WOLEK, KASPROW AND LESKI  v. POLAND
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
The applicants, Mr Tomasz Wołek, Mr Rafał Kasprów and Mr Jacek Łęski are Polish nationals who live in Warsaw. They were represented before the Court by Mr R. Nowosielski, a lawyer practising in Gdańsk. , may be summarised as follows. On 23 August 1997 the daily newspaper “Życie” of which the first applicant was editor-in-chief, published an article entitled “Holidays with an agent” (“Wakacje z agentem”), written by the second and third applicants. The authors made an allegation that the then President of Poland elected in 1995, Aleksander Kwaśniewski, had spent his holidays in 1994, before he had been elected to office, in the same hotel as a Russian spy resident in Poland at that time, a certain W.A., and had had extensive contacts with him. He had at that time been a member of Parliament (Sejm) and represented the Alliance of the Democratic Left (Sojusz Lewicy Demokratycznej– “the SLD”). The opening text under the heading read: “There were no accidental visitors to the Rybitwa [a hotel in Władysławowo]. The élite of the Polish post-communists and business had been spending their holidays there for a long time. And, as it happens, an agent of the Russian intelligence services, W.A., also stayed there. And they formed, as the employees of the hotel say, 'a particularly close-knit company'. The article read: “Aleksander Kwaśniewski [the President] often spent his holidays in the Main Sports Centre in Władysławowo[-Cetniewo]. In the summer of 1994 he arrived there with his family and took a room in the Rybitwa. Subsequently, W.A. took a room in the same building. The Rybitwa should not be confused with the main building of the Centre. The latter can house up to several hundred people, while the Rybitwa, situated only a short distance away in a secluded place contains only twelve apartments. As the employees of the Centre say, visitors to the Rybitwa are most certainly not there by chance. Most often they are friends of J.K., the Centre's director, a former official of the Polish United Worker's Party (PZPR). Communist officials often visited the Centre, and later also officials of the SLD. When wellknown public figures visited the hotel it was kept under special surveillance by security agents. The Kwaśniewskis visited Rybitwa from 25 July to 15 August 1994. They got the best apartment, on the third floor. On 5 August, in the early hours, W.A. arrived at the Centre and remained there also until 15 August. He was introduced to the employees by the deputy director of the Centre as a “special guest of director K.”. This colonel of the Russian intelligence was given apartment no. 1, just beside the main entrance to the hotel and close to the reception room. Neither A. nor Kwaśniewski was listed in the official list of the hotel's guests, even though it was mandatory. Nonetheless, thanks to the efforts of some of the former employees of the Centre, we managed to obtain copies of invoices by which they had both paid for their stay in the Rybitwa. After we announced on Friday the publication of the present article, at yesterday's press conference the journalists asked Kwaśniewski whether he had ever had contacts with A. 'I have never met him' said the President firmly. Nevertheless, having conducted some investigations, we have found persons who tell us of meetings which A. and Kwaśniewski held at the Centre. We have talked with thirty employees of the Centre, past and current. Most of them are afraid to talk about what was going on in the Rybitwa. Some of them remember, however, that its visitors were good chums. They often had drinking parties. On at least one such occasion A. and Kwaśniewski were seen together. One former employee remembers another meeting between Kwaśniewski and A. This time, it was a tête-à-tête. 'They met in the socalled lower dining room in the main building of the Centre' says the employee, who was serving at their table. 'Apart from Kwaśniewski and the Russian, nobody else was present. I remember that they spoke in Polish, but some Russian words were thrown in from time to time.' After a while, having looked at a photo, this employee recognised A. and remembered that it was he who had had lunch with Kwaśniewski. A. served in the KGB from 1973. From 1982 to 1988 he worked in the Soviet Union embassy in Warsaw. Between 1990 and 1992 he was First Secretary of the embassy responsible for political affairs, and at the same time deputy to the Head of the KGB in Poland, General Walentij Smirnow. A. formally left the service in 1992. After that he worked as a socalled secondline officer, which meant that he carried on his spying activities, posing as a businessman and a civilian without any links to the Russian State apparatus. He became known in Poland after it became publicly known that he had been a longtime friend of the then Prime Minister, Józef Oleksy. Minister [of Internal Affairs] Andrzej Milczanowski accused Oleksy of being a spy. However, the investigation was discontinued as the prosecution authorities found that there was insufficient evidence to put Oleksy on trial. During his stays in Poland A. was, as far back as April 1994, kept under surveillance by the State Security Office (Urząd Ochrony Państwa). In the White Paper, a compilation of documents published by the Government's Information Office and relating to the Oleksy case, we find information that during the summer months the Russian was in Cetniewo. However, we find no information there about his activities or contacts during that time – despite the fact that there is a wealth of information concerning his movements before and after his stay in Cetniewo. In early September 1994 the State Security Office warned Oleksy that he should sever his ties with A. The then Director of the Office, G.C., stated later that