Communicated on 22 August 2016

FOURTH SECTION

Application no. 36402/11 Jerzy Mieczysław JACHOWICZ against Poland lodged on 26 May 2011

STATEMENT OF FACTS

The applicant, Mr Jerzy Mieczysław Jachowicz , is a Polish national who was born in 1938 and lives in Warsaw. He is represented before the Court by Mr A. Wdowczyk , a lawyer practising in Warsaw.

A. 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 who worked at the material time for Dziennik , a Polish daily newspaper published between 2006 and 2009.

On 21 July 2007 Dziennik published an article written by the applicant headlined Macki siÄ™ gnely Ameryki (Arms reached America) which concerned the extradition of businessman E. Mazur from the USA to Poland. The article was published on page six of the newspaper, together with two other reports concerning the refusal by US courts to extradite E. Mazur.

The applicant ’ s article referred to Colonel R.B., a former officer of the Security Service ( Służba Bezpieczeństwa ), the State Security Bureau ( Urząd Ochrony Państwa ) and the Internal Security Agency ( Agencja Bezpieczeństwa Wewnętrznego ) and alleged:

“In February 2002 in the State Prosecutor ’ s office he asserted that Mazur was innocent. Several months earlier he tried, nearly using blackmail, to make the widow of General P. take on the role of a murderess. He did a lot so that the truth would not come out.”

On 15 August 2007 R.B. lodged a private bill of indictment against the applicant with the Warsaw District Court. He complained that the applicant had published untrue information which had lowered him in the opinion of the public and had damaged his reputation necessary to undertake any job. He relied on Article 212 of the Criminal Code, penalising the offence of defamation ( zniesławienie ).

On 16 June 2010 the Warsaw District Court gave judgment. It convicted the applicant of defamation committed through the media. It sentenced the applicant to a fine of 4,000 Polish zlotys (PLN) (approximately 1,000 euros (EUR)). The court also ordered the a pplicant to pay PLN 10,000 (EUR 2,500) to a charity and to reimburse PLN 1,812 in costs.

The court found that R.B. had clearly demonstrated that the applicant ’ s article had defamed him. In contrast, the applicant had failed to prove that his statement was true. The court established that the applicant, when preparing his article, had relied on information published by a tabloid newspaper, Super Express , and two witnesses, I.R and P.B, who had, however, failed to confirm to the court that they had provided the information subsequently published in the article. The applicant had further relied on other sources but had not disclosed them. He had also submitted differing accounts about the number of people involved and the alleged information he had received from them. Consequently, the court could not verify the veracity of those submissions. It considered that the applicant, being an experienced journalist, should have verified the truthfulness of those statements. In particular he should have double-checked the information published by the “sensationalist” Super Express .

The court concluded that the applicant had been aware that the information published in the article and the allegations against R.B. had not been true. However, he had published the article in the press without any checks.

On 20 July 2010 the applicant appealed. He argued, inter alia , that the court had committed numerous errors of fact and law and that his conviction had been incompatible with Article 10 of the Convention. He further maintained that the court had failed to draw up a list of people who had been present in the prosecutor ’ s office in February 2002 and who had directly witnessed R.B ’ s statements and to obtain evidence from them. Lastly, he argued that the court had failed to take into account his difficult financial situation.

On 21 October 2010 the Warsaw Regional Court amended the contested judgment. It sentenced the applicant to a fine of PLN 3,000 (approximately EUR 750). It also ordered the applicant to pay PLN 300 in legal costs for the appeal proceedings. It shared the conclusions of the lower court on the legal assessment of the facts of the case. The court noted that the applicant had failed to prove the veracity of his statements and had failed to comply with the standards of journalistic diligence while collecting material for his article.

A cassation appeal was not available.

B. Relevant domestic law and practice

Article 212 of the Criminal Code of 1997 provides as follows:

Ҥ 1. Anyone who imputes to another person, a grou p of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics, as may lower that person, group or entity in the opinion of the public or undermine public confidence in their capacity necessary for a given position, occupation or type of activity, shall be liable to a fine or a restriction on their liberty.

§ 2. If the perpetrator commits the act described in paragraph 1 through a means of mass communication, he shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year.

§ 3. When sentencing for an offence specified in § 1 or 2, the court may adjudge a supplementary payment ( nawiązka ) in favour of the injured person or the Polish Red Cross, or of another social purpose designated by the injured person.

§ 4. Prosecution of the offence specified in § 1 or 2 shall be via a privately brought charge.”

Article 213 provides as follows:

“§ 1. The offence specified in Article 212 § 1 is not committed if an allegation that has not been made in public is true.

§ 2. Whoever raises or makes public a true allegation shall be deemed not to have committed the offence specified in Article 212 § 1 or 2;

1. if the allegation concerns the activity of a person exercising a public function or

2. if the allegation is made in defence of a justifiable public interest.

If the allegation regards private or family life the evidence of truthfulness shall only be admitted when it serves to prevent a danger to someone ’ s life or to prevent the moral corruption of a minor.”

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.

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?