Communicated on 18 December 2017

FIRST SECTION

Application no. 66018/16 Maria ŻŁOBIŃSKA-PERLICKA against Poland lodged on 7 November 2016

STATEMENT OF FACTS

The applicant, Ms Maria Żłobińska-Perlicka , is a Polish national who was born in 1947 and lives in Wroc ł aw.

The circumstances of the case

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

1. The plenary meeting of the housing co-operative and the statement in question

On 22 June 2013 the applicant attended the plenary meeting of the housing co-operative ( spółdzielnia mieszkaniowa ) of which she is a member. One of the aims of the meeting was to elect members of the Supervisory Board ( Rada Nadzorcza ).

The agenda for the meeting provided that each of the candidates was to make a short presentation after which the other participants could ask him or her questions. One of the candidates was Ł.K., who was running for re ‑ election. Before he started his presentation, the applicant – without being granted the floor – rose from her chair and said:

“ and Mr. K. is connected to Amber Gold” (“ a pan K. jest związany z Amber Gold” ).

The applicant based her statement on a press article which she had been handed during the meeting by other people. The article mentioned that the company run by Ł.K. (C.C. sp. z o.o .) had been placed on the “list of public warnings” ( lista ostrzeżeń publicznych ) issued by the Polish Financial Supervision Authority ( Komisja Nadzoru Finansowego ) and that the public prosecutor ’ s office had lodged a bill of indictment against Ł.K. The article also mentioned the name of the company Amber Gold as the most publicly known company of those which had been placed on the list of public warnings. This company was connected with one of the largest financial pyramid schemes in Poland in recent years. Its collapse in 2012 and the criminal case which resulted from it were widely reported by the media.

During the presentation of his candidature, Ł.K. responded to the applicant ’ s statement. He asserted that his company had no ties to Amber Gold. The applicant read out the part of the press article concerning Ł.K. ’ s indictment and asked him again whether he was connected to the so ‑ called “Amber Gold affair”. In response Ł.K. explained his company ’ s activities. He admitted that he was under indictment for offering para -banking services without a licence as required by law, but stated that he had questioned the grounds for the indictment. He stressed that he had no ties of any kind to the company Amber Gold.

After the presentations by all the candidates, the vote for the new members of the Supervisory Board took place. Ł.K. received the lowest number of votes of all the candidates and was not re-elected.

2. Criminal proceedings against Ł.K.

On 25 September 2014 the Wrocław-Śródmieście District Court ( Sąd Rejonowy ) convicted Ł.K. of accepting financial deposits from individuals and legal entities in violation of the banking law and sentenced him to one year ’ s imprisonment and a fine. The execution of the prison sentence was suspended for a period of two years. On 25 September 2014 the Wrocław Regional Court ( Sąd Okręgowy ) modified the amount of the fine but upheld the remainder of the first-instance judgment.

3. Civil proceedings against the applicant

On 8 August 2013, Ł.K. brought a civil action in the Wrocław- Fabryczna District Court ( Sąd Rejonowy ) seeking legal protection of his personal rights. He asked that the applicant be ordered to pay 20,000 Polish zlotys (PLN) (approximately 5,000 euros (EUR)) to a charity. He did not lodge any separate claim for compensation.

On 8 May 2015 the Wrocław- Fabryczna District Court (case no. XIV C 2254/14) gave judgment and partly allowed the plaintiff ’ s claim. It ordered the applicant to pay PLN 2,000 (approximately EUR 500) to a charity and PLN 3,417 (approximately EUR 854) in court costs.

During the proceedings the domestic court questioned the applicant and the plaintiff, as well as a number of witnesses. It also examined the audio and video recordings of the meeting. The applicant argued that her statements had been aimed at securing the interests of the housing co ‑ operative and clarifying the nature of Ł.K. ’ s professional activity. The plaintiff argued that the applicant had not asked him about his ties to the financial scheme Amber Gold but had simply made a statement about it. He argued that the statement had been detrimental to his reputation in the community in which he lived.

The Wrocław- Fabryczna District Court noted that the plaintiff had been running for re-election to the Supervisory Board of a housing cooperative and as such had to be prepared to be criticised by opponents, who enjoy freedom of expression under both the Polish Constitution and international law (in particular Article 10 of the Convention).

The domestic court held that the structure of the applicant ’ s statement had been such that it would have been considered a statement of a fact. Moreover it had been made before Ł.K. ’ s presentation (instead of after it, when questions could have been put to the candidate). The domestic court stressed that the statement had had no basis in any information available to the applicant. The mere fact that the plaintiff ’ s company had been placed on the same list of public warnings as the company Amber Gold did not constitute a basis for assuming that the applicant was linked to the latter company. It also opined that the fact that the applicant had subsequently read out parts of the press article concerning Ł.K. ’ s company did not mitigate the impact of her initial statement. Moreover the District Court observed that the fact that the plaintiff had been convicted of offering para ‑ banking services without a licence was irrelevant to the assessment of the applicant ’ s statement as untrue and, therefore, damaging to Ł.K. ’ s reputation.

In conclusion, the court held that Ł.K. ’ s personal rights had been violated. It considered that the plaintiff ’ s claim was excessive, since any sum sought by way of compensation must be assessed in relation to the gravity of the infringement of the plaintiff ’ s rights as well as the financial situation of the applicant. It therefore reduced the sum to be paid to charity to PLN 2,000 (approximately EUR 500).

The applicant appealed.

On 31 May 2016 the WrocÅ‚aw Regional Court ( SÄ…d OkrÄ™gowy ) (case no. II Ca 1831/15) upheld the first ‑ instance judgment and ordered the applicant to pay PLN 300 (approximately EUR 75) in court costs.

The court of second instance agreed in principle with the reasoning presented by the District Court. It also held that, although the applicant ’ s statement had to be considered as a statement of fact and not a question, in the context of the so-called “Amber Gold affair”, even a question referring to this company would have been regarded as overstepping the boundary of legitimate criticism. The court of second instance stated that the applicant ’ s statement should have been treated as separate and independent, and did not have to be assessed in the context of the discussion that took place in the later part of the meeting. It also observed that the statement could have had an impact on the results of the elections to the Supervisory Board.

COMPLAINT

The applicant complains under Article 10 of the Convention that the judgments of the domestic courts constituted an unjustified and disproportionate interference with her 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 alleged interference in the present case necessary in terms of Article 10 § 2?