FOURTH SECTION

Application no. 1443/11 Piotr PIOTROWICZ against Poland lodged on 23 December 2010

STATEMENT OF FACTS

The applicant, Mr Piotr Piotrowicz , is a Polish national, who was born in 1956 and lives in Jarocin . He is represented before the Court by Mr A. Bodnar and Ms D. Bychawska-Siniarska of the Polish Helsinki Foundation of Human Rights, lawyers practising in Warsaw .

A. The circumstances of the case

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

The applicant is an editor-in-chief of “ Gazeta Jarocińska ”, a local weekly published in Jarocin .

On 6 January 2006 the weekly published an editorial authored by the applicant entitled: “All goes well here” ( Wszystko gra ). It was an editorial comment on an article written by A.G., a journalist of the weekly, published in the same issue. Both the editorial and the article itself, entitled “Almost 200,000 [zlotys] for a hectare” ( Prawie 200 tysięcy za hektar ) , concerned the purchase of a plot of land by the municipality of Jarocin from a local businessman, owner of J.S. company..

The comment read as follows:

“In a “transparent” municipality the financial standing of J.S. company was recently improved by PLN 700,000 It was improved by the Jarocin Municipal Council where the opposition is now so perfectly ‘ transparent” that it is neither heard nor seen. What can be heard is only the voice of councillor B. who used to be in the opposition, but now he supports the Mayor who, incidentally, says that he “does not give a s ... what [our newspaper] will write about his proposals” (as he told one of our female journalists). I suggest that councillor B. is not in full possession of his mental capacities as he does not realise that his boorishness is seriously out of place in the municipal council.

Let ’ s get back, however, to the story of the land purchase. [The municipality paid the price for] a plot which, barely three months before, had been purchased, for a much lower price, by a local businessman. The municipality could have purchased that plot for a lower price, but it did not want, I suppose, to upset that businessman, given that the Mayor who is a businessman himself, certainly supports entrepreneurship.

I want to believe that it was not in line with the NIFT approach [“Now it is our f.. g turn”, in Polish TKM, a commonly used vulgar abbreviation expressing the wish of a party which has won elections to have its share of spoils, including economic benefits].

As it is well ‑ known in the early days of capitalism, the simplest way of making a fortune is to buy cheap and sell for a good price. The municipality authorities are obliged to run the education institutions in the municipality. I think that the transaction in question perfectly fits into the framework of tasks with which the municipal authorities and mayor were charged. It is a wonderful lesson for us all. Hence, it is important to know the names of those precursors who have implemented the ideals of a ‘ transparent municipality”.

It is wonderful to know that all goes well here.”

By a letter of 6 August 2006 the Mayor of Jarocin called on the applicant to publish an apology for a breach of the municipality ’ s personal rights, in particular its good reputation, in the weekly and regional edition of a national weekly Gazeta Wyborcza . The applicant declined to do so.

On 22 August 2006 the municipality of Jarocin lodged a civil claim against the applicant with the Kalisz Regional Court , claiming a breach of the municipality ’ s personal rights within the meaning of Articles 23 and 24 of the Civil Code. It claimed the payment of PLN 5,000 to a charity and that the defendant published a public apology.

On 8 February 2007 the Kalisz Regional Court dismissed the claim. It found that the municipality had wished to purchase a plot of land from the local agricultural co ‑ operative in bankruptcy. Negotiations concerning the purchase had been conducted between the municipality and the co ‑ operative as to the conditions of the purchase, but no formal pre-sale agreement had been signed. It was, however, agreed that the price for one square metre would be PLN 10. Subsequently the municipality refused to remit taxes owed by the co ‑ operative. The co-operative interpreted this as an intention on the municipality ’ s part to abandon the idea of buying the land and it organised a public tender instead. A local businessman A. B. bought the land at that tender, paying PLN 12 pet a square metre. Subsequently, he sold that land to the municipality at PLN 17 per square metre. The local newspaper run by the applicant published an article about the deal written by A.G. and also the editorial written by the applicant.

