CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 janvier 2015

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POLAND   (Application no. 34447/05)             JUDGMENT         STRASBOURG   13 January 2015       FINAL   13/04/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Marian Maciejewski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a   Chamber composed of:   Ineta Ziemele, President,   Päivi Hirvelä,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva,   Krzysztof Wojtyczek,   Faris Vehabović, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 2 December 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   34447/05) against the Republic of Poland lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr   Marian Maciejewski (“the   applicant”), on 6   September 2005. 2.     The applicant was initially represented by Mr   A. Rzepliński, and subsequently by Mr   A.   Bodnar and Ms   D.   Bychawska ‑ Siniarska, lawyers with the Helsinki Foundation of Human Rights, a non ‑ governmental organisation based in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by   Ms   J.   Chrzanowska, of the Ministry of Foreign Affairs. 3.     The applicant alleged a breach of Article   10 of the Convention on account of his conviction for defamation. 4.     On 3 May 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article   29   §   1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1955 and lives in Wrocław. 6.     The applicant was a journalist with “ Gazeta Wyborcza - Gazeta Dolnośląska ”. 7.     On 25 ‑ 26   November 2000 the newspaper published an article by the applicant entitled “The dishonest gaze of the Wrocław Themis” ( “Fałszywe   spojrzenie wrocławskiej Temidy ”) . The article carried a subtitle in small print “Thieves in the administration of justice” ( Złodzieje w   wymiarze sprawiedliwości” ). It was one in a series of articles describing the alleged theft of valuable hunting trophies from the office of a former bailiff of the Wrocław ‑ Krzyki District Court, Mr   H.J. 8.     The article read, in so far as relevant: “For the last three years we have been trying to solve the mysterious offences committed in 1995 in the Wrocław Themis building. Valuable hunting trophies valued at 200,000 Polish zlotys (PLN) were stolen by thieves in the administration of justice. The facts indicate that neither the Wrocław prosecution service nor the courts were interested in solving those cases in spite of articles we published on the subject at various stages of our investigation, and the witnesses and evidence we unearthed. It is not excluded that this offence is connected with the still unsolved theft of PLN   370,000 of deposits after the auction sale of properties [of wound ‑ up companies]. (...) The audit of the bailiff’s office carried out by an auditor of the Court of Appeal proved irregularities in the functioning of the court and of the bailiff in the course of auction sales concerning wound ‑ up companies. On 20   October 1995 H.J., as he claims, on advice of his superiors, took leave and subsequently resigned. On 23   October 1995 bailiff Herbert L. took over the bailiffs’ office [previously run by H.J. until his resignation]. Two days later, in the absence of Herbert L. and after working hours, M.K., a trainee bailiff, loaded the hunting trophies into his van. (...) In the autumn of 1997 we got hold of a copy of the list – prepared by M.K. – of 77   items removed by him. It is not known what happened to further 33 apparently most valuable ones whose value was estimated by hunters at PLN   200,000. (...) “This case does not interest me and I will not speak about it” – replied M.K., still an employee of the justice system, to our questions in January 1998. Did the court provide a cover? Already the form of the list raises suspicions. After the end of the list of items there is 10 ‑ centimter long empty space and then a note: “I received the above movables in the presence of M.K., a trainee bailiff ( praktykant komorniczy ) and I make no reservations. Except for the received items I leave no other personal items at the office.” The signature of H.J. appears under the note. “Such empty sheets of paper served to order stationery” – tells us bailiff H.J., the injured party. “I would have never signed a statement that I did not leave my personal items at the office – continues H.J. – since I left them there and then they were formally returned to me. (...)” The successor of H.J. – bailiff Herbert L. – told us that he had not known about the removal planned by M.K., and the President of the Wrocław ‑ Krzyki District Court, W.G., refused to talk to us. According to H.J., the injured party, it was the President of the Wrocław ‑ Krzyki District Court who instructed him to hire the trainee M.K. (...). That is why – according to the bailiff – the court was never determined to solve this theft. Logic like a flood – knocking you down After our first publication in January 1998, H.J. lodged a criminal complaint against M.K. Half a year later the Stare Miasto Prosecutor’s Office (...) discontinued the case, reasoning that the hunting