Communicated on 29 September 2014

FOURTH SECTION

Application no. 619/12 Krzysztof KONIUSZEWSKI against Poland lodged on 7 December 2011

STATEMENT OF FACTS

The applicant, Mr Krzysztof Koniuszewski , is a Polish national, who was born in 1976 and lives in Warsaw .

He is represented before the Court by Mr T. Szychowski , a lawyer practising in Warszawa .

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 working for a weekly automobile magazine “The World of Cars” ( Auto Świat ).

In 2006 the Competition and Consumers ’ Rights Office ( Urząd Kontroli Konkurencji i Konsumentów ) published a report on its official website, summari sing the results of a countrywide supervision and control survey concerning the quality of car fuel sold by fuel stations. It listed, inter alia , a number of fuel stations, including their names, addresses and owner companies, where samples of diesel and petrol taken during the survey did not meet the quality requirements imposed by applicable regulations.

On 14 August 2006 the magazine published material summarising the results of the survey. It was divided into five parts: “You can make an official complaint” ( Tu można złożyc skargę ), “Brand names take care of the quality of fuel” ( Firmowe stacje dbają o jakość ), “Costly repairs” ( Kosztowne naprawy ), “We go public with the names of fuel crooks” ( Ujawniamy oszustów paliw ) and “Stations selling counterfeit fuel” ( Stacje fałszujące paliwa ).

The last part, taken from the Office ’ s report, consisted of a table composed of four columns, listing the town, the name of the company running the station and information on the quality of diesel and petrol. The latter could be marked as “good quality” or “bad quality”. In all of the listed stations at least one of the remarks was the latter one.

The front page of the magazine bore the title “Report: stations selling adulterated fuel” ( Raport : które stacje sprzedają fałszywe paliwo ).

1. Criminal proceedings

On 2 December 2006 B.J., the owner of one of the stations listed in the table referred to above, submitted a private bill of indictment against the applicant to the Hrubieszów District Court. He complained that the press material was damaging to his reputation and good name, that he was selling fuel bought from renowned suppliers, that he did not adulterate it and that the data published by the Office did not indicate this. He relied on Article 212 of the Criminal Code, penalising the offence of defamation ( zniesławienie ).

The case was subsequently transferred to the Warsaw District Court.

On 10 September 2008 that court discontinued the criminal proceedings, finding that the applicant had no case to answer. It noted that civil proceedings against the applicant instituted by B.J. were at that time pending before civil courts (see below). The facts of the case which the court had established on the basis of the case file of the civil proceedings were not in dispute between the parties. The applicant had not committed a criminal offence as information published in the impugned press material was based on official information publicly available on internet. He had therefore good grounds to assume that it was true. The editors of the magazine and the applicant had acted to protect legitimate interests of car owners. As selling adulterated car fuel was known to be very common and as it caused serious damage to car engines, the issue was hotly debated and caused considerable public concern and anger.

The court noted that a civil forum was more appropriate for the purposes of dealing with similar cases.

B.J. appealed against the decision.

On 18 June 2009 the Warsaw Regional Court allowed the appeal. It noted that the decision had been taken with reference to the file of the civil case. However, it was premature as a hearing should have been held. It remitted the case for reconsideration by the Warszawa- Mokotów District Court.

On 10 November 2009 the Warszawa- Mokotów District Court found the applicant guilty of an offence of defamation within the meaning of Article 212 of the Criminal Code. It imposed on him a fine of 2000 Polish zlotys (PLN) , ordered him to pay PLN 500 to a charity and to reimburse B.J. ’ s legal costs in the aggregate amount of PLN 2,760.

The court noted concordant testimony from a number of witnesses that the problem of selling adulterated car fuel was a serious one and that it had given rise to an ongoing discussion and to measures taken by the State authorities in order to prevent and penalise it. It accepted that it was an issue of public interest.

It had regard to the expert opinion confirming that the petrol sold by B.J. did not correspond to the norms. The expert had indicated a number of possible causes. Adulteration of petrol by adding heating oil was one of them.

