CASE OF BESTRY v. POLAND

1. The case originated in an application (no. 57675/10) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Jan Bestry (“the applicant”), on 20 September 2010.
2. The applicant was represented by Ms I. Zielinko, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.
3. The applicant alleged that sanctioning him for the infringement of the personal rights of the former editor-in-chief of a newspaper and of the company publishing the newspaper amounted to an interference with his right to freedom of expression, in breach of Article 10 of the Convention.
4. On 26 May 2014 the complaint concerning the alleged violation of Article 10 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1954 and lives in Warsaw.
A. Press publications and the press conference
6. At the relevant time the applicant was a member of the Polish parliament.
7. In October 2006 a series of reports appeared in the Polish press in which the applicant ’ s past was described. It was reported that the applicant had sexually abused students when working as a teacher in the 1980s. The reports in question were published in the Polish daily newspapers Super Express on 20 October and Rzeczpospolita and Gazeta Wyborcza on 23 October, on the internet portal wydarzenia .pl on 20 October, and by the Information Radio Agency on 20 October and the Polish Press Agency on 20, 21 and 22 October 2006.
8. On 30 October 2006 the applicant organised a press conference which was held in the Sejm building. The conference was transmitted by a TV news information channel, TVN24. At the press conference the applicant said:
“... of course this was connected with the blackmail to which we were subjected. We already know which journalists cooperated, and with whom, in order to obtain money from us under false pretences. Today this is almost one hundred per cent clear to us. I think that today those three gentlemen already know about that. Those journalists cooperated with the informer who supplied the information on the basis of which the whole matter was disseminated and today, as far as we know, they are being paid for that. I do not yet know how much, some 15 or 20% of the amount obtained...”
9. Following this statement, a journalist from the daily Super Express J.H. commented :
“I am the author of this article, J.H., from Super Express. My question concerns the people who inspired me ... Maybe you could tell us something else about these familial -financial relationships?”
“I will reply to you. The first complaint will be lodged against you [with the court] tomorrow. After that, three more complaints will be lodged...”
11. On 31 October 2006 the Rzeczpospolita daily published an article entitled “Jan Bestry: I did not commit rape, I will sue Super Express ”. According to this article, the Super Express daily had written that in the 1980s the applicant ’ s employment contract had been terminated without notice because he had sexually abused young girls. The article went on to say that a few days after publication of this story, the TV station TVN reported that the applicant had been convicted in 1982 of having assaulted a woman passenger on a train when working as a train conductor. The article also mentioned that during an interview with Rzeczpospolita the applicant had said:
“ The disclosure of these matters is in effect a plot in which Super Express was involved”.
12. The author of the article was G.P., who wrote it after interviewing the applicant on the phone. According to G.P. the applicant approved publication of the contents of the article and the statements cited in the article were the statements made by the applicant.
13. However, the applicant denied having spoken to G.P. or having approved any information for publication in the press article. When questioned by the court he said that he had not attempted to have a correction of this article published because he had only found out about it in the course of the judicial proceedings (see paragraph 19 below).
B. Civil proceedings against the applicant
14. On 1 December 2006 the former editor -in-chief of the Super Express daily, T.L., and the publisher of the newspaper, the company Media Express Sp. z o.o., lodged a civil claim against the applicant for the protection of their personal rights. They claimed that the applicant had harmed their good name and credibility by statements he had made at the press conference on 30 October and in the article published by Rzeczpospolita on 31 October 2006.
15. On 29 May 2008 the Warsaw Regional Court granted the claim in part and ordered the applicant to publish an apology for the statements he had made – and which were cited in the article published by Rzeczpospolita on 31 October 2006 – using the following wording :
“Jan Bestry apologises to T.L., the former editor-in-chief of the Super Express daily, for unlawful infringement of his personal rights, namely his good name and professional credibility, by alleging in the Rzeczpospolita daily in an article published in issue no. 255 dated 31 October-1 November 2006 under the headline : “ Jan Bestry - I did not commit rape; I will sue Super Express ” that “the disclosure of the matters referred to in the article is in effect a plot in which Super Express was involved”.
16. The applicant was also ordered to make a similar statement of apology as regards the plaintiff company Media Express Sp. z o.o. and to publish these two statements in a particular way on page four of Rzeczpospolita.
17. The court refused to grant the plaintiffs ’ request that the apology also be published in five other dailies and on the TVN channel, finding that such an order would exceed the severity of the infringement committed by the applicant.
