Communicated on 23 February 2021 Published on 15 March 2021

FIRST SECTION

Application no. 19609/18 Jan MICHALUK against Poland and 5 other applications (see list appended)

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

The facts of the cases, as submitted by the applicants, may be summarised as follows.

On 3 October 1989 the Białystok Regional Court convicted the applicant of aggravated rape. The applicant was sentenced to eight years ’ imprisonment. In 1994 he was conditionally released from prison.

On 1 October 2017 the Act of 13 May 2016 on counteracting sexual offences (ustawa o przeciwdziałaniu zagrożeniom przestępczością na tle seksualnym, hereinafter “the 2016 Act”) established a national automated register of sex offenders, the so-called Sex Offenders Register (see domestic law below).

In December 2017 the applicant, who at that time was serving a term of imprisonment imposed in a different, unrelated, set of criminal proceedings, discovered that his name had been entered in the Sex Offenders Register on account of his conviction in 1989. As the deadline for lodging an application for removal of his personal data had already passed, the applicant applied to the Ombudsman to intervene on his behalf.

In reply, on 8 February 2018 the Ombudsman informed the applicant that the time-limit for lodging applications for removal of data from the Sex Offenders Register had expired on 1 December 2017. Moreover, under the 2016 Act there was no obligation to inform the individuals concerned that their data would be entered in the register.

On 12 March 2015 the ElblÄ…g Regional Court convicted the applicant of rape and sexual abuse of a minor committed in the context of re ‑ offending and sentenced him to life imprisonment.

On 18 October 2017 the applicant lodged an application with the ElblÄ…g Regional Court for removal of his name from the restricted access section of the Sex Offenders Register.

On 19 December 2017 the Elbląg Regional Court dismissed the application on the ground that there were no exceptional circumstances relating to the protection of a minor victim which would have justified removal of the applicant ’ s personal data from the register.

The applicant lodged an interlocutory appeal, submitting in particular that the restrictions on accessing the register were illusory and that he had been convicted before the 2016 Act entered into force.

On 14 February 2018 the Gdańsk Court of Appeal dismissed the applicant ’ s appeal. The court confirmed that there were no exceptional circumstances relating to the protection of a minor victim which could have justified removal of the applicant ’ s name from the register. Moreover, the 2016 Act provided for a number of restrictions on accessing the register, including criminal responsibility for unauthorised data disclosure. Therefore, the measure was proportionate with the applicant ’ s rights under Article 8 of the Convention, bearing in mind that his personal data appeared only in the restricted section of the register.

On 18 May 2012 the applicant was convicted of raping a minor and sentenced to three years ’ imprisonment. The applicant served his sentence.

Following the entry into force of the 2016 Act the applicant ’ s personal information was automatically included in the first and second section of the Sexual Offender Register (restricted and public access).

The applicant lodged an application asking for non-disclosure of his personal data in the public part of the register. He argued that he had grounds to fear for his safety (he was imprisoned at that time).

On 10 April 2018 the Lublin Regional Court dismissed his request. The court found that pursuant to the relevant provisions of the 2016 Act personal data could be removed from the register only in order to protect a minor victim ’ s well-being.

On 21 May 2018 the Lublin Court of Appeal dismissed the applicant ’ s further appeal.

On 31 October 2011 the Olsztyn Regional Court convicted the applicant of aggravated rape and sentenced him to eight years ’ imprisonment.

On 1 October 2017 the applicant ’ s personal data was automatically entered in the public section of Sex Offenders Register.

On 10 April 2018 the applicant asked for leave to apply out of time for removal of his personal data from the register.

On 27 August 2018 the Olsztyn Regional Court allowed the applicant to appeal out of time. The court noted that the applicant had not been informed about time-limits for lodging an application for removal of data from the register. In the same decision the court dismissed the applicant ’ s request on the ground that pursuant to the relevant provisions of the 2016 Act people convicted of aggravated rape could ask for removal of their names only if it was justified by the need to protect the well-being of a minor victim. In the applicant ’ s case the victim was not a minor.

On 26 October 2018 the Białystok Court of Appeal dismissed the applicant ’ s further appeal.

On 25 May 2005 the Tarnowskie Góry District Court convicted the applicant of aggravated rape of a minor and sentenced him to twelve years ’ imprisonment. The judgment was upheld by the Gliwice Regional Court on 15 November 2005.

On 2 March 2018 the applicant received a notification from the Sex Offenders Register, that his name was entered in the public section of the register.

On 25 February 2019 the applicant lodged a request for removal of his name from the register.

On 24 April 2019 by the Gliwice Regional Court dismissed the request noting that the well-being of a minor victim was not endangered by the publication of the applicant ’ s personal data.

On 27 June 2019 the Gliwice Regional Court amended its previous decision and dismissed the applicant ’ s request for removal of his name from the register as lodged out of time.

