In the case of Joanna Szulc v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Päivi Hirvelä, President,
Lech Garlicki,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 23 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
43932/08) 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”) by a Polish national, Ms Joanna Szulc (“the applicant”), on
29 August 2008.
The applicant was represented by Mr M. Pietrzak,
a lawyer practising in Warsaw. 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.
The applicant alleged, in particular, a breach of
Article 8 of the Convention as regards access to her file stored by the Institute of National Remembrance.
On 24 November 2008 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1953 and lives in Warsaw.
A. Background information
According to the applicant, in 1974 she received
a job offer from the Japanese company Kanematsu-Gosho Ltd which she apparently
refused. In 1974-1975 she worked for the Nigerian Embassy in Warsaw and in 1976
for the Indian Embassy.
On a few occasions the security services
attempted to recruit her as a collaborator but the applicant never consented
despite threats. In December 1974 the applicant was summoned to the Warsaw
Civic Militia Headquarters. She had a conversation with an officer of the
counter-intelligence service in connection with the job offer from the
Japanese company. The officer tried to persuade her to collaborate with the
service but the applicant refused and stated that she would rather decline the
job offer.
Subsequent meetings with officers of the Security
Service (Służba Bezpieczeństwa) took place in 1975.
The applicant consistently refused to collaborate. One such meeting took place
in connection with the applicant’s request to obtain a passport for a holiday
trip to Greece. The applicant was instructed to prepare a report from her trip
which she submitted upon her return.
For a number of years the applicant lived in England. She was involved in the activities supporting the Solidarity (“Solidarność”)
Trade Union in Poland.
B. Access to the applicant’s file held by the
Institute of National Remembrance
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” as defined in the Institute Act.
On 15 February 2001 the applicant applied to the
Institute of National Remembrance (“the Institute”) for leave to consult
all documents collected on her by the security services.
On 2 March 2004 the applicant received a
certificate informing her that she could not be considered an “injured party” (pokrzywdzona)
within the meaning of section 6 of the Institute Act. In a letter of
the same date she was informed that the Institute would continue to search the
archives for documents regarding her. The certificate which the applicant
received simply indicated that after two rounds of search the Institute had not
found any documents created by the former security services about her.
On 26 October 2005 the Constitutional Court
reviewed the constitutionality of the provisions of the Institute Act regarding
access to documents held by the Institute (case no. K 31/04). It found, inter
alia, that sections 30 § 1 and 31 §§ 1 and 2 of the Institute Act, in so
far as they deprived interested persons - other than injured parties - of the
right to be provided with information about documents concerning them, were
unconstitutional (see Relevant domestic law below).
On 29 July 2006 the applicant again applied for
access to all documents collected on her by the security services. She relied
on the above Constitutional Court’s judgment of 26 October 2005. According to
the applicant, that judgment stipulated that every interested person had the
right to have access to documents held by the Institute concerning him or her
on the basis of Article 51 § 3 of the Constitution, regardless of whether he or
she had been granted the status of the “injured party”.
On 15 November 2006 the applicant was allowed to
consult documents in her file which concerned her as a subject of interest of
the former security services (obiekt zainteresowania SB). However, she
did not receive access to all documents about her and she could not receive any
copies or make notes.
On 25 November 2006 the applicant again applied
to the President of the Institute for leave to consult all documents
concerning her. She noted that the documents which she was allowed to consult
so far confirmed that she had refused to collaborate with the security
services. The applicant learnt for the first time from those documents that the
security services had invented a plan to subject her to surveillance. She also
discovered that she had been given a code name and expressed her indignation in
this respect.
In reply, on 20 February 2007, the Deputy Head
of the Archive Office of the Institute informed the applicant that her request
to have access to all documents concerning her could not be granted. In his
view, according to the Constitutional Court’s judgment of 26 October 2005 the
right of access to documents did not extend to all documents concerning the
applicant but was applicable exclusively to those which treated her as a subject
of interest of the former security services. Accordingly, she was informed that
the consultation of documents by the applicant which had taken place on 15
November 2006 had been carried out in accordance with the procedure adopted by
the Institute and that all documents which treated her as a subject had been
disclosed.
The Institute Act was amended by the Law of
18 October 2006 on disclosing information about the documents of the State
security services from the period between 1944 and 1990 and the content of
these documents (“the 2006 Lustration Act”),
which entered into force on 15 March 2007. Henceforth, the rules on access to
documents deposited with the Institute were set out in amended sections 30 and
31 of the Institute Act (see Relevant domestic law below). The status of
an “injured party” was repealed. The amended Institute Act further stipulated
that the Institute will create an Internet catalogue of persons who had
collaborated or assisted the former State security services in their undercover
activities.
The Institute Act and the 2006 Lustration Act
were further amended by the Law of 14 February 2007 which entered into force on
28 February 2007.
. The applicant, having been aware that her name
appeared on the “Wildstein list” (see part C. below), was concerned that her
name might be included in the official catalogue. This would have amounted to
her official condemnation as an informant of the communist security services
only on the basis of the entries made by the officers of those services without
the applicant’s having been aware of it.
On 11 May 2007 the Constitutional Court (case
no. K 2/07) found the 2006 Lustration Act and the Institute Act as amended to a
large extent unconstitutional and quashed many of its provisions with effect
from 15 May 2007. It struck down, among others, section 30 § 2(2) of the
Institute Act which excluded access of interested persons to documents
indicating that they had collaborated or assisted the former State security
services in their undercover activities (see Relevant domestic law below).
In the meantime, on 20 March 2007, the applicant
had again requested access to all documents concerning her pursuant to the
rules in force as from 15 March 2007.
On 19 November 2007 the Director of the Warsaw
Branch of the Institute gave a decision in which it refused her access to two
documents. He considered that the content of these two documents fulfilled the
conditions specified in section 31 § 1(2a) of the Institute Act. This provision
stipulated that the refusal to allow access to documents whose content
indicated that the petitioner had been considered by the security services as a
secret informant or an assistant in covert gathering of information should be
given in the form of an administrative decision.
The applicant appealed against that
decision, submitting that it had been given pursuant to the rules declared
unconstitutional by the Constitutional Court.