trophies removed from the court in 1995 had been destroyed by a flood that had flooded the court building two years later (sic!). When “Gazeta” pointed out the absurdity of such reasoning, the prosecution reopened the case. The witnesses’ statements unambiguously incriminated M.K. However, the bill of indictment is still a long way away since no expert can value the missing trophies solely on the basis of their description. (...) The court encloses fake list Impatient with the dragging investigation, H.J. filed a compensation claim for PLN   200,000 against the Wrocław ‑ Krzyki District Court. The case is being examined by the Legnica Regional Court, which has received a reply to the statement of claim prepared by a representative of the Wrocław Themis. Judge D.S.-G. enclosed with her reply an unofficial photocopy of the photocopy (sic!) of the list of hunting trophies removed by M.K. on 25   October 1995. Our newspaper has had a copy of the list for the last three years. But the photocopy submitted by the Wrocław court contains important notes and stamps which are not on the copy in our possession. That proves that they [the notes and stamps] were added later to make it seem as if the trophies had not been stolen but lawfully restored to the owner. Originals are multiplying (...) Judge D.S.-G., who is representing the Wrocław Regional Court in the proceedings, is very surprised to see the same, yet entirely different lists. “I do not remember now who handed me this document, perhaps [somebody] from the Wrocław ‑ Krzyki District Court. I never knew that there is a second [document], without notes and stamps (...)” Therefore it is not clear when and where the list of removed items was forged: at the bailiff’s office or at the court’s office. (...) The emotions stirred by two versions of the same document have not yet fallen when suddenly at the Legnica court appears ... its third version, confirmed as authentic by Judge J.J., the vice-president of the Wrocław ‑ Krzyki District Court. (...) Five minutes of “Gazeta” When the above forgeries were revealed, H.J. filed a criminal complaint with the Stare Miasto Prosecutor’s Office against persons unknown who had successively added notes, stamps and signatures to the document. After four weeks he received a reply – a refusal to open an investigation. Prosecutor I.S., without making any attempt to elucidate anything, found that no forgery had been committed. The prosecutor did not want to speak to us about it. H.J. appealed against this decision to the Wrocław ‑ Śródmieście District Court and attached the latest article of “ Gazeta Dolnośląska ” in which we had related the journalistic findings. (...) The court allowed the bailiff’s appeal. In a detailed reasoning it relied, inter alia , on the findings made in our article and instructed the prosecutor’s office to elucidate the issues raised therein. Prosecutor as fast as InterCity Considering that the theft of trophies would not have been possible had W.G., the President of the Wrocław ‑ Krzyki District Court, fulfilled her duties (secured the bailiff’s office and formally handed it over) H.J. filed a criminal complaint [against her] with the Stare Miasto Prosecutor’s Office in December of last year. On 20   January [2000] the prosecutor interviewed H.J. for three hours. Nonetheless – it transpires from the documents – that already on the following day prosecutor W.K. refused to open an investigation. She wrote in the reasoning that she had familiarised herself with case files (the one concerning irregularities in the course of auction sales in which H.J. appears as an accused and the other concerning the theft of antlers in which H.J. is an injured party) and that “the enquiries did not reveal the facts which would substantiate that an offence had been committed”. “ Gazeta ” knows these case files, jointly it is nearly 30 volumes. It is not possible to duly familiarise oneself with them in just one day. Besides we are in the possession of official correspondence from which it transpires that in October of last year the case file of the first case – more than 20 volumes – were transferred by the Kalisz Regional Court to the Łódź Court of Appeal where they stayed at least until 16   February [2000]. (...)” 9.     Subsequently the applicant described the role of prosecutor R.M. “Who will solve the mystery? The investigation concerning irregularities in the course of auction sale of properties of wound ‑ up companies was conducted by R.M., a colleague of the Wrocław judges, almost from behind a wall. It was revealed during the investigation that the former owners of the properties concerned had not received PLN   370,000 paid as deposits by the buyers. The prosecutor remanded bailiff H.J. in custody for two years. According to the bailiff, the prosecutor refused all his requests in the course of the investigation; inter alia , he prevented him from having access to the case materials and refused to carry out a confrontation between him and the trainee M.K. “Because of this I did not agree with his charges and I did not sign the bill of indictment” – says