CASE OF BESTRY v. POLAND
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev
5. The applicant was born in 1954 and lives in Warsaw. 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?” 10. The applicant replied: “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). 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. 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. 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.