18. The court justified its reasoning by finding that the applicant ’ s statement referring to a “plot” in which the Super Express daily was involved infringed the plaintiffs ’ personal rights, and at the same time the applicant had not in any way proved the veracity of his allegations; both at the time the article was published and later, in the course of the civil proceedings, he had failed to demonstrate that the newspaper had in fact been involved in any “plot”. The court concluded that the applicant ’ s statements, which had been made in public, amounted to “ unverified suspicions and accusations addressed to the newspaper”. It further observed that the applicant, as member of the parliament, had “a right to criticise socially negative phenomena” guaranteed to him by the Polish Constitution and by Article 10 of the European Convention on Human Rights. However, “ while enjoying this right, he may not overstep the limits of permissible criticism by spreading groundless accusations.”
19. The court did not find credible the applicant ’ s submission at the hearing on 27 May 2008 that he had only found out about the Rzeczpospolita article in the course of the proceedings. The court took the view that, having held a press conference, the applicant would surely have followed the press articles which appeared over the following days concerning the subject matter discussed at the conference.
20. The court dismissed the remainder of the claim, finding that the statements made by the applicant at the press conference on 30 October 2006 could not unambiguously be interpreted as concerning journalists from a specific newspaper, because the applicant had not expressly mentioned any journalist or newspaper by name.
21. Both parties appealed against the first-instance judgment.
22. On 12 February 2009 the Warsaw Court of Appeal amended the challenged judgment insofar as it additionally ordered the applicant to publish an apology for the statements made during the press conference on 30 October 2006. The court examined what was said in the course of the conference and found that the applicant had initially referred to the events of 1980s, and to his work at the school and in the railway company. He had also said:
“Everything which was written in Super Express is untrue”.
Next, the applicant had spoken about his feelings about the case and about the sources that lay behind the story reported by the “journalists involved in this case”. He stated that:
“ The first bill of indictment will be lodged with the court against the tabloid ’ s editor tomorrow. Before the end of the week, three more complaints will be lodged. All [complaints] concern articles in the newspaper discussed”.
After further statements referring to events at the school where the applicant had worked and a statement by the applicant ’ s wife, the applicant made the statement referred to above (see paragraphs 8 and 10 ), which in turn provoked the reaction by J.H. (see paragraph 9 above).
23. The Court of Appeal concluded that, although the applicant had not specifically mentioned the names of any journalists or newspapers, for the average person it was clear from the context of the statements concerned that the charges of blackmail and obtaining money under false pretences had been directed at journalists from Super Express.
24. The Court additionally ordered the applicant to publish the following apology on the TV Channel TVN 24 on a weekday between midday and 4 p.m.:
“Jan Bestry apologises to T.L., the former editor-in-chief of the Super Express daily for unlawful infringement of his personal rights, namely his good name and professional credibility, by making a statement at the press conference on 30 October 2006 which contained the untrue and defamatory allegation that Super Express journalists had cooperated with informers in order to obtain money from Jan Bestry under false pretences and, when publishing articles about Jan Bestry in Super Express, had received a percentage of the money obtained under false pretences. Jan Bestry expresses his regret for having illegally infringed the personal rights of the former editor-in-chief T.L.”
25. The applicant was also ordered to publish, in the same medium, an identical apology regarding the company Media Express sp. z o.o.
26. The applicant lodged a cassation appeal.
27. On 20 April 2010 the Supreme Court refused to examine the appeal, holding that the applicant had not demonstrated that the Court of Appeal had overstepped the limits regarding the assessment of evidence or had infringed the rules of interpretation of the relevant provisions.
C. Criminal proceedings against the applicant
28. J.H. lodged a private bill of indictment against the applicant. He claimed that on 30 October 2006 the applicant had slandered him through the mass media at a press conference by making public allegations that he had cooperated with informers in order to obtain money from the applicant. He also requested that the applicant be found guilty of slandering him by giving an interview to the Rzeczpospolita daily in which he had alleged that J.H. had participated in a plot against him.
29. On 27 April 2009 the Warsaw District Court found the applicant guilty of two counts of slander and sentenced him to a fine.
30. The applicant did not appeal against this judgment.
D. Criminal proceedings against J.H.
31. The applicant in turn also lodged a private bill of indictment against J.H. He sought a criminal conviction for J.H. on two counts of slander : firstly, for having published an article alleging that the applicant had sexually abused children and secondly for having published, on 27 October 2006, another article under the title : “ Woman assaulted by Bestry. He wanted to force her into submission. He was convicted for beating her up ”.
32. On 16 October 2012 the Warsaw Regional Court acquitted J.H. on the first count of slander but found him guilty on the second count.
