FIRST SECTION

DECISION

Application no. 2244/14 Waldemar Stanisław ŚLIWCZYŃSKI and Tomasz SZTERNEL against Poland

The European Court of Human Rights (First Section), sitting on 29 March 2022 as a Chamber composed of:

Marko Bošnjak, President, Péter Paczolay, Krzysztof Wojtyczek, Alena Poláčková, Erik Wennerström, Raffaele Sabato, Davor Derenčinović, judges, and Renata Degener, Section Registrar,

Having regard to the above application lodged on 16 December 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The first applicant, Mr Waldemar Stanisław Śliwczyński, was born in 1958 and lives in Września. The second applicant, Mr Tomasz Szternel, was born in 1977 and lives in Pyzdry. They are both Polish nationals and were represented before the Court by Ms D. Bychawska-Siniarska , of the Helsinki Foundation for Human Rights in Warsaw.

2. The Polish Government (“the Government”) were represented by their Agent, 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. The first applicant is editor-in-chief of Wiadomości Wrzesińskie , a Polish local weekly newspaper. The second applicant is a journalist who at the material time worked for that newspaper.

5. In 2007 H.S., a local businessman, was charged with sexual abuse of two of his employees. The proceedings before the domestic courts were not open to the public (in accordance with Article 360 of the Code of Criminal Procedure), given the need to protect the victims’ and the accused’s privacy and in order to protect public morals.

6. On 17 December 2008 the Września District Court convicted H.S. of sexual abuse of one of the victims and acquitted him in respect of the other. The judgment was upheld by the Poznań Regional Court on 30 April 2009.

7. On 22 July 2010 the second applicant asked the President of the Second Criminal Division of the Września District Court to grant him access to the case file of the case against H.S., as he was preparing a press article on that subject. On the same day he was granted access to the files. The President made the following handwritten note on the applicant’s letter: “I agree to grant access to the case file” ( wyrażam zgodę na udostępnienie akt ).

8. On 30 July 2010 Wiadomości Wrzesińskie published an article written by the second applicant headlined “When the boss loves differently” ( Kiedy szef kocha inaczej ). H.S.’s name was given in full and the article was illustrated with a photograph of him.

9. The article began with information about the institution of criminal proceedings against H.S. Subsequently, the author described the experiences of four people who had previously worked for H.S.’s company and who had allegedly been subjected to sexual abuse. The victims described in detail the practices to which they had allegedly been subjected by H.S. Their names were not revealed. The author concluded the article with information about H.S.’s conviction.

10. On 10 October 2010 H.S. lodged a criminal complaint with the Września District Prosecutor. He complained that the applicants had revealed information concerning criminal proceedings against him which had been conducted in private. An investigation was instituted on 30 November 2010.

11. On 4 February 2011 the applicants were charged with dissemination of information from court proceedings conducted in private (Article 241 § 2 of the Criminal Code). H.S. did not join the proceedings as a civil party.

12. A bill of indictment was filed on 28 February 2011.

13. On 24 April 2012 the Poznań Stare-Miasto District Court convicted both applicants as charged. It held that the applicants had committed the offence with unjustifiable ignorance of the unlawfulness of their act ( w nieusprawiedliwionej nieświadomości bezprawności czynu ), and for that reason it decided not to impose a penalty ( odstąpił od wymierzenia kary ). It further ordered them to pay 800 Polish zlotys (PLN) (approximately 150 euros (EUR)) each to a charity and PLN 30 (EUR 7) for the costs of the proceedings.

14. On 25 July 2012 the Poznań Regional Court quashed that judgment and remitted the case. The court was of the view that the court of first instance had committed errors in logic when deciding the case.

15. On 6 February 2013 the Poznań Stare-Miasto District Court gave judgment and conditionally discontinued the proceedings against the applicants, given the insignificant degree of social harm of the offence ( znikoma szkodliwość społeczna czynu ). It further ordered the applicants to pay PLN 500 (EUR 125) each to a charity and also to pay the costs of the proceedings.

