Communicated on 16 December 2019

FIRST SECTION

Application no. 67315/14 Zbigniew Mieczysł aw BAJBOR against Poland lodged on 6 October 2014

STATEMENT OF FACTS

The applicant, Mr Zbigniew Mieczys ł aw Bajbor , is a Polish national who was born in 1927 and lives in Washington D.C., United States of America. He is represented before the Court by Ms M. Ko ż uch , a lawyer practising in Cracow.

A. The circumstances of the case

1 . The facts of the case, as submitted by the applicant, may be summarised as follows.

2 . 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.

3 . In October 2004 the Institute of National Remembrance (“the Institute”), on the basis of a regulation ( uchwa ł a ) adopted by its Board ( Kolegium , ) decided to create a list of officers, collaborators, candidates for collaborator of the State security services and of other persons whose files it had collected. 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. The persons concerned had no knowledge that their names had been included on the list.

4 . At the end of January 2005 the list, consisting of some 160,000 names, was published on Internet after a journalist allegedly removed it from the Institute and published it. The publication of the list sparked huge public and media interest. The list did not permit officers and informants to be distinguished from persecuted persons. The predominant understanding was that the list contained names of officers and informants of the former State security services.

5 . In February 2005 the applicant learnt that his name appeared on the list. On an unspecified date he applied to the Institute to be certified as an “injured party” pursuant to section 6 of the Institute Act. The grant of this status would permit the applicant to consult all documents collected by the security services concerning him. This, in turn, would enable him to demonstrate that he had never collaborated with the security services. It appears that the applicant received a certificate informing him that he could not be considered an “injured party”. On 30 March 2007 the applicant contested this decision.

6 . 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. The status of an “injured party” was repealed. The amended Institute Act further stipulated that the Institute would create an Internet catalogue of persons who had collaborated or assisted the former State security services in their undercover activities.

7 . On 19 April 2007 the Institute informed the applicant that he could not be granted the status of an “injured party” since that status had been repealed. He was further informed that everyone had the right to request from the Institute access to copies of documents concerning him or her. There were certain exceptions to the type of documents that could be made available. On 22 August 2007 and 10 February 2009 the Institute provided similar information to the applicant.

8 . In October 2009 the applicant lodged an action f or the protection of his personal rights (private life, dignity and reputation) against the Institute. He sought an order requiring the defendant to publish an apology in a national daily newspaper, in the Institute ’ s bulletin and on its website.

9 . The applicant submitted that the Institute was under a particular obligation to secure its documents properly and to protect personal data of persons who were concerned by those documents. The disclosure of the applicant ’ s name on the list resulted from unlawful copying, removal and publication of the list by an unauthorised person. This situation was a consequence of the Institute ’ s failure to comply with its obligations specified in the Institute Act.

10 . The inclusion of a person on the list was equivalent to considering him or her as a collaborator of the communist security services. The applicant was not a collaborator and therefore the inclusion of his name on the list undoubtedly breached his reputation and dignity. He submitted that he had been forcibly conscripted and then forced to sign, in September 1951, a declaration of collaboration under pain of being relegated from Wroclaw Polytechnic. The applicant had refused to act as a collaborator and, in July 1952, the security services had lost interest in him.

11 . The applicant submitted that before 1989 he had opposed the political system in Poland. In 1968 he had lost his job at the Institute of Nuclear Studies as a result of his opposition to the authorities ’ campaign against his Polish Jewish colleagues. Later on, the applicant had emigrated to the United States. The inclusion of his name on the list sparked ostracism by the Polish-American community of which the applicant was an active member.

12 . On 6 March 2012 the Warsaw Regional Court dismissed the applicant ’ s action. It found that the applicant had established that his personal rights were infringed as a result of the publication of the list on Internet. As a consequence of the publication, he had lost the trust and esteem of his friends and of the Polish community in the United States.

13 . Next, the court analysed the question of lawfulness of the infringement. It noted that the security services had been interested in the applicant and for this reason documents containing information about him had been stored in the Institute ’ s archives. The Institute had set up a database – as an archive support – containing first and family names of persons, allowing users to search quickly for archive documents. The database constituted the Institute ’ s professional secret ( tajemnica s ł u ż bowa ). The inventory of archive documents was among the Institute ’ s statutory tasks.

14 . The court was aware of 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. On 21 February 2006 the Warsaw- Praga Regional Prosecutor had discontinued the investigation. The prosecutor was unable to determine who, of the Institute ’ s employees, had copied and given the database to an unauthorised person. In consequence, the prosecutor found that there were no grounds to consider that the database had not been properly secured against unauthorised copying and removal.