H.J. We are in the possession of documents which indicate that initially the prosecutor did not allow the suspect (H.J.) to contact his lawyer. In the course of his arrest by the police H.J. stated to the record: “I request that my lawyer be contacted”. A police officer also noted down the name of the lawyer and his phone number. However, in the subsequent record in the entry “lawyer” the prosecutor wrote: “does not have [a lawyer]”. The investigation revealed that M.K. had forged H.J.’s signatures, but the prosecutor discontinued the investigation against M.K. on account of the insignificant social danger of the act. (...) On 15   October 1996 prosecutor R.M. closed the investigation and three days later a   bill of indictment against H.J. together with all documents was transmitted to the court. However, we found in the case file a document exonerating M.K. from the theft of antlers, which was prepared by L.S., an employee of the bailiff’s office (...). This document bears a date of 26   October 1996, that is 11 days after the investigation had been closed. It is unknown when and how [this document] was added to the case file because there is no date of receipt on it. (...) M.G., a regional prosecutor in Wrocław confirms to us that such a course is incorrect. “After the investigation was terminated, only documents without relevance for the investigation may be added to the case file, i.e. a medical certificate of the accused” – he explains, declaring that he does not know the details of the case. “I do not remember how this document was added to the case file. Perhaps the police sent it to me” – says R.M. (...) “After the investigation was terminated?” “I do not have the file in front of me so I cannot say anything on this issue. (...)” In August [2000] H.J. lodged a criminal complaint against prosecutor R.M. with the Ministry of Justice, alleging that after the investigation had been closed R.M. added to the file a fabricated document with forged signature of M.K. (indeed, the signature of the trainee bailiff differs significantly from his proper signature). As it transpires from documents, the ministry transmitted the case to the Wrocław Appellate Prosecutor’s Office, and the latter ... [transmitted it] to the Wrocław Regional Prosecutor’s Office where R.M. is employed. “And there has been no reaction to date. That is why, three years ago I turned for help to “ Gazeta ”. It is another example that an ordinary man has no chance against the organised machinery of the law”, – comments H.J. A turning point? On 22   March last year [1999] the Kalisz Regional Court convicted H.J. of misappropriation of PLN   370,000 and sentenced him to four years’ imprisonment. H.J. appealed. He claimed that by reason of not having access to the documents of his office, he learnt only after the judgment had been given that M.K., the trainee bailiff had always cashed the cheques during H.J.’s absence at work. (...). The Łódź Court of Appeal accepted this argument, quashed the conviction and remitted the case. The trial is pending. Perhaps it will finally answer who stole PLN   370,000 from the court building in 1995 and whether that has any connection with the still unresolved theft of the hunting trophies.” 10.     The article was accompanied by the applicant’s editorial: “Writing about those offences I frequently emphasised that it is the administration of justice which should care about their being clearly explained. That has always gone unheeded. H.J. has every right to be impatient when not seeing good will of the prosecution service and of Themis itself. Sometimes he insults the administration of justice. The court pretends that it is offended, and punishes H.J., but then, knowing that it is not flawless, it does not even attempt to enforce the penalties imposed. The esteem and authority of that court have hit a new low ( “sięgnął bruku” ). In his complaint to the State Prosecutor, H.J. alleged that this was a mafia ‑ like prosecutor ‑ judge association ( “mafijny układ prokuratorsko ‑ sędziowski” ). Strong words. But until all those cases have been explained, and the guilty punished, it is difficult not to agree with him.” 11.     On 13   December 2000 the newspaper published a letter from Judge A.O., spokesperson for the Wrocław Regional Court. It read, in so far as relevant: “Indeed, it would require a particular lack of objectivity, [and] a significant amount of bad faith (...) to allow the court and the people working there to be slandered in such a disgraceful manner without any factual grounds for the accusations. In this article we have allegations made publicly against the Wrocław justice system of forgery of documents, theft, gross neglect of duty by the president of the district court, creating false evidence against the former bailiff H.J., the party wronged by the so-called “judge ‑ prosecutor mafia”, and finally a concluding comment about the esteem and authority of the court having hit a new low. (...) Those words are insulting and unlawful at the same time, since the journalist has equated his own needs with the constitutional freedom of the press