FIRST SECTION

DECISION

Application no. 48174/11 Piotr NIEMCZYK against Poland

The European Court of Human Rights (First Section), sitting on 14 May 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 25 July 2011,

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 Piotr Niemczyk, is a Polish national who was born in 1962 and lives in Warsaw. He was represented before the Court by Mr I.C. Kaminski, a lawyer practising in Cracow.

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.

A. The circumstances of the case

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

4. Between 1990 and 2001 the applicant held various posts in government. In particular, he was the director of the Office for Analysis and Information of the State Security Bureau ( Biuro Analiz i Informacji Urzędu Ochrony Państwa ) from 1990 to 1993, deputy director of the State Security Intelligence Board ( Zarząd Wywiadu Urzędu Ochrony Państwa ) from 1993 to 1994, adviser to the Minister of Interior from 2000 to 2001 and undersecretary of State in the Ministry of the Economy ( Podsekretarz Stanu w Ministerstwie Gospodarki ) in 2001.

5. On 31 July 2008 the Polish daily newspaper Rzeczpospolita published an interview with A.G., a businessman and president of B., a large crude ‑ oil and natural-gas company. It stated that:

“...other examples of aggression of the [s]ecret [s]ervices are that in 1993 K.M. and P. Niemczyk falsified information provided for the Prime Minister W.P. They wrote that I was a Russian agent. I know that someone from counter-intelligence reacted and ordered that this information be withdrawn from W.P. as untrue, though this did not happen.”

6. On 29 August 2008 A.G. participated in the television programme Piaskiem po oczach (“Sand in the eyes”), broadcast on one of the largest private news channels, TVN24. During the programme he stated:

“We filed materials which prove that [secret] services destroyed the company [B.]; K.M., Niemczyk and N. took part in that. They prepared a false report and gave it to the Prime Minister.”

7. On 2 September 2008 the applicant filed a private bill of indictment against A.G. with the Warsaw District Court. He complained that A.G. had damaged the reputation and good name he needed to practise his profession. He relied on Article 212 of the Criminal Code, which made defamation ( zniesławienie ) a punishable offence.

8. On 3 November 2008 K.M. joined the proceedings against A.G. Subsequently, on 3 February 2009 A.G. filed a private bill of indictment against K.M., alleging that a statement made by the latter during a press conference on 12 January 2009 had damaged his reputation. He referred to the following phrase:

“A.G. ’ s statement is a manifestation of his mental crisis and frustration.”

9. The court decided to examine the cases jointly.

10. On 27 October 2010 the Warsaw District Court discontinued the proceedings against A.G. and K.M. as it could not be established that they had acted unlawfully.

11. The court noted that A.G. was a well-known businessman and the president of B. K.M. and the applicant had worked for the State Security Bureau and held the posts of director of the Counter-Intelligence Board ( dyrektor ZarzÄ…du Kontrwywiadu ) and director of the Office for Analysis and Information of the State Security Bureau respectively . It was also a fact that the head of the State Security Bureau, J.K., in a report of 18 November 1993 addressed to the Prime Minister, had included information about A.G. and his company, B. In that report it had been suggested that A.G. had been a Russian agent and had been acting in the Russian interest. Furthermore, the Warsaw Prosecutor General had instituted criminal proceedings into an alleged abuse of power by K.M. and the applicant for giving State organs false information which was significant for the Republic of Poland. Lastly, the court noted the statements made by A.G. during the interview for Rzeczpospolita and the television programme.

12. In the court ’ s opinion, however, A.G. ’ s statements did not amount to a breach of Article 212 § 2 of the Criminal Code. Firstly, the court found that A.G. had not made accusatory statements but had merely tried to defend himself in the light of the allegations contained in the report in question. Secondly, the expressions used by A.G. had not breached social norms. While he had used the words “falsified” and “destroyed”, his intention had been only to make it known that the allegations against him were untrue and had caused significant damage to him and his company. Thirdly, the applicant and K.M. were public figures subject to closer scrutiny. In particular, they were former members of the intelligence services and were currently active in politics and business. Such people were automatically subject to stronger criticism and therefore should have been more resistant. Fourthly, the court noted that criminal proceedings regarding the impugned report and alleged abuse of power by the applicant and K.M. were still pending. Lastly, the court found A.G. ’ s statements to be of a subjective rather than a factual nature.

13. The applicant appealed arguing, among other things, that A.G. ’ s declarations should have been regarded as defamatory and unlawful statements in that they were untrue and derogatory and damaged the good name and reputation he needed for his profession as a consultant to the secret services.

14. On 27 January 2011 the Warsaw Regional Court upheld the first ‑ instance decision, in so far as it concerned the applicant ’ s complaint against A.G. It agreed with the court of first instance and held that A.G. had not intended to damage the reputation of K.M. and the applicant. The content of his statements should have been examined in the light of his business activity and also from the point of view of someone defending himself from allegations of “being a Russian agent”. The court also observed that the content of the television programme and the fact that A.G. had presented materials which, in his opinion, had demonstrated that allegations of his cooperation with a foreign intelligence service had been untrue proved that A.G. had not wished to damage the applicant ’ s reputation.

15. In 2007 the prosecutor instituted criminal proceedings concerning an alleged abuse of power by former officers of the State Security Bureau, namely the applicant and K.M. They both gave evidence as witnesses. However, no charges were ultimately brought.

B. Relevant domestic law and practice

16. The relevant provisions of the Criminal Code provide as follows:

Article 212

“1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics as may lower that person, group or entity in public esteem or undermine public confidence in their capacity necessary for a given position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year.

