FIRST SECTION

DECISION

Application no. 74002/13 Marcin LIBICKI against Poland

The European Court of Human Rights (First Section), sitting on 22 October 2019 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 15 November 2013,

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 Marcin Libicki, is a Polish national who was born in 1939 and lives in Radzewice. He was represented before the Court by Mr M. Gutowski, a lawyer practising in Poznań.

2 . The Polish Government (“the Government”) were represented by their Agent, Mrs 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 11 April 1997 the Parliament passed the Law on disclosing work for, or service in, the State ’ s security services, or collaboration with them, between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub sÅ‚użby w organach bezpieczeÅ„stwa paÅ„stwa lub współpracy z nimi w latach 1944-1990 osób peÅ‚niÄ…cych funkcje publiczne – “the 1997 Lustration Act”). It entered into force on 3 August 1997. The 1997 Lustration Act was repealed by the Act of 18 October 2006 on disclosing information about documents of the State security services dating from 1944-1990 and the content of those documents ( o ujawnianiu informacji o dokumentach organów bezpieczeÅ„stwa paÅ„stwa z lat 1944 ‑ 1990 oraz treÅ›ci tych dokumentów – “the 2006 Lustration Act). Persons falling under the provisions of both Lustration Acts – namely candidates or holders of public office, such as ministers and members of parliament – were required to declare whether or not they had worked for or collaborated with the security services during the communist regime.

5 . The applicant has been involved in politics since the 1980s. Between 1991 and 1993, 1997 and 2001, and 2001 and 2004 he was a Member of the Polish Parliament. Between 1997 and 2001 he was a member of the Polish delegation to the Parliamentary Assembly of the Council of Europe (PACE), and between 1998 and 2001 he served as PACE ’ s vice ‑ president. In 2004 he was elected as a Member of the European Parliament (MEP) representing the Law and Justice party.

6 . On 19 November 2007 the Institute of National Remembrance ( Instytut Pami ę ci Narodowej ) in its official bulletin published information about documents of the communist security services relating to the applicant. The documents referred to the applicant being involved in the secret services ’ operations (“ operacyjne wykorzystanie ”) and to his status as an “operational contact” (“ kontakt operacyjny ”).

7 . The next day, the Institute of National Remembrance posted on its website the views of two researchers associated with that institute, who stated that such material should be approached cautiously.

8 . On 20 November 2007 the newspaper Polska G ł os Wielkopolski published on its front page the headline “Marcin Libicki was a collaborator of the Polish People ’ s Republic secret services?” (“ Marcin Libicki by ł wspó ł pracownikiem wywiadu PRL? ”). The front page also included the applicant ’ s photograph. The article was published on page three of the newspaper and contained statements indicating that the applicant had collaborated with the communist secret services. The article was the first in a series of articles published in the sam e newspaper between 22 November 2007 and 9 April 2009.

9 . On 7 February 2008, the applicant, in his lustration declaration, stated that he had not collaborated with, served or worked for the communist ‑ era security services.

10 . In July 2008 the Institute of National Remembrance disclosed documents indicating that, since the 1960s, the applicant had been under constant surveillance by the communist secret services.

11 . The applicant on two occasions asked the editor-in-chief of Polska G Å‚ os Wielkopolski to have that information published, but to no avail.

12 . On 24 October 2008 the national information agency – the Polish Press Agency ( Polska Agencja Prasowa ) – published information to the effect that the Institute of National Remembrance had discovered new documents concerning the applicant.

13 . The applicant intended to participate in the 2009 elections to the European Parliament. However, in spring 2009 the leaders of his party, having consulted historians, decided not to offer him a place on the party ’ s list for election to the European Parliament.

14 . On 16 March 2009 the applicant asked the Pozna Å„ Regional Court to institute lustration proceedings in order to establish that he had not lied in his lustration declaration.

15 . On 22 February 2010 the Pozna ń Regional Court (hereinafter “ the lustration court”) gave a judgment which confirmed that the applicant had submitted a true lustration declaration. The court found that the material available in the applicant ’ s file was not sufficient to conclude that he had collaborated with the communist secret services. The documents in the file and witness testimonies confirmed only that the services had taken an active interest in the applicant in the light of his family and friends ’ contacts.

16 . Despite that ruling, Polska G ł os Wielkopolski continued to publish articles relating to previous allegations that the applicant had cooperated with the communist secret services (for example, on 14 and 15 December 2009, 7 January and 20, 21 and 23 February 2010). Those articles concerned reports on the progress of the applicant ’ s lustration process; the most recent article was headlined “judgment favourable to Libicki” ( wyrok korzystny dla Libickiego ).

17 . On 30 June 2010 the applicant brought a civil claim in the Pozna Å„ Regional Court against A.P., editor-in-chief of the newspaper Polska G Å‚ os Wielkopolski , and its publisher, Polskapresse Sp. z o.o., seeking the legal protection of his personal rights and compensation for pecuniary and non ‑ pecuniary damage (altogether amounting, together with statutory interest, to nearly four million Polish zlotys (PLN) – approximately one million euros).

