FOURTH SECTION

Application no. 67068/10 Mirosław GARLICKI against Poland lodged on 10 October 2010

STATEMENT OF FACTS

The applicant, Mr Mirosław Garlicki, is a Polish national, who was born in 1960 and lives in Kraków. He is represented before the Court by Ms M. Gąsiorowska, 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 information

The applicant is a renowned cardiac surgeon. On 12 February 2007 he was arrested in a spectacular fashion by masked and armed officers of the Central Anti-corruption Bureau. At the relevant time he was the Director of the Cardiac Surgery Clinic in the Ministry of Internal Affairs and Administration Hospital in Warsaw . The applicant was charged with twenty offences, including exposing a patient to a direct danger to his life or health, homicide of a patient, harassing a member of staff, forgery of medical documentation, and sixteen counts of taking bribes from pa tients. On 14 February 2007 the Minister of Just ice – Prosecutor General, Mr Z. Ziobro held a press conference concerning the applicant ’ s case. At that conference he stated, among others, “that no-one else will ever again be deprived of life by this man”. The applicant ’ s case attracted widespread media coverage. In subsequent proceedings brought by the applicant against Mr Z. Ziobro, the civil court established that the impugned statement had infringed the applicant ’ s personal rights. In May 2008 the charge s of exposing a patient to a direct danger to his l ife or health and homicide of a patient were dropped. It appears that the criminal proceedings against the applicant are pending.

The complaints related, inter alia , to the applicant ’ s arrest and the alleged breach of his right to be presumed innocent were examined by the Court in its judgment concerning the applicant ’ s first case ( Mirosław Garlicki v. Poland , no. 36921/07 , 14 June 2011).

2. Proceedings against the journalist J.J.

In February 2010 the applicant filed a claim for protection of his personal rights with the Warsaw Regional Court against J.J., a journalist of “ Dziennik.pl ”, an internet publication. He sought an order requiring the defendant to publish an apology and compensation. The applicant referred to three articles authored by the defendant which included untrue information about him and statements implying that he had committed criminal offences. One of the articles was entitled “Cardiac surgeon without a heart”. The publication of those articles amounted, in his view, to an infringement of his reputation and good name.

In his statement of claim the applicant included the address of the office of the internet publication where the journalist was working.

By an order of a judge of 22 February 2010 the applicant ’ s lawyer was instructed to provide the court with the home address ( adres zamieszkania ) of the defendant within 7 days.

On 8 March 2010 the applicant ’ s lawyer requested the court for an extension of that time-limit, arguing that it was not possible to comply with the order within the original deadline. He also informed the court that he had requested a relevant department of the Ministry of Internal Affairs and Administration to provide him with the home address of the defendant; however there was a four-week delay for examination of such requests.

By an order of 22 March 2010 the President of the III Civil Division of the Warsaw Regional Court returned the applicant ’ s statement of claim. She noted that the applicant ’ s lawyer had failed to comply with the order of 22 February 2010 and that the court coul d not extend the statutory time ‑ limit of 7 days.

The applicant appealed. He argued that it was sufficient to indicate in his statement of claim the address of the office of the internet publication where the defendant had been working since he had difficulties in establishing his home address. Providing the address of the office would enable the court to serve pleadings on the defendant; however the Regional Court had not made use of this possibility and accordingly its decision to return the statement of claim had been in breach of Article 130 § 1 of the Code of Civil Procedure.

In his later pleading supplementing the appeal, the applicant submitted that the order to return his statement of claim had been in breach of Article 6 § 1 of the Convention. He noted that at the time of the filing of his claim he had had no possibility to establish a registered address ( adres zameldowania ) of the defendant because of the Data Protection Act ( ustawa o ochronie danych osobowych ). No authority would have provided the applicant with such address without a prior court order. In addition, it was impossible to establish the defendant ’ s registered address within 7 days of the court ’ s order. The applicant maintained that the order to return his statement of claim would result in depriving him of a possibility to seek damages from the defendant due to the expiration of the limitation period.

On 29 July 2010 the Warsaw Court of Appeal dismissed the applicant ’ s appeal. It noted that Article 126 § 2 of the CCP obliged the applicant to indicate in his statement of claim the precise address o f the defendant. The statement of claim had to be directed against a concrete person indicated by his or her name and his or her place of residence ( miejsce zamieszkania ), and not by the address of an employer. Accordingly, the Regional Court could not be faulted for having failed to serve the statement of claim at the employer ’ s address.

