FOURTH SECTION

Application no. 48053/11 Andrzej STANKIEWICZ and O thers against Poland lodged on 20 July 2011

STATEMENT OF FACTS

The first two applicants, Mr Andr zej Stankiewicz and Mr Grzegorz Gauden , are Polish nationals who were born in 1974 and 1953 respectively. The first applicant is a journalist working for the daily newspaper Rzeczpospolita and the second applicant was at the material time its editor ‑ in ‑ chief.

The third applicant is Presspublica Sp z o . o., a limited liability company which owns Rzeczpospolita , represented by the chairman of its board of directors, Mr P. Bien, and its vice chairman, Mr R. Dobrzynski .

The applicants are represented before the Court by M r J. Kondracki , a lawyer practis ing in Warsaw.

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

A. The articles in Rzeczpospolita

On 14 and 15 September 2005 the first applicant wrote three articles, in which he described the role that a certain individual, Ms D.S., had allegedly played in influencing the legislative process leading to changes in the Tax Act. One of the articles quoted comments made by Ms D.S. and was

accompanied by her photograph.

The articles in question were based on the minutes of a meeting of a parliamentary finance subcommittee, to which Ms D.S. was an adviser, and on interviews with several ministers, prosecutors and MPs, whose comments were quoted in the articles.

The first article, “Mafia pays no taxes” ( Mafia nie zapłaci podatków ), appeared as the cover story on 14 September 2005. The introductory paragraph read as follows:

“[Subheading] Two words introduced to the new Tax Act have paralysed the prosecution of the petrol mafia, Rzeczpospolita has discovered. Our investigation reveals who changed the law and when it was changed. However, even we do not know why the government did not take any action.

...

[text] Some days ago, the newest version of the Tax Act, enacted by the Sejm in June, entered into force. The problems then started. Because of one provision in the law, cooperation between the tax and prosecution authorities has been totally blocked.... Such cooperation has so far led to successful prosecutions in many high-profile cases, such as those concerning the battle against the petrol mafia.”

The article also explained that the amendment to section 181 of the Tax Act limited what may be used as evidence in tax proceedings to only materials collected in the course of criminal proceedings which had already been concluded. That was a real setback for the tax authorities, who could no longer rely on evidence which the prosecution had been collecting in proceedings which were pending. According to the author of the article, such an amendment could prolong the tax authorities ’ effective investigations into tax evasion by many years, until the criminal courts arrived at their final decision in a case.

The second article “Mafia to pay no taxes” ( Mafia podatków nie zapłaci ), also of 14 September 2005, was accompanied by a photograph of Ms D.S. The text of the article, in so far as relevant, read as follows:

“[The above-mentioned amendment to section 181 of the Tax Act] has been proposed by Ms D.S. of the National Association of Legal Counsels. Strictly speaking, it was outside her remit as she is not a member of parliament. However, she was an adviser to the subcommittee and was encouraging MPs to introduce the amendment, even though no such change had been proposed. Ms D.S., a former senior civil servant at the Ministry of Finance, and today a counsel at a prestigious law firm, received support from the chairman of the subcommittee and even a representative of the government. ...

Ms D.S., in an interview for Rzeczpospolita , argues that her intention was to protect the interests of the taxpayer....

[Question:] ‘ You have changed the legal system, but you are not a member of parliament or the government. Was it your idea? ’

[Answer:] ‘ I believe that the text of the legal provision in question was incorrect. It had to be changed. ’ ”

On 15 September 2005 Rzeczpospolita published the third article “Dubious law to be changed” ( Zmienią podejrzane prawo ). In so far as relevant, it stated as follows:

“[Subheading] This cannot be. The Deputy Minister of Finance is outraged after Rzeczpospolita disclosed the story behind the change in law which helped the petrol mafia.

...

[The Deputy Minister] is surprised by the manner in which the unfortunate amendment was introduced. ‘ It is unacceptable ’ , he says. ‘ I have the backing of the Tax Department that this amendment should be corrected immediately ... ’ ”

The article also included quotes from interviews with prosecutors who were dealing with pending investigations into the petrol mafia.

B. The court proceedings

On 12 October 2005 Ms D.S. lodged a claim for the protection of her personal rights against all three applicants, seeking compensation in the amount of 200,000 Polish zlotys (PLN - approximately 50,000 euros).

On 17 August 2007 the Warsaw Regional Court dismissed the claim. The court established that both the journalist who wrote the articles and the editor-in-chief had been diligent in collecting information for all three articles. The amendment to section 181 of the Tax Act had indeed been proposed by Ms D.S., as she had been invited to represent the National Association of Legal Counsels during the finance subcommittee ’ s deliberations on the draft law. Had she not voiced her opinion regarding the need to amend section 181, the amendment would most probably not have been introduced. The court stressed that since the claimant had voluntarily entered the public domain, she should respect the rights of others, in particular journalists, to criticise her actions. The court considered that the incident described by the defendants had been a very important matter of public interest, as it had shown how easy it can be to influence a change in the law. The controversies surrounding the amendment to the Tax Act led to section 181 being restored to its previous form in February 2006. The first applicant, while preparing material for the articles, had access to draft laws, legal opinion on those drafts, the finance subcommittee ’ s minutes, recordings of their deliberations, and interviews with prosecutors, from which he took quotes. The aim of the articles was to draw the public ’ s attention to the amendment to section 181 of the Tax Act. The court also considered that the applicants had had a right to publish a photograph of Ms D.S., as she had been a public figure and the photograph could easily have been taken in connection with her carrying out her duties while working for the subcommittee in the present case.