On 19 February 2008 the President of the
Institute quashed the decision on procedural grounds and referred the case
back. He found that the Director of the Warsaw Branch of the Institute had not
ruled on the application of the Helsinki Foundation for Human Rights, a human
rights organisation, to join the proceedings as a third party.
On 4 June 2008 the Director of the Warsaw Branch
of the Institute gave a decision in which it refused the applicant access to
three documents. He again relied on section 31 § 1(2a) of the Institute Act.
The applicant appealed.
On 12 August 2008 the President of the Institute
upheld the impugned decision. He confirmed that the documents at issue
indicated that the applicant had been considered by the security services as a
secret informant or an assistant in the covert gathering of information.
Accordingly, the refusal of access was justified under section 31 § 1(2a) of
the Institute Act.
With regard to the applicant’s argument that the decision was
based on the unconstitutional norm, the President of the Institute noted that
section 30 § 2 of the Institute Act constituted a substantive legal basis
for granting or refusing access to documents, while section 31 § 1 was a
procedural provision. However, since the legislator decided to replicate in
section 31 § 1 the same conditions justifying refusal as stipulated
in section 30 § 2 then the former provision could not be interpreted without
taking into account these conditions. The President of the Institute did not
accept the applicant’s argument that since section 30 § 2 had been declared
unconstitutional and repealed, then it followed that a different provision
(section 31 § 1) with the same content was also unconstitutional. He went on to
say that only when the Constitutional Court expressly declared unconstitutional
a given provision of the law was the authority under the obligation not to
apply such provision.
The applicant lodged a complaint against the
decision with the Warsaw Regional Administrative Court. On 27 May 2009 the Regional Administrative Court dismissed her complaint.
On 7 July 2009 the applicant filed a cassation
appeal with the Supreme Administrative Court. She argued, inter alia,
that the decisions of the Institute refusing her access to documents of the
security services entailed a breach of a number of constitutional provisions
and of Article 8 of the Convention. They were, furthermore contrary to the
Constitutional Court’s judgment of 11 May 2007 (case no. K 2/07).
On 21 October 2009 the Supreme Administrative
Court stayed the proceedings on the ground that a legal question on the
constitutionality of, inter alia, section 31 § 1(2) of the Institute Act
had been put to the Constitutional Court by a different panel of the Supreme
Administrative Court. This provision was relied on as the basis of the
Institute’s negative decisions in the applicant’s case.
On 20 October 2010 the Constitutional Court
(case no. P 37/09) ruled, among others, that section 31 § 1(2) of the Institute
Act was incompatible with the Constitution, in particular the right to
protection of private life (Article 47), the right of access to official
documents concerning oneself (Article 51 § 3) and the right to request the
correction or deletion of untrue or incomplete information (Article 51 § 4).
On 14 January 2011 the Supreme Administrative
Court resumed the proceedings. On 4 May 2011 it gave judgment quashing the
Warsaw Regional Administrative Court’s judgment and the two preceding decisions
of the Institute. It relied on the Constitutional Court’s judgment of 20 October
2010, in particular that court’s finding of unconstitutionality of section 31 §
1(2) of the Institute Act which had served as the legal basis of the decisions
in the applicant’s case.
On 22 August 2011 at the Warsaw Branch of the
Institute the applicant was granted access to copies of all documents
concerning her which had been created by the communist security services.
C. The applicant’s name on the Wildstein list and
the “auto-lustration” proceedings
In October 2004 the Institute of National Remembrance decided to create 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 of the first name, the
surname and, in some cases, the case file number. The list was made available
on computers in the Institute library, to which access was restricted to
researchers and journalists.
In January 2005 the list, consisting of some
240,000 names, was published on the Internet and unofficially named “the
Wildstein list” (“Lista Wildsteina”) after a journalist who had
allegedly removed it from the Institute and published it. The publication
of the list received wide media coverage, particularly since the names of some
important public figures appeared on it.
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.
In February 2005 the applicant discovered that
her name appeared on the “Wildstein list”. On 9 February 2005 she
applied to the Institute for clarification of whether her personal details
corresponded to the data on the “Wildstein list”.
On 27 January 2006 the Institute issued a certificate
confirming that her personal details (names, surname, date and place of birth)
corresponded 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 she was informed that the certificate did
not confer on her the status of an “injured party” and did not entitle her to
access documents held by the Institute.
On 18 October 2007 the applicant requested the Warsaw Regional Court to institute the so-called “auto-lustration” proceedings under section
20(5) of the 2006 Lustration Act. This provision stipulated that lustration
proceedings could also be instituted by a person who prior to the entry into
force of the Lustration Act had held a public office and who was publicly
accused of having been working or collaborating with the State security
services between 1944 and 1990. The applicant relied on the Constitutional
Court’s judgment of 11 May 2007 (case no. K 2/07), which extended the
application of that provision to persons who had not held public office.
She submitted her lustration declaration, in which she denied having been
an intentional and secret collaborator with the secret services and requested
the court to give a ruling that her declaration was true. The applicant
maintained that the fact that her name had appeared on the “Wildstein
list”, which had been made public on the Internet, constituted public
accusation since the list had been regarded by the general public as a list of
agents and collaborators.
She submitted that the Institute had refused to
grant her the status of an injured party and subsequently had denied her access
to certain documents concerning her. These circumstances could have indicated
that there had been some documents showing that she had collaborated with the
security services. Additionally, she found her name on the “Wildstein list” and
received a certificate that her personal data matched those on the said list.
The applicant argued that such situation was grossly unfair and demanded to
institute lustration proceedings with a view to terminating any speculation
about her alleged collaboration with the security services. She also hoped that
in the framework of these proceedings she would be provided with access to all
documents about her stored by the Institute.
On 18 December 2007 the Warsaw Regional Court
dismissed her application to institute lustration proceedings, considering that
she had not been publicly accused of having been a secret collaborator within
the meaning of Article 20(5) of the 2006 Lustration Act. Firstly, it was not
certain that she was the person whose name had been on the list. Even assuming
that her name had been on the list, such fact could not be tantamount to an accusation
of having collaborated with the security services. The court noted that the
media had reported that the list had been only a sort of a catalogue
facilitating the use of the Institute’s archives. It contained the names of
persons who had been registered by the security services for various reasons;
some had been actual secret collaborators but there were other persons who had
been preselected for that role, without necessarily having been aware of that
fact.