and the duty to serve society and the State in accordance with the principles of professional ethics and co ‑ existence with others, by groundlessly criticising named officials of the Wrocław court, attempting once again in the case of H.J. to give a one-sided version of events favourable to the accused. (...) There is no judge ‑ prosecutor mafia attempting to “destroy” H.J.; I would simply like to point out that thanks to the initiative of the former president of the Wrocław ‑ Krzyki District Court, Judge W.G., the prosecution service was informed of the irregularities not only in H.J.’s work but also in the work of one of the judges supervising him, which led to bills of indictment being filed against them. Today in the eyes of the journalist the name of Judge W.G. is treated on an equal footing with H.J., at least for the readers of the article. (...) The justice system in Poland is not perfect and we are fully aware of that. But there are some intransgressible limits to the permissible criticism of that constitutional organ of the Republic of Poland, since undermining its authority in such a primitive and even deliberately unlawful manner undermines at the same time the foundations of the State. (...)” 12.     In the same issue of the newspaper its editor ‑ in ‑ chief replied as follows: “It was not the intention of the text to which you refer to undermine the constitutional authorities of the Republic of Poland. The regrettable subtitle “Thieves in the administration of justice” assumed the ordinary, wider meaning of the [term] administration of justice. In phrasing it this way we obviously did not have in mind exclusively the State activity carried out by the independent courts which determine legal disputes in procedural forms. The administration of justice in the popular understanding encompasses all institutions and persons employed in the justice system who are more or less connected with the law and its observance or enforcement. It was not our intention to insult the court and call judges thieves. If you and other judges interpreted it that way – I sincerely apologise. [However,] other questions and doubts remain after the reading of Marian Maciejewski’s text. You have written that a discussion with the journalist does not make sense. That is a pity. Not only because the doubts remain, but also because one is left with the impression that, apart from the aggressive letter, you avoid any discussion on the allegations raised in the article.” A.     Criminal proceedings against the applicant 13.     The President of the Wrocław Regional Court filed a criminal complaint against the applicant. 14.     The investigation was conducted by the Opole District Prosecutor’s Office. On 30   August 2002 the prosecution filed a bill of indictment with the Brzeg District Court. The applicant was charged under Article   212   §   2 of the Criminal Code (“CC”) with two counts of defamation committed through the mass media. The first charge concerned defamation of officials ( pracowników ) of the Wrocław Regional Court and of the Wrocław ‑ Krzyki District Court with the expressions: “thieves in the administration of justice”, “the esteem and the authority of the court has hit a new low” and “mafia ‑ like prosecutor ‑ judge association”. According to the charge, these expressions had debased the officials in the public opinion and undermined the public confidence necessary for the discharge of their duties as judges and officials of the administration of justice. 15.     The second charge related to the defamation of prosecutor R.M., who had allegedly misconducted the investigation against H.J. According to the charge, the applicant imputed that prosecutor R.M. had had connections with the judges in respect of whom he had conducted the investigation. Furthermore, he was charged with having imputed that the prosecutor had remanded H.J. in custody for 2 years, refused his requests for evidence to be adduced, prevented his access to the case file, failed to carry out a   confrontation between H.J. and M.K., refused H.J.’s access to a lawyer and added a forged document to the case file. 16.     Prosecutor R.M. joined the proceedings as an auxiliary prosecutor. 17.     At the first hearing on 11   April 2003 the trial court decided to conduct the proceedings in private in accordance with the general rule concerning cases of defamation or insult set out in Article   359   (2) of the Code of Criminal Procedure. 18.     On 2 April 2004 the Brzeg District Court gave judgment. It convicted the applicant of the first charge of defamation committed through the mass media, but discounted the expression “the esteem and the authority of the court have hit a new low” as that expression did not concern the Wrocław courts. The court also convicted the applicant of the second charge of defamation committed through the mass media in respect of prosecutor R.M. It cumulatively sentenced the applicant to a fine of PLN   1,800 (approximately 450 euros (EUR)). The court further ordered the applicant to pay PLN   1,000 (EUR 250) to a charity and to reimburse PLN   292 (EUR   73) in costs. 