The claimant, Ms D.S., lodged an appeal against the judgment.

On 21 May 2008 the Warsaw Court of Appeal allowed the appeal and amended the judgment in question. The court granted the action and ordered the applicants to publish an apology and to pay PLN 20,000 to charity.

On 5 June 2009 the Supreme Court quashed the judgment and remitted the case to the appellate court. It considered that procedural provisions had been violated, and criticised the wording of the apology which the defendants had been ordered to publish.

On 22 October 2009 the Warsaw Court of Appeal granted the action and ordered the applicants to publish an apology and to pay PLN 20,000 to charity. The court considered that the defendants should publish the following apology on the cover of Rzeczpospolita :

“[All three applicants] apologise to Ms D.S. for breaching her good name by publishing articles without factual basis in Rzeczpospolita on 14 September 2005 ( ‘ Mafia pays no taxes ’ and ‘ Mafia to pay no taxes ’ ) and on 15 September 2005 ( ‘ Dubious law to be changed ’ ), which ruined her good name and professional reputation.”

The court considered that the claimant had proved to a sufficient degree that the articles in question had breached her personal rights, as they insinuated that she had been lobbying on behalf of the petrol mafia. In particular, her personal rights had been breached by statements that she had “changed the law”, even though as an adviser to the subcommittee it was outside her remit, that “the cooperation between the tax and prosecution authorities [had] been totally blocked”, and that “she was encouraging the MPs to introduce the amendment, even though no such change had been proposed”. The court considered that the wording of the articles, together with their headlines and subheadings, clearly suggested that the amendment had been introduced in the interests of the petrol mafia. To accompany such statements with a photograph of the claimant strengthened the message implied, namely that she had been responsible for introducing an amendment convenient for the petrol mafia and which had paralysed cooperation between the tax and prosecution authorities. Moreover, the court considered that the defendants had used the claimant ’ s photograph unlawfully, as the fact that she had been a public figure had not absolved them from asking for her permission. The court further stated:

“The Court of Appeal has no grounds to consider that the defendants had rebutted the presumption under Article 24 of the Civil Code that their actions had been unlawful.

The fact that the journalists relied on the comments of other individuals, even if they had indicated their sources, in this case the prosecutors, does not make such practice lawful. Such types of expression do not absolve a journalist from exercising particular diligence and care in collecting and using materials.

...

The defendants did not show that their actions were lawful; the suggestion they had made, namely that the claimant had ‘ changed the law ’ had been untrue, their duty to act with particular diligence and care had not been fulfilled, and their direction of criticism against the claimant had not been in the public interest or compatible with the principle of coexistence with others.

It had been unnecessary to ruin the claimant ’ s good name and reputation in order to express an opinion about an amendment to section 181. It is known how laws are passed and that the claimant, acting lawfully and openly, did not change the law in force and could have only had a minor impact on the legislative process in which the final decision did not depend on her. The suggestion that she had changed the law is untrue, and making out that she had been responsible for changes in the law undermines journalistic integrity.

The defendants did not provide any evidence to suggest that the claimant had acted in the interest of the [petrol] mafia. Other suggestions, namely that the amendment had caused the fight against the mafia and cooperation between the tax and prosecution authorities to become paralysed, were also untrue.

The authors of the articles did not seek the opinion of specialists in tax law nor did they try to explain the reasons behind the amendment. Their reporting was one-sided and formed far-fetched conclusions creating an atmosphere of sensationalism and scandal ...”

On 20 January 2011 the Supreme Court amended the judgment as regards the wording of the apology. It held that the applicants should publish the following text:

“[All three applicants] apologise to Ms D.S. for ruining her good name through the composition and use of headlines and subheadings in the daily newspaper Rzeczpospolita on 14 September 2005 ( ‘ Mafia pays no taxes ’ and ‘ Mafia to pay no taxes ’ ) and on 15 September 2005 ( ‘ Dubious law to be changed ’ ), suggesting that, as an adviser to the Sejm ’ s finance subcommittee, she had been guided by reasons unworthy of merit and had infringed the principles of honesty.”

The Supreme Court considered that the Court of Appeal ’ s guidelines for the apology were expressed too generally, particularly as the latter acknowledged that the articles in question had factual basis. In the present case, certain suggestions were made through the choice of headlines and subheadings used, which led to the claimant ’ s personal rights being breached. Lastly, the Supreme Court considered that the fact that the defendants had taken quotes from public servants could exclude their liability, but only in so far as the text of the comments quoted were concerned and not the “composition of the articles which led to negative suggestions [being made], creating an untrue picture of the person in question”.

COMPLAINT

The applicants complain under Article 10 of the Convention that the sanction imposed on them breached their right to freedom of expression. The first applicant was a journalist who had an obligation to report on a matter of public interest. The articles in question contained very well-researched material originating from public documents, interviews with politicians and prosecutors, and criticisms of the manner in which a new law had been drafted.

In particular, the articles did not make any direct allegations against Ms D.S. and limited themselves to reporting on her participation in the legislative process associated with making an amendment to the Tax Act .

QUESTION TO THE PARTIES

Has there been a violation of the applicants ’ right to freedom of expression, contrary to Article 10 of the Convention?