CASE OF STANKIEWICZ AND OTHERS v. POLAND (No. 2)
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev
5. The first two applicants were born in 1974 and 1953 respectively. The first applicant is a journalist working for the daily newspaper Rzeczpospolita and the second applicant was, at the material time, its editorinchief. The third applicant is Gremi Media sp. z o.o. (at the material time Presspublica sp. z o.o.), the publisher of Rzeczpospolita. It is a limited liability company represented by the chairman of its board of directors, Mr P. Bien, and its vice chairman, Mr R. Dobrzyński. Its registered office is in Warsaw. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. In October 2004 the Polish government submitted a draft amendment to the Tax Act (Ordynacja Podatkowa) to the Sejm. During the drafting process various bodies and individuals, including the National Council of Legal Advisers (Krajowa Rada Radców Prawnych), were invited to submit their comments. Their opinion was prepared by Ms D.S., a former senior civil servant, who was a well-known expert on tax law and a member of its legislative committee. She further acted as an expert and adviser at meetings before the parliamentary finance subcommittee where amendments to the Tax Act were being examined. One of the amendments proposed by the Council to section 181, and defended by Ms D.S. at the meetings, consisted of limiting what could be used as evidence in tax proceedings to material collected in criminal proceedings, but only once they had been concluded. The law as it stood did not contain such a limitation and allowed, for instance, material collected in a pending criminal investigation to be used as evidence. Her proposal was accepted by the subcommittee and later by the Sejm and, together with other amendments to the Tax Act, entered into force on 1 September 2005. 8. On 14 and 15 September 2005 the first applicant wrote three articles describing the possible consequences of the amendment to section 181 of the Tax Act, the legislative process leading to its adoption and the role that Ms D.S. had apparently played. One of the articles contained comments made by Ms D.S. and featured her photograph. 9. The first applicant and another journalist analysed the recordings of all the parliamentary finance subcommittee meetings during which amendments to the Tax Act were discussed. Two articles which appeared in Rzeczpospolita on 14 September 2005 contained transcripts of the subcommittee’s meeting of 17 February 2005 at which the section 181 amendment was discussed. The journalists interviewed Mr J.K., a Member of Parliament who chaired the subcommittee, Mr M.W., an appellate prosecutor and Ms D.S. Their statements were quoted in the articles, as was a statement made by an unidentified member of the government during the subcommittee meeting. 10. The first article, “Mafia pays no taxes” (Mafia nie zapłaci podatków), appeared as a cover story on 14 September 2005. The subheading and an excerpt from the article read as follows: “[Subheading] Two words introduced to the new Tax Act have paralysed the prosecution of the petrol mafia, Rzeczpospolita has discovered. Our investigation reveals who changed the law and when it was changed. However, even we do not know why the government did not take any action. ... [text] Some days ago, the newest version of the Tax Act, enacted by the Sejm in June, entered into force. Problems then started. Because of one provision in the law, cooperation between the tax and prosecution authorities has been totally blocked... Such cooperation has so far led to successful prosecutions in many high-profile cases, such as those concerning the battle against the petrol mafia.” 11. The article also explained that the amendment to section 181 of the Tax Act limited what could be used as evidence in tax proceedings to only material collected in criminal proceedings which had already been concluded. This was a real setback for the tax authorities, who could no longer rely on evidence the prosecution had been collecting in proceedings which were pending. According to the author of the article, such an amendment could prolong the tax authorities’ effective investigation into tax evasion for many years, until the criminal courts arrived at their final decision in a case. 12. The second article, which had the headline “Mafia to pay no taxes” (Mafia podatków nie zapłaci) appeared on page 5 of the same edition of Rzeczpospolita of 14 September 2005. It featured a photograph of Ms D.S. The wording of the article, in so far as relevant, read as follows: “[subheading]The amendment to the Tax Act which made it harder to prosecute the petrol mafia was introduced during a subcommittee meeting – Rzeczpospolita has established. ... [text] As we have established, the above-mentioned amendment to section 181 [of the Tax Act] was proposed by Ms D.S. of the National Council of Legal Advisers during a subcommittee meeting on 17 February. Strictly speaking, it was outside her remit as she is not a member of parliament. However, she was an adviser to the subcommittee and warmly encouraged MPs to introduce the amendment, even though no such change had been proposed. Ms D.S., a former senior civil servant at the Ministry of Finance, and today counsel at a prestigious law firm, received support from the subcommittee chairman and even a government representative... Ms D.S., in an interview for Rzeczpospolita, argues that her intention was to protect the interests of the taxpayer.... [Question:] ‘You have changed the legal system, but you are not a member of parliament or the government. Was it your idea?’ [Answer:] ‘I believed that the wording of the legal provision in question was incorrect. It had to be changed.’” 13. On 15 September 2005 Rzeczpospolita published the third article, which had the headline “Dubious law to be changed” (Zmienią podejrzane prawo). In so far as relevant, it stated as follows: “[Subheading] This cannot be. The Deputy Minister of Finance is outraged after Rzeczpospolita disclosed the story behind the change in the law which has helped the petrol mafia. ... [Text] The Deputy Minister [S.S. ...] is surprised by [how] the unfortunate amendment was introduced. ‘It is unacceptable’, he says. ‘I have the Tax Department’s backing that this amendment should be corrected immediately.” 14. The article included quotes from interviews with two Deputy Ministers and one official, all from the Ministry of Finance. It also contained a paragraph describing the recent developments in several ongoing investigations against the petrol mafia. 15. On 12 October 2005 Ms D.S. lodged a claim for the protection of her personal rights against all three applicants, seeking compensation in the amount of 200,000 Polish zlotys (PLN), the equivalent of approximately 50,000 euros (EUR). 16. On 17 August 2007 the Warsaw Regional Court dismissed her claim. It established that both the journalist who had written the articles and the editor-in-chief had been diligent in collecting information for all three of them. The articles in question reflected the evidence submitted by the defendants both in form and in content. The amendment to section 181 of the Tax Act had indeed been proposed by Ms D.S., as she had been invited to represent the National Council of Legal Advisers during the finance subcommittee’s deliberations on the draft law. Had she not voiced her opinion regarding the need to amend section 181, the amendment would most probably not have been introduced. The court stressed that since the claimant had voluntarily entered the public domain, she should respect the rights of others, in particular journalists, to criticise her actions. The first applicant, while preparing material for the articles, had had access to draft laws, legal opinion on those drafts, the finance committee’s minutes, recordings of the subcommittee’s deliberations and interviews with prosecutors, from which he took quotations. The court thus concluded that information provided by the defendants had been truthful and collected diligently. The court considered that the incident described by the defendants had been a very important matter of public interest, as it had shown how easy it could be to influence a change in the law. The controversies surrounding the amendment to the Tax Act had led to section 181 being restored to its previous form in February 2006. The aim of the articles had been to draw the public’s attention to the amendment to section 181 of the Tax Act. The court also considered that the applicants had had a right to publish a photograph of Ms D.S., as she had been a public figure. The photograph could have easily been taken while she had been carrying out her duties for the subcommittee in the present case. 17. The claimant, Ms D.S., lodged an appeal against this judgment. 18. On 21 May 2008 the Warsaw Court of Appeal allowed the appeal and action and amended the judgment in question. The court ordered the applicants to publish an apology and pay PLN 20,000 to charity, disagreeing with the Regional Court’s assessment of the case. It considered that by using headlines, subheadings and several statements, the applicants conveyed the suggestion that Ms D.S. had been responsible for the negative consequences the amendment had had on the law. These statements included: “astonishing amendment”, “cooperation between the tax authorities and prosecutors totally blocked”, “she ... encouraged MPs to introduce the amendment, even though no such change had been proposed”, “[Ms D.S. has] changed the legal system”, “was it your idea?”, “the amendment was proposed in an astonishing manner by a guest of the subcommittee”. The court considered that the information contained in the articles had not been truthful, and that the journalists had not been diligent. It also considered that by publishing her picture, the applicants had breached the claimant’s right to protect her image. 19. On 5 June 2009 the Supreme Court quashed the judgment and remitted the case to the appellate court. It considered that procedural provisions had been breached; in particular, the judge rapporteur should have withdrawn from the case given doubts as to his impartiality. Moreover, the Supreme Court criticised the vague wording of the apology the defendants had been ordered to publish, and the lack of clarity as to which statements had breached the defendant’s personal rights. 