19.     The District Court found inter alia : “(...) there are no grounds to conclude that the theft of the collection of hunting trophies – if such a theft actually took place and the trophies were of some value – was perpetrated by an employee of the court, and in particular by a judge or prosecutor. A trainee bailiff is not de lege lata and was not at the relevant time an employee of the court. In conclusion, there were no thieves in the administration of justice, contrary to what the defendant suggested in his article. The court also found no evidence of the existence of a mafia ‑ like association between the prosecutors and judges in the jurisdiction of the Wrocław Regional Court. Accordingly, prosecutor R.M. could not have been part of it.” 20.     With regard to the charge of defamation of prosecutor R.M. the trial court found, inter alia : “The expression “a colleague of the Wrocław judges almost from behind a wall” suggests a certain association between the judges and prosecutors, an association of friendly nature in which such “friendliness” influences decisions. A certain familiarity between the judges and the prosecutor suggests that it influences their decisions, while these decisions should be objective and impartial – such will be the impression of an average reader of the article. The accused must understand that he is responsible not only for the content of his publication (...), but also for the tenor of his article as well as for all those defamatory expressions which do not come directly from the accused but from which he did not distance himself (...)” 21.     The trial court noted that the applicant had imputed an unusual level of incompetence to prosecutor R.M. With regard to the imputation that prosecutor R.M. had remanded H.J. in custody for 2 years, the court noted that the prosecutor had remanded H.J. in custody only at the initial period and subsequently it was a court which became competent to apply this measure. The trial court noted that the legal language had its specificities which distinguished it from literature, such as the need of precision. The journalists often “translate” legal language into popular language without consulting it with lawyers and this often led to absurdities and misrepresentations. The court opined that in matters of legal language the journalists could to a certain degree rely on the rules of law ‑ making practice set out in the Ordinance of the Prime Minister of 20   June 2002 ( Rozporządzenie Prezesa Rady Ministrów w sprawie zasad techniki prawodawczej ). 22.     With regard to further allegations against prosecutor R.M., the trial court found as follows: “There is no evidence of the lack of impartiality in “refusing the bailiff’s request by prosecutor R.M.”. H.J. had access to the file and even if he did not have it in the course of the investigation he could have had access to it during the trial. The confrontation between H.J. and M.K took place, but perhaps it did not meet the expectations of the accused [H.J.]. However, in this case too the trial court could have carried out such a confrontation again and draw relevant conclusions from it. There is nothing unusual in the change of numbering of the pages in the case file, in particular in the course of the investigation when it could be intended to arrange the collected material in order. The bad faith of prosecutor R.M. who allegedly did not allow the accused’s access to his lawyer has not been substantiated. The lawyer of H.J. or his substitute did not complain about the irregularities in the course of the investigation, and in particular that they were not allowed to see the accused. There is no doubt for the court that had such circumstances actually occurred they would have been raised by the defence. H.J. (...) filed a criminal complaint against R.M., alleging that after the investigation had been terminated R.M. had added to the file a counterfeit document with a forged signature of M.K. It should be noted that documentary evidence may be attached by each party at any stage of the proceedings, thus also after the investigation had been terminated. In any event, this added document was not a decisive document for H.J. (...)” 23.     The trial court found that the applicant could not rely on the defence specified in Article   213   §   2 of the CC since he had failed to prove the truthfulness of his allegations of the presence of thieves in the administration of justice and of prosecutor R.M.’s mishandling the investigation against H.J. In addition, the applicant’s article did not pursue any justifiable public interest but rather the private interest of the former bailiff H.J. The information provided by the latter served to a large extent as the basis for the impugned allegations. Referring to the case ‑ law of the Supreme Court, the court observed that the journalistic right to criticise was not unlimited; in particular it did not extend to imparting unverified information concerning the State authorities. Furthermore, the applicant had portrayed a climate of corruption and incompetence defamatory of the court employees and the prosecutor. 