CASE OF WIERZBICKI v. POLAND
No violation of Art. 6-1
Elisabeth Palm
6. In issue No. 4 of a newspaper “Gazeta Polska”, of which the applicant was an editor-in-chief, a list of informants of the communist secret police was published. This list had been submitted to Parliament (Sejm) in June 1992 by the Minister of Internal Affairs, following a resolution of the Parliament. The list was originally meant to remain strictly confidential, but its contents were subsequently immediately leaked to the public. In the same issue of the newspaper, apart from the list, the following text, entitled “Deleted at the Last Minute” (“Wykreśleni w ostatniej chwili”), was published: “[The Minister of Internal Affairs] was until the last minute verifying data which he had to submit to Parliament, pursuant to its resolution. A few hours before the list was submitted to [Parliament] he had deleted several names from the list, for lack of conclusive evidence. It transpires from our information that these names were: [...]”.The names of three well-known politicians followed. 7. In issue No. 5 of the same newspaper, a text entitled “The List of Informants - a Supplement” (“Lista konfidentów - uzupełnienie”) was published, which read as follows: “As a result of a misunderstanding, we did not include the following name in the list of persons deleted at the last minute from the Minister of Interior's document, which was published in issue No. 4 of the Gazeta Polska: S.N, and belonging to a category of TW (an informant), with a pseudonym [...,] who had been recruited [by the secret police] during his stay in prison.” (“Z wydrukowanej w nr 4 Gazety Polskiej listy <Wykreslonych w ostatniej chwili> wypadło nam w wyniku nieporozumienia nazwisko S.N., kategoria TW, kryptonim [...], który został zwerbowany do współpracy w więzieniu.”) 8. On 30 June 1993 S. N., who was also a candidate for Parliament in elections scheduled for September 1993, brought a court action against the applicant before the Warsaw Regional Court in accordance with Article 139 of the Election Act. He submitted that the newspaper of which the applicant was an editor-in-chief had published information that he had been an informant of the secret police of the former communist regime. He contended that this was false. He demanded that the applicant publicly revoke this statement and apologise for it by placing paid announcements in numerous newspapers. 9. On 1 July 1993 the Warsaw Regional Court declared itself incompetent to deal with the matter and transmitted the case to the Łódź Regional Court. 10. On 22 July 1993 the Łódź Regional Court decided that the case should be considered in ordinary contentious proceedings applicable to claims for protection of reputation under Article 24 of the Civil Code and transmitted the case to the Warsaw Regional Court. Upon appeal, the Łódź Court of Appeal on 4 August 1993 quashed this decision as it considered that the case should be dealt with by the Łódź Regional Court in special proceedings governed by Article 139 of the Election Act. 11. On 6 August 1993 the Łódź Regional Court summoned the applicant by fax sent to his work address to attend a court hearing scheduled for 7 August 1993. On the same day the applicant's lawyer sent a letter to the court in which he protested against the despatch of the summons to the applicant's place of work instead of to his private address and informed the court that the applicant should be considered as not having been duly summoned. He requested that the hearing be adjourned. 12. At the hearing on 7 August 1993 the Łódź Regional Court summoned the applicant to adduce evidence to show that the information concerning the plaintiff S. N. and his alleged involvement with the communist secret police was true. 13. On 12 August 1993 the applicant submitted a power of attorney in favour of his representative and requested that the case be pursued by way of ordinary contentious proceedings as the proceedings provided for by Article 139 of the Election Act had not led to a decision on the merits within three-day period stipulated in this Act. He requested the court to call as witnesses the former and current Ministers of Internal Affairs as well as J.K., a well-known politician, and to request the Ministry to submit various documents in evidence. 14. On 24 August 1993 the Łódź Regional Court summoned the applicant and his lawyer by notifications sent by fax to their respective work and office addresses to the hearing fixed for 25 August 1993. 15. At the hearing on 25 August 1993 before the Łódź Regional Court the applicant's lawyer was present, but the applicant was not. The court pronounced its decision on the same day. It upheld the plaintiff's claim and ordered the applicant to publicly revoke his statements by placing relevant announcements in numerous newspapers. 16. In reaching this decision, the Łódź Regional Court considered that in the proceedings in question the time-limits for serving summonses set out in the Code of Civil Procedure did not apply. The applicant's lawyer had been aware that the proceedings had been instituted since 6 August 1993; he had been given a power of attorney on 11 August 1993 and had submitted the request to produce evidence on 16 August 1993. Thus, he had had enough time to prepare his arguments. The court indicated that it had requested the Ministry of Internal Affairs to produce the documents requested by the applicant. On 20 August 1993 the Ministry had refused to do so as those documents were subject to official secrecy and could only be produced in court in criminal proceedings, in accordance with the Bureau of State Security Act. The court further observed that it could not call the witnesses proposed by the applicant; they could only have given evidence as to whether S. N. had been put on the list of informants prepared by the Ministry, but not as to whether S. N had in fact been an informant. Moreover, in view of the serious nature of the allegations advanced against S.N. by the applicant's newspaper, in the absence of any documentary evidence these allegations could not have been considered proved, even if they had been confirmed by the witnesses. Thus, as the applicant had not adduced any other evidence to prove that the information concerning S. N. was true, the court found against him. 17. The applicant appealed against this decision, invoking, inter alia, Article 6 of the Convention. He contended that the proceedings were null and void as neither the applicant nor his lawyer had been summoned to the hearing on 25 August 1993 with at least three-days' notice, as provided for by Article 149 § 3 of the Code of Civil Procedure. Furthermore, the applicant's interests could not be protected properly as he did not have sufficient time to prepare his arguments between the date of receipt of the summons and the date of the hearing. The applicant further argued that, as all his requests to call witnesses and evidence had been refused, he had been denied a reasonable opportunity to prove the facts essential for the merits of the decision. 18. On 31 August 1993 the Łódź Court of Appeal dismissed the appeal. The court considered that the complaint concerning the summons was unfounded. Both the applicant and his lawyer had been summoned one day before the hearing, which was justified, given the special nature of the proceedings under Article 139 of the Election Act. The court recalled that, although this provision provided for such cases to be decided within 48 hours, failure to do so did not oblige the court to deal with the case according to the normal procedures for contentious civil proceedings laid down in the provisions of the Code of Civil Procedure. Moreover, the applicant, being aware of the special nature of the proceedings, should have expected that he might be summoned from one day to the next and should have taken effective measures to ensure that the summons reached him in time. These considerations were especially relevant as the applicant was represented by a lawyer who was under a professional obligation to take appropriate measures to this end. In any event, the lawyer received the summons in time to appear at the hearing, even though he contended, unconvincingly, that he had learned about the date of the hearing from a journalist. As to the merits, the court noted that the lower court had requested the Ministry to submit documents requested by the applicant. However, this request had been refused. In the light of Article 12 of the Bureau of State Security Act, the refusal had to be considered lawful. Moreover, the very fact that an individual's name had been included in the list prepared by the Ministry could not be deemed proof that this person had in fact been an informant. The veracity of information contained in the list had been repeatedly called into question both by interested parties and, more widely, in numerous press articles. It had been emphasised that the list had been prepared and used as a weapon in a political battle, intended to discredit the persons concerned. Therefore, the veracity of a claim that a particular person had been a police informant could not possibly be established solely on the basis of the list itself and without prior verification of the list and, in particular, without some legally established means whereby the rights of persons branded as police informants could be defended. The court accordingly considered that the burden of proof lay with the defendant, who had failed to demonstrate that, at the time of the publication of the information at issue, he had possessed sufficient evidence that S.N. had been an informant as alleged. 19. Article 139 of the Election Law of 28 June 1991 provided that a candidate in parliamentary elections could bring a court action seeking rectification of information published about him/her during the election campaign and claiming compensation. The court was required to decide the case within 48 hours. The court could order the publisher of the information to rectify the information immediately and to apologise publicly to the plaintiff, if the information proved to be false or inaccurate. The court could order the defendant to pay compensation to the plaintiff. The provisions of the Code of Civil Procedure were applicable to proceedings brought before the courts on the basis of this provision. 20. Article 6 of the Civil Code provides that the person who relies on a fact relevant to his or her case bears the burden of proving that fact. Pursuant to Article 232 of the Code of Civil Procedure, the parties to civil proceedings are under an obligation to adduce evidence to establish the facts relevant to their claim. Under Article 227 of the Code of Civil Procedure, evidence can be taken as to the facts which are of relevance for the outcome of the case. 21. As regards the burden of proof, the case-law of the Polish courts in proceedings instituted on the basis of Article 139 of the 1991 Election Law was inconsistent. In certain cases the courts held that an analysis of Article 139 read together with the general principle of Article 6 of the Civil Code led to the conclusion that the burden of proof, in cases in which the information concerning a candidate was harmful to his or her good reputation, lay on the person who had published the information in question. The courts argued that in such cases the approach taken in Article 24 of the Civil Code should be followed, in that there was a presumption that attacks on the personal rights of the plaintiff were unlawful. Consequently, it fell to the defendant to prove their lawfulness, in particular by pointing out that the information published about the plaintiff, and which was deemed to be harmful to him or her, was true. Thus the plaintiff was exempted from the obligation to demonstrate that the allegations against him were untrue (the Kielce Regional Court, I Ns 60/93, Dec. of 11.09.1993; the Krakow Court of Appeal, I Acz 406/93, Dec. of 16.09.1993). In another decision, the Katowice Court of Appeal held that the plaintiff in Article 139 proceedings could not be required to adduce evidence in order to prove that something had not occurred (the Katowice Court of Appeal, I Acz 590/93, Dec. of 30.08.1993). In a further case in which the court ordered the defendant to prove that statements about the candidate were true, the court emphasised that, in conformity with the principle ei incumbit probatio qui dicit, non qui negat, it was not possible to require the plaintiff to produce evidence to prove that certain facts had not occurred (the Gdańsk Court of Appeal, Acz 632/93, Dec. 19.08.1993). 22. On the other hand, in certain decisions given on the basis of Article 139 of the Election Law, the courts held that that provision in conjunction with Article 6 of the Civil Code required the plaintiff to prove that the statements contained in the contested publications were untrue (the Katowice Regional Court, II Ns 88/93, Dec. 10.09.1993; the Katowice Regional Court I Acz 660/93, Dec. 18.09.1993). 23. The applicant lodged his application with the Commission, alleging a violation of Article 6 § 1 of the Convention. 24. The Commission declared the application partly admissible on 26 February 1996. In its report of 21 October 1999 (former Article 31 of the Convention) it expressed the opinion, by thirty votes to one, that there had been no violation of Article 6 § 1 of the Convention on account of the fact that the court refused to take all evidence proposed by the applicant.