On 9 August 2017 the Warsaw Regional Court convicted the applicant of multiple rape and other sex-related offences against a minor. The conviction was upheld by the Warsaw Court of Appeal on 8 October 2018. The applicant was sentenced to nine years and six months ’ imprisonment. The cassation appeal was dismissed on 12 June 2019.

On 23 November 2018 the applicant applied for removal of his name from the Sex Offenders Register. On 8 March 2019 the Warsaw Regional Court dismissed his request. The court held that there were no grounds to grant his request. It was noted that publication of the applicant ’ s personal data could not lead to the identification of the child who was the victim in the present case.

On 6 August 2019 the Warsaw Court of Appeal dismissed the applicant ’ s further appeal. The court analysed the proportionality of the interference and held that given the gravity of the offences committed by the applicant it was in the public interest to publish his personal data in the register.

On 1 October 2017 the Act of 13 May 2016 on counteracting sexual offences ( ustawa o przeciwdzia ł aniu zagro ż eniom przest ę pczo ś ci ą na tle seksualnym , hereinafter “the 2016 Act”) established a national register of sex offenders, the so-called Sex Offenders Register. It is an online database of perpetrators of sex-related offences.

The register is composed of two main sections. The first section, with restricted access, can be viewed by the domestic courts, prosecution services, the police, a wide range of various internal security agencies, prison management, agencies dealing with enforcement of criminal sentences, employers in connection with job-seekers interested in working with children and any person wishing to check whether his/her personal data is on the register. The second section is public: it is accessible online to everyone.

The restricted section contains identities of individuals who committed an offence of aggravated rape or rape of a minor before 1 October 2017. Those persons cannot apply for removal of their names from the register. Only perpetrators whose victims were between 15 and 18 years ’ could have lodged, until 1 December 2017, an application for removal of their names from the register (sections 29 (1) and (2)).

The restricted section also includes identities of perpetrators who committed rape or any sexual offence against a minor after 1 October 2017 (section 6 (1)).

The public section of the register contains identities of the most serious offenders, those who committed aggravated rape or rape of a minor before 1 October 2017. Until 1 December 2017 those persons could have lodged an application for removal of their names from the register. However, only on the ground that publication would have endangered the well ‑ being of a minor victim (sections 29 (1) and (2) ) .

As regards offences committed after 1 October 2017 the public section includes identities of perpetrators who committed aggravated rape or rape of a minor and also re-offenders.

The trial court, at the time of sentencing may decide not to record the perpetrator ’ s name in the register, if it is justified by the need to protect the well-being of a minor victim (public section) or the need to protect the private life of a victim and/or victim ’ s relatives, or if it would cause disproportionately harsh consequences for the perpetrator (restricted section) (section 9).

The register contains the individual ’ s name, date of birth, photograph, reference to the conviction and the city where he/she resides. In addition to that data, the restricted section also contains the perpetrator ’ s national identification number (PESEL) and his or her home address. All persons whose identity is recorded in the register are required to inform the police of any changes of their residence.

The data is removed from the register when the conviction is spent or if pardon or amnesty was granted (section 18).

COMPLAINTS

1. All applicants complain in substance, or under Article 8 of the Convention, that the 2016 Act does not provide for appropriate safeguards against arbitrary interference with their right to respect for private life.

2. The applicants also complain in substance or invoking, in particular Article 13 of the Convention, that they did not have an effective remedy in order to request removal of their personal data from the Sex Offenders Register.

3. Lastly, the applicants allege, either in substance or specifically under Article 7 of the Convention, that placement on the Sex Offenders Register amounted to a heavier penalty than the one applicable at the time when the offences were committed .

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicants ’ right to respect for their private life, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (compare Gardel v. France , no. 16428/05, ECHR 2009 and M.M. v. the United Kingdom , no. 24029/07, 13 November 2012)?

2. Did the applicants have an effective remedy for any arguable complaints under Article 8 as required by Article 13 of the Convention?

3. Was a heavier penalty imposed on the applicants than the one which was applicable at the time of the commission of the offences in the present case, as proscribed by Article 7 of the Convention? Reference is made to the obligations imposed on the applicants in connection with the placement on the Sex Offenders Register.

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant

1

19609/18

Michaluk v. Poland

17/04/2018

Jan MICHALUK

1966Białystok

2

36601/18

Åšwierzewski v. Poland

11/07/2018

Łukasz ŚWIERZEWSK I

1977Sztum

3

53554/18

Hołda v. Poland

05/11/2018

Krzysztof HOŁDA

1969Lublin

4

5790/19

Ambroziak v. Poland

14/03/2019

Arkadiusz AMBROZIAK

1992Gostynin

5

52477/19

Wala v. Poland

28/10/2019

Piotr WALA

1965Zalesie

6

689/20

W.B. v. Poland

09/12/2019

W. B.

1982Rawicz

Represented by

Ms M. Krawczak