FIRST SECTION

DECISION

Application no. 66018/16 Maria ŻŁOBIŃSKA-PERLICKA against Poland

The European Court of Human Rights (First Section), sitting on 24 March 2020 as a Committee composed of:

Armen Harutyunyan, President, Krzysztof Wojtyczek, Pere Pastor Vilanova, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 7 November 2016,

Having regard to the decision of by the Section President, acting as a single judge, to declare a part of the application inadmissible,

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, Ms Maria Żłobińska-Perlicka, is a Polish national who was born in 1947 and lives in Wroclaw. She was represented before the Court by Mr M. Różyło, a lawyer practising in Wrocław.

2 . The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 22 June 2013 the applicant attended a plenary meeting of the housing co-operative ( spółdzielnia mieszkaniowa ) of which she was a member. One of the aims of the meeting was to elect members of the Supervisory Board ( Rada Nadzorcza ).

5 . The agenda for the meeting stated that each of the candidates was to make a short presentation, after which the members of the co-operative could ask him or her questions. One of the candidates was Ł.K., who was running for re-election. Before he started his presentation, the applicant – without being granted the floor – rose from her chair and said:

“and Mr. K. is connected to Amber Gold” (“ a pan K. jest związany z Amber Gold ”).

6 . The applicant based her statement on a press article which she had been handed during the meeting. The article mentioned that the company run by Ł.K. (C.C. sp. z o.o.) and three other companies from Wrocław had been placed on the “list of public warnings” ( lista ostrzeżeń publicznych ) issued by the Financial Supervision Authority ( Komisja Nadzoru Finansowego ) and that the public prosecutor ’ s office had lodged a bill of indictment against Ł.K. It indicated that Ł.K. had denied his company ’ s involvement in any illegal activity. The article also mentioned Amber Gold as the most publicly known company of those which had been placed on the list of public warnings. This company was connected with one of the largest financial pyramid schemes in Poland in recent years. Its collapse in 2012 and the criminal case which resulted from it were widely reported by the media.

7 . During the presentation of his candidature, Ł.K. responded to the applicant ’ s statement. He asserted that his company had no ties to Amber Gold. The applicant read out the part of the press article concerning Ł.K. ’ s indictment and asked him again whether he was connected to the so ‑ called “Amber Gold affair”. In response Ł.K. explained his company ’ s activities. He admitted that he had been indicted for offering para-banking services without a licence as required by law, but stated that he had questioned the grounds for the indictment. He stressed that he had no ties of any kind to the company Amber Gold.

8 . After the presentations by all the candidates, the vote for the new members of the Supervisory Board took place. Ł.K. received the lowest number of votes of all the candidates and was not re-elected.

9 . On 25 September 2014 the WrocÅ‚aw-ÅšródmieÅ›cie District Court ( SÄ…d Rejonowy ) convicted Ł.K. for having accepted financial deposits from individuals and legal entities in violation of the banking law and sentenced him to one year ’ s imprisonment suspended for a period of two years and a fine. On 25 September 2014 the WrocÅ‚aw Regional Court ( SÄ…d OkrÄ™gowy ) modified the amount of the fine but upheld the remainder of the first ‑ instance judgment.

10 . On 8 August 2013, Ł.K. brought a civil action in the WrocÅ‚aw ‑ Fabryczna District Court ( SÄ…d Rejonowy ) seeking legal protection of his personal rights. He argued that the statement made by the applicant was defamatory and that it undermined his reputation as a member of the housing co-operative and a candidate to its Supervisory Board. He asked that the applicant be ordered to pay 20,000 Polish zlotys (PLN) (approximately 4,566 euros (EUR)) to a charity. He did not lodge any separate claim for compensation.

11 . On 8 May 2015 the Wrocław-Fabryczna District Court (case no. XIV C 2254/14) gave judgment and partly allowed the plaintiff ’ s claim. It ordered the applicant to pay PLN 2,000 (approximately EUR 457) to a charity and PLN 3,417 (approximately EUR 780) in court costs.