16. The court held that the dissemination of information from court proceedings conducted in private was a criminal offence. The Criminal Code did not allow for any kind of exception; this was an absolute prohibition not limited in time. The court noted that the applicants had been aware that the case had been conducted in private. Given that they were both professional journalists, they should have also been aware that the decision to grant them access to the file of a case in which proceedings had been conducted in private was not tantamount to having allowed them to publish that information.

17. The District Court further noted that in his article, the second applicant had only relied on excerpts from the witnesses’ testimonies; he had not verified that information in any way and he had not asked any of the victims for comments. In the court’s view, the applicants had not acted with the requisite journalistic diligence.

18. Lastly, the court stressed that the decision to conduct the proceedings in private had been taken in order to protect the privacy of the victims. It was true that in the article the victims’ names had been changed. At the same time, H.S.’s name had appeared in full. Since all the persons involved in the case lived in a small town, the disclosure of such sensitive information had clearly had a harmful effect on their life in the community.

19. The applicants appealed. They submitted that they had obtained the information lawfully and in good faith, as they had been granted access to the case file in order to prepare a press article. The President of the Criminal Division should have specified to what extent the information from the trial could be used. Since he had failed to do so, they had reasonably expected that the information could be made public.

20. On 16 May 2013 the Poznań Regional Court upheld the judgment. The court endorsed the findings made by the District Court. It noted that the applicants had been aware that the proceedings in H.S.’s case had been conducted in private. The fact that they had been granted access to the case file did not mean that they had been allowed to make public the information contained in that file.

21. Lastly, the Regional Court held that Article 241 § 2 of the Criminal Code criminalised the disclosure of information regardless of how it was obtained. That provision contained an absolute prohibition on the disclosure of information from a hearing conducted in private, and was not limited in time. In view of the applicants’ extensive professional experience, they could not maintain that they had been unaware of that prohibition. Referring to the Court’s case-law under Article 10 of the Convention, the Regional Court concluded that the media should not overstep the limits imposed in the interests of the proper administration of justice.

22. The judgment was served on the applicants on 22 July 2013.

23. Article 241 of the Criminal Code provides as follows:

Ҥ 1. Anyone who, without permission, makes public information from an investigation before [that information] is revealed before the court shall be punished with a fine, restriction of liberty or imprisonment for up to two years.

§ 2. Anyone who makes public information from a court hearing conducted in private shall be liable to the same punishment.”

24. The relevant provisions of the Code of Criminal Procedure, as applicable at the material time, provided, in so far as relevant:

Article 156 § 1

“Parties, entities referred to in Article 416 [of the Code], defence lawyers, attorneys and legal representatives shall be given access to the court’s case file and the opportunity to make copies thereof. With the permission of the president of the court, access to court files may also be granted to other persons.”

Article 360

“1. The court may decide to exclude the public from the whole or part of a trial where opening it to the public could:

(a) give rise to a public disturbance;

(b) offend common decency;

(c) disclose circumstances which should be kept secret on account of an important interest of the State; or

(d) violate an important private interest.

2. Moreover, the court shall exclude the public from the whole or part of a trial at the request of the person who lodged the criminal complaint.

3. The court may also exclude the public from the whole or part of a trial where at least one of the accused is a minor or for the duration of the examination of a witness who is under 15 years of age.”

25. Section 94 (2) of the Rules on the Functioning of Courts of 23 February 2007 ( Regulamin urzedowania sądów powszechnych ) provides as follows:

“The President of the court’s division also decides whether a court file is to be made available to other persons, who do not have procedural rights, and to what extent they may use those files.”

COMPLAINT

26. The applicants complained under Article 10 of the Convention that their criminal conviction had resulted in a violation of their right to freedom of expression.

THE LAW

27. The applicants complained that the domestic courts’ decisions in their case had constituted an unlawful and disproportionate interference with their right to freedom of expression. They relied on Article 10 of the Convention, the relevant parts of which read 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 ...”.

28. The Government alleged that the applicants had not suffered a significant pecuniary or non-pecuniary disadvantage. The criminal proceedings against them had been conditionally discontinued for one-year probation and no records of conviction had been entered in the National Criminal Record. Moreover, the applicants had only been ordered to pay PLN 500 (approximately EUR 125) each to a charity.

