Communicated on 27 August 2014

FOURTH SECTION

Application no. 49132/11 Dorota KANIA against Poland lodged on 29 July 2011

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 .

A. The circumstances of the case

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

In June 2007 the applicant, together with co-author R.P., published an article in a nationwide weekly newspaper Wprost entitled A Godmother ( Matka chrzestna ). Its main thesis was that the communist secret police had formed and protected the beginnings of the Polish criminal mafia in the 1980s and that the agents of the State who after 1989 became members of the new police services of the democratic State continued to protect their former colleagues engaged in flourishing organised crime.

One of persons to whom she referred in that article, a certain R.B. , brought a private bill of indictment fo r libel under Article 212 para. 2 before the Warsaw District Court.

By a judgment of 16 August 2010 that court found the applicant guilty of offence of libel committed by two statements made in the impugned article. It observed that, contrary to the submissions made in the bill of indictment, only these two statements were relevant for the libel case , and not the entire content. The first impugned statement was to the effect that R.B. had been dishonourably dismissed ( wyrzucony ) from service in the Internal Security Agency ( Agencja Bezpieczeństwa Wewnętrznego ). The court noted that R.B. had himself requested to be released from service. The term used by the authors suggested clearly – and untruthfully – that his dismissal must have been caused by his manifest unsuitability for service on suspect grounds. The court further took issue with the statement that R.B. had made it possible for E.M., who had first been arrested on suspicion of participation in and/or instigation of a conspiracy to kill the former Chief Police Officer Marek Papała and subsequently released, to leave the country. This turn of the phrase suggested that E.M. ’ s leaving Poland was illegal and that R.B. must have taken special and unlawful measures to make it possible for him to leave. This did not correspond to reality as E.M. had left after his release without any prohibition on his leav ing the country.

The court was o f the view that the fine of PLN 14,000 and charity payment ( nawiązk a) of PLN 10,000, equivalent to three months of the applicant ’ s income, was commensurate with the gravity of the offence she had committed and would dissuade the applicant from committing further offences of the same kind.

The court was also of the view that the general content of the article, namely a description of ways in which the former communist police had created the foundations for organised crime in Poland which emerged in the 1990 ’ s had no bearing on either the plaintiff ’ s good name or on the applicant ’ s criminal law liability.

The applicant appealed.

On 1 February 2011 the Warsaw Regional Court amended the contested judgment in that it reduced the fine to be paid by the applicant from PLN 14,000 to PLN 7,000 and the amount t o be paid to a charity from PLN 10,000 to PLN 5,000. It was of the view that the penalty imposed by the first-instance court was obviously disproportionate. The applicant ’ s monthly income was approx. PLN 8,000, she had three dependent children and a housing loan to pay. The severity of the fine had to be assessed in the light of the situation of the accused seen as a whole, including his or her income, family obligations and earning power. It further had regard to the testimony given by the applicant and the other accused to the effect that they were unaware of the changes made to their original text submitted to the editor and that these changes contained the statements incriminated by the first-instance court. The court was of the view that this was not credible , the more so as they had given this evidence only during the appellate proceedings (Article 452 para. 2 CCP). Otherwise, the appellate court fully shared the findings of fact and views of the first-instance court.

B. Relevant domestic law

Article 212 of the Criminal Code provides in so far as relevant:

Ҥ 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 public opinion 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.”

COMPLAINT

The applicant complains that her criminal conviction breached her right to freedom of expression guaranteed by Article 10 of the Convention. She argues that the penalty imposed on her was manifestly disproportionate; that the statement that the plaintiff had been dismissed ( wyrzucony ) was a mixed statement of fact and opinion, whereas the courts had wrongly treated it as a statement of fact; that there was no evidence to demonstrate that his dismissal had not been caused by dishonourable conduct on his part; that the fact that he had ceased to serve in the Internal Security Agency had to be assessed as casting doubt on his integrity, in particular in the light of other facts presented in the article and pointing to the involvement of many former agents of that service in the forming of organised crime in Poland in the 1990s; that her article contributed to the public debate, given the importance of the issues involved .

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?