15 . The Institute ’ s President had stated that the database contained names of officers and employees of the former security services and of persons who had remained within the security services ’ interest. According to the Institute ’ s President, the database did not allow an informant of the security services to be distinguished from a person under surveillance by the services.

16 . In the course of the investigation a journalist who had earlier publicly claimed to have made the catalogue available to other journalists, did not confirm the above, relying on the principle of protection of sources.

17 . The court concluded that in view of the investigation ’ s findings, the applicant could not claim that the Institute had infringed his personal rights. It found that the Institute had not acted unlawfully and therefore could not be held liable for infringement of the applicant ’ s personal rights.

18 . The applicant appealed. He argued that the first-instance court had wrongly found that the Institute had not acted unlawfully, in particular by having failed to secure the impugned data properly. He also argued that the court had dispensed the defendant from its obligation to demonstrate that the infringement of the applicant ’ s personal rights was not unlawful. Instead, the first-instance court had relied on the investigation ’ s findings.

19 . On 22 January 2013 the Warsaw Court of Appeal dismissed the applicant ’ s appeal. The Court of Appeal found that the first-instance court ’ s assessment was incomplete because it had not indicated who had infringed the applicant ’ s personal rights. Above all, the first-instance court did not determine whether the infringement of the applicant ’ s personal rights resulted directly from the fact of the leaking of the Institute ’ s database, or whether the infringement occurred only as a result of the database ’ s publication on Internet by an unknown person to whom the database had been unlawfully provided by an unknown employee of the Institute.

20 . The Court of Appeal found that there was no adequate causal link between the fact of the leaking of the database from the Institute and the infringement of the applicant ’ s personal rights, because the former was not a normal consequence of the leaking of the database. The database, probably removed by an unknown employee of the Institute, could have served the realisation of various objectives, not necessarily connected with making the database public. The fact that the database was published on Internet was not a normal consequence of its removal from the Institute. Thus, the Institute could not be held liable for the infringement of the applicant ’ s personal rights in the absence of a normal causal link between the removal of the database and its publication.

21 . In the Court of Appeal ’ s view, the Institute ’ s possible omission in failing to secure the personal data properly would not result in the infringement of the applicant ’ s personal rights, since those rights were solely breached by an unknown person who had unlawfully published that data on Internet and thus it was unnecessary to determine the question of lawfulness of the defendant ’ s alleged omission.

22 . On the other hand, the Court of Appeal agreed with the first-instance court that the defendant ’ s actions were not unlawful since they were provided for by law. The database at issue was created on the basis of a resolution of the Institute ’ s Board of 29 October 2003 on the establishment and making available for use in the Institute ’ s open reading room of a personal index. The objective of its creation was classification of the Institute ’ s archive documents and allowing for a quick search of documents stored by the Institute. In accordance with section 8 § 1 in conjunction with section 1 (1) of the Institute Act, the inventory of archive documents was one of the Institute ’ s statutory tasks.

23 . The applicant filed a cassation appeal. On 28 March 2014 the Supreme Court refused to accept the cassation appeal for examination. It found that it raised no important legal issue. The decision was served on 23 April 2014.

B. Relevant domestic law and practice

The relevant provisions of the Institute Act are set out in the Court ’ s judgment in the case of Joanna Szulc v. Poland , no. 43932/08, §§ 46-47 and 50-66, 13 November 2012.

COMPLAINT

24 . The applicant complains under Article 8 § 1 of the Convention of a breach of his right to respect for his private life. He alleges, in particular, that:

(a) the Institute Act did not contain a sufficient legal basis for collecting, processing and disclosing personal data. The general provisions of the Act were supplemented by internal regulations of the Institute ’ s Board. These internal regulations served as a basis for the creation of the impugned list and its disclosure. The regulations did not comply with the requirements of accessibility and foreseeability;

(b) the authorities did not prevent a leak and disclosure of the list, despite their statutory obligation to protect the data;

(c) the authorities did not take adequate steps to inform the public that not all persons included on the list had been collaborators;

(d) the applicant had no means of defending his reputation and as a result of this infringement he had suffered deterioration of his health, lost his job and retreated from public life.

QUESTIONS TO THE PARTIES

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

2. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

3. Did the authorities take the necessary steps to ensure effective protection of the applicant ’ s right to respect for his private life (see, mutatis mutandis , Craxi v. Italy (no. 2) , no. 25337/94, §§ 60-76, 17 July 2003). Did they take the requisite steps to prevent the removal of the list from the Institute ’ s premises?

4. Did the authorities carry out effective inquiries into the removal of the list from the Institute?