The Supreme Court overruled the judgements made at both levels of jurisdiction by the Warsaw Court of Appeal, which functioned as the lustration court, and it referred the case for rehearing to a proper district court.

Upon the judgement of 28 April 2009 made in the case Rasmussen v. Poland ( no. 38886/05), the European Court of Human Rights stated that the vetting proceedings led to the violation of article 6 § 1 in regard to article 6 § 3 of the European Convention on Human Rights.

Thereby, the Tribunal once again stated that during the vetting proceedings, based on the 1997 Lustration Act, the right to a fair trial was violated through the violation of the right to effective defence and the equality of arms principle. The violations resulted from the limitations in the access to secret archive data put on the lustrated person and her lawyer, which led to differences in positions between her and the Public Interest Commissioner in the process.

Although the verdict of the Tribunal in the case Rasmussen v. Poland has been the fifth analogous judgement regarding Polish vetting instruments, the applicant has been the first person that decided to apply for reopening the vetting proceedings in her case. However, the reopening was objected to by the Head of the Vetting Office of the Institute of National Remembrance.

The court considered whether according to article 540 § 3 of the Code of Criminal Procedure, from the judgement of the European Court of Human Rights follows the necessity of vetting proceedings to the benefit of the vetted person. The Supreme Court, referring to the content of the reasons for the judgment of the European Court of Human Rights, came to a conclusion that it leaves no doubt, that the stated violations concern the “main course of the trial in its fundamental part, which is the right to defence”. The court claimed that if the standards of a fair trial had been violated in the judgement of the European Court of Human Rights, the necessity of reopening the trial is apparent.

At the same time, the Supreme Court gave directions for the vetting court responsible for reopening the case, in order to eliminate the violations of the Convention stated by the Tribunal and make sure they do not occur again. The court pointed to the necessity of conducting the case again and avoiding the causes that led to the decision of its reopening. Although it can now be expected that the archive data is no longer of secret status, it is possible that the district court will have to take some actions to make sure that a proper body of the Institute of National Remembrance  repeals the non-disclosure provision.

Even though the Supreme Court did not refer to the case directly, through this judgement it proved that, in the sphere which is not completely regulated by the Vetting Act, the regulations of the Code of Criminal Procedure are applicable for reopening the vetting proceedings. In the light of the 1997 Vetting Act, the case was not clear. Both acts, independently defining the basis of reopening the vetting proceedings, did not presume its reopening, if such a need stems from either the judgement of the Constitutional Tribunal or an international authority. This raised the question of admissibility of reopening the vetting proceedings as a result of the judgement by the Constitutional Tribunal and the European Court of Human Rights. However, the court decided that the regulations of the Code of Criminal Procedure should be applied here, due to the fact that their application is generally suggested by the Vetting Act.
Another complication which occurred in this case, was the fact that a new Vetting Act came into force. By virtue of the transitional provisions, the matter of truthfulness of a vetting declaration filed when the 1997 Lustration Act was in force, will be re-examined, taking into account the differences resulting from the new act of 2006. This, above all, means that the district court and the court of appeal will take over the former function of the Warsaw Court of Appeal, whereas the Public Interest Commissioner will be substituted by the Prosecutor of the Vetting Office of the Institute of National Remembrance.

Therefore, the judgement by the Supreme Court is important not only because of the fact that according to it the vetting proceedings were reopened due to the judgement by the European Court of Human Rights, but also because of resolving many doubts which occurred as a result of unclear regulations of the vetting act concerning the reopening of the proceedings.

Paweł W. Osik
Helsinki Foundation for Human Rights, Coordinator of the “Human rights and settlements with the past” Program