Last Updated on April 24, 2019 by LawEuro
Communicated on 7 March 2019
FIRST SECTION
Application no.27476/15
Arkadiusz ŻOŁNACZ
against Poland
lodged on 1 June 2015
STATEMENT OF FACTS
The applicant, Mr ArkadiuszŻołnacz, is a Polish national who was born in 1974 and lives in NowaIwiczna. He is represented before the Court by Mr G. Fertak, a lawyer practising in Warsaw.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date, but not earlier than on 11 June 2008, the Warsaw Regional Prosecutor (ProkuratorOkręgowy) lodged with the Warsaw Regional Court (SądOkręgowy) a bill of indictment against the applicant and two other accused. The charges against the applicant concerned corruption and taking bribes.
On 17 April 2012 the Warsaw Regional Court convicted the applicant on five charges, acquitted him of four others and sentenced him to three years’ imprisonment.
The applicant submits that the court made findings based to a large extent on classified documents. The written reasoning concerning classified evidence was not sent to him, but instead was deposited in the secret registry of the court (kancelariatajna).
On 2 August 2012 the applicant’s lawyer applied to the Regional Court to allow him access to a computer in the secret registry, so that he could prepare and print his appeal. He argued that the judgment had been based in large part on the evidence classified as “top secret” and a part of the written reasoning had not been sent to him. Accessing this evidence and written reasoning of the judgment in the secret registry would allow him to prepare an appeal against the judgment of 17 April 2012 in its entirety.
On the same day the court informed the applicant’s lawyer that it was not possible to allow the application owing to the provisions of the Protection of Confidential Information Act of 5 August 2010 (ustawa z dnia 5 sierpnia 2010 roku o ochronieinformacjiniejawnych).
On 5 August 2012 the applicant’s lawyer lodged an appeal against the public part of the written reasoning. He argued that his defence rights had been breached by a lack of possibility to prepare an appeal against the secret part of the written reasoning.
On 11 June 2013, during an appellate hearing, the Warsaw Court of Appeal (SądApelacyjny) informed the parties that classified material had been received by the court. The presiding judge informed the applicant’s lawyer that that material would not be accessible to the parties to the proceedings.
On 13 June 2013 the Warsaw Court of Appeal partially amended the challenged judgment and partially upheld it. The applicant was sentenced to two years’ imprisonment.
The applicant’s lawyers lodged cassation appeals against that judgment. The first cassation appeal raised a violation of the applicant’s defence rights in that it had not been established whether the investigation by the Central Bureau of Investigation (CentralneBiuroAntykorupcyjne) against the applicant had been legal. The second one relied directly on Article 6 of the Convention in that the applicant had been prevented from preparing his appeal against the secret part of the written reasoning of the Regional Court’s judgment.
On 16 December 2014 the Supreme Court (SądNajwyższy) dismissed both cassation appeals as manifestly ill-founded.
The applicant submits that only before the Supreme Court was his lawyer granted access to the secret evidence.
B. Relevant domestic law
The classification of information as secret, the way files containing such information are to be handled, security measures, and access to it, are governed by the Protection of Classified Information Act of 5 August 2010.
COMPLAINT
The applicant complains under Article 6 §§ 1 and 3 (b) of the Convention of the unfairness of the proceedings, the infringement of his defence rights and the lack of equality of arms. He relies on, inter alia, the case of Matyjek v. Poland (no. 38184/03, 24 April 2007). He submits that his lawyer was refused access to evidence classified as secret (in particular concerning the operation of the Central Bureau of Investigation) and he could not prepare his appeal against the secret part of the written reasoning of the Regional Court’s judgment.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, did the applicant and/or his lawyers have unrestricted access to the classified part of the case file?
2. Was the applicant afforded adequate facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention? In particular, did the applicant and/or his lawyers have appropriate access to classified documents and an opportunity to prepare an appeal concerning the secret part of the written reasoning of the judgment of 17 April 2012?
Reference is made to the Court’s judgments in the cases Matyjek v. Poland, no. 38184/03, §§ 59-61, ECHR 2007, Luboch v. Poland, no. 37469/05, §§ 59-73, 15 January 2008 and Moiseyev v. Russia, no. 62936/00, §§ 213‑18, 9 October 2008.
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