Communicated on 7 March 2019<\/p>\n
FIRST SECTION<\/p>\n
Application no.27476\/15
\nArkadiusz \u017bO\u0141NACZ
\nagainst Poland
\nlodged on 1 June 2015<\/p>\n
STATEMENT OF FACTS<\/p>\n
The applicant, Mr Arkadiusz\u017bo\u0142nacz, is a Polish national who was born in 1974 and lives in NowaIwiczna. He is represented before the Court by Mr\u00a0G. Fertak, a lawyer practising in Warsaw.<\/p>\n
A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n The facts of the case, as submitted by the applicant, may be summarised as follows.<\/p>\n On an unspecified date, but not earlier than on 11 June 2008, the Warsaw Regional Prosecutor (ProkuratorOkr\u0119gowy) lodged with the Warsaw Regional Court (S\u0105dOkr\u0119gowy) a bill of indictment against the applicant and two other accused. The charges against the applicant concerned corruption and taking bribes.<\/p>\n 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\u2019 imprisonment.<\/p>\n 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).<\/p>\n On 2 August 2012 the applicant\u2019s 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 \u201ctop secret\u201d 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.<\/p>\n On the same day the court informed the applicant\u2019s 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\u00a0sierpnia 2010 roku o ochronieinformacjiniejawnych).<\/p>\n On 5 August 2012 the applicant\u2019s 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.<\/p>\n On 11 June 2013, during an appellate hearing, the Warsaw Court of Appeal (S\u0105dApelacyjny) informed the parties that classified material had been received by the court. The presiding judge informed the applicant\u2019s lawyer that that material would not be accessible to the parties to the proceedings.<\/p>\n 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\u2019 imprisonment.<\/p>\n The applicant\u2019s lawyers lodged cassation appeals against that judgment. The first cassation appeal raised a violation of the applicant\u2019s 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\u2019s judgment.<\/p>\n On 16 December 2014 the Supreme Court (S\u0105dNajwy\u017cszy) dismissed both cassation appeals as manifestly ill-founded.<\/p>\n The applicant submits that only before the Supreme Court was his lawyer granted access to the secret evidence.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 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.<\/p>\n COMPLAINT<\/strong><\/p>\n The applicant complains under Article 6 \u00a7\u00a7 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.\u00a0Poland (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\u2019s judgment.<\/p>\n QUESTIONS TO THE PARTIES<\/strong><\/p>\n 1.\u00a0\u00a0Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article\u00a06 \u00a7\u00a01 of the Convention? In particular, did the applicant and\/or his lawyers have unrestricted access to the classified part of the case file?<\/p>\n 2.\u00a0\u00a0Was the applicant afforded adequate facilities to prepare his defence, as required by Article 6 \u00a7 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?<\/p>\n Reference is made to the Court\u2019s judgments in the cases Matyjek v.\u00a0Poland, no.\u00a038184\/03, \u00a7\u00a7 59-61, ECHR 2007, Luboch v. Poland, no.\u00a037469\/05, \u00a7\u00a7\u00a059-73, 15 January 2008 and Moiseyev v. Russia, no.\u00a062936\/00, \u00a7\u00a7\u00a0213\u201118, 9 October 2008.<\/p>\n