12 . During the proceedings the domestic court took evidence from the applicant and the plaintiff, as well as a number of witnesses. It also examined the audio and video recordings of the meeting. The applicant argued that her statements had been aimed at securing the interests of the housing co ‑ operative and clarifying the nature of Ł.K. ’ s professional activity. The plaintiff argued that the applicant had not asked him about his ties to the Amber Gold financial scheme but had simply made a statement about it. The statement had been detrimental to his reputation in the community in which he lived.

13 . The WrocÅ‚aw-Fabryczna District Court noted that the plaintiff had been running for re-election to the Supervisory Board of a housing co ‑ operative and as such had to be prepared to be criticised by opponents, who enjoyed freedom of expression under both the Constitution and international law (in particular Article 10 of the Convention).

14 . The domestic court held that the structure of the applicant ’ s statement had been such that it would have been considered a statement of fact. Moreover, it had been made before Ł.K. ’ s presentation instead of after it, when questions could have been put to the candidate. The domestic court stressed that the statement had not been based on any information available to the applicant. The mere fact that the plaintiff ’ s company had been placed on the same list of public warnings as Amber Gold did not constitute a basis for assuming that he had been linked to the latter company. The court noted that even a very brief reading of the article in question would not have justified the statement made by the applicant if she had not formed her opinion on the subject beforehand. It also stressed that the applicant ’ s statement had to be considered clearly derogatory, as Amber Gold was the subject of a widely known scandal and was perceived by the general public as large-scale fraud.

15 . In addition, the court indicated that the infringement of personality rights could be considered lawful only when the statements on the facts in question were true. Lawfulness was not ensured by the sole fact that the person making those statements had exercised due diligence, and in the circumstances of this case it was clear that the statement made by the applicant had been untrue.

16 . The District Court also stated that, as a candidate to a body of a housing co-operative, the plaintiff had to be prepared to face more severe criticism than individuals who did not undertake a public activity. Furthermore, the statement in question had been formulated in a discussion on matters of public interest for the members of the co-operative in which harsher language and statements were allowed. However, the court held that the applicant ’ s statement had gone beyond the boundaries of acceptable criticism.

17 . The District Court also opined that the fact that the applicant had subsequently read out parts of the press article concerning Ł.K. ’ s company did not mitigate the impact of her initial statement. Moreover, the fact that the plaintiff had been convicted for offering para ‑ banking services without a licence was irrelevant to the assessment of the applicant ’ s statement as untrue and, therefore, damaging to Ł.K. ’ s reputation.

18 . In conclusion, the court held that Ł.K. ’ s personal rights had been violated. It considered that the plaintiff ’ s claim was excessive, since any sum sought by way of compensation had to be assessed in relation to the gravity of the infringement of the plaintiff ’ s rights as well as the financial situation of the applicant, who at the time had a monthly income of PLN 1,870 (approximately EUR 427). It therefore reduced the sum to be paid to a charity to PLN 2,000 (approximately EUR 457).

19 . The applicant appealed. She claimed that the District Court had assessed her statement without taking proper account of her entire intervention and its context. She argued that taken in this context, her statement should have been construed as aimed at obtaining explanations concerning Ł.K. ’ s professional activities, and not at discrediting him.

20 . On 31 May 2016 the WrocÅ‚aw Regional Court ( SÄ…d OkrÄ™gowy ) (case no. II Ca 1831/15) upheld the first ‑ instance judgment and ordered the applicant to pay an additional PLN 300 (approximately EUR 68) in court costs.

21 . The court of second instance agreed in principle with the reasoning presented by the District Court. It also held that, although the applicant ’ s statement had to be considered as a statement of fact and not a question, in the context of the so-called “Amber Gold affair”, even a question referring to that company would have been regarded as overstepping the boundary of legitimate criticism. The court of second instance stated that the applicant ’ s statement should have been treated as separate and independent, and did not have to be assessed in the context of the discussion that had taken place later in the meeting. It also observed that the statement could have had an impact on the results of the elections to the Supervisory Board.

