Communicated on 10 September 2014

FOURTH SECTION

Application no. 44436/13 Dorota KANIA against Poland lodged on 30 June 2013

STATEMENT OF FACTS

The applicant, Ms Dorota Kania , is a Polish national, who was born in 1963 and lives in Warszawa .

She is represented before the Court by Mr S. Hambura , a lawyer practising in Berlin .

The circumstances of the case

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

In April 2007 the applicant published an article in the weekly magazine Wprost entitled “ Agents wearing ermine ” about A.C., the then Rector of the University of Gdańsk , alleging that during communist times he had been an informer of the communist secret police.

On 20 May 2007 the same magazine published an article authored by the applicant but signed R.P. entitled “ The party of fear ” . Its main thesis was that former informants currently in high places in society opposed the lustration legislation amended in 2006 for fear that their past would come to light. It referred to A.C. as a former informer.

On 12 August 2007 the same weekly published an article “ New documents about the chancellor – informer ” . Its thesis also was that A.C. as a former informer.

On an unspecified later date A.C. brought a private indictment against the applicant and S.J., the editor-in-chi ef of the weekly, under Article 212 of the Penal Code in respect of the three articles.

On 15 February 2012 the Warsaw District Court held that the applicant and the editor were guilty of the offence of libel punishable under Article 212 of the Penal Code. It imposed on the applicant a fine of 3,000 Polish zlotys (PLN) (approximately 750 euros (EUR)), ordered her to pay PLN 2,500 (625 EUR) to a charity and ordered that the judgment be made public.

The court found that the plaintiff had been working at the university since 1974. On several occasions before 1989 he had been questioned by the communist secret police. He had never declared willingness to become an informer or received any remuneration. The applicant had contacted him – apparently by telephone – prior to publishing the first article and informed him that she regarded him as an informer. She had neither informed him about the documents of the National Institute of Remembrance (NIR) to which she had had access previously nor sought to meet him personally. The applicant had stated before the court that she had written the article motivated by public interest as A.C. was a widely known personality and that society should be aware of persons in positions of responsibility who were former informants of the communist secret police.

The court considered that while the applicant referred to the documents of the NIR, the documents she submitted to the court had by no means supported the conclusion that A.C. had been an informer because certain documents submitted did not refer to him at all or other documents did not indicate that he had been an informer. They were manifestly insufficient to state it categorically. The documents available to the applicant should have been checked in an extremely diligent manner. Another set of documents submitted to the court by the Institute during the proceedings not only did not support the suspicion against the plaintiff, but indicated that he had not been informer. He was only referred to as being on the staff of the university in the 1970s, or that he had been questioned by the communist services after coming back to Poland from a scholarship in the U.S.

In the light of the available documents, including also others which the court had requested from the NIR, the thesis advanced by the applicant was not only devoid of factual basis, but also incompatible with her obligation to show proper journalistic diligence. The applicant had had access to the last set of the NIR documents referred to by the court only after her second article had been published. She received a decision of the Director of the Institute allowing her to have access to these documents only on 9 May 2007, after the articles had been published and created a considerable media stir. She had failed to contact A.C. with a view to trying to check the veracity of the information, apart from her phone call to him whereby she only informed him that she would publish the article.

The court concluded that the applicant had failed to show diligence to which she was obliged under sections 6 and 12 of the 1984 Press Act. The impugned articles contained unreliable information which she had assessed in a superficial manner. The court noted that the fact of being an informer of the communist secret police was perceived in a society in an extremely negative manner. It was therefore not open to doubt that allegations made by the applicant could lower him in public opinion and undermine public confidence in his capacity necessary for his positio n within the meaning of Article 212 of the Penal Code. The mere fact that the court had gathered more material relevant to establishing the facts concerning A.C. ’ s past than the applicant had at her disposal prior to the publication of the impugned articles demonstrated that she had formulated her allegations without a sound factual basis. In the light of that material it had to be concluded that the statements made in the article were untrue, or at least that she had failed to show that they were true.

The court referred to the Court ’ s case-law on Article 10 of the Convention on the freedom of the press. It noted that that freedom was limited, on the one hand, by the criteri on of truthfulness and, on the other, by the necessity to protect such important values as dignity, re putation, honour and private lif e. The press was obliged not to blur the distinction between statements of fact and value judgments. In the present case the applicant had not had sufficient knowledge at her disposal which would have been based on documents. She had therefore defamed the plaintiff and thereby committed a criminal offence.

The applicant appealed, raising many procedural arguments.

On 26 September 2012 the Warsaw Regional Court upheld the judgment, essentially sharing the findings and views of the first-instance court. No reference to Article 10 or to freedom of expression was made in the written grounds of that judgment. The court o rdered the applicant and her co ‑ accused to pay legal costs borne by the plaintiff before the appellate court.

COMPLAINT

The applicant complains under Article 10 of the Convention that the judgments of the domestic courts breached her right to freedom of expression.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?

2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

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