18 . On 26 January 2012 the Pozna ń Regional Court gave judgment and partly allowed the applicant ’ s claim. It awarded the applicant PLN 100,000 in compensation for non-pecuniary damage. The court held that it had awarded a lower sum to the applicant than he had actually claimed in the light of the fact that not only the articles of the Polska G ł os Wielkopolski but also articles in other newspapers had had an impact on his political career.

19 . The court found that the applicant ’ s personal rights had been breached by the impugned articles. It held that the defendants had failed to verify the veracity of the published information (that is to say that the applicant had collaborated with the communist secret services). They had acted unlawfully and intentionally. In addition, the articles had been accompanied by extremely “caricatural” ( karykaturalne ) photographs of the applicant in order to defame him in the eyes of the public. Lastly, the court referred to the lustration court ’ s judgment (see paragraph 15 above), which had confirmed that the applicant ’ s lustration declaration had been true.

20 . Following an appeal by the defendants, on 27 June 2012 the Pozna ń Court of Appeal amended the first-instance judgment and dismissed the applicant ’ s claim. The court held at the outset that the fact that the lustration court had confirmed that the applicant had not lied in his lustration declaration did not mean that the documents in his file in the Institute of National Remembrance had not been true.

21 . The court examined all the articles published between November 2007 and February 2010. It noted that in all of those articles the authors had relied on the material published by the Institute of National Remembrance in its official bulletin. It held that the applicant had not questioned their veracity; rather, the dispute had only concerned the assessment of that material, and in that regard various interpretations had been acceptable. The authors had consulted several historians and politicians, and had referred to various research material s . The court also noted that the applicant was a well-known politician, which clearly explained the public ’ s interest in his past.

22 . The court subsequently conducted a thorough analysis of each of the nineteen articles. In respect of each article the court examined its content and form, the material relied on by the authors, and the authors ’ possible intentions. It furthermore noted the applicant ’ s claims and observed in respect of each article that it had not infringed the applicant ’ s personal rights.

23 . In conclusion the court held that the applicant had failed to demonstrate that the impugned articles had breached his personal rights. The publication of true information included in the secret services documents that had been in the possession of the National Institute of Remembrance could not have breached his rights. Those documents had confirmed that the applicant had been registered as a confidential contact and an operational contact. In view of that information the journalists had been justified in reflecting on the nature and character of the applicant ’ s relationship with the communist secret services. However, none of the articles had included direct allegations that the applicant had acted as a secret collaborator ( tajny wsp ół pracownik ). Moreover, the journalists had not suggested that the applicant had been a “lustration liar” ( klamca lustracyjny ). Furthermore, the court did not agree with the Regional Court that the publication of the photographs of the applicant that had accompanied the articles had been meant to intentionally defame him. The photographs had been taken during a conversation and in the court ’ s view had not been of a ridiculing nature or offensive. F or those reasons, the defendants had not acted unlawfully and they had complied with the obligation of journalistic diligence. In the court ’ s view those articles could be viewed as simply providing information about available documents and as a commentary on their meaning.

24 . The applicant lodged a cassation appeal against that judgment.

25 . On 16 May 2013 the Supreme Court refused to entertain the applicant ’ s cassation appeal. That decision was served on the applicant ’ s lawyer on 18 July 2013.

26 . The relevant law and practice concerning lustration proceedings in Poland until 15 March 2007 is set out in the Court ’ s judgments in the cases of Matyjek v. Poland , cited above, §§ 27-39, Bobek v. Poland , no. 68761/01, §§ 18-43, 17 July 2007 , and Luboch v. Poland , no. 37469/05, §§ 28-39, 15 January 2008.

27 . 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 [ twórczosc racjonalizatorska ], shall be protected under civil law, regardless of the protection laid down in other legal provisions.”

28 . Article 24 of the Civil Code provides 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 a relevant statement in an appropriate form, or demand satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.

29 . Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. The relevant part of that provision 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

30 . The applicant complained under Article 8 of the Convention that the domestic courts had failed to protect his reputation in the civil proceedings for the protection of his personal rights that he had instituted against the editor-in-chief of Polska G Å‚ os Wielkopolski and its publisher Polskapress Sp.z o.o., since they had failed to strike a fair balance between respect for his right to the protection of his private life and the right to freedom of expression.

THE LAW

31 . The applicant complained under Article 8 of the Convention that the domestic courts had failed to protect his reputation in the proceedings against the editor-in-chief and the publisher of Polska G Å‚ os Wielkopolski . This provision of the Convention, in so for as relevant, reads as follows:

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

32 . The Government confirmed that there had been an interference with the applicant ’ s right to have his reputation protected. However, that interference had been in accordance with the law and necessary for the protection of the rights and freedoms of others. Citing the case of Karakó v. Hungary (no. 39311/05, 28 April 2009), they submitted that the present case concerned the applicant ’ s reputation taken alone and did not involve the issue of integrity . The impugned statements had been found to constitute expressions protected under Polish law.

33 . They noted that the Court of Appeal had focused on the wording of the impugned articles and compared them to the applicant ’ s file in the Institute of National Remembrance. All statements had been based on the documents from the file. The articles had been written following consultations with historians and politicians. During the domestic proceedings the applicant had contested neither the existence of such documents nor their authenticity, but merely their assessment.