it had been found that A. had been particularly active during the holidays, the better part of which he, like Kwaśniewski, spent at the Rybitwa. The newspaper also published two portrait photographs, one of the plaintiff and one of A., with the following caption: Friends from the beach – President Aleksander Kwaśniewski and W.A., Soviet and Russian intelligence officer. The article was accompanied by copies of invoices paid by the President and W.A. for their stay at the Rybitwa. In the same issue of “Życie” an article entitled “The Biggest Scandal of the Third Republic” was published. It summarised the affair in which in December 1995 A.M., the then Minister of the Interior, declared in Parliament that the then Prime Minister Józef Oleksy, a member of the same political party to which the President had belonged before his election in 1995, had been a Soviet spy recruited by W.A. The President lodged a civil action with the Warsaw Regional Court against the applicant and the publishing house which published “Życie”, claiming that the defendants should publish apologies for the text, which he qualified as deliberately misleading given that he had never met W.A. He also requested that the applicants pay, jointly, 2,500,000 zlotys (PLN) to the Polish Red Cross. During the proceedings the court heard evidence from five witnesses with whom the authors had spoken before the article was published and six other witnesses whom they had contacted after its publication. The court further heard evidence from seventeen witnesses called by the plaintiff. It also had regard to thirty-seven documents submitted by both parties, which all related to the plaintiff's schedule and private and public activities between 5 and 15 August 1994. The court examined an expert opinion verifying the plaintiff's signature on attendance lists of various parliamentary bodies during the material period. The applicants argued, inter alia, that in publishing the article they had exercised their freedom of expression, and referred to Article 10 of the Convention. By a judgment of 22 May 2000 the court partially allowed the plaintiff's claim. It had regard to thirty-seven documents relating to the essential message of the article, namely that the plaintiff had spent his holidays in Władysławowo in 1994 at the same time as A. and had had friendly contacts with him. The court concluded that the evidence before it was insufficient to make a finding that the applicants had shown sufficient diligence in gathering the material for their article. It further observed that the material which they had had at their disposal before publication was insufficient for the conclusion, which they had nevertheless presented in the article, that the plaintiff had indeed spent the period concerned in Władysławowo, that he had been A's friend and that they had stayed in the same hotel at the same time. It ordered the applicants to publish an apology in their newspaper, worded as follows: “Editor-in-chief of “Życie” [...] and [the second and third applicant] present their apologies to Mr Aleksander Kwaśniewski for having breached his personal rights by publishing in “Życie” of 23-24 August 1997, No. 196 (273), in the article “Holidays with an agent”, untrue information suggesting that in the first half of August 1994 he had spent holidays in hotel “Rybitwa” in the Main Sports Centre in WładysławowoCetniewo and that he had had close contacts with [W.A.]; moreover the [applicants] apologise for the manner in which the title of that article was formulated, for publication of the photographs on the first page of the newspaper and for the caption underneath.” The court dismissed the remainder of the claim and ordered each defendant to pay PLN 4,900 in reimbursement of the court fee paid by the plaintiff. No award regarding the reimbursement of other costs borne by the plaintiff was made. The applicants appealed. They argued that the courts had failed to establish the facts of the case correctly and had wrongly assessed the evidence. This failure had had a direct bearing on the court's conclusion that they had failed to act with diligence when preparing and publishing the article concerned. They further argued that the court had ordered them to publish an apology with a different content from that requested by the plaintiff. The applicants finally referred to the Constitution, in so far as it guaranteed freedom of expression and access to information. By a judgment of 27 February 2001 the Court of Appeal allowed the appeal in so far as the first-instance court had ordered the applicants to apologise for the photographs published on the first page of the newspaper and for the caption underneath, and discontinued the proceedings in the relevant part. The court observed in this connection that the plaintiff's claim had not related to the photographs and the caption and that the court, consequently, had not been required to rule over and above the claim. The court dismissed the appeal in its remainder. It observed that the provisions of the Constitution adopted in 1997 relied on by the applicants could not be applied because they had entered into force after the events concerned. Nonetheless, at the material time freedom of expression had been guaranteed by Article 10 of the Convention, ratified by Poland in 1993. The court went on to state: “The caselaw of the European Court of Human Rights provides that freedom of expression of the press plays an essential role in a democratic society. Although the press should not overstep certain bounds, in particular in respect of reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. There is little scope for restrictions on political speech or on debate on questions of public interest. The limits of acceptable criticism are wider with regard to a politician than with regard to a private individual. A politician