The applicant appealed against the decision.
On 29 February 2008 the Warsaw Court of Appeal
upheld the impugned decision. The court found that there were no sufficient
grounds to consider that the applicant had been publicly accused of having
collaborated with the security services. The list of names produced by the
applicant indicated that it contained not only the names of agents but also of
victims. Furthermore, the court found that the applicant had not established
that the inclusion of her name on the list had had any specific adverse
consequences for her. It considered relevant that the Institute’s decisions and
certificates referred to by the applicant were not public documents. No further
appeal lay against that judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant constitutional provisions
Article 47 of the Constitution of 1997 provides:
“Everyone shall have the right to legal protection of his
private and family life, of his honour and good reputation and to make
decisions about his personal life.”
Article 51 §§ 3 and 4 of the Constitution
states:
“3. Everyone shall have the right of access to official
documents and data collections concerning himself. Limitations upon such rights
may be established by statute.
4. Everyone shall have the right to demand the correction or
deletion of untrue or incomplete information, or information acquired by means
contrary to statute.”
B. The Law on the Institute of National Remembrance
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” as defined in the Institute Act. Limited access was further provided
to officers, employees and collaborators of the security services and
separately to researchers and journalists.
Section 6 of the Institute Act provided that an
“injured party” (pokrzywdzony) was a person on whom the State security
services deliberately collected information, including secretly. However, a
person who subsequently became an officer, employee or a collaborator of the
security services could not be considered an “injured party” (section 6 § 3).
According to section 30 § 2 of the Institute Act everyone had
the right to inquire whether he or she was an injured party within the meaning
of the Act. Person certified as an “injured party” had the right to obtain
information from the Institute about documents concerning him
(section 30 § 1). The Institute had the obligation to inform the
“injured party” about the manner of access to the documents concerning him and
to provide him, on request, copies of those documents (section 31 §§ 1-2).
Section 33 § 1 further provided that an “injured party” had the right to submit
his or her corrections to and clarifications in respect of existing documents.
C. Amendment to the Institute Act following the
publication of the “Wildstein list”
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.
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.”
D. Judgment of the Constitutional Court of 26 October
2005 (case no. K 31/04)
In 2004 the Ombudsman challenged the
constitutionality of certain provisions of the Institute Act concerning access
to documents held by the Institute.
On 26 October 2005 the Constitutional Court gave judgment in
case no. K 31/04. It held, inter alia, that section 30 § 1 and
section 31 §§ 1 and 2 taken in conjunction with section 6 §§ 2 and 3 of
the Institute Act, in so far as they deprived interested persons - other than
injured parties - of the right to be provided with information about documents
concerning them, were incompatible with Article 47 (protection of private life)
and Article 51 §§ 3 and 4 (the right of access to official documents concerning
oneself and the right to demand the correction or deletion of untrue or
incomplete information) of the Constitution. It further found that section 33 §
1 taken in conjunction with section 6 §§ 2 and 3 of the Institute Act, in so
far as it deprived interested persons - other than injured parties - of the
right to submit their corrections to and clarifications in respect of documents
concerning them, was incompatible with the same constitutional provisions.
The Constitutional Court noted that the
Institute Act justifiably afforded special status to the “injured party” and
bestowed on this category of persons a number of rights. It identified under
the Institute Act a distinct category of persons, namely those who applied for
the status of the “injured party” and whose applications were refused. The
refusal resulted either from the lack of documents concerning a person seeking
the status or from the fact that the security services had not collected
information on them. The Constitutional Court disagreed with the Ombudsman
that the Institute’s refusal to classify a person as the “injured party” had
been tantamount to an official declaration that such person had been an
officer, employee or collaborator of the State security services. At the same
time it pointed to the incoherent criteria used by the Institute in classifying
persons as collaborators of the security services. It also noted that the
Institute’s archives contained information which had been, in principle,
collected without any legal basis and often unlawfully. The Constitutional
Court underlined that the constitutional right of access to official
documents (Article 51 § 3) was related solely to the documents concerning a
given person as a subject of interest of the security services. It did not
extend to documents which were created by a given person in his capacity of an
officer, employee or collaborator of the security services.
E. Amendments to
the Law on the Institute of National Remembrance
The Institute Act was amended by the Law of
18 October 2006 on disclosing information about the documents of the State
security services from the period between 1944 and 1990 and the content of
these documents (“the 2006 Lustration Act”; ustawa
o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa
z lat 1944-1990 oraz treści tych dokumentów). The
amendments entered into force on 15 March 2007.
. The 2006 Lustration Act and the Institute
Act were further amended by the Law of 14 February 2007. These amendments
entered into force on 28 February 2007.
The amended sections 30 and 31 regarding access
to documents held by the Institute stated in so far as relevant:
“Section 30. 1. Everyone has the right to request the Institute
for access to copies of documents concerning him.
2. The Institute grants access to copies of available documents
concerning the applicant, which are referred to in § 1, with the exception of
the following:
1) documents created by the applicant or with his participation
... in connection with his employment or service in the State security agencies
or in connection with his activities carried out as a secret informant or an
assistant in covert gathering of information;
2) documents whose content indicates that the applicant:
a) was considered by the security services as a secret
informant or an assistant in covert gathering of information,
b) undertook to provide information to the State security
service or to assist such service in whatever form in its covert activities,
c) executed tasks given by the State security service, in
particular provided information to the service. ...
Section 31. 1. A refusal to allow request, referred to in
section 30, in so far as it concerned access to documents:
1) created by the applicant or with his participation ... in
connection with his employment or service in the State security agencies or in
connection with his activities carried out as a secret informant or an
assistant in covert gathering of information;
2) whose content indicates that the applicant:
a) was considered by the security services as a secret
informant or an assistant in covert gathering of information,
b) undertook to provide information to the State security
service or to assist such service in whatever form in its covert activities,
c) executed tasks given by the State security service, in
particular provided information to the service,
is effected in the form of an administrative decision. ...”
