CASE OF KULIŚ v. POLAND
Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
5. The applicant was born in 1956 and lives in Łόdź, Poland. 6. 7. On 10 June 1992 Mr Andrzej Kern, at that time the Deputy Speaker of the Sejm, notified the Regional Prosecutor that a certain Mr Gąsior and Mrs Izabela Malisiewicz-Gąsior had kidnapped his 17-year-old daughter, M.K. However, Mr Gąsior and Mrs MalisiewiczGąsior submitted that the allegation was false as M.K. had in fact run away from home and had only been accompanied by their son Maciej who had been her boyfriend for a long time. M.K. had previously run away from home on several occasions because of conflicts with her parents. On the same day the Łódź Regional Prosecutor initiated an investigation into the allegations of kidnapping against Mr Gąsior and Mrs MalisiewiczGąsior. On 10 and 11 June 1992 the prosecutor issued a warrant authorising the search of their flat and the tapping of their telephone. They were arrested and remanded in custody. In August 1992 the case was taken over by the Poznań Regional Prosecutor who discontinued the criminal proceedings against them, finding that the allegations of kidnapping had been groundless. Disciplinary proceedings were brought against both prosecutors who had instituted the criminal proceedings. 8. On 29 June 1992 Mr A. Kern had made a statement on public television in which he said that his daughter had been kidnapped and asked for assistance in finding his child. 9. The case concerning the alleged kidnapping of M.K. received wide coverage in the media. 10. The applicant owns a publishing house named “Westa-Druk” which publishes the weekly magazine “Angora”. 11. On 16 August 1992 the applicant published in “Angora” an interview with Mr Michał Plisecki, a lawyer who at the material time represented Mr Gąsior and Mrs Izabela Malisiewicz-Gąsior in the criminal proceedings concerning the alleged kidnapping. The article was entitled: “If it had been quiet” and was in the form of questions put by a journalist and answers given by Mr M.P. The article, in so far as relevant, read as follows: “‘A[ngora]’:-I have brought you fresh news from Łódź: the arrest warrant against [Maciej Gąsior] has been quashed, the children however have not come back home. M.P. [Michał Plisecki]:- I do not want to – publicly – go into the details concerning the issuing and quashing of the arrest warrant. Allow me not to comment on it because I would have been forced to use very blunt language. I would refer to another issue: if it is true that [M.K.’s] parents - after an unsuccessful attempt to place her in a psychiatric clinic –left her alone, under the care of her grandmother somewhere in the countryside, then should I – as a parent – be shocked by such behaviour? There is no other conclusion from the above fact: they simply do not love her. It is not that they do not understand her, because this is proved by their behaviour as a whole, but that the wish to separate [M.K.] from the world is in the interests of those people. Mr Kern’s statement that he suspected that his daughter had been spying on him while she was dating Maciej and in particular the statement by the mother of [M.K.] that her daughter had been serving as a mattress for Maciej – this is terrifying! That was probably the reason why the Member of Parliament Mr Kołodziejczyk, who represents the interests of all citizens, decided to apply to the family court to solve the tragic problem of [M.K.] and the Kern family. If I may give my private opinion, I also believe that one should think over how to arrange [M.K.’s] future life. (...) ‘A’:- So, if it was not for journalists, it would have been different? Maybe quieter? M.P. If it had been quieter, then from my point of view, and after Mr Kern’s having publicised the case in a certain context, I do not exclude the possibility that my client [Mrs Malisiewicz-Gąsior] would still have been in the detention centre. I do not exclude the possibility that Mr Gąsior would have been arrested too. The fact that my clients are free is due to the pressure of public opinion. (...) ‘A’:- You have said: ‘M.K. ran away from home’. But it has been said that it was an abduction or kidnapping. M.P. The prosecutor and his deputy know that [M.K.] ran away from home. It has been proved by witnesses (...) [M.K.] had asked Maciej to accompany her and that is what happened. This is not a crime! ‘A’:- The Helsinki Committee [for Human Rights], the Ombudsman, the President... M.P. ... let me add: the Political Group Porozumienie Centrum. Recently the Group made an appeal for assistance for Mr Kern - turning to the Ministers of Justice and of Internal Affairs – in the private matter of Mr Kern. I believe that since Mr Kern has abused power and has caused such unlawfulness and it has been supported by this Political Group, it means that Porozumienie Centrum supports these kinds of methods involving aggressive behaviour. ‘A’: -You have said: Mr Kern has abused power. Is it a question or a statement? M.P.:-He has obviously abused power because as the Speaker of the Sejm he had access to the media and gave false information; the fact that he is a liar I can prove – if necessary – in court. I authorise you to print this text. If Mr Kern says that he is not a liar, I will prove the contrary in court! ‘A’:-What do you think about the fact that the Member of Parliament Mr Kołodziejczyk applied to the Łódź District Court? M.P.:- It is for the court to decide, in every family case, with which parent the child should stay. In such cases both the parents and the child often undergo psychological and psychiatric examination – obviously upon a decision of a court. This is a typical case; the court is to decide on the family matter of Mr and Mrs Kern. Therefore, both the parents and [M.K.] should undergo the relevant examination. This is usual, routine procedure. That, in turn, proves how diligently Mr Kołodziejczyk approached this case. [M.K.] had turned to him for help, placed trust in him. In consequence he contacted, as I know, many people, me included, but I could not dispel his doubts. I then turned (sic!) [he turned] to specialists – psychologists. He was told by them that before they could make any decision they should talk with both the child and the parents. Then, very tactfully, he asked the Speaker [of the Sejm] Mr Chrzanowski to pass these suggestions to Mr Kern. Only after Mr Kern had refused, did Mr Kołodziejczyk do what any honest and respectable person would have done: he informed a court that in the Kern family bad things were happening. It is a lie that Mr Kołodziejczyk ordered the examination by specialists. He cannot order it! He only asked for appropriate action to be undertaken. (...)” 12. Subsequently, and in connection with the above interview, disciplinary proceedings were initiated against Mr Michał Plisecki by the local Bar Council. On 24 June 1995 the High Disciplinary Court (Wyższy Sąd Dyscyplinarny) found that Mr Michał Plisecki had breached the rules of professional conduct and reprimanded him. The court reiterated that the lawyers between themselves (Mr Plisecki, Mr Kern and his wife were all members of the Bar) should follow the rules of politeness and friendliness. The court found that Mr Plisecki had breached those rules and had failed to express his critics in a restraint manner. 13. On 8 August 1995 Mr Kern, his wife and his daughter M.K., (“the plaintiffs”) lodged against the applicant’s publishing house “Westa-Druk” a civil claim for protection of their personal rights. They maintained that the press had played a major role in the case involving their family as they “presented the facts and judgments tendentiously, causing de facto damage to the plaintiffs.” The plaintiffs further sought an award of PLN 28,000 in compensation and an order requiring the defendant to publish the following apologies: “We apologise to the Deputy Speaker of the Sejm, Mr A. Kern, his wife Mrs Zofia Pstrągowska-Kern and his daughter [M.K.] for grossly violating their personal rights by having published the article ‘If it had been quiet’, in Angora (...), in particular, by uncritically quoting the totally irresponsible statements of Mr Michał Plisecki in which he: - said of A. Kern that he ‘had obviously abused power’ and ‘caused unlawfulness’ in connection with the investigation conducted by the Łódź Regional Prosecutor into the alleged kidnapping of his daughter, - said that Mr Kern had been providing the media with untrue information and called him a liar, - imputed to Mr and Mrs Kern the wish to place their daughter in a psychiatric clinic, called their parenting skills into question and stated without any reason that the parents and [MK] should ‘undergo psychiatric and psychological examination.’ We express our regret over the harm done to the injured party”. 14. On 15 May 1998 the Łódź Regional Court (Sąd Wojewódzki) gave judgment for the plaintiffs. The court ordered the applicant to publish apologies as sought in the statement of claim and awarded the plaintiffs compensation in part, i.e. PLN 8,500. The court stated, inter alia: “...One should agree with [the applicant] that, being the publisher, he had the right to inform the readers about important circumstances concerning [A. Kern] who at the material time held one of the highest positions in the State. Therefore, publishing such information was not illegal despite the fact that it affected the plaintiffs’ personal rights that are protected by law. The article, however, includes not only information but also statements that damaged their reputation; i.e. their good name. The statement that Mr and Mrs Kern had made an unsuccessful attempt to place their daughter in a psychiatric clinic, that they do not understand and love her and that her separation from the world is in her interest, disparaged their parenting skills, and questioned their moral values. The information that the family should have been examined by psychologists and psychiatrists had also harmed them in the eyes of others. It concerns in particular the parents of Ms [M.K.] who at that time held important positions and the state of their mental health should not have been an object of public discussion. Finally, calling Mr Kern a liar and stating that he had abused power, obviously harmed his good name and exposed him to the loss of trust of his voters and of the leaders of the party of which he was a member. Therefore, the [applicant’s] actions were ... illegal because they breached the good name and reputation of the plaintiffs. The court did not agree with the [applicant’s] opinion that [since] he was not the author of the quoted statements, he was not obliged to check the truthfulness of the information included in the interview with Michał Plisecki...” 15. On 27 July 1998 the applicant lodged an appeal with the Łódź Court of Appeal. He alleged, inter alia, that the court had infringed his freedom of expression in breach of Article 10 of the Convention, as it had overstepped the margin afforded to it and violated the principle of proportionality between the legitimate aim pursued and the measures applied. The interference with his right was particularly striking as the case concerned a politician who should have been more tolerant of criticism. The applicant further argued that Mr Kern himself had made public information concerning his private life by giving statements concerning the alleged kidnapping of his daughter in the television and the press. 16. Mr Michał Plisecki, who joined the proceedings as an intervener (interwenient uboczny), also lodged an appeal. 17. On 26 January 1999 the Łódź Court of Appeal found that the applicant had sullied the good name of the plaintiffs. It amended the judgment in so far as the text of the apology to be published was concerned and increased the sum to be paid by the applicant to all plaintiffs by way of costs and expenses to PLN 3,316. It upheld the remainder of the judgment. The applicant was to publish the following apology: “We apologise to Mr Kern, his wife Mrs Zofia Pstrągowska-Kern and daughter [M.K]. for breaching their personal rights by the publication entitled «if it had been quiet» in particular by citing the statements made by the lawyer M.P. in which he referred to the plaintiffs’ parenting skills and gave his opinion as to their family life, and called the first plaintiff a liar.” 18. The appellate court stated: “...The Regional Court based its judgment on the following findings: In 1992 a strong conflict erupted between [M.K.] and her parents on the ground of her contacts with Maciej. [M.K.] regarded Izabela Malisiewicz-Gąsior as a person friendly to her and a moral authority. That influenced the loosening of her relationship with her parents. Finally, in June 1992 [M.K.] left with Maciej. She did not inform her parents of her whereabouts and did not contact them. The plaintiff, Mr Kern, in a television address made an appeal for help in finding his daughter; he also informed the Łódź District Prosecutor that a crime has been committed under Article 188 of the Criminal Code. The District Prosecutor instituted proceedings on charges of kidnapping and false imprisonment of M.K. In the course of these proceedings Mrs Malisiewicz –Gąsior was arrested and the apartment and house of Gąsior’s family was searched. The defence counsel of Mrs Malisiewicz-Gąsior was Mr M.P.” 19. The Court of Appeal found that the statement that Mr Kern had abused power was within the justifiable bounds of criticism since public opinion was particularly sensitive to all aspects of abuse of power, and the opinion about Mr Kern was given by a professional i.e. a lawyer; therefore, it did not require verification by the publisher. The allegation of abuse of power was also justified given the extraordinary actions undertaken by Mr Kern in a private matter. Following the case-law of the European Court relating to Article 10 of the Convention, a politician should show more tolerance when exposed to criticism than private persons. Then the court stated as follows: “It is a different matter, however, with regard to the allegation that Mr Kern was a liar. It is obvious that this description does not have the character of a legal opinion. What is more, the context of the statement does not clarify in relation to what case the plaintiff was alleged to have lied. It was thus a generality suggesting regular untruthfulness on the part of the plaintiff. The explanations for this statement provided by Mr Michał Plisecki later in the course of trial cannot be of particular importance since the published text, and in the form in which it reached the readers, did not include them. This description should then be considered as an ordinary and unjustified epithet [epitet]. In this case the publisher cannot be discharged of the responsibility for besmirching the plaintiff’s good name either on the ground that the author of the statement was a lawyer, because he had not spoken as a professional, or because of the fact that publication was in the form of an interview as, unlike radio or television interviews, it was not a live broadcast and the publisher had the means, by acting with due diligence, to prevent the breach of the plaintiff’s personal rights by this statement. Moreover, it cannot be inferred from the fact that the plaintiff held a public function, so that he agreed there should be a wider limit of permissible criticism of him, or from the fact that he himself made a public appeal for help in finding his daughter, that he had agreed to publication of all free opinions and comments on this subject, including those breaching his personal rights. Given the above described character of the statement, it should be regarded as an evaluation (ocenna) that cannot be verified as true or false and in any case cannot [be seen] as a negative assessment of the plaintiff’s actions within the meaning of Article 41 of the Press Law. In this case the publisher is not protected by Article 10 of the Convention as paragraph 2 of this Article limits the right of freedom of expression when protecting, inter alia, the reputation of others. For these reasons the Court of Appeal considered the appeals of the [applicant] and the intervener manifestly ill-founded. Both appeals are equally unjustified in what they say about the judgment referring to a breach of the first plaintiff’s personal rights by statements about his family life. Neither the fact that the first plaintiff had himself introduced the events of his private life into the public sphere by making the address for help in finding his daughter (even if one can consider such an appeal as agreement to publication of information from a private sphere within the meaning of Article 14(6) of the Press Law) nor the fact that as a person holding a public function he was a subject of particular interest to the press authorised the publisher to breach his personal rights by putting into question his mental health and parenting skills. One cannot infer that the plaintiff waived his right to legal protection by the fact that he had subjected himself to public comments on his family matters. It should be underlined that information concerning family life, and even unfavourable comment, does not have to breach personal rights. In this publication the limits of fair criticism and cultural expression had been overstepped. As with the allegation that the first plaintiff was a liar, the publisher is not protected by the fact that he had been quoting the statements of a lawyer who was obliged to exercise strict control over what he said, because matters concerning the family life of the first plaintiff did not have the nature of a legal opinion and the interview itself was not broadcast “live”. Moreover, commenting in this manner on the plaintiff’s family life was not covered by a socially justified interest and did not concern the political activity of the plaintiff. In addition it should be said that entering into issues concerning the family sphere, in particular the relationship between parents [and children], if only because of the impossibility to verify the assessments made in this respect, is always unlawful, even if the information given is true (see judgment of the Supreme Court, 11/03/1986).” 20. The applicant and the intervener each lodged cassation appeals with the Supreme Court (Sąd Najwyższy). 21. On 11 October 2001 the Supreme Court dismissed the cassation appeals and ordered the applicant to pay Mr Kern PLN 3,800 for costs and expenses. It agreed with the assessment of the lower courts that in the present case the interference with the freedom of press was justified by the need to protect the reputation of the plaintiffs. The Supreme Court also dismissed the applicant’s arguments that his intention was to report on a case that had shocked the majority of public opinion. The court was of the opinion that publishing an article in which the lawyer of the other party subjectively analysed very delicate family matters and offered categorical judgments on their causes, was not the right way to protect a justified public interest. 22. It appears that subsequently the judgment was enforced in so far as the payment of compensation was concerned. As regards the publishing of the apologies, the enforcement proceedings are pending. 23. 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.” 24. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. According to that provision, a person facing the danger of an infringement may demand that the prospective perpetrator abandon 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 demand satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages. 25. Article 14 (6) of the Press Act of 26 January 1984 provides as follows: “Information and data concerning the private sphere of life of an interested person shall not be published, unless they are connected directly with the public activity of that person.” Article 38 (1) states: “Civil responsibility for infringement of the law caused by the publication of press material is accepted by the author, editor or other person who had the material published; this does not exclude the responsibility of the publisher. In respect of financial liability the said persons take joint responsibility.” Article 40 of the Press Act provides: “In the event of an intended infringement of the personal rights of an individual by the publication of the press materials, and in particular in the event of an infringement of Article 14 (6), a court may grant the injured person compensation for damage suffered.”