29. The applicants disagreed. They noted that they had been subjected to the most serious sanction – a criminal sanction. They stressed that they were journalists from a small community with limited staff and financial resources. In their situation criminal proceedings could have led to the weakening of their credibility and stigmatisation in the eyes of the local community and had a chilling effect on the exercise of their freedom of expression.

30. The general principles relating to the application of the admissibility criterion contained in Article 35 § 3 (b) of the Convention to cases concerning freedom of expression are set out, for example, in Ringier Axel Springer Slovakia, a.s. v. Slovakia (no. 4) (no. 26826/16, § 26, 23 September 2021). In particular, in those cases the application of the criterion contained in Article 35 § 3 (b) of the Convention should take due account of the importance of the freedom of expression and be subject to careful scrutiny by the Court. This scrutiny should encompass, among other things, such elements as contribution to a debate of general interest and whether a case involves the press or other news media (ibid.).

31. The Court observes that in the present case the applicants’ subjective perception of the alleged violation was that the criminal proceedings against them in a small local community setting had had a chilling effect that could have affected the exercise of their right to freedom of expression in the future.

32. The Court notes that while the payment to charity which the applicants were ordered to make could be considered modest, the case involved criminal proceedings, which in themselves have a chilling effect that might make the applicants, as professional journalists, reluctant to contribute to debate on matters of general interest.

33. In view of the above considerations, the Court is thus satisfied that the applicants suffered a significant disadvantage as a result of the criminal proceedings in the present case and does not deem it necessary to consider whether respect for human rights compels it to examine the case (see, mutatis mutandis , Ringier Axel Springer Slovakia, a.s ., cited above, § 28).

34. Accordingly, the Court dismisses the Government’s objection regarding the alleged lack of a significant disadvantage.

35. The Government submitted that the applicants had not exhausted all domestic remedies as required by Article 35 § 1 of the Convention and had failed to lodge a constitutional complaint. In particular, they should have challenged the constitutionality of Article 241 § 2 of the Criminal Code, which had been the basis of their conviction. The Government relied on previous cases in which the Court had recognised a constitutional complaint as an effective remedy (citing Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003; Pachla v. Poland (dec.) no. 8812/02, 8 November 2005; and Jerzy Urban v. Poland (dec.) no. 29690/06, 7 September 2010)

36. The applicants disagreed. They submitted that there had been no grounds on which to contest the constitutionality of Article 241 § 2 of the Criminal Code. Their case had not concerned the direct application of the provision in question, but rather its interpretation by the domestic courts. For those reasons a constitutional complaint had not been available in their case.

37. The Court does not find it necessary to examine all the arguments raised by the parties as regards non-exhaustion of domestic remedies because the present case is in any event inadmissible for the reasons set out below.

(a) The Government

38. The Government submitted that the interference in the present case was prescribed by Article 241 § 2 of the Criminal Code. That legal provision was clear, accessible and foreseeable in its application. The applicants’ conviction had pursued the legitimate aims set out in Article 10 § 2 of the Convention, namely the protection of morals, the protection of the reputation and rights of others, the prevention of the disclosure of information received in confidence and the maintaining of the authority and impartiality of the judiciary.

39. The Government further analysed the case in the context of the criteria set out in Bédat v. Switzerland ([GC], no. 56925/08, 29 March 2016). While the applicants had not obtained the information in question by unlawful means, they should, as professional journalists, have been aware of the confidential nature of the information. They should also have been aware that the decision to grant them access to the file of the proceedings conducted in private had not been tantamount to allowing them to publish the information contained therein.

40. As regards the content of the impugned article, the Government submitted that the article had painted a highly negative picture of H.S. The second applicant had quoted excerpts from the witness statements and had confined himself to sensationalism. They confirmed that the subject of the article had been to a certain extent a matter of public interest. At the same time, while the article had been published in 2010, it had concerned offences that had taken place between 2000 and 2005 and the criminal proceedings had ended in 2009. In the Government’s view it had lacked topicality and therefore had not provided any insights relevant to the public debate.