33. The applicant ’ s lawyer and J.H. ’ s lawyer both lodged appeals against this judgment.
34. On 3 July 2013 the Warsaw Regional Court amended the first-instance judgment in that it also acquitted J.H. also of the second count of slander, finding that he had not committed an offence because he had merely made public truthful information concerning a person exercising a public function. The court found that J.H had collected sufficient evidence to prove the veracity of the information he had published and therefore could not be found guilty of slander. The court admitted that as regards the second count of slander, J.H. had published information about a criminal conviction which, due to the passage of time, had already been removed from the applicant ’ s criminal record. However, it considered that the expunging of the applicant ’ s record had concerned only its criminal and not its civil aspects and that the disclosure of the expunged conviction was permissible if made for the purposes of protecting a “socially protected interest”.
35. The applicant lodged a cassation appeal.
36. On 19 March 2014 the Supreme Court declined to examine the appeal, holding it to be unfounded.
Personal rights and their protection under the Civil Code
37. 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 his or her health, liberty, reputation ( cześć ), freedom of conscience, name or pseudonym and image, the secrecy of his or her correspondence, the inviolability of his or her home, his or her scientific or artistic work and inventions and improvements shall be protected under civil law regardless of the protection laid down in other legal provisions.”
38. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person faced with 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 demand satisfaction from him or her. If an infringement of a personal right causes any financial loss, the person concerned may seek damages.
39. Under Article 448 of the Civil Code, an individual whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:
“The court may grant a suitable sum by way of pecuniary compensation for non-pecuniary damage ( krzywda ) suffered by anyone whose personal rights have been infringed. Alternatively, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement, the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest. ...”
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
40. The applicant alleged a breach of Article 10 of the Convention, which reads:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartially of the judiciary .”
41. The Government submitted that the applicant had failed to inform the Court of the criminal proceedings against him and of the fact that he had been found guilty and convicted. They further argued that “the information not disclosed to the Court leads to the conclusion that the present application is manifestly ill-founded.”
42. They also submitted that the applicant had failed to appeal against the judgment of 27 April 2009 by which he had been convicted and therefore had not exhausted the domestic remedies.
43. The applicant submitted that the criminal proceedings referred to by the Government did not constitute part of the subject matter of the present application. His complaint concerned the civil proceedings by which he was found to have infringed personal rights of J.H. and the company Media Express sp. z o.o.
44. Assuming that the Government ’ s submissions might be understood as a plea on inadmissibility on the grounds of an abuse of the right of individual application under Article 35 § 3 of the Convention, the Court reiterates that an application may be rejected as abusive under Article 35 § 3 of the Convention, among other reasons, if it was knowingly based on untrue facts (see Varbanov v. Bulgaria, no.31365/96, § 36, ECHR 2000-X; Rehak v. Czech Republic (dec.), no. 67208/01, 18 May 2004; Popov v. Moldova (no. 1), no. 74153/01, § 48, 18 January 2005; and Kérétchachvili v. Georgia (dec.), no. 5667/02, 2 May 2006). Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006; Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007; Predescu v. Romania, no. 21447/03, §§ 25-26, 2 December 2008; and Kowal v. Poland (dec.), no. 2912/11, 18 September 2012). In the present case the gist of the Government ’ s arguments does not actually concern “untrue facts” allegedly adduced by the applicant before the Court. The Court notes that the applicant did not, indeed, inform the Court about his criminal conviction, even though it related to the same events which constitute a basis for the civil proceedings complained of. It follows that the applicant ’ s criminal conviction does not constitute a part of the present application and as such, cannot be regarded as “ concerning the very core of the case”.
The Court is therefore of the view that it cannot be said that the manner in which the applicant presented his case amounts to an abuse of the right of petition.
It also considers that since the criminal proceedings referred to by the Government did not constitute a subject matter of the applicant ’ s complaint, his application cannot be declared inadmissible for non-exhaustion of domestic remedies on the ground that he had failed to appeal against his criminal conviction.
45. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
46. The applicant submitted that the interference with his freedom of expression had been in breach of Article 10 § 2 of the Convention. He argued that the domestic courts had failed to take into account that the impugned statements had been made as a form of defence against defamatory allegations contained in the press articles published before the conference. He further submitted that at the press conference on 30 October 20 06 he had not mentioned any journalist by name or given the title of any newspaper. Therefore, he should not have been ordered to apologise for the statements he had made there. The applicant considered the domestic court ’ s finding in this respect arbitrary.
47. He continued that, by sanctioning him for making his statements, the domestic courts had failed to strike a fair balance in weighing up his right to freedom of expression as guaranteed by Article 10 of the Convention. In this respect he considered that in the present case there had been no element of a “pressing social need”.
