CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 mars 2013

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The Polish Government (“the Government”) were represented by their Agent, first Mr J.   Wołąsiewicz and, subsequently, Ms J. Chrzanowska, both of the Ministry of Foreign Affairs. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows. 3.     The Law of 18 December 1998 on the Institute of National Remembrance (“the Institute Act”; Ustawa o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu ) entered into force on 19 January 1999. The Institute’s tasks included, inter alia , storing and researching documents of the communist security services. The right of access to those documents was guaranteed primarily to “injured parties” ( pokrzywdzony ) as   defined in the Institute Act. 4.     In October 2004 the Institute of National Remembrance decided to create for its internal purposes a list of officers, collaborators, candidates for collaborators of the State security services and of other persons whose files had been collected by it. This list consisted only of   the   first names, the surnames and, in some cases, the case file numbers. The list was made available on computers in the Institute library, to which access was restricted to researchers and journalists. 5.     In January 2005 the list, consisting of some 240,000 names, was published on the Internet and unofficially named the “Wildstein list” after a   journalist who had allegedly removed it from the   Institute and published it (hereinafter “the Institute’s list”). The publication of the Institute’s list received wide media coverage, particularly since the names of some important public figures appeared on it. 6.     In response to these events, on 4 March 2005 Parliament passed an   amendment to the Institute Act and added section 29a, which afforded persons concerned the right to obtain a certificate clarifying whether their name was on the list. 7.     In February 2005 the applicant discovered that a name identical to his appeared on the Institute’s list four times and a name identical to his late father’s, once. His father, Mr Klemens Stępniak, died in September 2002. 8.     On 23 February 2005 the applicant applied to the Institute for leave to consult documents collected on him and his late father by the security services. He also requested the Institute to establish whether he and his father could be certified “injured parties” under section 30 § 2 read in conjunction with section 6 of the Institute Act. He submitted his request in connection with the publication of the Institute’s list. In an official application form submitted to the Institute the applicant did not specify any facts indicating that he or his father had been subjected to any form of persecution by the communist regime or that they had had any contacts with the security services. He simply indicated that a name identical to his had appeared on the Institute’s list. 9.     Simultaneously, the applicant applied to the Institute for clarification of whether his and his late father’s personal details corresponded to the data on the Institute’s list. The request was subsequently examined under the newly introduced section 29a of the Institute Act. 10.     The applicant made repeated enquiries about the date on which his requests would be examined. 11.     On 26 July 2005 the Institute issued a certificate confirming that the applicant’s personal details did not correspond to the data included in the Institute’s catalogue of officers, collaborators, candidates for collaborators of the State security services and of other persons. At the same time he was informed that the certificate did not confer on him the status of an “injured party” and did not entitle him to access documents held by the Institute. 12.     On 11 January 2006 the applicant received a certificate ( zaświadczenie ) informing him that his father could not be considered an “injured party” within the meaning of section 6 of the Institute Act. In   a   letter of the same date he was informed that under this provision an “injured party” was a person on whom the State security services had deliberately collected information, including secretly. He was informed that the search undertaken in the Institute’s archives did not yield any documents indicating that the security services had been covertly collecting information regarding his late father. In the absence of such documents, the Institute adopted a practice of issuing a certificate attesting that a person was not an “injured party” within the meaning of the Institute Act. 13.     On 7 February 2006 the applicant received a similar certificate regarding his own position and confirming that he could not be considered an “injured party”. This decision was also motivated by the absence of any documents indicating that the security services had been collecting information on the applicant. 14.     On 21 February 2006 the applicant complained to the Ombudsman that he had not yet received a written reply to his request whether his late father was on the Institute’s list. 15.     