FOURTH SECTION
DECISION
Application no. 29055/09
Mirosław PRANDOTA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 3 February 2015 as a Chamber composed of:
Guido Raimondi, President,
Päivi Hirvelä,
George Nicolaou,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 25 May 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mirosław Prandota, is a Polish national, who was born in 1938 and lives in Warsaw. He was represented before the Court by Mr A. Zakrzewski, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Between October 1977 and October 1979 the applicant had contact with an officer of the security services. He was approached by that officer with a view to acting as the liaison between the latter and a certain A.C., editor‑in-chief of an underground opposition newspaper. According to the applicant, his role was to provide the newspaper with information supplied by the officer of the security services which was detrimental to the authorities.
4. 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 (see Relevant domestic law below).
5. On 19 December 2005 the applicant requested the Warsaw Branch of the Institute of National Remembrance to grant him access to documents concerning him and inquired about his status as an “injured party”.
6. The Law of 18 December 1998 on the Institute of National Remembrance was amended by the Law of 18 October 2006 on the disclosure of information concerning documents of State security agencies between the years 1944 and 1990, and the content of such documents (ustawa o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat 1944-1990 oraz treści tych dokumentów) with the effect from 15 March 2007 (see Relevant domestic law below). Subsequently, the applicant’s request submitted to the Institute was treated as a request for access to documents concerning him.
7. On 28 December 2007 the Director of the Warsaw Branch of the Institute issued a decision no. 150/07 refusing the applicant access to certain documents concerning him. He found that those documents met the conditions specified in section 31 § 1 (2a-c) of the amended Institute Act, i.e., they indicated that the applicant had acted as a secret informant of the security services.
8. On 8 January 2008 the applicant was given access to some other documents concerning him.
9. The applicant appealed against the decision no. 150/07 of 28 December 2007. He submitted that he wished to have access to all relevant documents. Furthermore, he argued that it had been the officer of security service who had acted as his informant, not the other way round.
10. On 3 March 2008 the President of the Institute of National Remembrance upheld the decision no. 150/07. He endorsed the finding that in the light of the undisclosed documents the applicant had been considered by the former security services as a secret informant. Furthermore, the documents demonstrated that the applicant had undertaken to provide the security services with information.
11. The applicant lodged an appeal against the decision of the President of the Institute with the Warsaw Regional Administrative Court. He maintained that the President of the Institute had no evidence of his alleged collaboration with the security services. He relied, among others, on Articles 45 and 51 § 4 of the Constitution and Article 6 § 1 of the Convention.
12. On 3 September 2008 the Warsaw Regional Administrative Court held a hearing in camera and dismissed the applicant’s appeal. It appears that the applicant was not summoned to the hearing. No written grounds for the judgment were prepared and served on the applicant.
13. Subsequently, the applicant filed a cassation appeal with the Supreme Administrative Court.
14. On 8 January 2009 the Supreme Administrative Court held a hearing in camera and dismissed his cassation appeal. The applicant was served with the operative part of the judgment. The applicant requested the court to serve on him the written reasons for the judgment. On 27 February 2009 the Supreme Administrative Court refused his request. It noted that the impugned decision of the President of the Institute had been given pursuant to the Institute Act which also governed some aspects of the procedure before the administrative courts. Thus, in accordance with section 32 § 4 of the amended Institute Act the administrative court examined an appeal against the refusal to give access to documents at a hearing held in camera. Furthermore, section 32 § 6 of the Institute Act provided that written reasons for a judgment delivered at a hearing held in camera would only be prepared when the appeal was allowed. A copy of the judgment with written reasons would be served only on the President of the Institute and the appellant would be served with the operative part. Lastly, the Supreme Administrative Court observed that the Law on the Proceedings before the Administrative Courts was not applicable to the procedure in the present case, the provisions of the Institute Act constituting lex specialis in this respect.
15. In a letter dated 28 December 2014 the applicant informed the Court that the Institute had granted him access to all documents concerning him in November 2014. He submitted that the reports of his alleged activity had been fabricated by an officer of the security services.
B. Relevant domestic law and practice
1. Relevant constitutional provisions
16. Article 45 § 1 of the Constitution reads:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”
17. Article 47 of the Constitution 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.”
18. 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.”
2. The Law on the Institute of National Remembrance
19. 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.
20. 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).
21. 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).
3. Judgment of the Constitutional Court of 26 October 2005 (case no. K 31/04)
22. In 2004 the Ombudsman challenged the constitutionality of certain provisions of the Institute Act concerning access to documents held by the Institute.
23. 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.
24. 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.