The court observed that the facts of the case were not in dispute between the parties.

The court was of the view that the impugned editorial amounted to an opinion about the manner in which the municipality had acted in connection with the purchase of the land concerned. Under the case-law of the Polish courts and the European Court of Human Rights, it was not for the civil courts to examine whether views and opinions formulated in public were “true” or not as such an assessment could not be reasonably made in respect of statements of opinion. It was not the function of the courts to sit in judgment of whether publicly expressed opinions were correct or not. The court referred to the case-law of the Court in so far as it had held that freedom of expression constituted one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it was applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such were the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”.

The court further noted that the applicant had been motivated by the wish to draw the attention of the public to the need to protecting the municipality ’ s financial interests and to the importance of avoiding corruption in local politics. He had therefore acted in the public interest. Hence, it could not be found that he had been acting unlawfully, unlawfulness being an essential condition for civil responsibility under Article 23 of the Civil Code to arise. Moreover, the applicant had been acting within the limits of the information mission of the press.

The municipality appealed.

On 26 September 2007 the Łódź Court of Appeal dismissed the appeal and upheld the contested judgment.

The municipality lodged a cassation appeal against this judgment with the Supreme Court.

On 20 March 2008 the Jarocin District Court acquitted the Mayor of criminal charges of failure to carry out his obligations diligently in connection with the negotiations for the purchase of the land from the co-operative in bankruptcy.

By a judgment of 17 July 2008 (II CSK 111/08) the Supreme Court allowed the municipality ’ s appeal and remitted the case. It was of the view that the municipality ’ s rights as a legal entity of public law could be breached by statements criticising the mayor for acting to its detriment. It further stated that in the circumstances of the case, the statements suggesting that the Mayor ’ s acts had been to the detriment of the municipality ’ s budget and that he had primarily had regard to the interests of third parties instead of the interests of the community, were capable of undermining the municipality ’ s authority and the trust of the local community necessary for enabling the municipality to exercise its public powers.

The court was further of the view that the Court of Appeal had failed to examine whether the applicant had complied with his professional obligations of diligence, in particular as to whether he had checked the veracity of statements made in the article published in the same issue of the newspaper and written by A.G. Hence, the impugned editorial and article written by A.G. had to be examined as a whole.

On 23 October 2008 the Łódź Court of Appeal set aside the first-instance judgment and remitted the case. It held that the views expressed by the Supreme Court should be taken into consideration.

On 18 March 2009 the Kalisz Regional Court held that the applicant had breached the municipality ’ s personal rights.

The court first reiterated the findings of fact already made by the first-instance court and held that they were not in dispute between the parties. It further noted than on 20 March 2008 the Jarocin District Court had acquitted the Mayor of charges of failure to carry out his powers in a diligent manner in connection with the land purchase.

The court observed that the personal rights of legal entities were, under Article 43 of the Civil Code, subject to the same protection as the personal rights of natural persons. It referred to a judgment of the Supreme Court to the effect that criticising a mayor of a municipality undermined the authority of municipal authorities and put in jeopardy the trust that the local community should have in its authorities.

The text of the editorial written by the applicant suggested that the municipality could have purchased the property concerned for a lower price, had it bought it from the co-operative as was originally planned. It was stated in the text that the author hoped that the transaction did not follow the NIFT rules [see above]. The court was of the view that this suggestion had a highly pejorative character, could have been regarded by the public as a suggestion of corruption. It therefore amounted to a breach of the muncipality ’ s right to good reputation. It referred to Article 24 of the Civil Code (see Relevant domestic law).

The court ordered that the applicant publicly apologise on the first page of the weekly and on the first page of the regional edition of the national daily “ Gazeta Wyborcza ” and formulated the text of the apology.

