CASE OF BRAUN v. POLAND
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicant was born in 1967 and lives in Wrocław. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant is a film director, historian, and author of press articles often commenting on current issues. The Government contested that the applicant could be considered a journalist. 8. On 20 April 2007 the applicant participated in a debate on a regional radio station, Polskie Radio Wrocław. During the debate he stated as follows: “... among the informers (informator) of the [communist-era] secret political police is Professor [J.M.] – this information confirms the theory that among those who speak out the most against lustration are people who have good reasons for doing so.” 9. On the same day the applicant called Mr J.M. an “informant” (konfident) on television. The matter was widely commented on in the media. 10. On 17 May 2007 a special commission set up at Wrocław University to examine the problem of covert surveillance of academics issued a statement in the case of Mr J.M. The statement included a list of documents concerning Mr J.M., which had been found in the archives. The commission concluded that those documents had not led it to the unequivocal conclusion that Mr J.M. had been a collaborator with the secret police. 11. On 24 May 2007 Mr J.M. brought a civil action for protection of his personal rights against the applicant. 12. On 3 July 2008 the Warsaw Regional Court allowed the action. It ordered the applicant to pay 20,000 Polish zlotys (PLN) to a charity and to reimburse the claimant PLN 5,800 for the costs of the proceedings. The applicant was also ordered to publish an apology for having damaged the claimant’s good name in six national and regional newspapers, on three national TV channels and on Radio Wrocław. The court considered that the applicant had clearly used several expressions indicating that the claimant had been a secret collaborator with the communist-era secret services. The main question to be considered was whether such statements could be considered true. 13. The court noted that Mr J.M. was a distinguished linguist and wellknown person in Poland. He was a member of the Polish Language Council and for many years had been presenting a programme on television. The court established that between 1975 and 1984 Mr J.M. had been summoned by agents of the secret services on five occasions for interviews in connection with applications he had made for passports and returns from stays abroad. This was not contested by the claimant, who had himself made this information public. In 1978 Mr J.M. had been formally registered as a secret collaborator (a “TW”). Other notes from the Institute of National Remembrance (“IPN”) archives indicated that until 1989 a two-volume file on the claimant had existed; however, the file could no longer be found at the Wrocław branch of the IPN. The court noted that the case of Mr J.M. had been examined by a special commission set up at Wrocław University to examine the problem of covert surveillance of academics, but that the commission had been unable to reach any unequivocal conclusions. 14. The trial court heard the applicant and the claimant as well as a number of witnesses: historians (specialists on lustration), former agents of the secret services assigned to recruiting collaborators at Warsaw University, and employees of the IPN. Some of them testified that many files on secret collaborators had been destroyed when the regime fell in 1989. A few witnesses testified that they had not known of any case of fictitious registration of somebody as a secret collaborator or of a situation in which the services had kept a file on somebody for many years even though he or she had not actually been collaborating. The director of the Wrocław branch of the IPN testified that he had heard of an instance of fictitious registration of somebody as a TW. However the probability of such a situation was very low. He also declared that on the basis of the available documents, he would not have concluded that the claimant had been a communist police informant. Another historian called to testify declared that it had been impossible to draw any unequivocal conclusions. A third historian stated that the claimant had been a “real agent of the security service”. A fourth historian testified that the internal files of the secret services were reliable; the regime would only falsify documents for external purposes. The same witness considered that on the basis of the information available to him, he would also have concluded that Mr J.M. had been an intentional and secret collaborator with the communist-era secret services. Two other witnesses, former agents of the secret services, were unable to remember whether they had recruited Mr J.M. as a secret collaborator. 15. The applicant submitted that once he had discovered that Mr J.M. was on the list of secret collaborators with the secret services it had been his duty to inform the public about it. His intention had not been to offend the claimant. He had acted in the general interest, taking part in a public debate on matters of considerable importance to society. Moreover, his assertion had been provoked by public statements made by the claimant, who had questioned the importance of lustration. The applicant also argued that he had not alleged that the claimant had caused harm to other people or that he had been paid for his services. The information provided by him - that J.M. had been a collaborator - had therefore been truthful and given in the public interest. 