4. Amendments to the Law on the Institute of National Remembrance
25. 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.
26. 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.
27. 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. ...”
28. The amended Institute Act also put specific restrictions on the judicial proceedings in which the administrative courts reviewed the lawfulness of a decision issued by the President of the Institute. Section 32 § 4 provided that the administrative court examined a complaint against such a decision at a hearing held in camera. Section 32 § 5 of the Institute Act excluded the application of Article 106 § 2 of of the Law of 30 August 2002 on Procedure before Administrative Courts in the impugned proceedings. As a result, the party to the proceedings before the administrative courts in such cases could not plead his case before the court. Section 32 § 6 of the Institute Act stipulated that a party to the proceedings before the administrative courts could solely receive an operative part of the judgment. Section 32 § 8 provided that the provisions of paragraphs 4‑6 were applicable in the cassation appeal proceedings before the Supreme Administrative Court.
5. Judgment of the Constitutional Court of 11 May 2007 (case no. K 2/07)
29. 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 judgment on the issues of lustration and access to documents held by the Institute on 11 May 2007.
30. 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 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 an unlawful manner.
31. The judgment was promulgated on 15 May 2007 and on that day the unconstitutional provisions were abrogated.
6. The 2010 Amendments to the Law on the Institute of National Remembrance
32. On 18 March 2010 the parliament passed amendments to the Institute Act which entered into force on 27 May 2010. According to the new wording of sections 30 and 31 of the Institute Act everyone had the right, inter alia, of access to documents concerning him which were deposited with the Institute and the right to obtain copies thereof.
7. Judgment of the Constitutional Court of 20 October 2010 (case no. P 37/09)
33. 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 sections 31 § 1 (2) and 32 §§ 4‑6 and 8.
34. 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 further held that section 32 §§ 4‑6 and 8 of the Institute Act was incompatible with, inter alia, Article 45 § 1 of the Constitution (the right to a court) in conjunction with Article 31 § 3.
35. The Constitutional Court 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”.
36. 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).
37. 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 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.
38. The Constitutional Court noted that its findings were consistent with the decision of the legislator expressed in the amendments of 18 March 2010 to the Institute Act which introduced the possibility for everyone to obtain access to copies of documents held by the Institute.
8. Reopening of the proceedings before administrative courts following a judgment of the Constitutional Court
39. Pursuant to Article 272 of the Law of 30 August 2002 on Procedure before Administrative Courts a party to the proceedings which have ended with a final judgment may request that the proceedings be reopened if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution.
COMPLAINTS
40. The applicant complained that he had been refused access to documents allegedly demonstrating that he was a secret informant of the communist security services and thus he could not defend himself against this untrue allegation. He further alleged that his constitutional right of access to official documents concerning him had been violated.
41. The applicant complained that he had not been summoned to a hearing before the Regional Administrative Court or the Supreme Administrative Court with a view to defending his interests. Furthermore, his request to be served with reasons for the judgments of those courts was refused. He alleges that the principle of equality of arms was not respected in the court proceedings.
THE LAW
42. The applicant alleged that he had been refused access to documents allegedly demonstrating that he was a secret informant of the security services. This amounted to a breach of his constitutional right of access to official documents concerning him. The applicant did not invoke any provision of the Convention.
43. This complaint was communicated to the Government under Article 8 of the Convention in respect of the positive obligation to provide the applicant with an “effective and accessible procedure” enabling him to have access to his personal file. It was further communicated under Article 13 of the Convention. The Court considers that the above complaint falls to be examined under these provisions of the Convention.
44. The applicant also complained about the particular features of the proceedings before the administrative courts. He did not rely on any provision of the Convention.
45. This complaint was communicated to the Government under Article 6 § 1 of the Convention and the Court finds that it should be examined under this provision.
A. The Government’s submissions
46. The Government argued that in the light of the factual circumstances of the case and domestic law applicable at the material time the applicant had not exhausted all the available remedies provided for by the Polish law. In particular, the applicant could have lodged a constitutional complaint under Article 79 § 1 of the Constitution challenging the provisions of the Institute Act which served as the basis for a decision refusing access to the documents concerning the applicant. The Government maintained that the applicant’s case satisfied the requirements concerning the effectiveness of a constitutional complaint in Poland as set out in the Court’s case-law.
47. The availability of this remedy was confirmed by the Constitutional Court’s judgment of 26 October 2005 (no. K 31/04) concerning the right of interested persons – other than “the injured parties” – to have access to documents regarding them which were held by the Institute. The effectiveness of the same remedy was confirmed, with regard to the applicant’s complaints under Article 6 § 1, by the Constitutional Court’s judgment of 20 October 2010 (no. P 37/09). Accordingly, bearing in mind the principle of subsidiarity, the Government averred that the applicant should have resorted to the constitutional complaint proceedings before submitting his grievances to the Court.