F. Judgment of the Constitutional Court of 11 May 2007
(case no. K 2/07)
In the case no. K 2/07 the Constitutional Court
reviewed the constitutionality of the 2006 Lustration Act and the Institute Act
as amended which had been challenged by a group of members of parliament. It
gave its seminal judgment on the issues of lustration and access to documents
held by the Institute on 11 May 2007.
With regard to the issue of access to documents,
the Constitutional Court struck down as unconstitutional section 30 § 2(2) of
the Institute Act. This provision excluded access of interested persons to
documents indicating that that they had collaborated or assisted the former State
security services in their undercover activities. The Constitutional Court
noted that the Constitution guaranteed to everyone the right of access to
official documents and data collections concerning oneself (Article 51 § 3) and
the right to demand the correction or deletion of untrue or incomplete
information, or information acquired by unlawful means (Article 51 § 4). This
latter right, which was related to the right to privacy guaranteed in Article
47 of the Constitution, could not be statutorily restricted to a certain
category of persons. The Constitutional Court underlined that no State interest
could legitimise or justify preservation in official records of information
which was untrue, incomplete or acquired in a manner contrary to statute.
It further declared unconstitutional section
52a(5) of the Institute Act. The latter provision stipulated that the
Lustration Office of the Institute was charged with preparation and publication
of catalogues of persons referred to in section 30 § 2(2). The wording used in
this provision was identical to the formulation employed in section 30 § 2 of
the Institute Act.
The Constitutional Court noted that such catalogues would rely
on classification adopted by the totalitarian security services and their
assessment of a person. In its view, the publication of such catalogues would
have amounted to legitimisation of the activities of the security services and,
at the same time, to stigmatisation of persons included in these catalogues.
Such a situation would be incompatible with Articles 47 and 51 § 4 of the
Constitution.
The judgment was promulgated on 15 May 2007 and
on that day the unconstitutional provisions were abrogated.
G. Decision of the Constitutional Court of 28 May 2008
(case no. K 2/07)
On 17 July 2007 the Speaker of the Sejm
requested the Constitutional Court for interpretation of the judgment of 11 May
2007. He submitted, inter alia, that the court had not given reasons for
its finding of unconstitutionality in respect of section 30 § 2(2) of the
Institute Act.
The Constitutional Court noted that there was no
doubt that section 30 § 2(2) had been declared unconstitutional. It observed
that the Speaker’s request was aimed at supplementing the reasons for the
judgment; however there was no such possibility under the Constitutional Court
Act. Nonetheless, the Constitutional Court drew attention to the fact that the
sections 30 § 2(2) and 52a(5) of the Institute Act, which both had been
declared unconstitutional, had identical content and thus they had concerned
the same legal norm although spelled out in two different provisions. Both
provisions concerned the same group of persons, namely those considered by the State
security services as a secret informants or assistants in covert gathering of
information. The Constitutional Court noted that the reasons for the finding of
unconstitutionality in respect of section 52a(5) were equally applicable to
section 30 § 2(2) of the Institute Act. It noted that an unconstitutional legal
norm could appear in part as well as in one or more legal provisions; however
the finding of unconstitutionality of a legal norm and hence its
disqualification was relevant for all situations in which such norm may be
applied.
The Constitutional Court further held as
follows:
“It should be underlined that the same category of persons [as
mentioned in section 30 § 2(2)] is referred to in section 31 § 1(2) of the
Institute Act which was not challenged in the case no. K 2/07 and thus was not
reviewed by the Constitutional Court. However, the lack of review in this part
[in respect of this provision] cannot justify negative administrative decisions
issued on the basis of section 31 of the Institute Act only for the reason that
section 31 § 1(2) survived as a result of the lack of challenge to it. Section
31 of the Institute Act is functionally connected with the content of section
30 § 2(2) and may produce legal consequences only in so far as it is harmonised
with the content of section 30 § 2(2) following the intervention of the Constitutional
Court in respect of the latter, as well as in respect of section 52a(5) of the
Institute Act. What is decisive in such situations is the fact that a legal
norm (included in section 52a(5) of the Institute Act, and used also in
unchallenged section 31 § 1(2)) was declared unconstitutional in the judgment
of the Constitutional Court. It is also relevant that section 31 of the
Institute Act determines solely a form of the decision refusing request for
access to copies of documents concerning [an applicant], while the immediately
preceding it section 30 speaks of the individual right of access to documents,
which is an implementation at the statutory level of the constitutional
principle of access of every person to official documents and data collections
specified in Article 51 § 3 of the Constitution. It is obvious that the
provision regulating solely a form of a decision in respect of a given right,
in this case an administrative decision, may not serve as the basis for
determination of the substantive content of the right, its scope and the
conditions for its realisation.”
H. Judgment of the Constitutional Court of 20 October
2010 (case no. P 37/09)
In 2009 the Supreme Administrative Court and the
Warsaw Regional Administrative Court put to the Constitutional Court legal
questions on the constitutionality of various provisions of the Institute Act,
including section 31 § 1(2).
On 20 October 2010 the Constitutional Court gave
judgment. It held that section 31 § 1(2) of the Institute Act, in its version
applicable up until 26 May 2010, was incompatible, among others, with Articles
47 and 51 §§ 3 and 4 of the Constitution in conjunction with Article 31 §
3 of the Constitution (the principle of proportionality).
The Constitutional Court widely referred to its
decision of 28 May 2008 (see above) and confirmed that a finding of
unconstitutionality in respect of a given legal norm was authoritative for all
situations in which such norm may be applied, regardless of whether the norm
was included in one or more legal provisions.
The Constitutional Court also relied on its findings in the
judgment of 11 May 2007 (case no. K 2/07). It summarised its approach in
that case as follows:
“... for institutional, functional and procedural reasons the
Institute Act together with the 2006 Lustration Act constitute one instrument.