41. Furthermore, the Government agreed that the article had not had any impact on the criminal proceedings against H.S., as those proceedings had been terminated prior to its publication. Nevertheless, given their sensitive nature and the fact that they had concerned intimate details relating to sexual orientation, there had still been a need to prevent the disclosure of that information and to protect the private lives of the victims and the witnesses. In addition, it had been necessary to protect H.S.’s private life, as the sensitive information disclosed by the applicants had concerned his sexual orientation.

42. Lastly, as regards the nature and severity of the penalties imposed, the Government submitted that the criminal proceedings against the applicants had been conditionally discontinued for a one-year probation period. Moreover, the applicants had each been ordered to pay PLN 500 (approximately EUR 125) to charity and PLN 70 (EUR 17.50) for the costs of the proceedings. Thus, the sanctions had been rather symbolic in nature.

(b) The applicants

43. The applicants submitted that the interference in the present case had been based on Article 241 § 2 of the Criminal Code. In their view, that provision was not sufficiently clear and foreseeable in its application. In particular, it did not contain any instructions for judges on how to proceed once a request for permission to access a court file had been submitted. In accordance with section 94(2) of the Rules on the Functioning of Courts of 23 February 2007, the president of the court, when deciding on a request for access to a file, should instruct the person concerned how the information contained in the file could be used. The applicants also maintained that the interference in their case had not pursued a legitimate aim.

44. In the applicants’ view, the national courts had failed to apply the principle of proportionality in the present case. The article had concerned an issue of public interest, as it had described the conduct of a person widely known in the local community. It had been published after the termination of the proceedings against H.S. and had contained reliable information. All the rules of professional conduct had been complied with and the victims’ data had been anonymised.

45. The applicants stressed that the domestic courts had focused on the unlawfulness of the action but had failed to note the public interest involved in the case. In the applicants’ view the publication had served a legitimate public interest. The information had been crucial for the local community. The applicants’ role as local journalists was to inform the public about proceedings and court cases in the local community. The applicants had acted in good faith in order to warn the readers about H.S.’s actions.

46. The applicants confirmed that they had described H.S.’s activities in a shocking and disturbing manner. However, Wiadomości Wrzesińskie was a local publication, which, by its nature and in view of the language used, was more provocative than national publications. They also stressed that the source of information had been explicitly indicated in the article. They had decided not to interview the victims, as they had thought it would have been insensitive and could have caused the victims additional suffering.

47. Lastly, the applicants stressed that the criminal proceedings in the present case had amounted to a form of censorship likely to discourage them from making criticism of that kind again in future and from using case files as sources of information. It was true that the applicants had not been convicted. However, the proceedings had been conditionally discontinued, which had had far-reaching consequences for the assessment of their credibility by the public and had had a chilling effect restraining them from expressing their doubts and concerns as regards public figures.

(a) General principles

48. The general principles of the Court’s case-law concerning freedom of press are set out, in particular, in Bédat (cited above, §§ 48 54), Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC] (no. 931/13, §§ 124 ‑ 27 and 186, 27 June 2017) and Von Hannover v. Germany (no. 2) [GC] (nos. 40660/08 and 60641/08, §§ 100-103, ECHR 2012).

(b) Application of those principles to the present case

(i) Whether there was an interference

49. The Court notes at the outset that there has undeniably been an interference with the applicants’ freedom of expression. It should therefore be determined whether this interference was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in Article 10 § 2 and whether it was “necessary in a democratic society” in order to achieve those aims.

(ii) Whether the interference was prescribed by law and pursued a legitimate aim

50. The parties agreed that the impugned interference had a basis in the domestic law, namely Article 241 § 2 of the Criminal Code (see paragraphs 38 and 43 above). The applicants disputed the quality of that law, submitting that it had not been foreseeable as to its effects, as it had not included any rules for judges on how to proceed once a request for access to a court file had been submitted (see paragraph 43 above). However, the Court does not consider that the provision in question was overly broad or unclear. In any event, the applicants’ argument was rather directed towards the question whether the interference was “necessary in a democratic society”, a matter which the Court will examine below (see Kasabova v. Bulgaria , no. 22385/03, §§ 58-62, 19 April 2011).