16. Nevertheless, the court noted that no documents confirming that the claimant had agreed to be a collaborator or that he had actively reported to the secret services were available. The court referred to the definition of collaboration contained in the 1997 Lustration Act and reiterated that collaboration had to be intentional, secret and consist of passing on information. It concluded that registration by the secret services alone was not sufficient to consider that someone had been a secret collaborator. 17. The applicant lodged an appeal against the judgment. He argued that the registration of Mr J.M. as a secret collaborator by the services, in light of generally known facts, had allowed him to conclude that he had been a collaborator. Mr J.M. had remained registered as a TW for eleven years, his files had been destroyed, and the secret services had not been known for falsifying their internal files. According to historians, in 1989 the services had only destroyed the files of important collaborators. The applicant underlined that he had acted in the general interest as the claimant had been a public figure who had recently criticised the process of lustration. 18. On 29 October 2008 the Wrocław Court of Appeal dismissed the appeal. It further ordered the applicant to pay the claimant PLN 2,000 as reimbursement of the costs of the appellate proceedings. The court accepted all the findings of the first-instance court regarding the facts of the case. It considered that when personal rights had been breached by a statement of alleged facts, the illegality of such action could be excluded only if the statement contained truthful information. Acting in the general interest did not exclude responsibility for making untrue statements. In the present case there was no evidence, in the form of either documents or witness statements, proving that Mr J.M. had indeed actively collaborated with the secret services. Therefore, in the light of the material collected in the case, the court concluded that the applicant had not proved the veracity of his statements. Furthermore, the court considered that the applicant had not fulfilled his duty to act with particular diligence and caution in making serious allegations on the basis of unconfirmed circumstantial evidence. 19. The applicant lodged a cassation appeal against the judgment and requested that a hearing be held. 20. At the hearing, held on 10 September 2009, the Supreme Court announced the judgment and gave an oral summary of the reasons. It dismissed the applicant’s cassation appeal but amended the text of the apology and limited its reach to one national daily newspaper and Radio Wrocław. The applicant was ordered to reimburse the claimant a further PLN 2,000 for the costs of the cassation proceedings. The text of the apology to be published by the applicant was as follows: “I apologise to Professor J.M. for having made, on 20 April 2007, the untrue assertion that he had been an informer of the [communist-era] political police”. 21. Following the announcement of the judgment the applicant’s lawyer requested the court to prepare written reasons and to deliver them to him. The Supreme Court’s judgment with reasons, fifteen pages long, was received by the applicant’s lawyer on 30 November 2009. 22. In analysing the interplay between two competing rights – the right to freedom of expression and the right to protect one’s good name – the court referred to a resolution of the Supreme Court (18 February 2005, III CZP 53/04 OSNC 2005, nr 7-8, p 114). According to the conclusion of this resolution a journalist’s actions would not be considered illegal if they were made in the public interest and the duty to act with due diligence was fulfilled. Imposing an obligation on a journalist to prove the veracity of each statement would unjustifiably limit the freedom of the press in a democratic society. However, the Supreme Court considered that this approach could not be applied to the applicant’s case as his statement had been of a private nature and the applicant could not be considered to be a journalist with a socially necessary duty to inform. Therefore, the interpretation of the law adopted by the lower courts was correct. Making false allegations was illegal, whereas the question of due diligence would be taken into account only when assessing the fault of the defendant. 23. The court agreed with the facts as established by the lower courts in particular as regards the conclusion that the statement made by the applicant had not been true. Following the approach taken in the case thus far, the court considered that making an untrue statement that offended the personal rights of a person would always be contrary to the law. Breaching someone’s personal rights would not be against the law only if the statement could be proven to be true. An untrue statement would remain illegal even if all efforts had been made to diligently collect and examine its factual basis. In consequence, whether the applicant had acted in good faith and in the public interest or believed that the statement had been true did not influence the illegality of his action and could only be considered when assessing his financial liability for offending the personal rights of Mr J.M.