48. With regard to the alleged lack of an effective domestic remedy for the applicant’s complaint under Article 8, the Government submitted that the requirements of Article 13 of the Convention had been fulfilled. They attached particular weight to the amendment to the Institute Act of 18 March 2010 which came into effect on 27 May 2010. The amendments modified sections 30‑32 of the Institute Act which had served as a basis for negative decisions in the applicant’s case. According to the new wording of section 30 §§ 1‑2 of the Institute Act everyone was entitled to request the Institute to grant him/her access to documents concerning them. In the Government’s view, the opportunity to submit a new request for access to documents held by the Institute under the 2010 Amendment constituted an effective remedy for the applicant’s complaint under Article 8 as required by Article 13 of the Convention. The applicant was entitled to request the competent branch of the Institute for access to all documents concerning him and thus his application was premature.
49. With regard to the complaint under Article 8 of the Convention, namely whether the applicant was provided with an “effective and accessible procedure” enabling him to have access to his personal file, the Government argued that the applicant’s case was distinguishable from Haralambie v. Romania (no. 21737/03, 27 October 2009). The applicant’s request for access of 19 December 2005 was determined by a decision of 28 December 2007 following a thorough survey of the Institute’s archives. The President of the Institute upheld this decision on 3 March 2008. The applicant challenged these decisions before the administrative courts which dismissed his complaints on 3 September 2008 and 8 January 2009 respectively. Throughout the proceedings, the applicant was informed about each step of the procedure and was duly instructed about the available appeals. The applicant was also granted access to certain documents concerning him. In addition, following the 2010 Amendment to the Institute Act which extended access to the Institute files to everyone, the applicant was entitled to request access to all documents concerning him. There were no periods of inactivity in dealing with the applicant’s request for access. The Government concluded that the applicant had been provided with an effective and accessible procedure enabling him to have access to the relevant document held by the Institute. Lastly, they submitted that the question of whether the applicant was or was not an informant was not the subject of the proceedings before the Court.
B. The applicant’s submissions
50. The applicant disagreed that a constitutional complaint would have been an effective remedy in his case, relying on the Court’s judgment in the case of Brudnicka and Others v. Poland (no. 54723/00, ECHR 2005‑II).
51. The applicant contested the fact of having been classified as an informant of the communist security services. He argued that the Institute had not critically analysed the veracity of the relevant records and failed to take into account the evidence adduced by him. He submitted that among the documents disclosed to him there had been false records. The Government failed to explain what were the grounds for the Institute’s refusal to grant him access to all documents concerning him, especially in the light of the Constitutional Court’s judgment of 26 October 2005. Furthermore, the applicant was not summoned to the hearings before the administrative courts and could not challenge the Institute’s position before the administrative courts. He emphasised the importance of the case for his reputation.
52. The applicant disagreed with the Government’s submission that following the 2010 Amendment he was entitled to request access to all relevant documents. He argued that the above argument overlooked the fact that the suggested solution required re‑initiating a taxing and expensive procedure.
C. The Court’s assessment
53. The Court reiterates that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The Court cannot emphasise enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996‑IV; and Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 69, ECHR 2010).
54. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement. The mere doubts regarding the effectiveness of the relevant remedy, if not supported by material evidence, in particular examples from the established domestic practice, are not sufficient to absolve an applicant from his duty under Article 35 § 1 (ibid.; see also Pikielny and Others v. Poland (dec.), no. 3524/05, 18 September 2012, § 57).
55. The Government pleaded non‑exhaustion of domestic remedies, claiming that the applicant should have lodged a constitutional complaint against the relevant provisions of the amended Institute Act, namely section 31 § 1 (2) which served as the basis for refusal of access to certain documents concerning the applicant. He should have further challenged section 32 §§ 4‑6 and 8 which imposed a number of limitations in the proceedings before the administrative courts, such as a hearing in camera without the appellant being summoned and being able to plead his case as well as no possibility to receive a reasoned judgment of the administrative court.
56. The Court recalls that it has already dealt with the question of the effectiveness of the procedure of a constitutional complaint in Poland (see Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003; Pachla v. Poland (dec.), no. 8812/02, 8 November 2005; Wiącek v. Poland (dec.), no. 19795/02, 17 January 2006 and Tereba v. Poland (dec.), no. 30263/04, 21 November 2006; Łaszkiewicz v. Poland, no. 28481/03, § 68, 15 January 2008; Liss v. Poland (dec.), no. 14337/02, 16 March 2010; Urban v. Poland (dec.), no. 29690/06, 7 September 2010 and Hösl-Daum and Others v. Poland (dec.), no. 10613/07, 7 October 2014). In the Szott-Medyńska decision the Court considered in particular two important limitations of the Polish model of constitutional complaint, namely its scope and the form of redress it provides.
