Published on 18 October 2021

FIRST SECTION

Application no. 23801/19 Bogusław Damian WIECZOREK against Poland lodged on 29 April 2019 communicated on 29 September 2021

STATEMENT OF FACTS

The applicant, Mr Bogusław Damian Wieczorek, is a Polish national who was born in 1972 and lives in Aleksandrów Łódzki.

The applicant is a qualified valuer ( rzeczoznawca majÄ…tkowy ). His professional tasks include preparing expert valuations ( operat szacunkowy ) for customers who wish to obtain mortgage loans for purchase or construction of real estate.

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

On 29 February 2016 the applicant published online three posts within a closed email discussion group, addressed to other valuers. In his posts, the applicant referred to J.F. – the president of the management board of a limited liability company, C. – who, as he alleged, tried to deprive valuers of their right to work. The applicant’s messages encouraged their recipients to dissolve any contracts they had with J.F. or company C., and accused J.F. of greed, being an enemy of valuers and called him, in particular, a fraud (“ przekręciarz ”) and a greedy crook (“ chciwy cwaniaczek ”).

On 1 April 2016 a lawyer representing J.F. and C. lodged a private bill of indictment accusing the applicant of defamation and insult.

During the trial the applicant argued that his messages merely expressed his disagreement with the allegedly illegal actions of companies such as C., which offered valuers paid training courses whose completion was necessary in order for banks to accept their valuations.

On 28 May 2018 the Zgierz District Court ( Sąd Rejonowy ) convicted the applicant of defaming C. as well as defaming and insulting J.F. He was sentenced to a fine of 2,000 Polish zloty ((PLN), approximately 400 euros (EUR)) and ordered to pay PLN 1,000 (EUR 250) to charity and to reimburse the private prosecutors’ trial costs in the amount of PLN 4,344 (EUR 1,086). The District Court held that the applicant had failed to prove that J.F. or company C. had acted illegally and the expletives which he had used suggested that he had acted with the intent to defame and insult them.

On 13 December 2018 the Łódź Regional Court ( Sąd Okręgowy ) upheld that judgment. Referring to the applicant’s argument, namely that he relied on his freedom of expression, the Regional Court explained that he had been convicted not because he had expressed his opinions but because he had formulated false, defaming and insulting accusations. Consequently, it held that such statements did not enjoy protection under the relevant domestic or international instruments.

On 25 February 2019 a court-appointed lawyer stated that she had found no grounds to lodge a cassation appeal with the Supreme Court ( Sąd Najwyższy ).

The complaint was lodged with the Court on 29 April 2019.

On 8 February 2015 the applicant sent a letter to company E., asking it to dissolve all its contracts concluded with banks. He claimed that these contracts violated competition and consumer-protection laws and informed company E. that he had lodged a relevant notification with the Competition and Consumer Protection Office ( Urząd Ochrony Konkurencji i Konsumentów ).

Between 15 January and 11 March 2015 the applicant posted several entries on a forum associating professional valuers and on Facebook. In those entries he claimed that company E. and two private persons, D. (its shareholder) and J.K. (D.’s wife and employee of several banks) were concluding illegal contracts, limiting competition on the valuation market and acting within an organised criminal group.

On 13 March 2015 a lawyer representing limited liability company E. and D. and J.K. lodged a private bill of indictment against the applicant. The applicant was accused of defaming the private prosecutors by alleging that they were engaged in illegal activity, that is, that they had participated in an organised criminal group and that they had concluded illegal contracts aimed at limiting competition within the relevant market. These allegations were included in the applicant’s letter to E. as well as in statements posted on social media groups associating other valuers.

On 10 April 2018 the Zgierz District Court convicted the applicant of defaming the private prosecutors and fined him PLN 1,000 (EUR 250). He was also ordered to pay PLN 5,000 (EUR 1,250) to company E. and PLN 3,000 (EUR 750) separately to D. and J.K. The applicant was also obliged to reimburse the private prosecutors’ trial costs in the amount of PLN 2,548 (EUR 637) each. The court held that the applicant had expressed his opinion, which was not based on facts, and that his allegations defamed the private prosecutors.

On 17 June 2019 the Łódź Regional Court upheld that judgment. The Regional Court held that the impugned posts constituted statements of fact and, as such, did not enjoy the protection afforded to value judgments. It further determined that the fact that these statements had been posted on forums directed at valuers was meaningless, since they could have been accessed by anyone on Internet.

On 20 September 2019 a court-appointed lawyer stated that she had found no grounds to lodge a cassation appeal with the Supreme Court.

The complaint was lodged with the Court on 29 November 2019.

Between April 2015 and January 2016 the applicant posted several articles on websites of Polish newspapers and on Facebook in which he claimed that bank P. - a joint-stock company - as well as other Polish banks engaged in unfair market practices by restricting consumers’ access to independent valuations. He also claimed that bank P. was engaged in “villainy” ( “bandytyzm ”), white-collar crimes and bribery and referred to it as “scum” ( “gnoje” ).

On 8 February 2016 a lawyer representing bank P. lodged a private bill of indictment against the applicant. He was accused of defaming bank P. in the mass media.

On 31 January 2019 the Zgierz District Court convicted the applicant of defaming P. and fined him PLN 2,000 (EUR 500). He was also ordered to pay PLN 1,000 (EUR 250) to charity and to reimburse P.’s trial costs in the amount of PLN 1,380 (EUR 345). It held that, while the applicant had acted with intent to improve the situation of independent valuers, the terms he used to describe bank P.’s practices damaged its reputation.

On 24 July 2019 the Łódź Regional Court upheld that judgment. It found the applicant’s utterances to be untrue, which merited his conviction. It further held that his allegations were not confirmed by any national or European Union organ tasked with protecting the financial market or consumers’ rights.

No cassation appeal was available.

The complaint was lodged with the Court on 21 January 2020.

Relevant domestic law and practice concerning freedom of expression, its limitations, criminal liability for defamation and insult are set out in the Court’s judgments in the cases of Długołęcki v. Poland , no. 23806/03, § 17, 24 February 2009 and Kącki v. Poland , no. 10947/11, §§ 20-28, 4 July 2017.

COMPLAINT

The applicant complains under Article 10 of the Convention that each of his three convictions amounted to an unjustified interference with his freedom of expression.

QUESTION TO THE PARTIES

Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention? In particular, was the characterisation of the applicant’s utterances as statements of fact, rather than value judgments, justified?