CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 14 mai 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s68D1564D { width:34.89pt; display:inline-block } .sF9FB9744 { width:162.44pt; display:inline-block } .s100D1E5 { width:50.22pt; display:inline-block } .s2CF788F1 { width:132.09pt; display:inline-block }     FIRST SECTION DECISION Application no. 67315/14 Zbigniew Mieczysław BAJBOR against Poland   The European Court of Human Rights (First Section), sitting on 14   May   2024 as a Committee composed of:   Ivana Jelić , President ,   Krzysztof Wojtyczek,   Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   67315/14) 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”) on 6 October 2014 by a Polish national, Mr Zbigniew Mieczysław Bajbor (“the applicant”), who was born in 1927, lives in Washington D.C., United States of America, and was represented by Ms M. Kożuch, a lawyer practising in Cracow; the decision to give notice of the complaints concerning the breach of the applicant’s right to respect for his private life under Article 8 of the Convention to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application mainly concerns the applicant’s complaint that the leak of a list, created by a state research institute responsible for communist archives and containing the applicant’s name, damaged his reputation. The applicant’s name on the “Wildstein list” 2.     The applicant submitted that: (i) in 1951, he was forcibly conscripted and then forced to sign a declaration of collaboration with the communist security services; (ii) he nevertheless refused to cooperate, which consequently led to his exclusion from the scope of interest of the state security service in 1952; (iii)   in 1968 he lost his job at the Institute of Nuclear Studies as a result of his opposition to the authorities’ campaign against his Polish Jewish colleagues; (iv) later on, he emigrated to the United States of America (“USA”) where he has been residing ever since. 3.     Following the democratic transformation in Poland, the Institute of National Remembrance (the “Institute”, for details see Joanna Szulc v.   Poland , no. 43932/08, § 46, 13 November 2012) kept the applicant’s file created by the security services. 4.     The applicant’s name was included on the list created by the Institute as an archival aid, which contained officers, collaborators, candidates for collaborators of the communist security services and other persons whose files had been collected by the Institute. The list was removed from the Institute by an unidentified person and published on the Internet, sparking huge public and media interest. It was unofficially named the “Wildstein list” (“ Lista Wildsteina ”) after a journalist who publicly claimed to have removed the list from the Institute and published it (see Joanna Szulc , cited above, §§   34-35). 5 .     The published list did not permit officers and collaborators to be distinguished from persecuted persons. While the Institute’s representatives made statements that the document should not be perceived as a list of “agents” (see paragraph   8 below), the media reported that this could be the dominant public understanding of the list. 6.     In February 2005 the applicant learnt that his name appeared on the list. 7.     The applicant claimed that, as a result of the publication of the list, he had lost the trust and esteem of his friends and of the Polish community in the USA. Official response to the publication of the list 8 .     In January and February 2005, the Institute’s representatives (the President and the Board) made several public statements in which they underlined that the list (i) constituted an archival aid; (ii) contained names of people appearing in the archives of the security services in various capacities; and (iii) was thus not to be equated with a list of “agents” of the security services. 9.     In February 2005, on the order of the State Prosecutor and at the request of eighteen individuals who found their names on the list, the prosecution service opened an investigation into the disclosure by a civil servant to an unauthorised person, between 26 November 2004 and January 2005, of the Institute’s database and into a failure to secure the database properly against unauthorised copying and removal. The information about the investigation was made public and the abovementioned individuals participated in the proceedings. The applicant did not. 10.     Over 50 witnesses (among whom the Institute’s President and Mr   Wildstein) were heard by the prosecution service. Two expert technical opinions concerning the leak were sought. 11 .     In February 2006 the proceedings were discontinued. As regards the unauthorised disclosure of the Institute’s database the prosecutor was unable to determine which of the Institute’s employees had copied and given the database to an unauthorised person. Concerning the failure to properly secure the database against unauthorised copying and removal the prosecutor essentially found that since the database had been unlawfully removed by an unidentified employee of the Institute, the President of the Institute cannot be held accountable for failure to properly secure the data. The prosecutor found no link between the failure to implement the provisions on data protection and the transmission of the database to an unauthorised person. Consequently, the proceedings in this respect were discontinued due to the lack of statutory elements of a crime. 12.     The decision on discontinuation was not appealed against by any participant of the proceedings and became final. The applicant’s civil action against the Institute 13 .     In October 2009, the applicant, represented by a lawyer, initiated civil proceedings for the protection of his personal rights against the Institute. He sought an order requiring the defendant to publish an apology for “having unlawfully accused him of cooperating with the state security organs”. 14.     On 6 March 2012 the Warsaw Regional Court dismissed the claim. The applicant appealed. 15 .     