is entitled, like any other citizen, to legal protection of his or her personal rights and reputation, but the scope of this protection is considerably narrower than in respect of private individuals. Such an interpretation of Article 10 of the Convention was made in [the Court's] cases Oberschlick v. Austria (no. 1), 23 May 1991, Series A no. 204; Schwabe v. Austria, 28 August 1992, Series A no. 242B; Castells v. Spain, 23 April 1992, Series A no. 236 (...) All these cases were brought [to the Court] by journalists who had been parties to criminal proceedings on charges of defamation against politicians. Neither the veracity of information which they had published nor their diligence had been challenged by domestic courts. None the less, various criminal sanctions had been imposed on them. The [European] Court did not criticise the mere fact that the applicants had been found criminally liable; it found violations of Article 10 finding that the measures complained of had not been necessary in a democratic society.” The court further noted that the article had attributed to the plaintiff close and friendly contacts with the agent of the KGB, an assertion which in Polish society could not but provoke negative reactions. Hence, the firstinstance court had been right in its finding that the plaintiff's reputation, protected by Article 24 of the Civil Code as one of his personal rights, could be negatively affected. The defendants' conduct could only be protected if it was found to be lawful within the meaning of that provision. However, it could not be so qualified. It was true that the defendants had shown diligence and good faith when gathering the material for the article, in that they had talked with many persons who could have known about the plaintiff's holidays in 1994. Nevertheless, the conclusions which they had drawn on the basis of that material published in their article, were seriously flawed. While there had been sufficient grounds for a finding that the plaintiff and his family had spent some time in the hotel concerned in July and August 1994, it was also clear that during this period the plaintiff had left Władysławowo from time to time to attend to his political duties. There were no indications, let alone any sound evidence to show that he as much as had ever seen W.A. during this period, let alone been friends with him, as was strongly suggested, or that the two men had met in private while at the Rybitwa. While it was true that, on the whole, the article did not contain obvious statements of opinion, it was clearly implied that the plaintiff's conduct had been reprehensible. The court went on to state that the reasoning of the first-instance court as to the admissibility and assessment of the voluminous evidence before it had been correct and logical. The defendants had failed to show that the article's conclusion that the plaintiff and W.A. had indeed been friends, who in 1994 had spent holidays together, had any factual basis. Their conduct when publishing the article presenting such a conclusion regarding facts, based on manifestly flimsy grounds, was open to criticism and the lower court had been right in making such a finding. The court further noted that in the same issue another article had been published. It referred to the close contacts between Józef Oleksy, one of the leaders of the party to which the plaintiff belonged, and A.W. The tone of the article concerned, seen in that context, clearly suggested to the reader that there might have been close relations also between the plaintiff and the KGB officer in question. This was not sufficiently borne out by the evidence, either that gathered by the plaintiffs prior to the publication or that available to the first-instance court. The applicants lodged a cassation appeal with the Supreme Court, making essentially complaints similar to those contained in their appeal. By a judgment of 14 May 2003 the Supreme Court quashed the judgment of the appellate court in so far as it had dismissed the applicants' appeal, and remitted the case to be reheard by that court. The Supreme Court observed: Pursuant to section 1 of the Press Act the press is obliged to safeguard the citizens' right to obtain reliable information, to ensure transparency of the public life and to exercise public control and supervision of public affairs. This is why the press enjoys the freedom of speech and print, guaranteed by the Constitution, and when the impugned article was published – by the constitutional provisions as amended in 1990 and 1992, and also by Article 10 of the European Convention for the Protection of Human Rights. The importance of tasks to be fulfilled by the press and their character taken together with the freedom it should enjoy provide foundations for its crucial role in a democratic society. This is why it is often referred to as “a fourth power”. The press is obliged to impart an accurate picture of social phenomena which it presents to the public. The significance of this duty flows from the fact that it has been included in section 1 of the Press Act. Hence, it is not open to doubt that the press should provide accurate information. However, the obligations incumbent on journalists could not be interpreted as a straightforward obligation to present only “true” information to society. Similarly, one cannot say that every instance of publishing untrue information amounts to unreliability on the part of the press. It should be borne in mind that the journalists have at their disposal only limited measures, that it is impossible for them to have access to all sources of information and that, as a result, it often is not feasible to give a complete picture of a given situation or event. If the journalists were obliged to write only “truth”, it would amount to a serious restriction on the exercise of the freedom