22 . Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” ( dobra osobiste ). This provision states:

“The personal rights of an individual, such as health, liberty, reputation ( cześć ), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [and] inventions and improvements, shall be protected under civil law, regardless of the [degree of protection] laid down in other legal provisions.”

23 . Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person faced with the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity in question, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia , request that the wrongdoer make an apology in an appropriate form, or demand satisfaction from him or her. If an infringement of personal rights causes financial loss, the person concerned may seek damages.

24 . Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation or ask the domestic court to award a sum of money to a charity. That provision, in its relevant part, reads:

“The court may grant a suitable sum as pecuniary compensation for non-pecuniary damage ( krzywda ) suffered by anyone whose personal rights have been infringed. Alternatively, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement, the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest. ...”

COMPLAINT

25 . The applicant complained, under Article 10 of the Convention, that the domestic judgments had constituted an interference with her right to freedom of expression which had not been “necessary” in terms of Article 10 § 2 of the Convention.

THE LAW

26 . The applicant complained that her right to freedom of expression had been breached, in violation of Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

27 . The Government submitted that the domestic courts had taken into consideration the principles concerning limitations on freedom of expression, carefully examined the circumstances of the applicant ’ s case and struck a fair balance between the interests of protection of Ł.K. ’ s personal rights and the applicant ’ s right to exercise her freedom of expression. They pointed out that the applicant ’ s statement had been a statement of fact that was untrue, as the charges against Ł.K. had not been in any way related to the affair of Amber Gold. They stressed that linking Ł.K. to that affair had undermined his credibility as a candidate in the elections to the Supervisory Board.

28 . The Government also indicated that the sanction imposed on the applicant had been proportionate. The case had been examined in civil proceedings and the sum the applicant had been ordered to pay to a charity had constituted only 10% of the amount sought by the claimant. In the Government ’ s opinion, that sum, even taken together with the obligation to bear the costs of the proceedings, was not excessive.

29 . The applicant submitted that the domestic judgments had constituted an interference with her right to freedom of expression which had not been necessary in terms of Article 10 § 2 of the Convention. She argued that, when making the comment in question, she had acted in the public interest – out of concern about the interests of the members of the housing co ‑ operative. Her comment had been based on a press article distributed during the meeting and had not been aimed at discrediting Ł.K. ’ s reputation but at clarifying the character of his professional activity. In her opinion, that activity had been especially relevant to the election of members of the Supervisory Board, as that body was responsible for supervising the co ‑ operatives ’ finances. She pointed out that her statement, even though formulated publicly, had been addressed only to the members of the housing co-operative present at the meeting.

30 . The applicant also stated that, in the context of the entire meeting, it had been clear that she wished to initiate a discussion and obtain explanations from Ł.K. She had formulated further questions to him, which he had had a possibility to answer and to explain the context of the article in question.

31 . Moreover, the applicant stressed that the link between the criminal proceedings against Ł.K. and the so-called “Amber Gold affair” had been indicated in the press article handed out to her during the meeting and that, subsequently, Ł.K. had been convicted for carrying out an activity that was partially similar to the one conducted by that company.

32 . It was not disputed between the parties that the domestic judgments delivered in the civil proceedings against the applicant had interfered with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. The interference was prescribed by law, namely the relevant provisions of the Civil Code, and pursued a legitimate aim, namely the protection of the reputation of others, and more particularly of Ł.K. The Court must therefore determine whether the interference complained of was necessary in a democratic society in order to achieve this legitimate aim within the meaning of Article 10 § 2.

33 . The Court reiterates its well-established case-law that the adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision embracing both the law and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Morice v. France [GC], no. 29369/10, § 124, ECHR 2015).