The applicant was further obliged to pay the costs borne by the plaintiff municipality in the amount of PLN 4,717.

The applicant appealed. He submitted , inter alia , that the court had failed to explain why it had not relied on the Convention ’ s standards concerning freedom of expression as developed by the Court ’ s case-law; that the contested judgment was in breach of the Constitution in so far as it guaranteed freedom of expression; that the courts had failed to take into account that the judgment of the criminal court on which they had relied had been given a long time after the article had been published so it could not be regarded as relevant for the legal assessment of the case concerning his freedom of expression; that the courts had erred in finding, arbitrarily, that the applicant had not acted out of concern for a legitimate public interest; that the courts had failed to take into consideration that the impugned editorial had been couched in ironic and sarcastic terms and that the form in which views were presented was also protected.

On 7 October 2009 the Łódź Court of Appeal dismissed his appeal and upheld the contested judgment.

The court noted that the first-instance court had been bound by the legal view expressed by the Supreme Court. That court had been of the view that personal rights within the meaning of Articles 23 and 24 of the Civil Code could also be vested with the municipality. Hence, it remained for the court to examine whether the municipality ’ s personal rights had been breached, having regard to the context of the case seen as a whole. The appellate court agreed that this had been the case, given that the impugned article had contained unequivocal suggestions that the municipal organs had acted improperly.

The general picture of the facts suggested by the article was such that the municipal organs had not acted transparently, there had been no meaningful opposition in the municipal council interested in supervising decisions given by the municipal organs and that, on the whole, the municipal power had not been exercised properly.

The court accepted that journalists had limited ways and means to establish certain facts, in particular when compared with the means at the disposal of prosecutorial and judicial powers. However, if acts described by journalists had not yet been examined and assessed by judicial powers, journalists should be particularly prudent in making public statements concerning the same facts. Further, in order to draw the attention of the public to certain facts or conduct, it was not necessary to suggest that they amounted to a general, normal and accepted pattern in a given environment. However, in the present case the applicant had not limited himself to reporting about the facts concerning the purchase of the land by the municipality, but treated those facts as an example of a general lack of transparency in the municipality ’ s actions.

He had been entitled to report publicly the facts concerning the purchase of the land and to express his disapproval. However, he had also expressed the opinion that the purchase had been manipulated in such a way as to allow the local businessman to make an undue profit, with the local councillors remaining passive. He had thereby blackened the good name of the municipality and breached its rights.

The court further noted that the Mayor of Jarocin had been acquitted of criminal charges brought against him in connection with the procedure concerning the purchase of the land by the municipality.

The court was of the view that the opinion presented by the applicant in the editorial had failed to take into consideration that business decisions were taken by the municipality in accordance with a complex process regulated by law and were subject to various factors connected to the market economy. It could not be overlooked that the property could not be bought by the municipality because the seller ultimately had not wanted to sell.

He reduced the costs to be paid by the applicant to PLN 3,347 and ordered him to pay, additionally, PLN 270 in court fees for the appellate proceedings.

The applicant lodged a cassation appeal with the Supreme Court. He essentially reiterated his earlier arguments.

By a decision of 27 April 2010 the Supreme Court refused to entertain the applicant ’ s cassation appeal.

This decision was served on the applicant on 24 June 2010

B. Relevant domestic law

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.”

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, in particular, health, liberty, reputation ( cześć ), 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 by the 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. In accordance with that provision, a person facing 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 claim just satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.

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. The interference with his right was not prescribed by law as the municipality, as a legal entity, could not reasonably be considered to have personal rights within the meaning of Article 24 of the Civil Code. In any event, the interference with his rights was not necessary in a democratic society as the courts had failed to take into account the fact that his article amounted to legitimate criticism of the manner in which the public powers had exercised their mandate in matters of public interest and concerning the allocation of public funds.

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 pursued a legitimate aim and was prescribed by law in terms of Article 10 § 2?