20. On 22 October 2009 the Warsaw Court of Appeal allowed the action and ordered the applicants to publish an apology and pay PLN 20,000 to charity. The court considered that the defendants should publish the following apology on the cover of Rzeczpospolita: “[All three applicants] apologise to Ms D.S. for [damaging] her good name by publishing articles without factual basis in Rzeczpospolita on 14 September 2005 (‘Mafia pays no taxes’ and ‘Mafia to pay no taxes’) and on 15 September 2005 (‘Dubious law to be changed’), which have ruined her good name and professional reputation.” 21. The court considered that the claimant had proved, to a sufficient degree, that the articles in question had breached her personal rights, as they insinuated that she had been responsible for adopting an amendment which had negative consequences. Its arguments were similar to those outlined in its judgment of 21 May 2008. It considered the statement “[Ms D.S. has] changed the legal system” untrue because as an adviser to the subcommittee, it would have been outside her remit. The use of headlines, subheadings and certain statements conveyed the suggestion that the amendment had been introduced in the “interests of the [petrol] mafia”. Those statements included: “astonishing amendment”, “cooperation between the tax authorities and prosecutors totally blocked”, “she ... encouraged MPs to introduce the amendment, even though no such change had been proposed”, “[Ms D.S. has] changed the legal system”, “was it your idea?”, “the amendment was proposed in an astonishing manner by a guest of the subcommittee”. Moreover, by featuring a photograph of Ms D.S. in one of the articles, the applicants had “strengthened the message that [she] was the person responsible for having introduced an amendment convenient for the mafia, which [had] paralysed cooperation between the prosecution service and the tax services”. The court considered that the defendants had used the claimant’s photograph unlawfully, as the fact she was a public figure had not absolved them from asking her permission. It further stated: “The Court of Appeal has no grounds to consider that the defendants rebutted the presumption under Article 24 of the Civil Code that their actions were unlawful. The fact that the journalists relied on the comments of other individuals, even if they had indicated their sources, in this case the prosecutors, does not make such practice lawful. Such types of expression do not absolve a journalist from exercising particular diligence and care in collecting and using material. ... The defendants did not show that their actions were lawful; the suggestion they made, namely that the claimant had ‘changed the law’ had been untrue, their duty to act with particular diligence and care had not been fulfilled, and their direction of criticism against the claimant had not been in the public interest or compatible with the principle of coexistence with others. It had been unnecessary to ruin the claimant’s good name and reputation in order to express an opinion about an amendment to section 181. It is known how laws are passed and the claimant, acting lawfully and openly, did not change the law in force and could have only had a minor impact on the legislative process, in which the final decision did not depend on her. The suggestion that she changed the law is untrue, and making out that she had been responsible for changes in the law undermines journalistic integrity. The defendants did not provide any evidence to suggest that the claimant had acted in the interests of the [petrol] mafia. Other suggestions, namely that the amendment had caused the fight against the mafia and cooperation between the tax and prosecution authorities to become paralysed, were also untrue. The authors of the articles did not seek the opinion of specialists in tax law, nor did they try to explain the reasons behind the amendment. Their reporting was one-sided and formed far-fetched conclusions, creating an atmosphere of sensationalism and scandal ...” 22. On 20 January 2011 the Supreme Court amended the judgment as regards the wording of the apology. It held that the applicants should publish the following text: “[All three applicants] apologise to Ms D.S. for ruining her good name through the composition and use of headlines and subheadings in the daily newspaper Rzeczpospolita on 14 September 2005 (‘Mafia pays no taxes’ and ‘Mafia to pay no taxes’) and 15 September 2005 (‘Dubious law to be changed’), suggesting that, as an adviser to the Sejm’s finance subcommittee, she had been guided by reasons unworthy of merit and had infringed the principles of honesty.” The Supreme Court considered that the Court of Appeal’s guidelines for the apology were expressed too broadly, particularly as the latter acknowledged that the articles in question had a factual basis. In the present case, certain suggestions were made through the choice of headlines and subheadings, which led to the claimant’s personal rights being breached. Lastly, the Supreme Court considered that the fact that the defendants had taken quotations from public servants could exclude their liability, but only in so far as the wording of the comments quoted was concerned and not the “composition of the articles which led to negative suggestions [being made], creating an untrue picture of the person in question”.