHAMBER
Task: Annotate the document to anonymise the following person: Jerzy Zawisza