The court underlined that the defendant was a journalist. It was a specific characteristic of this profession that journalists very often worked for different media outlets but did not hav e an employment contract with a specific newspaper, television station or internet publication. Therefore, it could not be assumed that the Dziennik.pl was the defendant ’ s employer.

The court further noted that despite the appellant ’ s arguments to the contrary, it was not impossible to get access to the defendant ’ s address. A relevant department of the Ministry of Internal Affairs and Administration provided such information at the request of persons who had a legal interest in having access to such information. It was acknowledged that a person seeking judicial protection of his or her personal rights had such a legal interest.

3. Proceedings against the journalist A.R.

On 10 February 2010 the applicant filed a claim for protection of his personal rights with the Warsaw Regional Court against A.R., a journalist of “ Dziennik.pl ”, an internet publication. His claim was related to an article authored by the defendant entitled “Doctor Death in a government hospital”. The applicant sought an order requiring the defendant to publish an apology. He argued that the title and content of the article had infringed his reputation and good name.

In his statement of claim the applicant included the address of the office of the internet portal where the journalist was working.

By an order of a judge of 22 February 2010 the applicant ’ s lawyer was instructed to provide the court with the home address ( adres zamieszkania ) of the defendant within 7 days.

On 8 March 2010 the applicant ’ s lawyer requested the court for an extension of the time-limit, relying on the same arguments as in the case described above.

By an order of 22 March 2010 the President of the III Civil Division of the Warsaw Regional Court returned the applicant ’ s statement of claim.

The applicant appealed. His appeal and the subsequent supplement to his appeal relied on the same arguments as described in the case concerning proceedings against J.J.

On 29 July 2010 the Warsaw Court of A ppeal dismissed his appeal. The reasons given were identical to those relied on in the case against J.J.

B. Relevant domestic law and practice

Article 25 of the Civil Code provides:

“The place of residence of a natural person shall be the town where that person stays with the intention of remaining permanently.”

Article 126 of the Code of Civil Procedure specifies what information should be contained in a pleading. Paragraph 2 provides in particular, that the first pleading submitted to a court should indicate the parties ’ place of residence ( miejsce zamieszkania ).

Article 135 § 1 of the Code of Civil Procedure provides as follows:

“Service may be effected at home, at work or where an addressee is found.”

Paragraph 2 of this Article provides that at the request of a party service may be effected at the address of a post-office box.

Some parties resort to administrative proceedings before the General Inspector of Data Protection in order to compel a publisher to release the home addresses of journalists who wrote articles infringing their personal rights (cf. judgment of the Supreme Administrative Court of 28 June 2011, case no. I OSK 1217/10).

COMPLAINT

The applicant complains under Article 6 of the Convention that his right of access to a court was violated. The court failed to serve his statements of claim at the address included in his statements of claim. The address indicated by the applicant was the address of the office of the internet publication where the journalists usually published their articles. She underlines that the requirement to provide the home addresses of the journalists was unjustified. The Code of Civil Procedure provides that the service of documents may be effected at any place where the defendant is located. In her view, journalists are protected from litigation unless the court served a statement of claim at the address of the office of a newspaper or a publisher. As a result of the court ’ s failure to serve his statements of claim, the applicant was deprived of a possibility to protect his rights, restore his good name and seek compensation.

The applicant argued that the Regional Court had imposed on him an impossible obligation to provide the home addresses of the journalists within 7 days. In order to obtain information about a registered address from the Ministry of Internal Affairs and Administration Justice it was necessary to provide it with further details concerning a person (date and place of birth, names of parents etc.). Such requests were usually examined within a 4-week period. The applicant further submitted that a relevant department of the Ministry of Internal Affairs and Administration provides information about a person ’ s registered address ( adres zameldowania ). In practice, many people do not reside at their registered address.

According to the applicant, the courts under the jurisdiction of the Warsaw Court of Appeal consider that a statement of claim may only be served at a place of residence ( miejsce zamieszkania ) of the defendant. They do not attempt to serve a statement of claim at any other address indicated in the statement of claim and interpret the law with a view to returning as many statements of claim as possible. The practice in other parts of Poland (Kraków, Łódź) is different.

Furthermore, the 1997 Data Protection Act makes it effectively impossible to obtain information about the home address of a journalist.

QUESTION TO THE PARTIES

Was the applicant ’ s right to effective “access to a court”, guaranteed by Article 6 § 1 of the Convention, ensured in the present case, having regard in particular to the fact that the court, relying on Article 126 § 2 of the Code of Civil Procedure, refused to entertain his claims for the protection of personal rights and invoked his failure to provide the court with the defendants ’ home addresses?