In this connection, if the documents created and collected by the State
security services, meant to indicate the collaboration within the meaning of
section 3a § 2 of the 2006 Lustration Act, are constituting the basis for
drawing adverse social, moral, political as well as legal consequences in
respect of persons subjected to lustration and other persons whose data were
registered and included in catalogues [of the Institute], [then] such persons,
in a democratic State ruled by law, have to have the right to defend their
dignity, reputation and good name. Accordingly, they have to be accorded the
right of access to the full range of documents concerning them and used against
them. ... This right has to encompass access to documents, deposited with the
Institute, in which interested persons were attributed an involvement in the
creation of these documents. This is relevant from the point of view of the
content of those documents, conclusions formulated and drawn by the officers of
the State security services on the basis of the transmitted information and, in
particular, from the point of view of the supposed intention of a person
passing on the information to “violate the rights and freedoms of a man and a
citizen””
The Constitutional Court observed that section
31 § 1(2) of the Institute Act was of procedural character, but it further
specified the grounds for a decision refusing access to certain documents.
These conditions matched the content of section 30 § 2(2) of the Institute Act
which had been abrogated as a result of the finding of its unconstitutionality.
Nonetheless, the administrative courts submitted to the Constitutional Court
that in practice section 31 § 1(2) had been used by the Institute as a
substantive basis for decisions refusing access to documents specified in this
provision. It further noted that after the said judgment the parliament amended
the Institute Act on five occasions; however it did not amend section 31 §
1(2).
The Constitutional Court found that a limitation
on access to documents of persons, which were referred to in the
unconstitutional section 30 § 2(2), which was imposed in a procedural rather
than substantive form in section 31 § 1(2), amounted to unjustified
interference with the informational autonomy of an individual and restricted
the constitutional right to request the correction or deletion of untrue or
incomplete information (Article 51 § 4). The Constitutional Court held that
that limitations specified in section 31 § 1(2) of the Institute Act on access
of interested persons to official documents concerning them were
constitutionally disproportionate, and thus in breach of Articles 47 and 51 §§
3 and 4 of the Constitution in conjunction with Article 31 § 3 of the
Constitution. It further held that the impugned provision was incompatible with
Article 2 of the Constitution (the rule of law principle) on account of the
excessive degree of its imprecision and vagueness.
I. 2010 Amendments to the Law on the Institute of National Remembrance
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 section 30 of the Institute Act everyone had
the right of access to documents concerning him which were deposited with the
Institute. The limitations on access which were examined by the Constitutional Court in its judgment of 20 October 2010 were repealed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION AS REGARDS ACCESS TO THE APPLICANT’S FILE
The applicant complained under Article 8 of the
Convention about her unsuccessful attempts to obtain access to all
documents collected on her by the communist-era secret services and deposited
with the Institute. Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
A. Admissibility
1. The parties’ submissions
In their initial observations of 6 May 2009, the
Government argued that the complaint concerning access to the applicant’s file
had been premature. They referred to the fact that the applicant had lodged
a complaint with the Warsaw Regional Administrative Court against the
decision of the President of the Institute of 12 August 2008 on the denial of
access and that those proceedings had been pending at the relevant time.
Subsequently, the Government submitted that on
22 August 2011 the applicant had been granted access to all documents
concerning her deposited with the Institute in accordance with the amendments
to the Institute Act which had entered into force on 27 May 2010. In this
connection, they maintained that the applicant could no longer claim to be
a victim of the alleged violation of Article 8 of the Convention.
The applicant argued that the proceedings
concerning access to documents deposited with the Institute had been of an auxiliary
nature. She commented on her victim status by saying that the decision to grant
her access to all documents on 22 August 2011 could not change the assertion
that her right to respect for her private life had been violated and this for
a period of over 10 years.
2. The Court’s assessment
(a) Domestic remedies
The Government initially argued that the
complaint had been premature in view of the fact that the proceedings on access
to the applicant’s file had been pending. The Court notes that subsequently
these proceedings were terminated and that on 22 August 2011 the applicant was
granted access to her file. The Government did not refer to any other remedy
which the applicant was required to exhaust. Accordingly, the Court rejects
their objection.
b) The applicant’s victim status
The Court recalls that the question whether an
applicant can claim to be the victim of the violation alleged is relevant at
all stages of the proceedings under the Convention (see, inter alia, Gäfgen v.
Germany [GC], no. 22978/05, § 115, ECHR 2010-...). A decision or
measure favourable to the applicant is not, in principle, sufficient to deprive
him of his status as a “victim” for the purposes of Article 34 of the
Convention unless the national authorities have acknowledged, either expressly
or in substance, and then afforded redress for the breach of the Convention
(see, inter alia, Dalban v. Romania [GC], no. 28114/95, §
44, ECHR 1999-VI; Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 180, ECHR 2006-V;
and Mirosław Garlicki v. Poland, no. 36921/07, § 130, 14 June 2011).
. The Government argued that the
applicant lost her victim status following the decision of 22 August 2011
granting her access to all relevant documents. That decision was issued on the
basis of the amendments to the Institute Act which entered into force on 27 May
2010. However, the Court notes that the Government did not produce a copy of
that decision, and, more importantly, did not specify whether the national
authorities have acknowledged the breach of Article 8 in the applicant’s case. Furthermore,
the Government did not submit any comments with regard to the redress afforded
to the applicant. This is sufficient, in the Court’s view, to dismiss the Government’s
objection that the applicant could no longer claim to be a victim of the alleged
violation of Article 8.
(c) Conclusion
Consequently, the Court notes that the complaint
under Article 8 regarding access to the applicant’s file is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The applicant’s submissions
The applicant submitted that after two rulings of
the Constitutional Court, namely the judgment of 11 May 2007 (case no. K 2/07)
and the judgment of 20 October 2010 (case no. P 37/09), and the amendment to the
Institute Act which had entered into force on 27 May 2010, the proceedings
concerning access to her file had been finally terminated. Before the entry
into force of the said amendment to the Institute Act, the applicant had had no
effective domestic remedy whereby she could obtain access to all relevant
documents concerning her. She had no influence over the decisions of the
parliament as to whether and when such amendments should have been introduced.