On 4 April 2006 the President of the Institute replied to the Ombudsman’s enquiry, informing him that under the law the Institute was not authorised to issue certificates referred to in section 29a § 1 of the Institute Act stating whether a deceased person had been on the Institute’s list. A possibility that a close relative of a deceased person applied to the Institute existed only in respect of an application for the status of an “injured party” under section 6 of the Act. The President of the Institute further disagreed with the Ombudsman’s view that following a judgment of the Supreme Administrative Court of 23 February 2005 (no. OSK 1185/04) certificates regarding the status of an “injured party” should be issued in the form of an administrative decision. 16.     On 21 April 2006 the Ombudsman forwarded the applicant the President of the Institute’s reply. He stated that it was unsatisfactory and that he would be pursuing the case further. 17.     On 24 July 2006 the Ombudsman again wrote to the President of the Institute arguing that the Institute did not follow the rule established in the judgment of the Supreme Administrative Court of 23 February 2005 that decisions regarding the status of an “injured party” should be issued in the form of an administrative decision ( decyzja administracyjna ) and not in the form of a certificate ( zaświadczenie ). 18.     On 22 August 2006 the President of the Institute replied to the Ombudsman. He reiterated that the applicant had not received the requested certificate because the law did not provide for the issue of a certificate stating whether an applicant’s late next-of-kin was on the Institute’s list. The President of the Institute emphasised that after the receipt of the certificates issued by the Institute the applicant had not contested them and had stopped corresponding with the Institute. Thus, the Institute considered the matter closed. 19.     On 19 October 2006 the Ombudsman forwarded to the applicant a   copy of the reply. He stated that the lack of possibility to issue a certificate under section 29a of the Institute Act on an application from a close relative was highly unsatisfactory. Nonetheless, as the law stood the Ombudsman had no means to support the applicant’s request. B.     Relevant domestic law and practice 1.     The Law on the Institute of National Remembrance 20.     The relevant provisions of the Law of 18 December 1998 on the   Institute of National Remembrance (“the Institute Act”; Ustawa o   Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu ) and practice are set out in the Court’s judgment in the case of Joanna Szulc v. Poland , no. 43932/08, §§ 46-47 and 50-66, 13   November 2012. 2.     Amendment to the Institute Act following the publication of the   Institute’s list 21.     On 18 February 2005 a group of deputies to the Sejm introduced a   bill amending the Institute Act. They noted that the Institute’s catalogue of officers, secret collaborators and candidates for secret collaborators did not include any other details than a name and the surname of those persons. This situation led to a general uncertainty and created suspicions in respect of many persons who had not had in the past any contacts with the State security services. Their bill was intended to remedy the situation. 22.     On 4 March 2005 Parliament passed the amendment to the Institute Act. On 20 April 2005 new section 29a (1) of the IPN Act came into force. It   provided as follows: “The President of the Institute of National Remembrance shall within 14 days of   an   application issue a certificate stating whether or not the personal details of   the   applicant correspond to the personal details included in the list of officers, collaborators and proposed collaborators of the State security services ... or other persons that was made accessible at the Institute as of 26 November 2004.” 3.     2010 Amendments to the Institute Act 23.     On 18 March 2010 the parliament passed amendments to the Institute Act which entered into force on 27 May 2010. According to the new wording of sections 30-35b of the Institute Act everyone had the right, inter alia , of access to all documents concerning him or her which were deposited with the Institute and the right to obtain copies thereof. Pursuant to section 35a § 4 of the Institute Act these rights can be exercised by a   deceased person’s next-of-kin. COMPLAINTS 24.     The applicant complained under Articles 8 and 13 of the Convention that he had been prevented from effectively protecting his own and his late father’s name and reputation that had been called into question because their names appeared on the Institute’s list. He had asked for a certificate stating whether or not he or his father had been on the list. However, he had not received a certificate with respect to his father as domestic law did not provide for the issue of certificates with respect to deceased persons. In the applicant’s submission, this constituted a breach of his right to respect for his private and family life as the applicant was next-of-kin and had the same name as his father. He further complained of the lack of a procedure by which he could seek protection of his right to respect for his private and family life. THE LAW A.     The Government’s submissions 25.     