FOURTH SECTION

DECISION

Application no . 38652/15 Wojciech Kazimierz CIEÅšLA against Poland

The European Court of Human Rights (Fourth Section), sitting on 24 January 2017 as a Committee composed of:

Vincent A. De Gaetano, President, Egidijus KÅ«ris, Gabriele Kucsko-Stadlmayer, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 23 July 2015,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Wojciech Kazimierz Cieśla, is a Polish national, who was born in 1972 and lives in Warsaw. He was represented by Mr K . Orlik, a lawyer practising in Warsaw.

A. The circumstances of the case

2. From 30 April to 2 May 2009 the applicant, a journalist, published in the journal Dziennik Polska Europa Åšwiat three articles concerning irregularities in the non-profit organisation Transparency International (TI).

3. He claimed that TI hid its real sponsors and acted on behalf of their names; that JP (the head of TI) defended the tamers of corruption. In his articles the applicant also wrote that PK, JP ’ s assistant and assistant judge in one of the domestic courts, organised well paid workshops for the pharmaceutic company Bacter.

4. On an unspecified date PK lodged a private bill of indictment for defamation against the applicant.

5. The Warsaw District Court thoroughly analysed all charges of the bill of indictment and found most of them ill-founded. The court, however, found that the impugned articles did contain untrue information concerning the alleged organisation and participation by PK in well paid workshops. This untrue information amounted in the court ’ s view to defamation which undermined the public confidence necessary for the exercise of the profession of assistant judge. On 19 December 2013 the Warsaw District Court convicted the applicant of defamation and abstained from imposing a penalty. The court obliged the applicant to pay 300 Polish zlotys (PLN) (approximately 75 euros (EUR)) to the Victims Aid Fund.

6. PK and the applicant appealed against the first-instance judgment.

7. On 11 August 2014 the Warsaw Regional Court dismissed all appeals and upheld the judgment.

8. On 19 March 2015 the Supreme Court dismissed the applicant ’ s cassation appeal as manifestly ill-founded.

B. Relevant domestic law and practice

9. Article 212 of the Criminal Code (the “CC”) provides in so far as relevant:

“ 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 this person, group or entity in public opinion 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 or she shall be liable to a fine, a restriction of liberty or imprisonment not exceeding two years. ”

10. Article 213 of the CC provides as follows:

“ 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 demoralisation of a minor. ”

11. On 30 October 2006 the Constitutional Court, ruling on a legal question referred to it by the Gdansk District Court, declared Article 212 §§ 1 and 2 of the CC compatible with Articles 14 and 54 § 1 of the Constitution read in conjunction with Article 31 § 3. The court found that in some circumstances the protection of rights and freedoms like dignity, good name and privacy might prevail over the protection of freedom of expression. The court further found that there was no basis to assume that protection of personal rights through civil law alone would be equally effective as criminal law protection. The latter did not in itself infringe the relevant provisions of the Constitution.

COMPLAINTS

12. The applicant complained under Article 10 of the Convention that his right to freedom of expression had been infringed.

The applicant argued that the submitted facts were true; that he had acted with due diligence while gathering materials to his articles and that he had based them on information from credible sources. Furthermore, he claimed that the articles had pursued the legitimate aims of the protection of social interests, fighting against corruption and for transparency of public life. In his submission, the domestic courts gave little importance to freedom of expression.

13. He further complained under Article 6 § 1 of the Convention about the outcome of the domestic proceedings.

THE LAW

A. Alleged violation of Article 10 of the Convention

14. The applicant considered that his conviction for defamation had violated his right to freedom of expression. He invoked 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, ( ... ) for the protection of the reputation or rights of others ( ... ) or for maintaining the authority and impartiality of the judiciary. ”

16. The interference referred to above was “prescribed by law”; it was based on the relevant provisions of the CC providing for the protection of personal rights, namely Articles 212 and 213 (see paragraphs 9 and 10 above).

17. T he Court accepts that the interference with the applicant ’ s freedom of expression pursued a legitimate aim, namely the protection of the reputation or rights of PK.

18. It remains to be ascertained whether the interference complained of was necessary in a democratic society.

19. As regards the test of “necessity in the democratic society”, the relevant general principles are set out in paragraphs 54-58 of the Court ’ s judgment in the case Łopuch v. Poland , no. 43587/09 , 24 July 2012. The Court would, however, reiterate that in exercising its supervisory jurisdiction, it must look at the impugned interference in the light of the case as a whole, including the content of the article written by the applicant and the context in which it was 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 are “relevant and sufficient” (see Janowski v. Poland [GC], no. 25716/94, § 30(iii), ECHR 1999 ‑ I with further references, and MGN Limited v. the United Kingdom , no. 39401/04, § 139, 18 January 2011 ).

20. In assessing the necessity of the interference, it is also important to examine the way in which the domestic courts dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention (see Stankiewicz and Others v. Poland , no. 48723/07 , § 76, 14 October 2014 ) .

21. The Court has accepted on many occasions that a journalist had a duty to impart information and ideas on political questions and on other matters of public interest and in so doing could have recourse to a certain degree of exaggeration or even provocation (see Mamère v. France , no. 12697/03, § 25, ECHR 2006 ‑ XIII, and DÄ…browski v. Poland , no. 18235/02, § 29, 19 December 2006 ); nevertheless, it must be left open to the domestic courts to punish defamation

22. In cases such as the present one the Court considers that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher who has published the offending article or under Article 8 of the Convention by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect. Accordingly, the margin of appreciation should in principle be the same in both cases. Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG v. Germany [GC], no. 39954/08 , §§ 87-88 , 7 February 2012) .

23. Turning to the facts of the present case, the Court notes that the judgments against the applicant concerned the statement in his article which was found to be false by the domestic courts at two instances. The domestic courts, which had the advantage of direct examination of the evidence before them, found that the applicant ’ s statement that PK had organized well-paid workshops for a pharmaceutical company did not have any factual basis and was objectively untrue.

25. Furthermore, in assessing the proportionality of the interference, the nature and severity of the sanction imposed are also factors to be taken into account (see, for example, Skałka v. Poland , no. 43425/98, §§ 41-42, 27 May 2003; Kwiecień v. Poland , no. 51744/99, § 56, ECHR 2007-I; and Kaperzyński v. Poland , no. 43206/07 , § 73, 3 April 2012 ).

26. In this connection, the Court observes that the court abstained from imposing a penalty on the applicant, who was only convicted to pay PLN 300 (approximately EUR 75) to a charity (see paragraph 5 above). Therefore, it did not upset the balance between the applicant ’ s freedom of expression and the need to protect the third person ’ s reputation (see CumpÇŽnÇŽ and MazÇŽre v. Romania [GC], no. 33348/96, § 91, ECHR 2004 ‑ XI). It should be also noted that the criminal proceedings against the applicant originated in a private bill of indictment; no criminal proceedings on a public indictment were instituted or even envisaged against him (compare and contrast KurÅ‚owicz v. Poland, no. 41029/06 § 54, 22 June 2010, and DÅ‚ugoÅ‚Ä™cki v. Poland, no. 23806/03 § 47, 24 February 2009).

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

28. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of Article 6 § 1 of the Convention

29. The applicant also complained under Article 6 § 1 of the Convention about the unfavourable outcome of the proceedings against him, in particular the allegedly erroneous assessment of evidence.

30. The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and insofar as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). The Court has examined the applicant ’ s allegation without disclosing any appearance of violation of those rights and freedoms.

31. It follows that this complaint 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 16 February 2017 .

Andrea Tamietti Vincent A. De Gaetano              Deputy Registrar President