The applicant argued that the fact that she has
been unsuccessfully requesting the Institute for full access to her file for
more than 10 years was highly relevant. Her first request was made on 15
February 2001. The subsequent requests were submitted on 9 February 2005,
29 July and 25 November 2006 and 20 March 2007. The applicant could not
obtain access to all documents concerning her which had been created by the
communist State security services despite the Constitutional Court’s judgment
of 26 October 2005 (case no. K 31/04) and the subsequent amendments to the
Institute Act, as well as despite the Constitutional Court’s judgment of 11 May
2007 (case no. K 2/07). Most importantly, at the moment of the publication of
the “Wildstein list” in 2005, the applicant had had no possibility of obtaining
access to documents about her with a view to verifying what had been the
reasons for placing her name on the said list. The applicant’s many attempts,
over the course of many years, to defend her good name had proved ineffective.
The applicant averred that the right to respect
for private life encompassed the State’s positive obligation to provide
individuals with an effective and accessible procedure enabling them to access
documents concerning them which had been created by the communist State
security services.
2. The Government’s submissions
In their initial observations, the Government,
referring to the Court’s case-law, acknowledged that Article 8 § 1 was
applicable to the storing of information relating to an individual’s private
life in a secret register. With regard to the State’s positive obligations, the
Government referred to the Court’s case-law indicating the necessity to ensure a
statutory right of access to those records or clear indication by way of a
binding circular or legislation of the grounds on which a person could request
access or challenge a denial of access (cf. M.G. v. the United Kingdom,
no. 39393/98, §§ 29-31, 24 September 2002). However, having regard to the fact
that the proceedings had been pending at the relevant time, they did not
express their position on the merits of the case.
The Government later submitted that amendments
to sections 30, 31 and 32 of the Institute Act had come into effect on 27
May 2010. In particular, section 31 § 1(2), which had been relied on as the
basis of the negative decisions in the applicant’s case, was no longer in
force. According to the new wording of section 30 § 1 everyone had the right to
request the Institute to grant him access to documents concerning him.
3. The Court’s assessment
(a) Applicability of Article 8
The Government conceded that Article 8 of the
Convention was applicable. The Court sees no reason to hold otherwise. It is well-established
in its case-law that the storing of information relating to an individual’s
private life in a secret register and the release of such information comes
within the scope of Article 8 § 1 (see, Leander v. Sweden, 26 March
1987, § 48, Series A no. 116; Rotaru v. Romania [GC], no. 28341/95, §
43, ECHR 2000-V).
In the instant case, the applicant was refused
access to certain documents which, according to the Institute’s assessment,
indicated that she had been considered by the communist security services as a
secret informant or assistant in the covert gathering of information (see
paragraphs 23 and 27 above). At the same time, it transpired from the documents
which were released to her that she had been the subject of interest of the
security services. The applicant submitted that in 1974-75 she had been invited
to collaborate with the security services but had consistently refused. Thus, the
situation in the present case was that a person denied any collaboration with
the security services of the former totalitarian regime, whereas the authority,
holding all relevant documents, considered that there was some evidence of such
collaboration. At the same time the incriminating documents were not accessible
to the interested party with a view to contesting assertions made therein. In
such circumstances, for the Court there could be no doubt that the applicant’s right
to respect for her private life was at stake (see, mutatis mutandis, Rotaru,
cited above, § 44; Haralambie v. Romania, no. 21737/03, § 79, 27 October 2009).
Consequently, Article 8 § 1 of the Convention applies.
(b) Compliance with Article 8
The applicant alleged that for over 10 years she
had unsuccessfully attempted to obtain access to a complete file compiled on
her by the communist-era security services.
The Court recalls that, in addition to the
primarily negative undertakings in Article 8 of the Convention, there may be
positive obligations inherent in effective respect for private life. In
determining whether or not such a positive obligation exists, it will have
regard to the fair balance that has to be struck between the general interest
of the community and the competing interests of the individual concerned, the
aims in the second paragraph of Article 8 being of a certain relevance
(see, among others, Roche v. the United Kingdom [GC], no. 32555/96,
§ 157, ECHR 2005-X).
With regard to access to personal files held by
the public authorities, with the exception of information related to national security
considerations (see, Leander, cited above, § 51; Segerstedt-Wiberg
and Others v. Sweden, no. 62332/00, § 90, ECHR 2006-VII), the Court
has recognised a vital interest, protected by the Convention, of persons
wishing to receive information necessary to know and to understand their
childhood and early development (see, Gaskin v. the United Kingdom, 7
July 1989, § 49, Series A no. 160; M.G. v. the United Kingdom, no. 39393/98,
§ 27, 24 September 2002), or to trace their origins, in particular the identity
of one’s natural parents (see, Odièvre v. France [GC], no.
42326/98, § 41-47, ECHR 2003-III) or information concerning health
risks to which interested persons were exposed (see, Roche, cited above,
§ 161; Guerra and Others v. Italy, 19 February 1998, § 60, Reports of
Judgments and Decisions 1998-I).
In those contexts, the Court has considered that
a positive obligation arose for the respondent State to provide an “effective
and accessible procedure” enabling the applicant to have access to “all
relevant and appropriate information” (see, Roche, cited above, § 162; McGinley and Egan
v. the United Kingdom, 9 June 1998, § 101, Reports 1998-III).
In Haralambie v. Romania, the Court
extended this obligation to information about a person’s records created by the
secret services during the period of a totalitarian regime (no. 21737/03, §§ 87-89, 27 October 2009; see also Jarnea
v. Romania, no. 41838/05, § 60,
19 July 2011). The Court
confirms this approach in the present case. In respect of a person, like the
applicant, who sought full access to her file created by the communist secret
services with a view to refuting any allegation of her supposed collaboration
with those services, the State should secure an “effective and accessible
procedure” before the authority currently holding those files. It is important
to underline that the procedure referred to above should enable an interested
party to have access to all relevant and appropriate information which would
allow that party to effectively counter any allegations of his or her
collaboration with the security services (see, mutatis mutandis, in the
context of lustration proceedings, Matyjek v. Poland, no. 38184/03,
§§ 57-63, 24 April 2007). The procedure should equally provide for
a possibility to correct any erroneous entries in the relevant files.