2. If the perpetrator commits the act described in paragraph 1 through the mass media he shall be liable to a fine, a restriction of liberty or imprisonment not exceeding two years.”

Article 213

“1. The offence specified in Article 212 § 1 is not committed if the allegation made in public is true.

2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2; if the allegation regards private or family life, evidence of truthfulness shall be admitted only when it serves to prevent a danger to someone ’ s life or to prevent the moral corruption of a minor.”

COMPLAINT

17. The applicant complained under Article 8 of the Convention that the domestic courts had failed to protect his reputation in the defamation proceedings that he had instituted against A.G., 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

18. The applicant complained under Article 8 of the Convention that the domestic courts had failed to protect his reputation in the defamation proceedings against A.G. 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.”

A. The parties ’ submissions

1. The Government

19. The Government confirmed that there had been an interference with the applicant ’ s right to a reputation. However, this interference had been in accordance with the law and necessary for the protection of the rights and freedoms of others. Relying on 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 element of integrity . The impugned statements had been found to be value judgments and as such had been protected forms of expression under Polish law. It was further primarily for the national authorities to assess whether or not the impugned conduct had amounted to a criminal act.

20. Lastly, the Government stressed that the applicant had not lost his reputation owing to the publication and/or broadcasting of A.G. ’ s statements in 2008. In their view, the applicant still enjoyed the status of an expert in his field and had been awarded various medals and distinctions.

2. The applicant

21. The applicant argued that the domestic courts had failed to carry out a thorough balancing exercise as required by the Court ’ s case-law. The allegation that he had falsified a report for the Prime Minister had been a statement of fact and should not have been identified as a value judgment. It had also been of a serious nature, capable of affecting him in the performance of his duties and damaging his reputation.

22. The applicant accepted that, being a public figure, he was required to accept more criticism than an “ordinary citizen”. At the same time, he was entitled to the protection of his reputation against defamatory and damaging statements devoid of sufficient factual basis. In his view, A.G. ’ s allegations had not had any sufficient factual basis. The investigation instituted by the prosecution services had been conducted in relation to the alleged offence in general ( in rem ) and at no point had it reached the stage of being directed against a certain person ( in personam ). No decision to file charges against the applicant or any other person had been taken by the State Security Office.

23. Lastly, the applicant disagreed with the Government that the fact that he had been awarded medals and distinctions in private ceremonies was an indication that his reputation had not been damaged.

B. The Court ’ s assessment

24. T he Court reiterates that in accordance with its case-law, the right to a reputation is an independent right guaranteed by Article 8 of the Convention as part of the right to respect for private life, which the State has a positive obligation to protect. 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 Bédat v. Switzerland [GC], no. 56925/08, §§ 72-73, 29 March 2016, and Axel Springer AG v. Germany [GC], no. 39954/08 , § 83, 7 February 2012).

25. The Court also notes that, in cases such as the present one, what is in issue is not an act 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).

26. 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 A.G. ’ s right to freedom of expression 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 Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83 ‑ 92, ECHR 2015 (extracts); Axel Springer AG , cited above, §§ 78-88; and Von Hannover (no. 2) , cited above, §§ 95 ‑ 107).

27. Turning to the facts of the present case, the Court observes that the allegations in the present case – that the applicant, while holding a post in the secret services, had falsified information provided to the Prime Minister – were serious enough for Article 8 of the Convention to come into play.

28. The Court further notes that the applicant, as a former member of the intelligence services, a former high-ranking official of the State Security Bureau and a ministerial adviser (see paragraph 4 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.

29. The allegations in the present case were made in the context of a public debate on a matter of legitimate public concern, namely the role of the intelligence services in business and politics.

30. As regards the contents of the allegation, the domestic courts found them to be value judgments (see paragraphs 21 and 22 above). However, the applicant argued that A.G. ’ s statements had lacked a sufficient factual basis and had seriously damaged his reputation (see paragraph 12 above) . In this 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 Turhan v. Turkey , no. 48176/99, § 24, 19 May 2005, and Jerusalem v. Austria , no. 26958/95, § 43, ECHR 2001-II) . In the present case, the domestic courts, referring to the fact that the proceedings regarding the impugned report and the alleged abuse of powers by the officers of the State Security Bureau were still pending, concluded that there had been such a factual basis. Having regard to the detailed reasoning of the domestic decisions, the Court sees no reason to depart from this assessment.

31. Moreover, as noted by the domestic courts, the expressions used by A.G. had not breached social norms, and his intention had not been to damage the applicant ’ s reputation but merely to defend himself from the allegations in the report of “being a Russian agent ” (see paragraphs 11 and 14 above).

32. The Court is satisfied that the reasons put forward by the domestic courts in support of their 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).

33. Lastly, and most importantly, the Court observes that in Poland a person making a defamatory statement may be held liable under both criminal and civil law. While in certain, very special circumstances a breach of a person ’ s right to respect for his or her private life may require effective recourse to criminal law in addition to a civil-law remedy (see K.U. v. Finland , no. 2872/02, §§ 48-51, ECHR 2008), the facts of the present application do not remotely attain the necessary degree of seriousness. Nevertheless, the applicant did not choose to bring a civil action requesting legal protection of his civil rights but instead embarked on a private prosecution accusing A.G. of defamation.

34. 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 based on the principles resulting from the Court ’ s well-established case-law.

35. 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 6 June 2019 .

Renata Degener Armen Harutyunyan Deputy Registrar President