Communicated on 1 September 2014

FOURTH SECTION

Application no. 59138/10 Andrzej ZYBERTOWICZ against Poland lodged on 25 August 2010

STATEMENT OF FACTS

The applicant, Mr Andrzej Zybertowicz , is a Polish national, who was born in 1954 and lives in Toruń . He is represented before the Court by Mr G. G ó rski , a lawyer practising in Toru ń .

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 Polish publicist and an adviser to the former president L. Kaczynski.

On 13 March 2007 the applicant was interviewed by M.Z., a journalist from Rzeczpospolita , one of the biggest daily newspapers, on the subject of lustration of journalists.

On 14 March 2007 the newspaper published the applicant ’ s opinion, including the following paragraph:

“This is classic. A.M. repeatedly said: I spent so many years in prison, so now I am right. Unfortunately, moral integrity in one situation does not automatically indicate a complete cognitive judgment in another situation.” ( “To już klasyka. A.M wielokrotnie powtarzał: ja tyle lat siedziałem w więzieniu, to teraz mam racje. Niestety, z ewentualnej prawości moralnej w jednej sytuacji nie wynika automatycznie zdolność do kompletnej oceny poznawczej w innej” )

On 30 April 2007, A.M, an editor-in chief of another daily newspaper , brought a civil action in the Warsaw Regional Court ( S Ä… d Okregowy ) requesting legal protection of his personal rights. He requested that the applicant be ordered to publish an apology and to pay damages of 15,000 Polish zlotys (PLN) to a charity.

On 17 December 2007 the Warsaw Regional Court allowed the plaintiff ’ s claim. It ordered the applicant to publish an apology on the first, second or third page of Rzeczpospolita for having published untrue information. It further determined the exact length of the apology. The court also ordered the applicant to pay PLN 10,000 to a charity and PLN 1,500 in court fees.

During the proceedings the court questioned the applicant, the plaintiff and M.Z. The court did not take into consideration two private expert ’ s opinions on language analysis, provided by the applicant and A.M. The court further stressed that the parties ’ representatives had not asked for a court-appointed expert on linguistics. However, the court did not find any basis to appoint an expert of its own motion.

The Warsaw Regional Court considered that the phrase “I spent so many years in prison, so now I am right” was a statement of fact and not an opinion. Furthermore, it had not been proved that A.M. had ever used the above words.

The applicant claimed before the court that the phrase used in the interview was an acceptable journalistic summary of A.M. ’ s opinions and his attitude demonstrated during numerous public appearances. According to the applicant, it was possible to summarize one ’ s way of thinking. He further confirmed that he was not aware of any public speech given by A.M which would have included the phrase in question. However, the phrase was not a citation, since it was not put in quotation marks.

The court considered that even though the phrase was not put in quotation marks, it was a citation, since, there was a colon after “A.M. repeatedly said: (...)”. The court referred to a Polish language dictionary according to which the colon is used in particular to introduce direct quotations. In conclusion the court held that A.M. ’ s personal rights had been breached.

The applicant appealed.

On 15 October 2008 the Warsaw Court of Appeal ( S ą d Apelacyjny ) upheld the first instance judgment and ordered the applicant to pay PLN 1,170 in court fees for the proceedings before the second instance. The court agreed with the reasoning presented by the Regional Court. It considered that the use of colon after “A.M. repeatedly said: (...)” would indicate the factual nature of the phrase. However, as no expert opinion on linguistics was obtained, further reflections on this issue were pointless.

Consequently, the court considered that the phrase used by the applicant had breached the plaintiff ’ s personal rights, in particular his credibility, reputation and good name, showing him as petty-minded. In view of the plaintiff ’ s professional situation, it impeded him from practicing his profession and his position as an editor in chief of one of the biggest daily newspapers.

The applicant filed a cassation appeal. In particular, he referred to Article 10 of the Convention.

On 25 February 2010 the Supreme Court ( S ą d N a jwy ż szy ) dismissed the applicant ’ s cassation appeal. The court referred to the reasons given by the lower courts. It further confirmed that it had not been necessary to order an opinion from an expert on linguistics. The newspaper Rzeczpospolita was addressed to a wide group of recipients and therefore these articles should have been interpreted according to widely acceptable interpretation rules. The Supreme Court also ordered the applicant to pay PLN 270 in court fees for the cassation proceedings.

During the proceedings against the applicant, several thousand people signed a letter titled “Defending freedom of expression”, which was handed to the Ombudsman on 21 November 2008. They argued that a public ist had a right to formulate thi s type o f opinion about other participants of a public debate, even if they were wrong.

In reply, on 26 November 2008, a group of Polish intellectuals published a letter, titled “Against lie”, in which they stressed that freedom of expression had limits, in particular the other person ’ s right to dignity and good name. Therefore, in their opinion, spreading untrue information was not protected by any law.

B. Relevant domestic law and practice

1. The Polish Constitution

Article 14 of the Constitution provides:

“The Republic of Poland shall ensure freedom of the press and other means of social communication.”

Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality) provides:

“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”

Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:

“The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.”

2. Personal rights and their protection under the Civil Code

Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” ( dobra osobiste ). This provision states:

“The personal rights of an individual, such as health, liberty, reputation ( cz ę ść ), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected under civil law regardless of the protection laid down in other legal provisions.”

Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person faced with the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia , request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.

Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:

“The court may grant a suitable sum as pecuniary compensation for non-pecuniary damage ( krzywda ) suffered by anyone whose personal rights have been infringed. Alternatively, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement, the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest. ...”

3. The Civil Procedure Code

Pursuant to Article 232 of the Civil Procedure Code the parties are obliged to submit evidence necessary to decide the case. The court may, however, admit and take evidence not submitted by a party .

COMPLAINT

The applicant complains under Article 10 of the Convention that the judgments given in his case were in breach of 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? In particular, did the alleged interference in the present case pursue a legitimate aim and was it prescribed by law in terms of Article 10 § 2?