The Court notes that there are obvious risks to
the reputation of a person in a system where the files of the former
security services are held by a State authority which has exclusive and
unreviewable powers to classify a person as a collaborator of those services.
In this context, the Constitutional Court pointed to the risk of arbitrariness
as regards the Institute’s classification of persons as collaborators of the
security services which relied on the criteria and practice of the former
security services (see paragraph 51 above). It should not be forgotten, as
observed by the Constitutional Court, that the Institute’s archives contained information
which had been often collected without any legal basis or unlawfully. The
recent history of the post-communist countries shows that the files created by
the former security services could be used in an instrumental way for political
or other ends.
In the instant case, the applicant made her
first request for access to documents kept on her by the former security
services on 15 February 2001. The Court notes that under the original Institute
Act the right of access to documents of the communist security services was
linked with the status of an “injured party”. The applicant requested access
under this regime but was informed that due to the lack of records she could
not be considered an “injured party”. In its judgment of 26 October 2005 (case
no. K 31/04), the Constitutional Court held that interested persons, not
formally certified as “injured parties”, should, under certain conditions, have
the right to consult their files stored by the Institute. Following her new
request for full access, in November 2006 the applicant was allowed to consult
documents from her file which concerned her as a subject of interest of the
security services. On 20 February 2007 the Institute informed the applicant
that there had been other documents concerning her which could not be released.
This, in effect, implied that the remaining documents pointed, in the
assessment of the Institute, to the applicant’s collaboration (compare and
contrast, Kamburov v. Bulgaria (dec.), no. 14336/05, § 55 in fine,
6 January 2011).
The amendments to the Institute Act, which
entered into force on 15 March 2007, established a new regime of access to
documents deposited with the Institute (see paragraphs 18 and 54 above). The Constitutional Court held in its judgment of 11 May 2007 (case no. K 2/07) that section
30 § 2(2) of the amended Institute Act, which excluded access of
interested persons to documents indicating that they had been considered by the
security services as secret informants or assistants in their undercover
activities, was unconstitutional. The reason for this finding was later summarised
by the Constitutional Court in its judgment of 20 October 2010 (case no. P
37/09). According to the court, when documents created by the security services
which could indicate collaboration with those services, were used for drawing
adverse consequences in respect of a given person, then such a person should
have the right of access to all those documents with a view to effectively defending
her reputation (see paragraph 64 above). The Constitutional Court also noted
that the uncritical reliance on the documents and assessments made by the
totalitarian security services would have legitimised their activities and led
to stigmatisation of persons considered by the services as secret informants
(see paragraph 57 above).
On 20 March 2007 the applicant requested access
to all documents concerning her pursuant to the new regime established by the
amended Institute Act. The Institute’s authorities refused her access to three
documents pursuant to section 31 § 1(2a) of the Institute Act on the ground
that their content indicated that the applicant had been considered a secret
informant or assistant in the covert gathering of information. The President of
the Institute dismissed the applicant’s argument that his negative decision was
based on section 31 § 1(2a) whose content was identical to section
30 § 2(2) of the Institute Act and which was struck down by the Constitutional Court. The Court is struck by this approach of the President of the
Institute. It notes in this respect the Constitutional Court’s decision of 28
May 2008, given a few months before the impugned decision, clearly indicating
that section 31 § 1(2) of the Institute Act, containing the same legal norm as
the one set out in the unconstitutional section 30 § 2(2), and being only of a procedural
character, could not justify refusal of access. It appears that those clear
indications of the Constitutional Court were ignored in the practice of the
Institute’s authorities.
The applicant challenged the refusal of the
President of the Institute before administrative courts. However, the
examination of his complaint was adjourned pending the review of
constitutionality of section 31 § 1(2) which had been instituted by certain
panels of the administrative courts. This provision was struck down by the Constitutional Court in a judgment of 20 October 2010 (case no. P 37/09).
The Court notes that all in all the applicant
had to endure more than 10 years of various proceedings and multiple attempts
before she was finally granted full access to her file on 22 August 2011. This
was at last possible following the above judgment of the Constitutional Court of
20 October 2010 and the amendment to the Institute Act which removed any
obstacles to full access to documents held by the Institute (see paragraph 67 above).
The period of time in issue cannot be considered reasonable. The Court observes
that over that period of time the applicant faced various obstacles in her way
to obtain full access to the file kept on her by the Institute. Certain
obstacles were of a legislative character and those were gradually eliminated
by three consecutive judgments of the Constitutional Court. However, the Parliament
did not always properly implement the relevant judgments of the Constitutional Court. In addition, the applicant faced obstacles of an administrative nature
created by the Institute which was unwilling to heed the calls of the Constitutional Court as regards the interpretation of the law. Certain practices of the
Institute, such as the reliance on the classifications adopted by the
totalitarian security services, were disapproved by the Constitutional Court
(see paragraph 57 above).
The Court also notes that had the applicant been swiftly
granted access to all relevant documents, other issues related to unauthorised
leaks from the Institute’s archives would not have arisen or the applicant
would have been in a position to challenge any allegations against her. It
observes that the applicant acknowledged that access to her file was relevant
in the context of the disclosure and publication of the “Wildstein list”.
Having regard to all the foregoing considerations,
the Court finds that the respondent State has not fulfilled its positive
obligation to provide an effective and accessible procedure enabling the
applicant to have access to all relevant information that would allow her to contest
her classification by the security services as their secret informant (see, Haralambie,
§ 96; and Jarnea v. Romania, § 60, both cited above).
There has accordingly been a violation of
Article 8 of the Convention.
II. REMAINING COMPLAINTS
The applicant complained under Article 8 that
the authorities had allowed a list of names of persons whose files had been
collected by the Institute to be leaked and made public (the “Wildstein list”).
Moreover, she argued that the State had failed to take adequate steps to
inform the public about the actual character of the list, in particular the
fact that the persons appearing on it had not necessarily been secret and
intentional collaborators. In consequence, she maintained that, despite the
fact that she had never held a public office, her right to respect for her
private life had been violated.