34 . The Court ’ s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation (see News Verlags GmbH & Co.KG v. Austria , no. 31457/96, § 52, ECHR 2000 ‑ I).

35 . In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against an applicant and the context in which they were made. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see Chauvy and Others v. France , no. 64915/01, § 70, ECHR 2004 ‑ VI).

36 . The Court notes that in the present case the applicant formulated her statement during a meeting of the housing co-operative, which had been called to elect members of the Supervisory Board, and that the statement in question concerned the activities of one of the candidates. Therefore, the Court accepts that the statement may be regarded as imparting ideas in order to contribute to a debate on a matter of public interest that was important for the local community (see Lombardo and Others v. Malta , no. 7333/06, § 60, 24 April 2007). This being so, the Court reiterates that under its case-law, any individual who takes part in a public debate of general concern – like the applicant in the instant case – must not overstep certain limits, particularly with regard to respect for the reputation and rights of others (see Kurłowicz v. Poland , no. 41029/06, § 46, 22 June 2010).

37 . The Court observes that the domestic courts referred to the principles established in its case-law concerning Article 10 and took into consideration the fact that the applicant ’ s statement had referred to issues of interest for the local community (see paragraph 16 above). Having analysed the recordings made during the meeting of 22 June 2013 and having heard evidence from witnesses, the domestic courts concluded that the statement made by the applicant had been isolated from other parts of the discussion concerning Ł.K. ’ s professional activity (see paragraphs 12 above). Hence, it might have had an adverse impact on his reputation notwithstanding the subsequent discussion concerning the contents of the press article distributed during the meeting and Ł.K. ’ s response to it (see paragraphs 17 and 21 above).

38 . The Court also notes that the domestic courts referred to the distinction between a statement of fact and a value judgement: The existence of a statement of fact can be demonstrated, whereas the truth of a value judgment is not susceptible of proof (see Makraduli v. the former Yugoslav Republic of Macedonia , nos. 64659/11 and 24133/13, § 62, 19 July 2018). They found that the applicant ’ s statement had to be considered as a statement of fact. In this context the Court reiterates that the classification of a statement as fact or as a value judgment is a matter which, first and foremost, falls within the margin of appreciation afforded to the national authorities (see Prager and Oberschlick v. Austria , 26 April 1995, § 36, Series A no. 313). It concludes that in the circumstances of the present case, there is no reason to depart from the conclusions reached by the domestic courts.

39 . The domestic courts further noted that neither the wording of the article distributed during the meeting, nor the pending indictment against Ł.K. and, later, his conviction for violation of the banking law justified the statement linking him to the Amber Gold affair (see paragraph 14 ) and, consequently, that the applicant ’ s statement had been untrue and defamatory. The Court is therefore satisfied that the domestic courts made a thorough and detailed analysis of the impugned statement and that the reasons put forward by them in support of their conclusions were in keeping with the principles set forth in the Court ’ s case-law.

40 . Lastly, the Court reiterates that while assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account (see Morice , cited above, § 127). In this connection, the Court notes that as a result of the civil proceedings before the domestic courts, the applicant was ordered to pay to a charity the sum of PLN 2,000 (approximately EUR 457), which amounted to 10% of the sum sought by the claimant. She was also ordered to bear the costs of the proceedings (see paragraphs 11 and 20 above). This amount was decided in accordance with the nature of the infringement, as well as the financial means of the applicant. In this regard, the Court considers that the penalty imposed on the applicant cannot be considered excessive.

41 . In the light of the foregoing, the Court considers that the reasons advanced by the domestic courts in support of their judgments were relevant and sufficient, and that the interference was not disproportionate to the legitimate aim pursued, namely protection of the reputation of others. Therefore, the interference with the applicant ’ s freedom of expression was “necessary in a democratic society”.

42 . Accordingly, the Court considers that the application is manifestly ill-founded and must be declared inadmissible 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 28 May 2020 .

Renata Degener Armen Harutyunyan Deputy Registrar President