The court was of the view that it had not been demonstrated to its satisfaction that B.J. adulterated the petrol he sold. The applicant had not shown that this was indeed the case. The deterioration of its quality could have been caused by other factors over which the owner of the station had no control. The applicant had failed to show proper diligence by publishing the results of the survey made by the Consumers ’ Office and by referring, in the title of the table referred to above, to “[s] tations selling counterfeit fuel”. The title of that table was a simplification which clearly ascribed negative intentions and conducts to the owners of the stations concerned.

While it was true that an administrative fine had been imposed on B.J., the prosecuting authorities had not decided to institute criminal proceedings against him, also because the applicable norms at his station had been breached only minimally. Hence, it was inappropriate to include the name of his company in the table entitled “Fuel crooks”. Prior to publishing the impugned information, the applicant should have checked which norms the fuel sold by B.J. did not respect and whether this shortcoming could indeed cause damage to car engines. Instead, he uncritically published the materials based on the Office ’ s report, putting B.J. on a par with those who pursued the dangerous practice of adulterating petrol by adding heating oil to it.

The applicant appealed. He argued inter alia that his the conviction was incompatible with Article 10 of the Convention in so far as the court had failed to address substantive issues arising under this provision in the case, including the case-law of the Court; that the issues raised by him were subject to an ongoing public debate which had not been sufficiently taken into consideration by the court; that information contained in the article consisted of relaying information contained in the official document prepared by the State authority; that it was not for the applicant to assess the veracity of this information; that he therefore had a right to assume that it was true and was not obliged to contact the owner of the station prior to the publication and that the court had failed to make a distinction between untrue information and information in respect of which the applicant was justified to think that it was true.

The applicant referred to a number of judgments given by the Court ( e.g. Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, ECHR 1999 ‑ III ; DÅ‚ugoÅ‚Ä™cki v. Poland , no. 23806/03, 24 February 2009 Dalban v. Romania [GC], no. 28114/95, ECHR 1999 ‑ VI and Özgür Gündem v. Turkey , no. 23144/93, ECHR 2000 ‑ III ) . It concluded that the interference was excessive and not necessary in a democratic society.

By a judgment of 21 April 2011, served on the applicant ’ s lawyer on 7 June 2011, the Warsaw Regional Court essentially upheld the judgment (save for a part amended for a technicality). It further increased the legal costs to be reimbursed to the amount of PLN 4,244. It shared the conclusions of the lower court as to the legal assessment of the facts of the case.

In so far as the applicant relied on Article 10 of the Convention and referred to the Court ’ s case-law, the court stated that the Polish courts were not bound by the judgments of the Court as the Polish legal system was not based on precedent. It was therefore not necessary for the lower court to rely on the Court ’ s case-law as these judgments were of no significance for the decision to be given in the present case. The court was well aware of the role of the media in a pluralist and democratic society, but the press was obliged to present truthful or at least carefully verified information to the public and to show diligence and thoroughness. The applicant had failed to do so and the information he published had seriously damaged the private prosecutor ’ s reputation.

2. Civil proceedings

On 31 January 2008 the Warsaw Regional Court gave a judgment in the civil case for the protection of personal rights brought by B.J. against the applicant, the editor-in-chief of the magazine and its owner.

On 25 March 2009 the Warsaw Court of Appeal partly amended this judgment. The defendants were obliged, jointly, to pay PLN 10,000 to the plaintiff and to apologise to him.

B. Relevant domestic law

Article 212 of the Criminal Code 1997 provides as follows:

“§ 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 this person, group or entity in the public ’ s opinion or undermine public confidence in their capacity necessary for a certain position, occupation or type of activity, shall be liable to a fine, a restriction on their liberty or imprisonment not exceeding one year.

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

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

§ 4. Prosecution of an offence specified in § 1 or 2 shall occur upon a private charge.”

COMPLAINT

The applicant complains under Article 10 of the Convention that the sanction imposed on him breached his right to freedom of expression . He was a journalist who had an obligation to report on matters of public interest. The impugned articles contained material originating from credible public documents. The veracity of that information was never questioned in the proceedings.

QUESTION TO THE PARTIES

Has there be en a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention?