CASE OF SEMIK-ORZECH v. POLAND
No violation of Art. 10
George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
5. The applicant was born in 1955 and lives in Katowice. 6. On 9 December 2002 a hearing in a criminal case concerning a largescale fraud and generating considerable media interest was held before the Kraków Śródmieście District Court. Advocate J.Z., representing three accused (K.W., A.D. and A.M.D.) submitted to the court a power of attorney authorising another advocate, Ms D.K. who also represented A.M.D., to replace him for the purposes of representing his other two clients. The court accepted that document without any comment. 7. During the same hearing a heated exchange broke out between lawyers representing various defendants as to the possibility of a conflict of interest between various clients of lawyers involved in the case, including between J.Z.’s two clients K.W. and A.D. on the one hand and A.M.D., represented by advocate D.K., on the other. During that exchange advocate J.Z. declared that he would not represent A.M.D. any longer. The court expressed the view that it was too early at that stage of the proceedings to determine whether there was any conflict of interest between the accused which would have prevented the same lawyers from representing them. The courts admonished the lawyers several times for allowing the debate to get out of hand and for their inappropriate conduct in the courtroom. 8. On 15 December J.Z. informed his clients K.W. and A.D. on the phone that he would not be able to attend the hearing scheduled for 16 December 2002. He referred to the authorisation he had given to Ms D.K. on 9 December 2002 to replace him for the purposes of that hearing. He also informed Ms D.K. accordingly. 9. On 16 December 2002 the court held the hearing. Advocate J.Z. was absent. Advocate D.K. informed the court that he had informed her that he had authorised her to replace him for the purposes of that hearing and referred to the authorisation submitted to the case file at the hearing of 9 December 2002. Subsequently, the court declared, having regard to the testimony given by A.M.D. at the previous hearing, that there was a conflict of interest between K.W. and A.M.D. and that, accordingly, they could not be represented by the same lawyer. The court adjourned the hearing having regard to the fact that advocate D.K. was to represent both her client A.M.D. and K.W. on the basis of the authorisation given to her by advocate J.Z. on 9 December 2002 (see paragraph 6 above). 10. On 17 December 2002 Dziennik Zachodni, a newspaper published in Katowice, published an article written by the applicant and entitled “A Lawyer’s Nonchalance?” The applicant alleged that J.Z., the advocate representing the accused in a major criminal case pending before the Kraków Śródmieście District Court, had failed to meet his professional obligations and act diligently by failing to attend the hearing held on 16 December 2002. The relevant part of the text read: “(...) ‘it is the absence of the defence lawyer which is a problem’ explained the presiding judge, E.S. Advocate J.Z. failed to attend the hearing and did not justify his absence. He only asked another advocate to tell the court that he could not attend the hearing and requested that advocate (one day before the hearing) to replace him. The court could not accept that replacement, because the interests of the defendants represented by J.Z. and by that advocate were in conflict. The court could not but adjourn the hearing. Advocate Z. was well aware of that conflict. Other defence lawyers in that case had drawn his attention to it. It is difficult not to see his absence as disrespect towards the court, the prosecutor (...), the parties who reside in Silesia. He is, after all, supposed to know how to justify an absence before a court. ‘I am baffled by the attitude of the defence lawyer’ said judge E.S. The court informed the local Bar Council about the lawyer’s conduct.” 11. After the hearing, advocate J.Z. first requested the newspaper to publish a rectification, within the meaning of Article 31 of the 1984 Press Act, arguing that the conflict of interest between his clients and the client of Ms D.K. had been officially acknowledged only on 16 December 2002. Hence, he could not reasonably have been expected to know that his absence on that date would entail the adjournment of the proceedings. He argued that at the hearing held on 9 December 2002 there had been an exchange between the lawyers involved in the case as to the possibility of a conflict arising between the various defendants, including between his two clients and Ms A.M.D., represented by Ms D.K. However, on that date the court had only expressed the view that it was inappropriate to have that argument in the courtroom. No finding in respect of the conflict of interest had been made on that date. In any event, he had stepped down as A.M.D.’s defence lawyer. 12. The newspaper refused to publish a rectification within the meaning of the 1984 Press Act. On 21 December 2002 it merely published the advocate’s letter under the heading “Letters”, accompanied by the applicant’s unfavourable comment, essentially reiterating the allegation of negligence on his part. The applicant wrote that J.Z. had informed his clients by phone on 15 December 2002 that he had given Ms D.K. his authorisation to act on his behalf in their defence. It was further stated that his clients had been unaware that he would be absent on 16 December 2002. “[t]his is what they told me” – the applicant concluded. 13. Subsequently, the advocate sued the newspaper, the applicant and the editorinchief of Dziennik Zachodni for breach of his personal rights within the meaning of Articles 24 and 25 of the Civil Code (see paragraph 30 below). 14. At a hearing in that case held on 26 June 2003 the Katowice Regional Court heard as witnesses K.W. and A.D., the claimant’s clients and defendants in the criminal case. K.W. stated that the claimant had known as early as 9 December 2002 that he would not be able to attend the hearing scheduled for 16 December 2002 and that he had therefore authorised Ms D.K. to replace him. The criminal judge had accepted that authorisation without objections. A.D. made a similar statement. He added that after the hearing of 16 December 2002 he had briefly talked with a journalist in the court’s corridor and that he had not told her that he had not been informed about the advocate’s absence prior to that hearing. 15. The court had regard to the article published by the applicant on 17 December 2002 and to her comments on the claimant’s letter published on 21 December 2002 (see paragraphs 10 and 12 above), to the correspondence between the claimant and the defendant editor-in-chief, to the minutes of the hearings held on 9 and 16 December 2002 and to the parties’ statements. 16. The first-instance judgment was given on 18 September 2003. The Katowice Regional Court first recounted the exchange of views between the lawyers during the hearing held in the criminal case on 9 December 2002 as to the possible conflict of interest between their clients. It noted the criminal court’s statement, recorded in the minutes of that hearing, that there had been no basis at that time to find that a conflict of interest had indeed existed. It further found that on 15 December 2002 the lawyer had informed his clients and Ms D.K. on the phone that he would not be able to attend the hearing scheduled for the next day. On 16 December 2002 the criminal court had made an official declaration, again recorded in the minutes, that a conflict existed between the interests of A.M.D. and K.W. and that they could therefore not be represented by the same lawyer, and adjourned the hearing until 6 January 2003. The civil court noted that in her two articles the applicant had accused the claimant of unprofessional conduct. She had made an untrue statement to the effect that the claimant’s clients had not known before the hearing of 16 December 2002 that the claimant would not attend it. The articles had been widely discussed in local legal circles and had had a negative impact on the claimant’s situation. Some of his clients had lost their trust in him. 17. The court noted that the evidence before it had demonstrated that the applicant’s allegation that K.W. and A.D. had been informed of the claimant’s absence only at the hearing of 16 December 2002 was untrue. The claimant had already known about his absence on 9 December 2002. It was shown by the fact that on that date he had authorised another lawyer to act on his behalf in the defence of his clients. They had already been aware of it on that date. The criminal court had accepted this authorisation for Ms D.K. to act without comments or objections. On that date no finding had been made by that court that there had been a conflict of interest between the clients represented by the claimant and those represented by Ms D.K. In these circumstances, the claimant had had no reason to expect that his absence on 16 December 2002 would disturb the conduct of the proceedings. Consequently, his non-attendance on 16 December 2002 could not be seen as unjustified or his conduct regarded as nonchalant or disrespectful. 18. The court was of the view that the articles concerned had breached the claimant’s personal rights. The applicant had alleged that he had failed to attend the hearing and to justify his absence and that the hearing on 16 December 2002 had had to be adjourned because of his conduct. The court noted that under the Press Act the press enjoyed freedom of expression. That freedom was not absolute; it could be restricted in certain circumstances. In particular, the press was obliged to respect the rights of other persons. The Press Act obliged journalists to show diligence and integrity in gathering materials and publishing articles, because press publications could potentially harm individuals in a manner much more powerful than any other means of defamation. 19. The court was of the view that the applicant should have contacted the claimant before the publication of the article on 17 December 2002 and ask for his comments. She had failed to do so. 20. The article published by the applicant had lacked objectivity, contained undeserved criticism of the claimant and had been sensationalist rather than aimed at informing readers about the criminal case in a balanced manner. In particular, its title was particularly sensationalist. The newspaper had a wide readership in the region and therefore the impact of the article on public opinion was likely to have been significant and seriously detrimental to the claimant’s interests. Hence it was necessary to impose on the defendants an obligation to publish an apology and a rectification. 21. The court further imposed on the defendants an obligation to pay, jointly, 30,000 Polish zlotys (PLN) to a charity. It observed that that amount was significant enough to have an impact on the publisher, but not high enough to be seen as seriously detrimental to his financial position. 22. The applicant appealed, submitting that she had fulfilled her journalistic duties in reporting the case. Her view that the advocate had failed to act diligently in the representation of his clients had been well-founded and the firstinstance court had wrongly established the facts of the case. 23. On 7 October 2003 the Katowice Court of Appeal upheld the contested judgment, essentially sharing the conclusions of the lower court. 24. It observed that the right to freedom of expression guaranteed both by the Constitution and the Convention could be restricted in a democratic society for the purposes of the protection of individual rights such as dignity or personal rights within the meaning of the Civil Code and in compliance with the principle of proportionality enshrined in the Constitution. Where the exercise of the freedom of expression collided with the protection of the reputations of individuals, such a conflict had to be resolved with due regard being had to the case-law of the European Court of Human Rights. 25. The court noted that the applicant’s article published on 17 December 2002 concerned the conduct of a criminal case generating considerable interest among the general public. However, that did not imply that an interference with the claimant’s personal rights had been necessary. Judicial reporting had to be objective and strict priority had to be given to information, with due regard to the facts recorded by way of court records, which could be considered reliable; not to the reporter’s opinions and views. In the light of this principle, nothing justified the title “A Lawyer’s Nonchalance?”, referring to the lawyer who had been named in the article. Moreover, the text had contained untrue information to the effect that the court had made clear its intention to complain about the lawyer’s conduct to the local Bar Association. It had not been shown that the court had indeed made such a declaration or even suggested that it intended to do so. The applicant’ s intention to annoy the claimant and to undermine his professional reputation and integrity for the purposes of making the text more attractive or sensational could not be open to any doubt. 26. On 25 January 2006 the Supreme Court refused to entertain the applicant’s cassation appeal. 27. Article 54 of the Constitution provides: “1. Freedom to express opinions, and to acquire and disseminate information shall be ensured to everyone. 2. Preventive censorship of means of social communication and licensing of the press shall be prohibited.” 28. The relevant provisions concerning the correction of information in the press and other media are contained in the Press Act (Prawo prasowe) of 26 January 1984. Section 31 provides, in so far as relevant, as follows: “At the request of a natural or legal person or other organisational entity, the editor-in-chief of the relevant daily or magazine is under an obligation to publish, free of charge: 1. a factually based (rzeczowe i odnoszące się do faktów) rectification of untrue or inaccurate statements, 2. a factually based (rzeczową) reply to any statement which might infringe an individual’s personal rights” 29. Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” (dobra osobiste). This provision states: “The personal rights of an individual, such as, in particular, 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 the civil law regardless of the protection laid down in other legal provisions.” 30. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person facing a risk of an infringement of his or her rights may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. 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 claim just satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages. 31. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) caused to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”