Communicated on 11 May 2016

FOURTH SECTION

Application no. 48174/11 Piotr NIEMCZYK against Poland lodged on 25 July 2011

STATEMENT OF FACTS

The applicant, Mr Piotr Niemczyk , is a Polish national, who was born in 1962 and lives in Warsaw.

A. The circumstances of the case

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

Between 1990 and 2001 the applicant held various posts in government. In particular, he was the director of the Office for Analysis and Information of the State Security Bureau ( Biuro Analiz i Informacji Urzędu Ochrony Państwa ) from 1990 to 1993, deputy director of the State Security Intelligence Board ( Zarząd Wywiadu Urzędu Ochrony Państwa ) from 1993 to 1994, adviser to the Minister of Internal Affairs from 2000 to 2001 and undersecretary of state in the Ministry of the Economy ( Podsekretarz Stanu w Ministerstwie Gospodarki ) in 2001.

On 31 July 2008 the Polish daily newspaper Rzeczpospolita published an interview with A.G., a businessman and president of B., a large crude oil and natural gas company. It stated that:

“... other examples of aggression of the [s] ecret [s] ervices are that, in 1993 K.M. and P. Niemczyk falsified information provided for the Prime Minister W.P.. They wrote that I was a Russian agent. I know that someone from counterintelligence reacted and ordered that this information be withdrawn from W.P. as untrue, though this did not happen.”

On 29 August 2008 A.G. participated in the television programme Piaskiem po oczach (“Sand in the eyes”) broadcast on one of the largest private news channels, TVN24. During the programme he stated:

“We filed materials which prove that [secret] services destroyed the company [B.]; K.M., Niemczyk and N. took part in that. They prepared a false report and gave it to the Prime Minister.”

On 2 September 2008 the applicant lodged a private bill of indictment against A.G. with the Warsaw District Court. He complained that A.G. had damaged the reputation and good name he needed to exercise his profession. He relied on Article 212 of the Criminal Code, which made defamation ( zniesławienie ) a punishable offence.

On 3 November 2008 K.M. joined the proceedings against A.G. Subsequently, on 3 February 2009 A.G. filed a private bill of indictment against K.M., alleging that the latter ’ s statement made during a press conference on 12 January 2009 had damaged his reputation. He referred to the following phrase:

“A.G. ’ s statement is a manifestation of his mental crisis and frustration.”

The court decided to examine the cases jointly.

On 27 October 2010 the Warsaw District Court discontinued the proceedings against A.G. and K.M. as it could not be established that they had acted unlawfully.

The court noted that A.G. was a well-known businessman and the president of B.. K.M. and the applicant had worked for the State Security Bureau and held the posts of director of the Counter-Intelligence Board ( dyrektor Zarzadu Kontrwywiadu ) and director of the Office for Analysis and Information of the State Security Bureau respectively . It was also a fact that the head of the State Security Bureau, J.K., in a report of 18 November 1993 addressed to the Prime Minister, had included information about A.G. and his company B.. In that report it had been suggested that A.G. had been a Russian agent and had been acting in the Russian interest. Furthermore, the Warsaw Prosecutor General had instituted criminal proceedings into alleged abuse of power by K.M. and the applicant for giving false information to State organs which was significant for the Polish Republic. Lastly, the court noted the statements made by A.G. during the interview for Rzeczpospolita and the television programme.

In the court ’ s opinion, however, A.G. ’ s statements did not amount to a breach of Article 212 § 2 of the Criminal Code. Firstly, the court found that A.G. had not made accusatory statements but had merely tried to defend himself in the light of the allegations contained in the report in question. Secondly, the expressions used by A.G. had not breached social norms. While he had used the words “ falsified” and “destroyed”, his intention had been only to make it known that the allegations against him were untrue and had caused significant damage to him and his company. Thirdly, the applicant and K.M. were public figures subject to closer scrutiny. In particular, they were former members of the intelligence services and were currently active in politics and business. People such as them were automatically subject to stronger criticism and therefore should have been more resistant. Fourthly, the court noted that criminal proceedings regarding the impugned report and alleged abuse of power by the applicant and K.M. were still pending. Lastly, the court found A.G. ’ s statements to be of a subjective rather than factual nature.

The applicant appealed arguing, among other things, that A.G. ’ s declarations should have been regarded as defamatory and unlawful statements in that they were untrue and derogatory and damaged the good name and reputation he needed for his profession as a consultant to the secret services.

On 27 January 2011 the Warsaw Regional Court upheld the first instance decision, in so far as it concerned the applicant ’ s complaint against A.G. It agreed with the court of first-instance and held the A.G. had not intended to damage the reputation of K.M. and the applicant. The content of his statements should have been examined in the light of his business activity and also from the point of view of someone defending himself from allegations of “being a Russian agent”. The court also observed that the content of the television programme and the fact that A.G. had presented materials which in his opinion had demonstrated that allegations of his cooperation with a foreign intelligence had been untrue proved that A.G. had not wished to damage the applicant ’ s reputation.

In 2007 the prosecutor instituted criminal proceedings into alleged abuse of power by former officers of the State Security Bureau, namely the applicant and K.M. They both gave evidence as witnesses. However, no charges were ultimately brought.

B. Relevant domestic law and practice

The relevant provisions of the Criminal Code provide as follows:

Article 212

“1. Anyone who imputes to another person, a group 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 public esteem or undermine public confidence in their capacity necessary for a given position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year.

2. If the perpetrator commits the act described in paragraph 1 through the mass media he shall be liable to a fine, a restriction of liberty or imprisonment not exceeding two years.”

Article 213

“1. The offence specified in Article 212 § 1 is not committed if the allegation made in public is true.

2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2; if the allegation regards private or family life, evidence of truthfulness shall be admitted only 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 Article 8 of the Convention that the domestic courts failed to protect his reputation in the defamation proceedings.

QUESTION TO THE PARTIES

Did the State comply with its positive obligations under Article 8 of the Convention to protect the applicant ’ s reputation against interference by third parties, as part of the right to respect for private life (see, inter alia , Pfeifer v. Austria , no. 12556/03 , 15 November 2007 )? Reference is made to the courts ’ decisions of 27 October 2010 and 27 January 2011 .