Communicated on 18 June 2019

FIRST SECTION

Application no. 2244/14 Waldemar Stanisław ŚLIWCZYŃSKI and Tomasz SZTERNEL against Poland lodged on 16 December 2013

STATEMENT OF FACTS

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

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

The first applicant is an editor-in-chief of Wiadomo Å› ci Wrzesi Å„ skie , a Polish local weekly newspaper. The second applicant is a journalist who worked at the material time for that newspaper.

In 2007, H.S., one of the local businessmen was charged with sexual abuse of two of his employees. The proceedings before the domestic courts were not open to public given the need to protect the victims ’ and the accused privacy and in order to protect the public morality.

On 17 December 2008 the Wrze Å› nia District Court convicted H.S of sexual abuse of one of the victims and acquitted him in respect of the other. This judgment was upheld by the Pozna Å„ Regional Court on 30 April 2009.

On 22 July 2010 the second applicant asked the President of the Second Criminal Division of the Wrze Å› nia District Court to grant him access to the case-file of the case against H.S. as he was preparing a press article on this subject.

On 22 July 2010 the first applicant was granted access to the files. The President made a handwritten note on the applicant ’ s letter: “I agree to grant access to the case-file” ( wyra ż am zgod ę na udost ę pnienie akt ).

On 30 July 2010 Wiadomo ś ci Wrzesi ń skie 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 his photograph.

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 details 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.

On 28 February 2011 the applicants were charged with dissemination of information from the court proceedings conducted in private (Article 241 § 2 of the Criminal Code). H.S. did not join the proceedings as a civil party.

On 24 April 2012 the Pozna Å„ District Court convicted both applicants as charged and decided not to impose a penalty ( odst Ä… pi Å‚ od wymierzenia kary ). It further ordered them to pay 800 Polish zlotys (PLN) each to a charity and PLN 30 as costs of proceedings.

On 25 July 2012 the Pozna ń Regional Court quashed this judgment and remitted the case. The court was of the view that the court of first–instance committed logical errors when deciding the case.

On 6 February 2013 the Pozna ń 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 szkodliwo ść spo ł eczna czynu ). It further ordered the applicants to pay PLN 500 each to a charity.

The court held that dissemination of information from the court proceedings conducted in private was a criminal offence. The Criminal Code did not allow for any kind of exception, it 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 the case, in which proceedings had been conducted in private, was not tantamount to having allowed them to publish that information.

The court further noted that in his article the second applicant had only relied on excerpts from the witness testimonies, he had not verified this 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 due journalistic diligence.

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

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 was to be used. Since he had failed to do so, they had reasonably expected that the information could have been made public.

On 16 May 2013 the Pozna Å„ 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 had not meant that they had been allowed to make public the information contained in those files.

Lastly, the court held that Article 241 § 2 of the Criminal Code punished the disclosure of information regardless how it was obtained. This provision contained an absolute prohibition of 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 claim to have been unaware about this prohibition.

Relying on the Court ’ s case-law under Article 10 of the Convention, the Regional Court concluded that the media must not overstep the limits imposed in the interests of the proper administration of justice.

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

Article 241 of the Criminal Code provides as follows:

Ҥ 1 Anyone who, without permission, makes public information from an investigation before [that information] was 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”

COMPLAINTS

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

QUESTION TO THE PARTIES

Has there been a violation of the applicants ’ right to freedom of expression, in particular their right to impart information, contrary to Article 10 of the Convention (see Bédat v. Switzerland [GC], no. 56925/08, 29 March 2016)?