Communicated on 12 July 2018

FIRST SECTION

Application no. 74002/13 Marcin LIBICKI against Poland lodged on 15 November 2013

STATEMENT OF FACTS

The applicant, Mr Marcin Libicki , is a Polish national who was born in 1939 and lives in Radzewice . He is represented before the Court by Mr M. Gutowski , a lawyer practising in Pozna Å„ .

A. The circumstances of the case

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

1. Background to the case

On 11 April 1997 the Parliament passed the Law on disclosing work for, or service in, the State ’ s security services, or collaboration with them, between 1944 and 1990 by persons exercising public functions ( ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne ; “the 1997 Lustration Act”). It entered into force on 3 August 1997. Persons falling under the provisions of the 1997 Lustration Act, namely candidates or holders of public office such as ministers and members of parliament, were required to declare whether or not they had worked for or collaborated with the security services during the communist regime.

Since the 1980s the applicant has been involved in politics. Between 1991 and 1993, 1997 and 2001, 2001 and 2004 he was a Member of the Polish Parliament. Between 1997 and 2001 he was a member of the Polish delegation to the Parliamentary Assembly of the Council of Europe (“PACE”) and between 1998 and 2001 he served as PACE ’ s vice-president. In 2004 he was elected to the European Parliament on behalf of the Law and Justice party.

On 19 November 2007 the Institute of National Remembrance ( Instytut Pami ę ci Narodowej ) in its official bulletin included information about documents of the communist security services relating to the applicant. The documents referred to the applicant being involved in the secret services ’ operations (“ operacyjne wykorzystanie ”) and to his status as an “operational contact” (“ kontakt operacyjny ”).

2. Press publications

On 20 November 2007 the newspaper Polska G ł os Wielkopolski published on its front page a headline: “ Marcin Libicki was a collaborator of the Polish People ’ s Republic secret services?” (“ Marcin Libicki by ł wspó ł pracownikiem wywiadu PRL? ”). The front page also included the applicant ’ s photograph. The article was published on page three of the newspaper and included statements which indicated that the applicant had collaborated with the communist secret services.

The article was the first in a series of numerous materials published in the same newspaper between 22 November 2007 and 9 April 2009.

On 7 February 2008, the applicant, in his lustration declaration, stated that he had not collaborated, served or worked for the communist-era security services.

In July 2008 the Institute of National Remembrance disclosed documents indicating that, since the 60s, the applicant had been under constant surveillance by the communist secret services.

The applicant on two occasions asked the editor-in-chief of Polska G Å‚ os Wielkopolski to have this information published, to no avail.

The applicant intended to participate in the 2009 elections to the European Parliament. However, in spring 2009 the leaders of his party held a meeting and decided not to offer him a place on the party ’ s list for election to the European Parliament.

3. Proceedings for auto-lustration

On 16 March 2009 the applicant asked the Pozna Å„ Regional Court to institute lustration proceedings in order to establish that he had not lied in his lustration declaration.

On 22 February 2010 the Pozna Å„ Regional Court gave judgment which confirmed that the applicant had submitted a true lustration declaration.

Despite this ruling, Polska G Å‚ os Wielkopolski continued to publish articles relating to previous allegations that the applicant had cooperated with the communist secret service (for example, on 14 and 15 December 2009, 7 January and 20, 21, 23 February 2010).

4. Proceedings for protection of the applicant ’ s personal rights

On 30 June 2010 the applicant brought a civil action in the Pozna Å„ Regional Court against A.P., editor-in-chief of the newspaper Polska G Å‚ os Wielkopolski and its publisher Polskapresse Sp. z o.o ., requesting legal protection of his personal rights and compensation for pecuniary and non ‑ pecuniary damage.

On 26 January 2012 the Pozna ń Regional Court gave judgment and partly allowed the applicant ’ s claim. It awarded the applicant 100,000 Polish zlotys (PLN) for non-pecuniary damage.

The court held that the applicant ’ s personal rights had been breached by the impugned articles. The defendants had acted unlawfully and intentionally and therefore the claim for damages had been justified. It also referred to the judgment of the Pozna ń Regional Court of 22 February 2010 which had confirmed that the applicant ’ s lustration declaration had been true.

The defendants appealed.

On 27 June 2012 the Pozna ń Court of Appeal amended the first-instance judgment and dismissed the applicant ’ s claim. The court examined the examples of published articles and found that the applicant had failed to demonstrate that these publications had breached his personal rights. Publication of true information included in the secret service documents which had been in the possession of the National Institute of Remembrance could not have breached the applicant ’ s rights. These documents confirmed that the applicant had been registered as a confidential contact and an operational contact. However, none of the articles had included direct allegations that the applicant had acted as a secret collaborator ( tajny wsp ół pracownik ).

For that reason, the defendants had not acted unlawfully and they had complied with the obligation of journalistic diligence.

In the court ’ s view these publications could be treated only as information about available documents and a commentary on their meaning.

The applicant lodged a cassation appeal against this judgment.

On 16 May 2013 the Supreme Court refused to entertain the applicant ’ s cassation appeal. This decision was served on the applicant ’ s lawyer on 18 July 2013.

B. Relevant domestic law and practice

1. The 1997 Lustration Act

The relevant law and practice concerning lustration proceedings in Poland until 15 March 2007 is set out in the Court ’ s judgments in the cases of Matyjek v. Poland , cited above, §§ 27-39, Bobek v. Poland , no. 68761/01, §§ 18-43, 17 July 2007 and Luboch v. Poland , no. 37469/05, §§ 28-39, 15 January 2008.

2. The Civil Code

Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” ( dobra osobiste ). This provision states:

“The personal rights of an individual, such as health, liberty, reputation ( cześć ), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected under civil law regardless of the protection laid down in other legal provisions.”

Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person faced with the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia , request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.

Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. The relevant part of that provision reads:

“The court may grant a suitable sum as pecuniary compensation for non-pecuniary damage ( krzywda ) suffered by anyone whose personal rights have been infringed. Alternatively, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement, the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest. ...”

COMPLAINTS

The applicant complains under Article 8 of the Convention that he was defamed in the impugned articles and that the Polish courts failed to protect his right to reputation.

Under Article 6 he submits that the domestic courts committed errors of fact and law when examining his claim for protection of his personal rights.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for his private life, contrary to Article 8 of the Convention? In particular, did the domestic authorities strike a fair balance between the applicant ’ s right to protection of his reputation and the right to freedom of expression of the respondent party in the domestic litigation, guaranteed by Article 10?