57. Having analysed the above‑mentioned limitations of the Polish procedure of constitutional complaint, the Court observed that the constitutional complaint could be recognised as an effective remedy, within the meaning of the Convention, only where: 1) the individual decision, which allegedly violated the Convention, had been adopted in direct application of an unconstitutional provision of national legislation; and 2) procedural regulations applicable to the revision of such type of individual decisions provided for the reopening of the case or the quashing of the final decision in consequence of the judgment of the Constitutional Court in which unconstitutionality had been found. Consequently, the Court found that the exhaustion of the procedure of the constitutional complaint should be required under Article 35 § 1 of the Convention in situations in which both above-mentioned requirements had been met.
58. The Court observes that in the instant case the Institute refused the applicant access to certain documents concerning him. The Institute found that those documents met the conditions specified in section 31 § 1 (2a-c) of the amended Institute Act. The impugned provision of the amended Institute Act constituted the direct legal basis of the individual decision in respect of which the violation is alleged. Furthermore, section 32 §§ 4‑6 and 8 of the amended Institute Act regulated specific features of the proceedings before the administrative courts of which the applicant complained before the Court.
59. With regard to section 31 § 1 (2a-c) of the amended Institute Act, the Court notes that the Constitutional Court examined its constitutionality in its judgment of 20 October 2010 (case no. P 37/09) initiated by legal questions from the administrative courts. The Constitutional Court ruled that section 31 § 1 (2) of the amended 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. In the same judgment, the Constitutional Court struck down section 32 §§ 4‑6 and 8 of the amended Institute Act as being incompatible, inter alia, with Article 45 § 1 of the Constitution.
60. Having regard to the foregoing, the Court finds that in respect of his complaints under Articles 8 and 6 of the Convention the applicant in the present case was required to lodge a constitutional complaint before having seized the Court. It was open for him to question the constitutionality of section 31 § 1 (2) of the amended Institute Act and to argue that this provision was in breach of Article 47 (the right to protection of private life) and Article 31 § 3 (the principle of proportionality) of the Constitution. Similarly, he could have challenged section 32 §§ 4‑6 and 8 of the same Act contending that it was incompatible with Article 45 § 1 of the Constitution (the right to a court).
61. Had the applicant brought a constitutional complaint, and had he been successful, he could have requested a competent administrative court, pursuant to Article 272 of the Law of 30 August 2002 on Procedure before Administrative Courts to reopen the administrative proceedings. In the renewed examination of the case the courts and the administrative authorities would have to disregard the legal provisions which were declared unconstitutional. Thus, as a result of the reopening of the administrative proceedings the alleged violation of Articles 8 and 6 of the Convention could have been suitably redressed.
62. In conclusion, the Court finds that in the present case, by failing to lodge a constitutional complaint against sections 31 § 1 (2) and 32 §§ 4‑6 and 8 of the amended Institute Act, the applicant failed to exhaust the remedy provided for by Polish law. Thus, the Government’s objection that the constitutional complaint was not employed by the applicant in the instant case is well‑founded.
63. The Court further observes that on 18 March 2010 the parliament passed further amendments to the Institute Act which entered into force on 27 May 2010. According to the new wording of sections 30‑35b of the Institute Act everyone had the right, inter alia, of access to all documents concerning him or her which were deposited with the Institute and the right to obtain copies thereof (see, Stępniak v. Poland (dec.), no. 45630/06, 5 March 2013, § 38). The amended Institute Act removed the limitations on access which were declared unconstitutional. The applicant availed himself of the new procedure and in November 2014 obtained access to all documents concerning him which were held by the Institute. This fact might indicate that the applicant has lost his victim status in respect of the alleged violation of Article 8. However, the Court does not find it necessary to determine this issue in view of its earlier finding regarding non-exhaustion of domestic remedies.
64. It follows that the complaints under Articles 8 and 6 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
65. With regard to the complaint under Article 13 of the Convention, the Court recalls that this provision guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI).
66. However, the Court has found above that the applicant’s complaint under Article 8 concerning the alleged breach of his right to respect for his private and family life was inadmissible for non‑exhaustion.
67. It follows that the complaint under Article 13 is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 26 February 2015.
Françoise Elens-PassosGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy