Communicated on 27 August 2014

FOURTH SECTION

Application no. 10947/11 Marcin KÄ„CKI against Poland lodged on 5 February 2011

STATEMENT OF FACTS

The applicant, Mr Marcin Kącki , is a Polish national, who was born in 1976 and lives in Poznań . He is represented before the Court by Ms B. Czechowicz , 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.

1 . Background to the case

On 6 December 2006 the applicant, who is a journalist, published an interview with the “Samoobrona” party expert A.R. in the Polish daily “Gazeta Wyborcza”. The interview, titled “Work for sex. The choice is yours” (“Praca ze seks. Wybór nale ż y do pani”) concerned the so-called “sex scandal” which had broke n out in Poland earlier in 2006. P ublic figures, including activists of the “ Samoobrona ” party in connection with exercising public functions , offered and accepted personal benefits of a sexual nature. A.R. told the newspaper that she had begun her co-operation with the party through her contacts with A.K. She also said that in July 2004 during a party organised by A.K., one of the prominent activists of the “Samoobrona” party, B.S., promised to find a post for her in an office of a deputy, R.C., in return for sexual benefits.

Then the applicant asked A.R.:

“Did you get the job?”

A.R. replied:

“No, the job was given to M.C. ’ s daughter”.

On the same page, to the right of the interview, the newspaper published statements by three prominent activists of the “Samoobrona” party. They all, including B.S. mentioned in the interview, denied that there had been any sex proposals made to A.R.

Also on the same page the newspaper published a short interview with A.K. who confirmed that she knew A.R. but had never recommended her for any work. A.K. when asked about the “sex scandal” said:

“What are you saying? I have never heard of it. This cannot be true.”

2 . Criminal proceedings against the applicant

On 30 November 2007 M.C., a deputy to the European Parliament, lodged a private bill of indictment against the applicant. He demanded that the applicant be punished for defamation. According to the indictment the defamation consisted in publication of the interview with A.R. in which A.R. said that B.S. could arrange a job for her in M.C. ’ s office in return for sexual benefits which, according to M.C., suggested to the readers that M.C. had been involved in the “sex scandal”. M.C. also claimed that he had been defamed in that in the interview published by the applicant A.R. accused him of nepotism saying that he had employed his daughter.

On 16 March 2010 the Warsaw District Court granted the indictment ’ s thesis in part, discontinued the proceedings for a probationary term of one year and ordered the applicant to pay PLN 1,000 to charity and to pay the costs of the proceedings.

The court found the applicant guilty of defamation of M.C. with respect to his publication of the statements made by A.R. which concerned nepotism. According to the court ’ s reasoning the applicant had neglected his professional obligations because he had not verified the veracity of the information that the job had been offered to M.C. ’ s daughter. At the trial it was cleared that the information concerned could not be true because M.C. had no daughter. The court did not accept the applicant ’ s argument that he had acted with due diligence because before the publication he had sent the text of the interview to A.R. who accepted its contents without any objection or comment (autoryzacja) .

The court refused to find that the applicant was guilty of defamation by making a suggestion that M.C. had been involved in the “sex scandal”. It found that in this respect the applicant had fulfilled his professional obligations because apart from the interview with A.R., he had published the statement of B.S. who denied having made any proposals to A.R. For the above reasons, in the court ’ s view, the average reader should not have had the impression that M.C. was involved in the “sex scandal”.

The applicant and M.C. ’ s lawyer appealed against the first instance judgment.

On 18 June 2010 the Warsaw Regional Court upheld the challenged judgment in essence sharing the reasoning of the first instance court.

On 3 February 2011 the applicant ’ s lawyer requested the Ombudsman to lodge a cassation appeal on the applicant ’ s behalf.

On 6 May 2011 the Ombudsman informed the applicant that she had found no grounds to lodge a cassation appeal.

B. Relevant domestic law and practice

1. Constitutional provisions concerning freedom of expression

Article 14 provides as follows:

“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. Relevant provisions of the Criminal Code

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 or 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, restriction of liberty or imprisonment not exceeding 1 year.

§ 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 a supplementary payment (nawiązka) .

§ 4. The prosecution of the offence specified in § 1 or 2 shall occur upon a private char ge.”

Article 213 provides as follows:

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

§ 2. Whoever raises or publicises 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 .

I f the allegation regards private or family life the evidence of truth shall only be carried out when it serves to prevent a danger to someone ’ s life or to prevent demoralisation of a min or.”

Article 214 provides as follows:

“ The absence of an offence resulting from a reason specified in Article 213, does not exclude the liability of a perpetrator for the insult, by reason of the manner of announcing or publicising the allegation. ”

3. The Constitutional Court ’ s judgment declaring Article 212 of the Polish Criminal Code compatible with the Constitution

On 30 October 2006 the Constitutional Court, ruling on a legal question referred to it by the Gdańsk District Court, declared Article 212 §§ 1 and 2 of the Polish Criminal Code compatible with Articles 14 and 54 § 1 read in conjunction with Article 31 § 3 of the Constitution.

The Court found that in some circumstances the protection of rights and freedoms like dignity, good name and privacy may prevail over the protection of freedom of expression. The Court further found that there was no basis to assume that protection of freedom of expression merely by means of civil law (provisions on personal rights) would be equally efficient as criminal law. Protection of freedom of expression by means of criminal law did not by itself infringe the relevant provisions of the Constitution.

Three judges expressed their dissenting opinions to the Constitutional Court ’ s judgment of 30 October 2005.

COMPLAINT

The applicant complains under Article 10 of the Convention about an unjustified interference with 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, was the interference complained of necessary in terms of Article 10 § 2 ?