The Government argued that the applicant had not exhausted domestic remedies. He requested the Institute to confirm whether the name of his late father appeared on the Institute’s list but received no reply. In the Government’s submission, he should then have lodged a complaint about the Institute’s inactivity ( skarga na bezczynność ) with an administrative court. If the court allowed his complaint, it would have obliged the Institute to deal with the applicant’s request. Decisions subsequently issued by the Institute could have been subject to further review of the administrative courts. According to Article 219 of the Code of Administrative Procedure the applicant could lodge an interlocutory appeal against the Institute’s order refusing to issue a certificate or an order refusing to issue a certificate of a specific content. However, as a result of the applicant’s failure to make use of the first remedy, namely the complaint against the Institute’s inactivity, further remedies were not available to him. 26.     For the same reasons the applicant was precluded from availing himself of a constitutional complaint against section 29a of the Institute Act. The Government submitted that the Constitutional Court, in accordance with its established case-law, had jurisdiction to examine cases in which applicants complained about “statutory omissions” (cf. the Constitutional Court’s judgment of 14 March 2006, case no. SK 4/05). Furthermore, section 272 § 1 of the Law on Proceedings before Administrative Courts provided for a possibility to reopen the proceedings before the administrative courts following a judgment of the Constitutional Court. Accordingly, the applicant was required to have recourse to the constitutional complaint which in the present case met the requirements of an effective remedy as defined in the Court’s case-law (cf.   Szott ‑ Medyńska   v.   Poland (dec.), no. 47414/99, 9 October 2003). This procedure, aimed at reviewing the constitutionality of section 29a of the Institute Act, would be one of the legal remedies available to the applicant in order to protect his rights under Article 8 of the Convention. 27.     In so far as the applicant alleged that he had been prevented from effectively protecting his own and his late father’s reputation which had been allegedly infringed by the fact that their names appeared on the Institute’s list, the Government referred to the provisions of the Civil Code concerning protection of personal rights. They submitted that the right to reputation and the right to worship of a deceased person were among the personal rights protected under Articles 23 and 24 of the Civil Code. 28.     In the Government’s view the applicant’s complaints should be declared inadmissible for failure to use the relevant domestic remedies provided for by administrative, constitutional and civil law. Alternatively, the Government submitted that there was no violation of Article 8 in the applicant’s case. 29.     In the light of the above, it could be concluded that the applicant was afforded a remedy required by Article 13 of the Convention in order to seek protection of his Article 8 rights. B.     The applicant’s submissions 30.     The applicant admitted that he had not availed himself of the remedies referred to by the Government. He submitted that he had been shocked to discover that his own name and the name of his late father appeared on the Institute’s list. He did not receive a certificate attesting whether the name of his late father appeared on the said list and he did not receive a refusal to issue such a certificate. In respect of the possibility to bring an action for infringement of his personal rights the applicant stated that it was not clear who should be the defendant in such a case (the   Institute, or an employee of the Institute or the journalist who allegedly removed the list from the Institute). The applicant submitted that under section 30 § 5 of the Institute Act as amended by the Law of 14 February 2007 the Institute was required to inform him whether it had subsequently located any documents concerning him or his father. He received no such notification. C.     Third-party’s submissions 31.     The Helsinki Foundation for Human Rights outlined the regulation of access to documents of the communist security services as provided in the original version of the Institute Act and following the significant amendments to it which entered into force on 15 March 2007. It also discussed the issue of domestic remedies regarding the Institute’s list. 32.     In the Foundation’s opinion, the publication of the Institute’s list caused a violation of the right to respect for private life of the persons concerned. The existing legal instruments under Polish law did not offer adequate legal protection. The public authorities first created a catalogue of persons whose names were (for various reasons) in the files of the security services and then failed to secure the catalogue against copying and removal from the Institute, even though the consequences of the publication of such a catalogue in respect of violation of the personal rights were obvious. Once the catalogue was leaked, the actions undertaken by the public authorities did not establish those responsible for the leak. Furthermore, the authorities did not take sufficient steps to explain to the public the nature of the catalogue, which was already circulating as a list of collaborators. Over the course of the years, no adequate legal instruments have been adopted to provide legal protection of the right to respect for private life of the persons listed on the Institute’s list. The plight of those who sought to protect the good name of their deceased next-of-kin, whose names were included on the Institute’s list, was even more complicated. D.     