48. As regards the nature and severity of the sanction imposed, the applicant submitted that the order to publish apologies in the press and on the TV channel entailed costs amounting to approximately 100, 000 Polish zlotys ( PLN) (approx. 25,000 euros (EUR) ).
49. The Government submitted that the allegations made by the applicant during the press conference amounted to statements of fact rather than to value judgments and that the applicant should therefore have proved the authenticity of the facts he referred to. They stressed the domestic courts ’ finding that the applicant had failed to prove the veracity of his allegations. They also argued that from what was said during the press conference in question – as examined by the domestic courts – it appeared that the applicant had been referring to the newspaper Super Express and its journalists, even though no particular person had been identified by name.
50. They further submitted that at the relevant time the applicant had been a public figure and the matter was therefore of general public concern. However, they considered that this could not justify making public untrue information infringing the personal rights of others.
51. The Government concluded that the domestic courts had managed to strike a fair balance between the applicant ’ s freedom of expression and the need to protect the professional credibility of the press; the domestic courts ’ reaction was thus proportionate to the legitimate aim pursued.
52. Consequently, the Government invited the Court to find no violation of Article 10 of the Convention in the present case.
53. It was not disputed that the courts ’ decisions in the present case and the sanctions imposed on the applicant amounted to an “interference” with his right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. Such interference was undoubtedly prescribed by law, namely under Articles 23 and 24 of the Civil Code. The Court further accepts that the interference pursued the legitimate aim of protecting the reputation or rights of others – namely T.L., the former editor-in-chief of the Super Express daily and the publishing company Media Express Sp. z o.o. – within the meaning of Article 10 § 2 of the Convention.
54. Accordingly, the only outstanding issue is whether the interference with the applicant ’ s right to freedom of expression was “necessary in a democratic society”.
55. According to the Court ’ s case-law, freedom of expression constitutes one of the essential foundations of a democratic society and is one of the basic preconditions for the development thereof and for each individual ’ s self-fulfilment. Subject to paragraph 2, it is 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 are the demands of the pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among many other authorities, Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I; Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).
56. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. The Court is therefore empowered to deliver the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V, and Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 88, ECHR 2004-XI).
57. The Court ’ s task in exercising its supervisory function is not to take the place of the competent domestic courts, but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is limited to ascertaining whether or not the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the comments held against the applicant and the context in which he made them (see News Verlags GmbH & Co. KG v. Austria, no. 31457/96, § 52, ECHR 2000-I).
58. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measures taken were “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see, among many other authorities, Zana v. Turkey, judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, pp. 2547-48, § 51). In addition, the fairness of the proceedings, the procedural guarantees afforded (see, mutatis mutandis, Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR 2005 ‑ ...) and the nature and severity of the penalties imposed (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV, and Skałka v. Poland, no. 43425/98, §§ 41-42, 27 May 2003) are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10 (see Kyprianou v. Cyprus [GC ], no. 73797/01, § 171, ECHR 2005-...).
59. Furthermore, the Court reiterates that in its practice it has distinguished between statements of fact and value judgements. While the existence of facts can be demonstrated, the truth of value judgements is not susceptible of proof. Where a statement amounts to a value judgement, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgement without any factual basis to support it may be excessive (see De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997-I, p. 236, § 47; and Feldek v. Slovakia, no. 29032/95, § 76, ECHR 2001 ‑ VIII).
60. The Court further observes that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate concerning questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV).
(b) Application of the above principles to the present case
61. In exercising its supervisory jurisdiction, the Court must look at the impugned interference with the applicant ’ s right to freedom of expression in the light of the case as a whole, including the content of the statements concerned, the context in which they were made and also the particular circumstances of those involved.
62. In the instant case, the press conference organised by the applicant on 30 October 2006 was his reply to a series of articles published earlier in October 2006 alleging that he had sexually abused students when working as a teacher (see paragraphs 7 and 8 above). Moreover, the statements he made in the Rzeczpospolita daily of 31 October-1 November 2006 were his comments in response to allegations broadcast on the TVN television channel that he had been convicted in the past for having assaulted a woman (see paragraph 11 above). The Court therefore accepts that the applicant was defending himself against allegations published in the media in which he was accused of having committed criminal offences.
63. The Court notes further that in statements made at the press conference and also published in Rzeczpospolita, the applicant referred to a “plot” and accused the journalists of taking part in “blackmail” and writing defamatory articles for money (see paragraphs 8, 9 and 11 above).