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ECtHR: Poland loses the first case on access to INR’s files

The European Court of Human Rights delivered the judgment in the case of Joanna Szulc v. Poland. The ECtHR found that the right to respect for private life set out in Article 8 of the European Convention on Human Rights had been violated by denying the applicant access to all the security service documents concerning her deposited with the Institute of National Remembrance. This is the first case on access to INR files lost by Poland in the ECtHR.

Since 2001, under the subsequently amended provisions of the Institute of National Remembrance Act, the applicant had been applying for leave to consult all documents concerning her kept by the INR. The applicant found her name on a list featuring people whose files had been collected by the communist security services which was published by a journalist Bronisław Wildstein and hence dubbed “the Wildstein list”. As a person accused of having been collaborating with the Communist security services she requested the “lustration”(vetting) court to institute the “self-lustration” proceedings. The court dismissed her application. It was only in 2011 that she was granted access to all the documents.

In assessing the case, the European Court reminded 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 of the European Convention on Human Rights”.

The ECtHR noted that “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 contended further that: “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. The procedure should equally provide for a possibility to correct any erroneous entries in the relevant files.” The Court held that the Polish State has not fulfilled its positive obligation to provide such a procedure.

The ECtHR did not engage in any broader discussion on the issue of the leakage of the “Wildstein list” and the obligations of the state caused by such an uncontrolled release of data from the Institute and their subsequent publication.

“The judgment should be deemed a landmark decision. It is the first time the Strasbourg Court addressed the issue of access to archive documents created by the communist security services”, says Paweł Osik of Pietrzak&Sidor, an attorney who conducted the case on behalf of the HFHR. “The Court reminded in its judgment that the state and institutions which kept such documents had certain obligations towards persons named in them”, adds Mr Osik.

The case was a part of the Foundation’s ‘Human Rights and Settlements with the Past’ Programme.

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