34 . Moreover, the applicant was a public person. That fact had justified the press interest in him and the publication of articles relating to an analysis of his contacts with the communist secret services.

35 . In the Government ’ s view, the journalists had complied with their obligation of journalistic diligence. The applicant had been informed of the planned articles and his position and explanations had been duly reported by the newspaper.

36 . The Government concluded that given that the articles had been carefully analysed by the domestic courts and accuracy of the statements contained in them had been confirmed by the information contained in the applicant ’ s file in the Institute of National Remembrance, the requirement of proportionality between two conflicting interests had been complied with.

37 . The applicant argued that the allegation contained in the articles in question had been of a serious nature and capable of damaging his reputation and ruining his political career. He furthermore claimed that the journalists had failed to honour their obligation to exercise due diligence. In particular, the views of leading experts on lustration who had urged that the archived materials should be approached with caution had been ignored.

38 . He furthermore stated that the domestic courts had failed to carry out a thorough balancing exercise, as required by the Court ’ s case-law. In his view the courts had not taken into account the position of the lustration court, which had clearly stated that the applicant had not collaborated with the communist secret services.

39 . T he Court reiterates that according to its case-law, the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life . In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08 , § 83, 7 February 2012, and Bédat v. Switzerland [GC], no. 56925/08, §§ 72-73, 29 March 2016 ).

40 . The Court notes that, in cases such as the present one, what is at issue is not an act undertaken by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicant ’ s private life. It reiterates that the positive obligation inherent in Article 8 of the Convention may oblige the State to adopt measures designed to secure respect for private life, even in the sphere of the relations of individuals between themselves. The applicable principles are, nonetheless, similar, and regard must be had to the fair balance that has to be struck between the relevant competing interests (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 98 and 99, ECHR 2012, with further references).

41 . Therefore, the Court considers that the present case requires an examination of the question of whether a fair balance has been struck between the applicant ’ s right to the protection of his private life under Article 8 of the Convention and the journalists ’ right to freedom of expre ssion, as guaranteed by Article 10. Having considered, on numerous previous occasions, similar disputes requiring an examination of the issue of a fair balance, the Court refers to the general principles that have been established in its case-law relating to each of the rights in question (see Axel Springer AG , cited above, §§ 78-88; Von Hannover (no. 2) , cited above, §§ 95 ‑ 107 ; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83 ‑ 92, ECHR 2015 (extracts)).

42 . Turning to the facts of the present case, the Court observes that the allegations that the applicant collaborated with the communist secret services were serious enough for Article 8 of the Convention to come into play.

43 . The Court furthermore notes that the applicant – as a former member of the Polish Parliament, a former member of the Polish delegation to (and later vice-president of) the Parliamentary Assembly of the COE, and a former MEP (see paragraph 5 above) – is a well ‑ known public figure in respect of whom the limits of acceptable criticism are drawn more widely than they are in respect of a private individual, and he thus has to display a greater degree of tolerance.

44 . The allegations in the present case were made in the context of a public debate on a matter of legitimate public concern – namely the operations of the communist secret services.

45 . As regards the contents of the articles, the domestic court found them to constitute value judgments (see paragraph 20 above). However, the applicant argued that the articles had lacked a sufficient factual basis and had seriously damaged his reputation (see paragraph 37 above) . In that connection, the Court reiterates that even though the truth of a value judgment is not susceptible of proof, a value judgment may be considered excessive where there is no factual basis to support it ( see Jerusalem v. Austria , no. 26958/95, § 43, ECHR 2001-II , and Turhan v. Turkey , no. 48176/99, § 24, 19 May 2005) . In the present case, the domestic court, having analysed all the impugned articles and the content of the applicant ’ s file in the Institute of National Remembrance , concluded that there had been such a factual basis. It found that the documents, which veracity the applicant had not questioned, confirmed that he had been registered as a confidential and operational contact. Consequently, the journalists had been justified in reflecting on the true nature of his relationship with the communist secret services (see paragraphs 21 and 23 above). T he Court sees no reason to depart from that assessment.

46 . In that respect the Court notes with satisfaction that the Pozna Å„ Court of Appeal made a thorough and detailed analysis of all the impugned articles (see paragraph 22 above). The Court furthermore appreciates that the reasons put forward by that court in support of its conclusions were in keeping with the principles set forth in the Court ’ s case-law (see, for a summary of the relevant case ‑ law, Feldek v. Slovakia , no. 29032/95, §§ 72 ‑ 74, ECHR 2001–VIII, and Scharsach and News Verlagsgesellschaft v. Austria , no. 39394/98, § 30, ECHR 2003–XI).

47 . In the light of the above, the Court is satisfied that in balancing the conflicting fundamental rights under Articles 8 and 10 of the Convention, the domestic courts made an assessment on the basis of the principles resulting from the Court ’ s well-established case-law.

48 . It follows that this application 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 14 November 2019 .

Renata Degener Armen Harutyunyan Deputy Registrar President