On 22 January 2013 the Warsaw Court of Appeal upheld the impugned judgment. The court considered that the claim could not have been granted inter alia due to the inconsistency between the text of the apology sought by the applicant and his statement of claim in which he underlined that the Institute had not, in fact, accused him of anything. The court noted that a logical allegation against the Institute would be that it had failed to prevent the leak, but the applicant had not made a request for an apology in that respect. The appellate court further noted that it appeared that the applicant’s intention behind his claim against the Institute was rather to obtain a certificate that he had not been a collaborator of the communist security services, something that was not possible in those proceedings. 16.     On 28 March 2014 the Supreme Court refused to entertain the applicant’s cassation appeal. Complaints 17.     The applicant relied on Article 8 of the Convention and essentially complained about the authorities’ omissions which led to the publication of the list and the consequences thereof for his reputation. Secondly, his complaints pertained to the alleged lack of legal basis for processing his personal data by the Institute, as well as the alleged lack of adequate steps to inform the public about the actual meaning of the list. THE COURT’S ASSESSMENT Alleged violation of Article 8 as regards the publication of the list and its consequences for the applicant 18.     The main grievance revolves around the leak and its consequences for the applicant’s reputation. The Court considers that the case may raise an issue of whether there was an effective inquiry into the leak ( see, mutatis mutandis, Craxi v. Italy (no. 2) , no. 25337/94, §§ 60-76, 17 July 2003) and whether the applicant had any legal avenues at his disposal to protect his reputation. 19.     The Government raised a preliminary objection of non ‑ exhaustion of domestic remedies by the applicant, relying on two arguments. Firstly, they contended that the applicant had failed to join the criminal proceedings, even though it was open to him. Secondly, the Government argued that the civil action lodged by the applicant had been clearly erroneous, thus precluding domestic courts from effectively examining the issue of which he subsequently complained to the Court. If the applicant wished to hold the Institute accountable, he should have worded his civil claim differently – by relying on the Institute’s alleged failure in securing the data at its disposal. 20.     Regarding the effective inquiry into the impugned events, the Court notes that the scope of criminal proceedings instituted by the domestic authorities corresponded with the applicant’s grievances as regards the deficiencies in the protection of the list by the Institute. Even though the investigation did not lead to any charges or convictions, the Court acknowledges that they were instituted without any unnecessary delay and that the number, type, and scope of investigative steps taken by the prosecutor’s office do not raise prima facie doubts as to the reasonableness of the efforts made by the domestic authorities. 21.     The applicant however did not join those proceedings and did not appeal against the discontinuation decision. The Court notes that the controversies surrounding the publication of the list and the information on the investigation were widely reported in the national media. 22.     In the Court’s view, the applicant cannot rely on the allegation of lack of effective inquiry into the impugned events if, despite the possibility to participate in and influence the course of the proceedings aimed precisely at fulfilling the State’s relevant positive obligation, he failed to take any initiative in this respect. 23.     Furthermore, the Court reiterates that in the instant proceedings the applicant complained about the alleged failure by the Institute to prevent the leak which, in turn, harmed his reputation. The Court agrees with the Government, and the domestic court’s assessment, that this complaint was not covered by the request made in the civil action against the Institute and, consequently, could not have been effectively examined by the domestic courts (see paragraphs 13-15 above). In view of the above, the Court considers that the applicant has failed to initiate domestic proceedings in which the issue complained of could have effectively been tested (see Joanna Szulc , cited above, §   106). 24.     In view of the above, the applicant ignored one legal avenue at his disposal and misused the other, thus precluding the domestic authorities from addressing his grievances on the merits. Accordingly, the Government’s objection must be granted, and this part of the application must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. Other Complaints 25.     The applicant further argued that the Institute had not had a legal basis for collecting, processing, and disclosing personal data and that, following the leak, it had failed to take adequate steps to inform the public about the actual meaning of the list. 26.     The Court notes that, according to the Law on the Institute of National Remembrance, the Institute was called upon to collect, process and, when appropriate, disclose personal data obtained from the archives of the security services (see Joanna Szulc , cited above, §§ 46-47) and the impugned list constituted an internal research tool. It does not appear that the applicant has questioned this legal basis before the domestic courts in any form of proceedings. 27.     Moreover, the Court considers that the official response to the leak by the Institute (see paragraph 8 above) was sufficiently timely and clear. Not only did the authorities underline that the list contained names of actual collaborators as well as persons only targeted by the security services, but they went on to condemn the attempt to equate the document with a list of “agents”. 28.     Thus, the Court finds the applicant’s complaints in this regard to be inadmissible and they must be rejected in accordance with Article   35 §   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 6 June 2024.     Liv Tigerstedt   Ivana Jelić   Deputy Registrar   President