51. The Court further accepts that the prosecution and conviction of the applicants pursued the aims cited by the Government, namely the protection of health and morals, the protection of the reputation or rights of others, the prevention of the disclosure of information received in confidence and maintaining the authority and impartiality of judiciary.

(iii) Whether the interference was “necessary in a democratic society”

52. In assessing the necessity of the interference, it is important to examine the way in which the relevant domestic authorities 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 M.L. v. Slovakia , no. 34159/17, § 35, 14 October 2021).

53. The Court observes firstly that it was not alleged that the applicants had obtained the information in question by unlawful means (compare Bédat , cited above, § 56). It is true that the applicants were granted access to the files of the case against H.S. by the decision of the President of the Września District Court (see paragraph 7 above). However, in their request for access to the files, the applicants did not set out any details as regards the planned article, that is, its subject matter and scope. The Court agrees with the conclusion of the domestic courts that the applicants, being professional journalists, must have been aware of the confidential nature of the information that they were going to publish and that the decision on access to the case files was not tantamount to permission to publish the information contained therein (see paragraphs 16 and 20 above, and compare Giesbert and Others v. France , nos. 68974/11 and 2 others, § 86, 1 June 2017).

54. As regards the content of the article, the domestic courts took the view that the article had painted a highly negative picture of H.S. The title, “When the boss loves differently”, the detailed information concerning the allegations of sexual abuse to which H.S. had subjected his employees, and the large, close-up photograph of the accused leave no room for doubt that the applicants had wanted the article to have a sensationalist tone (compare Bédat , § 60 and M.L. v. Slovakia , § 53, both cited above). Consequently, the Court does not see any serious reason to call into question the assessment made by the national courts as regards the content of the article.

55. Despite the Government’s assertions to the contrary (see paragraph 40 above), the Court accepts that the subject of the article was a matter of public concern, at least in the local community. However, it is questionable whether in the present case the content of the article and in particular the information acquired from the case file of hearings conducted in private were capable of contributing to public debate (see, mutatis mutandis , Von Hannover v. Germany , no. 59320/00, § 65, ECHR 2004‑VI). In that connection, the Court notes that the article was published in 2010. However, the criminal proceedings against H.S. ended in 2009 and, at the time of the publication of the article, H.S. was no longer a resident of the town in question.

56. The Court further observes that the domestic courts examined whether the research by the applicants before the publication of the article had been carried out in good faith and had complied with the ordinary journalistic obligation to verify the facts with reliable sources. It was established that the applicants had relied only on excerpts from the case files and had not verified the information in any way; they had not contacted the victims (or H.S.) and asked them for comments. In these circumstances, the domestic courts’ conclusion that the applicants had failed to comply with their journalistic obligations of diligence is not open to criticism (compare M.L. v. Slovakia , cited above, § 43).

57. The Court notes that the information disclosed by the applicants in their article was highly sensitive and personal in nature since it concerned in particular H.S.’s sexual orientation. This type of information calls for the highest level of protection under Article 8 of the Convention. Furthermore, H.S. was not a public figure and the mere fact that he was convicted of sexual abuse did not justify treating him in the same manner as a public figure who voluntarily exposes himself or herself to publicity (see, mutatis mutandis , Bédat , § 76 and M.L. v. Slovakia , § 38, both cited above).

58. Lastly, with regard to the severity of the sanctions imposed on the applicants, the Court considers that, although any sanction is capable of having a chilling effect, in the present case the sanctions imposed were lenient, as the national courts only ordered each of the applicants to pay PLN 500 (EUR 125). It is true that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings in matters of freedom of expression (see, among many other authorities, Castells v. Spain , 23 April 1992, § 46, Series A no. 236). Nevertheless, in the present case the Court considers that the recourse to criminal proceedings and the penalty imposed on the applicants did not amount to a disproportionate interference with the exercise of their right to freedom of expression.

(c) The Court’s overall conclusion

59. Having regard to all of the above considerations, the Court finds that the reasons relied on by the domestic courts were relevant and sufficient for the purposes of Article 10 of the Convention and that they struck a fair balance between the competing interests at stake.

60. It follows that the application is inadmissible as being manifestly ill ‑ founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 5 May 2022.

Renata Degener Marko Bošnjak Section Registrar President