The applicant further complained that the State
had failed in its obligation to secure her an effective remedy for the
above-mentioned breach of her right to respect for her private life.
She relied on Article 13 taken together with Article 8 of the Convention.
A. The parties’ submissions
The Government submitted that a number of
persons whose names had appeared on the so-called “Wildstein list” had filed
actions for protection of their personal rights under Articles 23 and 24 of the
Civil Code against the Institute or against Mr B. Wildstein. Those actions had
been generally dismissed.
The Government referred to a case filed by a
certain A.K. against B. Wildstein in which the Warsaw Regional Court
had dismissed the action for protection of personal rights (judgment of 23
August 2006, case no. II C 236/06). The court firstly noted
that the actions of the defendant had not been unlawful. Secondly, the
publication of the list had not infringed the Data Protection Act since it had
consisted only of names without any further details. Thirdly, the claimant had
not proved that his personal rights had been infringed. The court stressed that
the claimant’s assertion that the “Wildstein list” had been generally perceived
as a list of collaborators had amounted to his subjective opinion.
They further referred to the Warsaw Regional
Court’s judgment of 28 June 2007 (case no. XXV C 16/07) which dismissed the
action for protection of personal rights of a certain A.Z. against the
Institute. The claimant had received a certificate that her personal data had
not corresponded to those on the Institute’s list. Nevertheless, she alleged
the publication of her name on the “Wildstein list” infringed her personal
rights. The court found that the claimant had not established that the
Institute had infringed her personal rights.
The Government argued that the reasons given in
the above two judgments were similar to the reasons put forward in the
decisions refusing the applicant’s request to institute the so-called
“auto-lustration” proceedings. They recalled that it was the national authorities
that were charged with interpreting the internal law of a Contracting Party.
The application to institute the “auto-lustration” proceedings was examined by
two courts with full jurisdiction to assess the relevant facts and law. The
applicant did not produce any evidence indicating that the relevant courts’
decisions had been arbitrary. In consequence, the Government maintained that
the applicant’s complaint was manifestly ill-founded and that the applicant had
failed to substantiate her complaint of a breach of Article 8 § 1.
The applicant maintained that the civil cases
referred to by the Government had been indicative of the lack of an effective
remedy in such cases. The civil courts tended to view the publication of a person’s
name on the “Wildstein list” as not constituting a violation of one’s personal
rights. This was often supported by an argument that the list had included not
only persons considered by the Institute to be collaborators but also others
who had been considered by the communist security services as potential
candidates for collaboration or even victims. However, in the applicant’s view,
this argument was unconvincing when considered against the enormous pressure of
public opinion regarding the nature of the “Wildstein list” and the
interpretation of it in the media.
The applicant argued that the “auto-lustration”
proceedings had not constituted an effective remedy with regard to those
persons whose integrity and reputation had been publicly questioned by
publication of their names on the “Wildstein list”. She averred that it had
been a standard approach for the courts to refuse to institute
“auto-lustration” proceedings as a result of the “mere” publication of one’s
name on the said list. In addition, the individuals concerned who had sought
protection of their personal rights by pursuing their claims before civil
courts had found their actions generally dismissed. This was true and
symptomatic of the lack of a suitable remedy to address this very particular
violation of the right to privacy. Both civil actions based on general civil
law principles of protection of personal rights and lustration law cases had
proved grossly ineffective in repairing the damage caused to so many persons as
a result of the failure on the part of the Institute to protect the personal
data and catalogues which had been at its possession.
In the applicant’s view, mere access to
documents stored by the Institute would not constitute an effective remedy for
the violation of her privacy which had resulted from the publication of the
“Wildstein list”. The “auto-lustration proceedings” might have - to some
degree - been an effective remedy since they could end with a ruling confirming
the veracity of a declaration in which a person assert not to have collaborated
with the security services. However, the applicant, who had been defamed by
having her name placed on the “Wildstein list” and the subsequent unauthorised
publication thereof, had been refused the right to clear her name by means of the
“auto-lustration” proceedings. She submitted that it the context of the refusal
to institute those proceedings that the denial of access to documents held by
the Institute had been of auxiliary relevance.
B. The Court’s assessment
The applicant alleged that the authorities had
allowed the so-called “Wildstein list”, containing names of persons whose files
had been collected by the Institute, to be leaked and made public. In addition,
she averred that the State had failed to take adequate steps to inform the
public about the actual character of the impugned list. These facts, in her
view, amounted to a breach of her right to respect for her private life under
Article 8 of the Convention.
However, the Court notes that the applicant had
not instituted any domestic proceedings in which the issue of the State’s
responsibility for the alleged leak of the “Wildstein list” could have been tested.
It follows that this complaint under Article 8 must be rejected under
Article 35 §§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
The applicant further alleged that the State
had failed in its obligation to secure her an effective remedy in respect
of the breach of her right to respect for her private life occasioned
by the unauthorised disclosure and publication of the “Wildstein list”.
In view of its
finding above that the applicant did not exhaust domestic remedies in respect
of her complaint under Article 8 concerning the alleged leak of the “Wildstein
list”, and bearing in mind the close affinity between Article 13 and Article 35
§ 1, the Court concludes 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 10,000 euros (EUR) in
respect of non-pecuniary damage for suffering and distress occasioned by damage
to her reputation, in particular the inability to clear her name for a period
of many years and the lack of sufficient and effective remedies.
The Government invited the Court to rule that
the finding of a violation constituted in itself sufficient just
satisfaction.
The Court, having regard to its finding of a
violation of Article 8 in the present case and making its assessment on an
equitable basis, awards the applicant EUR 5,000 in respect of non-pecuniary
damage.
B. Costs and expenses
The applicant did not submit a claim for costs
and expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares
the complaint under Article 8 of the Convention regarding access to the
applicant’s file admissible and the remainder of the application inadmissible;
2. Holds that
there has been a violation of Article 8 of the Convention;
3. Holds
(a) that the
respondent State is to pay the applicant, within three months from the date on
which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five thousand
euros), to be converted into the currency of the
respondent State at the rate applicable at the date of settlement, plus
any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 November
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Päivi
Hirvelä Registrar President