of expression guaranteed by Article 10 of the Convention. The Supreme Court referred to the Dalban v. Romania judgment of the Court (Dalban v. Romania [GC], no. 28114/95, ECHR 1999VI). However, it noted that journalists were obliged to act with diligence when gathering and verifying information for the purposes of publication. It was a lack of such diligence which could make their conduct unlawful and consequently entail a breach of Article 24 of the Civil Code. It had not been convincingly demonstrated that the defendants' conduct when preparing and publishing the article concerned had lacked such diligence. Hence, the judgment of the appellate court had to be quashed and the applicants' appeal reexamined. By a judgment of 13 September 2004 the Warsaw Court of Appeal reexamined the applicants' appeal and dismissed it. As a result, the firstinstance order to publish their apologies for having published the article was upheld. The defendants were also ordered to pay PLN 450 to the defendant to cover his costs incurred in the appellate proceedings. The court was of the view that the defendants had failed to show diligence when gathering the material on which they had later based their article. The evidence gathered by them and by the first-instance court had shown that the plaintiff had indeed been in Władysławowo from 25 July to 2 August 1994 which, in any event, had not been in dispute. However, on 3 August 1994 he had travelled from Warsaw to Ireland. Subsequently, he had come back to Warsaw on 7 August and from that date until 13 August had attended to his political duties, as confirmed by various witnesses and documents. In the light of the evidence, there had been no grounds on which to accept that he had been in Władysławowo-Cetniewo from 5 to 15 August 1994, when W.A. had been spending his holidays there. Likewise, there were no grounds for a conclusion that the plaintiff and A.W. had been friends or that they had been members of a “particularly close-knit company” as alleged in the article. The court concluded that in the light of the evidence gathered by the defendants themselves prior to publication of the article and, additionally, other evidence submitted to the first-instance court, the conclusions drawn by the defendants, namely that the president and W.A. had spent their holidays in 1994 in the same hotel as good friends, lacked any factual basis. It was of the view that the defendants had not demonstrated the necessary objectivity and detachment when presenting their conclusions to the public, also because they had omitted to present in reasonable detail the basis on which they had reached those conclusions. The applicants lodged a cassation appeal with the Supreme Court, raising various procedural complaints to the effect that the courts had failed to establish the facts of the case correctly and had wrongly assessed the evidence. By a decision of 28 October 2005 served on the applicants' lawyer on 17 November 2005, the Supreme Court refused to entertain their appeal. Article 14 of the Constitution, adopted in 1997, provides as follows: “The Republic of Poland shall ensure freedom of the press and other means of social communication.” Article 54 of the Constitution reads: “1. The freedom to express opinions to acquire and to disseminate information shall be secured to everyone. 2. Preventive censorship of the means of social communication and licensing of the press shall be forbidden. Statutes may require that permits be sought and obtained for the operation of a radio or television station.” Article 61 of the Constitution, in so far as relevant, provides: “1. Each citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include the obtaining of information on the activities of self-governing economic or professional organs and other persons or organisational units, relating to the field in which they perform the duties of public authorities and manage municipal assets or property of the State Treasury. 2. The right to obtain information shall encompass the right of access to documents and entry to sittings of collective organs of public authority formed by universal suffrage, with the opportunity to make sound and visual recordings. 3. Limitations upon the rights referred to in paragraphs 1 and 2 above may be imposed by statute solely to protect the freedoms and rights of other persons ... public order, security or important economic interests of the State.” Article 23 of the Civil Code contains a list of the rights referred to as “personal” (dobra osobiste). It reads: “The personal rights of an individual, such as in particular the rights to 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 civil law regardless of the protection enshrined in other legal provisions.” Article 24 of the Code provides for ways of redressing infringements of personal rights. A person facing the threat of an infringement may demand that the perpetrator desist from the wrongful activity, unless it is lawful. 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/her. If the infringement of a personal right causes financial loss, damages may be sought before a civil court. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a final judicial decision of a secondinstance court. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: (1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; (2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” The Supreme Court could, pursuant to Article 393 of the Code, refuse to entertain the cassation appeal if: “(i) there [was] no appearance of any significant legal issue in the case; (ii) there [was] no need for the interpretation of provisions raising serious doubts or giving rise to discrepancies in the courts' case-law; (iii) the appeal [was] manifestly ill-founded.” Article 393 continued: “2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.”