The Court’s assessment 33.     The applicant complained under Articles 8 and 13 of the Convention that he had had no possibility of protecting his own and his late father’s reputation in connection with the publication of their names on the Institute’s list and that this had amounted to a breach of his right to respect for his private and family life. 34.     The Government argued that the applicant had not availed himself of a range of domestic remedies. However, the Court considers that it is not required to rule on this objection since the present application is in any event inadmissible for the following reasons. 35.     In so far as the applicant complains about the publication of his name on the Institute’s list of officers, collaborators, candidates for collaborators of the State security services and of other persons whose files had been collected by it, the Court notes that on 26 July 2005 the Institute issued a certificate confirming that his personal details did not correspond to the data included on the Institute’s list. Accordingly, it cannot be said that the applicant’s right to respect for his private life was interfered with in connection with the publication of the Institute’s list or that there was any failure on the part of the State to secure his right against unauthorised publication of personal data held by the Institute. 36.     It follows that this limb of the complaint under Article 8 is manifestly ill-founded and must be rejected in accordance with Article   35   §§ 3 (a) and 4 of the Convention. 37.     In so far as the applicant complains about detriment caused to his late father’s reputation as a result of the alleged publication of the latter’s name on the Institute’s list, the Court notes that the applicant has no standing under the Convention to bring such a complaint. It recalls that in order to claim to be a victim of a violation under Article 34 of the Convention, a person must be directly affected by the impugned measure (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008, with further references). The Court would not exclude the possibility that in a particular case a close relative may have a moral interest in vindicating a   deceased person’s right to reputation provided that the attack on reputation attained a certain level of gravity and caused prejudice to personal enjoyment of the right to respect for private life of the close relative (see   Armonienė v. Lithuania , no. 36919/02, § 29, 25 November 2008; and, mutatis mutandis , Karakó v. Hungary , no. 39311/05, § 23, 28 April 2009; Polanco Torres and Movilla Polanco v. Spain , no. 34147/06, §§ 40 and 44, 21 September 2010; and Roberts and Roberts v. United Kingdom (dec.), 5   July 2011, no. 38681/08, § 40). However, in the instant case the applicant has not shown that he was directly affected by the lack of possibility to obtain a certificate stating whether the name of his father had appeared on the Institute’s list. In particular, the Court notes that the applicant did not use any domestic remedies in order to substantiate this claim; even more so as there is no certainty that the person named in the list concerned was in reality the applicant’s late father. 38.     Furthermore, the Court notes that on 18 March 2010 the parliament passed amendments to the Institute Act which entered into force on 27 May 2010. According to the new wording of sections 30-35b of the Institute Act everyone had the right, inter alia , of access to all documents concerning him or her which were deposited with the Institute and the right to obtain copies thereof. Pursuant to section 35a § 4 of the Institute Act these rights can be exercised by a deceased person’s next-of-kin. It appears that this possibility is still open to the applicant. 39.     It follows that this part of the complaint under Article 8 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4   of the Convention. 40.     The applicant further complained of the lack of a procedure by which he could seek protection of his right to respect for his private and family life. The Court recalls that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI). 41.     However, the Court has found above that the applicant’s complaints under Article 8 concerning the alleged breach of his right to respect for his private and family life were manifestly ill-founded. Consequently, the applicant did not have an “arguable claim” for the purposes of Article 13 of the Convention. 42.     It follows that the complaint under Article 13 is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Fatoş Aracı   Ineta Ziemele   Deputy Registrar   President