Communicated on 2 November 2016

FOURTH SECTION

Application no. 11915/15 Endy GĘSINA-TORRES against Poland lodged on 3 March 2015

STATEMENT OF FACTS

The applicant, Mr Endy Gęsina -Torres, is a Polish national of Cuban origin who was born in 1984 and lives in Warsaw .

He is represented before the Court by Ms D. Bychawska-Siniarska of the Helsinki Foundation of Human Rights .

The circumstances of the case

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

The applicant is a journalist. Alarmed by a number of reports about the alleged ill-treatment of aliens held in detention centre for refugees ran by the Border Guard and situated near Białystok and about conditions in that centre he decided to draw the attention of general public to the issue.

He concluded a contract with the Polish public TV for a TV program me on this subject.

On 10 January 2013 he arrived to Białystok and provoked the police officers to stop him with a view to checking his identity documents. He did not have any. He gave them a fictitious name and told them that he had crossed the Polish border illegally, having lost his documents.

By a subsequent judicial decision he was placed in a closed centre for aliens ran by the Border Guard in Bia Å‚ ystok .

He signed all documents concerning his arrest and placement in detention by a false name and used that name during his subsequent stay in the centre.

He stayed in the centre for three weeks, trying to make recordings by his mobile phone. On 28 January 2013 his real identity was found out.

Criminal proceedings were subsequently instituted against the applicant.

On 20 November 2013 the Białystok District Court held the applicant guilty of offences of use of forged documents committed by way of signing documents relating to his arrest and detention by a false name and of giving false testimony committed in that he had made false statements as to the way in which he had illegally crossed the Polish border prior to his arrest.

The court was of the view that the applicant ’ s conduct had jeopardised the interest of administration of justice in that the court who had decided to place him in the detention centre for aliens had been misled as to the applicant ’ s identity. Such an instrumental use of a court could not be accepted in a democratic State governed by rule of law. The applicant had not acted in a situation of necessity as his impersonation was not the only possible way of finding out what was happening in the centre and whether the aliens ’ rights were indeed breached by the State agents.

This was so because already prior to his arrest there has been a number of relevant reports available in the public domain and also articles written by other journalists had been published. Hence, it was not the only way in which it was possible to establish the relevant facts. The court noted the applicant ’ s argument that his action should be regarded as investigative journalism aiming at disclosing issues the knowledge of which was kept away from the public. However, it was of the opinion that in his case the purpose of his conduct was to present to the public as TV programme the facts which had already been known to the public. Hence, his acts could not be regarded as inoffensive. The act of taking on a false identity and presenting himself to the court as an illegal alien was in breach of the authority of the court and its independence. The courts in a democratic society were, under the case-law of the European Court of Human Rights, guarantors of justice. They had to be protected against persons trying to undermine the confidence which society was entitled to have in them.

The court was further of the view that the proceedings against the applicant could not be reasonably regarded as an interference with the applicant ’ s right to freedom of expression. During the criminal proceedings against the applicant no reference had been made by the prosecution to the TV programme which had been produced on the basis of the material he had gathered during his detention in the centre. The court referred again to the Court ’ s case-law in so far as it stressed the duties and responsibilities of the journalists.

The court decided not to impose a penalty on the applicant, having noted that the applicant ’ s intention was merely to have a direct confirmation of the allegations previously made public and having regard to the fact that he had no criminal record. The applicant was ordered to pay PLN 2,000 to a charity and to pay the costs in the amount of PLN 747.

The prosecution and the applicant appealed. The applicant relied, inter alia , on Article 10 of the Convention. He stressed that he had acted in the interest and out of concern for detained persons whose human rights might have been breached by the State agents.

On 11 September 2014 t he appellate court amended the first ‑ instance judgment and sentenced the applicant to a fine of PLN 2,000. It ordered him to pay the court fees in the amount of PLN 300.

In so far as the applicant relied on Article 10 of the Convention, the court shared the views of the first-instance court, being of the view that the criminal proceedings did not relate in any way to the mate rials gathered by the applicant during his stay in the centre . He was not prevented in any way from airing his views and disseminating information he had gathered during his detention under false pretenses. There was therefore no interference with his right to freedom of expression.

It was further noted that in so far as the applicant argued that his acts should be seen as a journalistic provocation pursuing important social interest which should be exempt from criminal responsibility, the applicant had not shown that it was impossible to gather information he sought in any other way than that chosen by him. The court was of the view that the arguments advanced by the applicant should be weighed against another important interest, namely the opinion that the public could form about the courts having watched the TV program me produced on the basis of his materials. This opinion could well be that the administration of justice was inept because only a TV program me produced on the basis of unlawfully gathered materials was able to prompt the authorities to try to im prove the situation in the centre . Such a conclusion would have been erroneous and incompatible with the tenets of the rule of law.

The applicant, by his acts, took upon himself a role of a police officer. There had been no basis for his decision to do so, as already several weeks prior to his actions the police and competent authorities had started to take measures to remedy the situation in the centre . The court referred to the press materials published in October 2012 and to the hunger strike in the centre which had started on an unspecified date. The actions undertaken by the applicant in January 2013 were therefore not capable of providing any new and unknown information about the situation in the centre .

The court concluded that it was possible to inform the general public about the situation in the centre without having had recourse to unlawful acts which had blackened the reputation of the courts and of the State in general.

The amount of the fine was fixed at PLN 2 , 000, the court having noted that the applicant did not have any criminal record.

No further appeal lay against the judgment of the appellate court.

COMPLAINT

The applicant complains under Articles 6 and 10 of the Convention that the sanction imposed on him breached his right to freedom of expression. The alarming situation in the camps had been an issue of public interest. The purpose of his actions was to establish the facts and to draw the attention of the public opinion to an important human rights issue of the alleged ill-treatment of aliens in the State-run detention centre . It was true that he had himself detained in the centre on false pretenses, but his acts were motivated by genuine concern for persons in a difficult situation.

QUESTION S TO THE PARTIES

1 . Has there been in the present case an interference with the applicant ’ s right to freedom of expression?

2 . Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention?