CASE OF ZIEMBIŃSKI v. POLAND
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1944 and lives in Kłomnice. 6. He is the proprietor, editor-in-chief and journalist of a local weekly Komu i Czemu, published in the Radomsko and Bełchatów Districts. 7. At the end of May 2005 M.Dz., a local businessman providing services to a district hospital, visited M.D., the district mayor (starosta), to complain about D.K., the director of the hospital. It appears that the hospital owed some money to the businessman. M.Dz. recorded the conversation and the following day passed it on to the applicant. 8. On 2 June 2005 the applicant wrote to the district mayor and asked him to explain why he had delayed informing the prosecution authorities about the alleged corruption at the district hospital. In reaction to the letter, the district mayor summoned D.K. to respond to those allegations. He also sent a copy of the applicant’s letter to the prosecution service asking for the matter to be examined. In his letter to the prosecution service, the district mayor stated that the applicant’s allegations were insinuations aimed at undermining the public trust in him. A copy of this letter was sent to the applicant. 9. On 6 June 2005 M.Dz. notified a local member of parliament (“MP”) that the director of the hospital had received bribes from M.Dz. He stated that his recent conversation with the district mayor indicated that the latter had some knowledge about the bribe-taking. On 14 June 2005 the MP relayed this information to the Minister of Internal Affairs and Administration. Subsequently, the information was transmitted to the Ministry of Justice and then, in turn, to the Piotrków Trybunalski Regional Prosecutor’s Office. 10. In the article “D.K. took bribes” published in issue no. 23 (8-14 June 2005), the applicant stated that “the hospital director was being protected by the district mayor who knew that the subordinate director had taken bribes”. In the article “Corruption of Madame Director” published in issue no. 24 (15-21 June 2005) the applicant wrote that the district mayor had known that D.K. was corrupt but had not notified the prosecution authorities. The same allegation was made in the article published in issue no. 25 (2228 June 2005). In the article “Young prosecutor examines Deszcz [the district mayor]” published in issue no. 28 the applicant stated that “the district mayor is obviously fibbing, because he received information that the director took [bribes] from at least two sources”. 11. On an unspecified date in 2005 the district mayor lodged a private bill of indictment against the applicant with the Piotrków Trybunalski District Court. He accused the applicant of defamation committed through the mass media under Article 212 § 2 of the Criminal Code. 12. The bill of indictment related to two separate charges. The first concerned an article entitled “Hey those district roads” published in issue no. 1 of 2005 in which the applicant had discussed mismanagement of road works in the district. The second charge concerned four articles published by the weekly in June and July 2005 in which the applicant alleged that the district mayor had known that D.K. was corrupt but had failed to inform the prosecution service. The district mayor claimed that the impugned articles lowered his standing in the eyes of the public and undermined the public confidence necessary for the discharge of his duties. 13. On 8 February 2006 the Piotrków Trybunalski District Court gave judgment. It acquitted the applicant of the first charge and convicted him of defamation committed through the mass media in respect of the second charge. The District Court held that the applicant had wrongly alleged in his articles that the district mayor had known that D.K. accepted bribes but had not informed the police about it, despite having been under a duty to do so. Thus, the applicant had lowered D.K.’s public standing and undermined the public confidence necessary for the discharge of his duties. The District Court sentenced the applicant to a fine of 10,000 Polish zlotys (PLN; 2,600 euros (EUR)). It further ordered him to pay the private prosecutor’s costs (PLN 300; EUR 80) and the costs of the State Treasury (PLN 1,000; EUR 260). 14. When examining the first charge against the applicant, the trial court observed that the contours of the offence of defamation specified in Article 212 of the Criminal Code were delimited on one hand by the protection of reputation and dignity of a person and, on the other, by socalled legitimate criticism (dozwolona krytyka) which derived from Article 54 of the Constitution. It noted that in accordance with the Strasbourg case-law political or public activity inevitably resulted in subjecting officials to the judgment of the public opinion. Persons holding important offices were thus required to show a higher degree of tolerance to criticism. 15. In respect of the second charge, the trial court heard evidence from the applicant, the district mayor, M.Dz., D.K. and G.D. (spokesperson of the district mayor). It further heard the recording of the conversation between the district mayor and M.Dz. 16. The District Court observed that the applicant and the district mayor had once been good colleagues; however their relations had deteriorated since M.D.’s election as district mayor in 2002. From then onwards the applicant’s newspaper had begun publishing articles virulently criticising the district mayor and his staff. 17. The court established that the local businessman M.Dz., who provided services to the local hospital and was dissatisfied with his cooperation with the hospital director (D.K.), had informed the district mayor that D.K. had been taking bribes. M.Dz. had recorded his conversation with the district mayor. Subsequently, he had provided the applicant with the content of the recording and informed him that he had given bribes to D.K. 18. The court found that the applicant had alleged in a series of articles published between 15 June and 19 July 2005 that the district mayor had covered up the corruption affair, without having verified the information received from M.Dz. and disregarding the actual content of the recording. 19. The court further established that the applicant, when publishing a series of articles about the alleged corruption affair, had relied exclusively on the recorded conversation between the district mayor and M.Dz. It noted that neither the recording nor the statements of M.Dz. had confirmed the allegation that the district mayor had known about bribe-taking in the hospital, and thus the applicant’s assertions had been untrue. Even if the district mayor had some misgivings about the management of the hospital it could not be inferred from that that he had specific knowledge about the corruption. The trial court noted that allegations of covering-up corruption were of immense gravity and that the applicant had published them without having them verified. It underlined that shortly after having received the applicant’s letter of 2 June 2005 the district mayor referred the matter of corruption allegations to the prosecution service. In the court’s view, the applicant had flagrantly breached the journalistic principles of diligence and objectivity. The court further noted that in none of the impugned articles had the applicant referred to the uncertain nature of the presented information. The applicant, as an experienced journalist, should have been particularly cautious with the information received from the disgruntled businessman as he had been aware of a sharp conflict between him and the hospital management. However, he had failed to display particular diligence and had exploited that information for sensational purposes in making the district mayor and his alleged cover-up of the corruption the central part of his articles. The trial court referred to section 12 of the Press Act which obliged journalists to display particular diligence in gathering and using the information, and, in particular, to verify the truthfulness of obtained information. 20. The District Court held, inter alia, as follows: “There is no doubt that by imparting information clearly presupposing that M.D. [the district mayor] had allegedly covered up the corruption affair [the applicant] not only did not demonstrate the requisite diligence but in general did not take the trouble to confirm and verify in any way the information he had received. Without having regard to the gravity of the allegations made against M.D., the applicant hastily used the words of his informant for the purposes of settling his scores with M.D. ... The articles discrediting M.D. did not serve anything but the personal satisfaction of [the applicant], and the concern for the respect of law in the local hospital appeared to be of marginal importance. Having read the series of the above-mentioned articles it is difficult to escape the conclusion that the attention of the applicant was focused on damaging the reputation of the district mayor, while the hospital director D.K. was put on the sidelines. ... Besides, these actions constitute not the only but certainly the most far-reaching element of the personal war with M.D. waged in the weekly Komu i czemu. Defamation committed with the knowledge that information and opinions concerning the behaviour or characteristics of another person are false never serve to defend a justifiable public interest. Such actions do not benefit from the protection granted to freedom of expression and the right to criticise under Article 31 § 3 of the Constitution or Article 10 § 2 of the Convention. The real effect of the applicant’s publication cannot be assessed in isolation from the public office held by M.D. It is obvious that the office of the district mayor must be based on public trust and respect. Imparting by means of mass communication information about the alleged participation of the district mayor in the cover-up of a corruption scandal does not enhance his popularity. It risks not only the loss of the office, but also lowers his public standing creating an atmosphere of scandal and suspicion. ... By attributing to M.D. behaviour constituting an offence and doing so by means of mass communication, M. Ziembiński made out all the statutory features of the offence specified in Article 212 § 2 of the Criminal Code.” 21. The trial court noted that the applicant published four separate articles containing defamatory statements in respect of the district mayor within the period of a few weeks. Those statements fell outside the limits of permissible criticism referred to in Article 213 § 2 of the Criminal Code since they had been untrue. 22. The trial court considered that the degree of the applicant’s guilt was significant and for that reason the proceedings could not have been conditionally discontinued. ’s guilt and his financial standing which was beyond average. With regard to the latter, it had regard to the profits from the ownership of one of the most widely read newspapers in the region. As regards other relevant factors, the court noted that the applicant had deliberately infringed the district mayor’s reputation and had been motivated by personal animosity. At variance with the professional and deontological standards, he failed to respect the requirement of particular diligence when using information at his disposal. The trial court took further into account that the applicant had not in any way recognised that he had acted inappropriately. 23. The applicant appealed. He contested the factual findings of the first-instance court, in particular that the recorded conversation between M.Dz. and the district mayor had constituted the only source of information about the bribe-taking. He further alleged that the first-instance court had erroneously assessed the evidence. 24. On 23 May 2006 the Piotrków Trybunalski Regional Court upheld the first-instance judgment and found the applicant’s appeal manifestly illfounded. It ordered him to pay costs of PLN 1,000 for the appeal proceedings. 25. The Regional Court endorsed the lower court’s findings. It noted that M.Dz. had been in conflict with the director of the hospital which was related to unpaid invoices of his company. In the past he had frequently complained to the district mayor about the director of the hospital. 26. The Regional Court held that the recorded conversation and information passed orally by M.Dz. to the applicant had constituted the only basis of the allegations made against the district mayor. According to the court, there was not a single statement of the district mayor in that conversation indicating that he had been aware of the alleged corruption of the director of the hospital. The allegations made by the applicant had been based on isolated parts of the conversation which were taken out of context. The Regional Court also noted that the applicant had not sought comments from D.K. At the time of the publication the applicant had not disposed of any information corroborating the alleged cover-up of the corruption. Nor had such information been disclosed during the trial. The Regional Court, having regard to the evidence heard by the trial court, found that the district mayor had learnt about the alleged corruption in the local hospital from his conversation with M.Dz. at the end of May 2005 and then from the applicant’s letter of 2 June 2005. It accordingly confirmed that the allegations raised by the applicant in his articles had proved to be untrue. 27. Referring to the case-law of the Strasbourg Court, it recalled that the limits of acceptable criticism were wider with regard to politicians than with regard to private individuals. However, it did not follow from that that the insulting of a politician could go unpunished. 28. The judgment was served on the applicant on 13 June 2006. 29. Article 14 provides as follows: “The Republic of Poland shall ensure freedom of the press and other means of social communication.” Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides: “Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant: “Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.” 30. Article 212 provides in so far as relevant: “§ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics as may lower this person, group or entity in public opinion or undermine public confidence in their capacity necessary for a given position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year. § 2. If the perpetrator commits the act described in paragraph 1 through the mass media he shall be liable to a fine, a restriction of liberty or imprisonment not exceeding two years.” 31. Article 213 provides as follows: “§ 1. The offence specified in Article 212 § 1 is not committed, if the allegation made in public is true. § 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2; if the allegation regards private or family life evidence of truthfulness shall be admitted only when it serves to prevent a danger to someone’s life or to prevent the demoralisation of a minor.” 32. On 30 October 2006 the Constitutional Court, ruling on a legal question referred to it by the Gdańsk District Court, declared Article 212 §§ 1 and 2 of the Polish Criminal Code compatible with Articles 14 and 54 § 1 of the Constitution read in conjunction with Article 31 § 3. The Constitutional Court found that in some circumstances the protection of rights and freedoms like dignity, good name and privacy might prevail over the protection of freedom of expression. The Court further found that there was no basis to assume that protection of personal rights through the civil law alone would be equally efficient as criminal law. Protection of personal rights by means of criminal law did not by itself infringe the relevant provisions of the Constitution.