24.     The trial court noted that the present case involved a conflict between the constitutional freedom of speech and the right to have one’s reputation protected. However, it found that the applicant had abused that freedom by infringing the personal rights of many honest persons and that such conduct could not go unpunished as it would encourage similar infringements in the pursuit of sensationalism. The trial court also noted that the fact of the applicant being a journalist did not confer on him any special status or the right to use words irresponsibly. 25.     The court further found that it was unacceptable to express suppositions disparaging the justice system, in particular when they were based solely on subjective feelings (“mafia ‑ like prosecutor ‑ judge association”, “thieves in the administration of justice”) as had been held in the Supreme Court’s decision of 10   December 2003 no.   V KK 195/03. The   trial court accepted the findings of the European Court of Human Rights in the Prager and Oberschlick case with regard to the need to protect public confidence in the judiciary and observed that the applicant, through his defamatory statements, had wrongly undermined such confidence. 26.     As regards the sentence, the District Court took into account the significant number of persons who had been harmed by the applicant’s article and the social danger of his act. Having regard to the personal characteristics of the applicant, the court sentenced him to the most lenient penalty, which was a fine and in setting its amount it took into account the   financial situation of the applicant. 27.     The applicant appealed. He contested the finding of his guilt and alleged that the trial court had erroneously assessed the facts of the case. In   his submission, the first ‑ instance court had misinterpreted the impugned statements from his article. In particular, the phrase “thieves in the administration of justice” concerned clearly M.K. and not a judge or a   prosecutor. For the applicant, a trainee bailiff was an employee of the administration of justice. In any event, in 1998 M.K. was promoted to a   junior bailiff ( asesor komorniczy ) and became an employee of the administration of justice, while the applicant’s article was published in November 2000. Furthermore, the applicant argued that the term “mafia ‑ like prosecutor ‑ judge association” was a value judgment and not a   statement of fact as the court had interpreted it. Nowhere in the article was it suggested that prosecutor R.M. had been part of this association. The trial court also did not pay attention to the fact that the impugned article was a   third article treating the same subject ‑ matter. 28.     The applicant averred that the phrase “a colleague of the Wrocław judges, almost from behind a wall” had not been defamatory of prosecutor R.M. It was a fact that the prosecutor was a colleague of the judges who worked in the same building. The applicant did not allege that the carrying out of the investigation by prosecutor R.M. had influenced its outcome. On the other hand, he noted that such a situation could have raised an issue of objectivity of the prosecutor. The applicant claimed that the trial had erroneously found him guilty of imputing that prosecutor R.M. had added document to the case file. He averred that the court had simply not explained the circumstances in which the document had been added to the file. The trial court left unnoticed the fact of three different versions of the list of trophies. The applicant objected to the court’s finding that he had defamed prosecutor R.M. by the phrase “the prosecutor remanded [H.J.] in custody for 2 years”. It was true that the prosecutor actually remanded H.J. in custody only for a period of 9 months and in respect of the subsequent period it was a court. However, the prosecutor applied for and argued that the imposition of this measure was necessary. 29.     The applicant disagreed that when writing about legal affairs a journalist was required to use legal language. He noted that Gazeta Wyborcza was a private newspaper and it was up to it to decide about the editorial policy and the style of language used. It was not a specialised journal but a newspaper addressed to a mass reader and that the use of popular language was justified. The applicant submitted that he did not intend to write an article favourable to the Regional Court but an article which portrayed the functioning of the administration of justice where a theft of movables and forgery of a document occurred. 30.     The applicant submitted that he had shown sufficient diligence when preparing his article. He had verified his information and known the story perfectly well, collected hundreds of documents, talked to at least twenty ‑ eight persons, mostly employees of the Wrocław courts. He maintained that Judge A.W., a spokesperson of the Wrocław Regional Court stated at the trial that the applicant had had good understanding of legal matters. In the applicant’s view, the trial court wrongly undermined his credibility by having imputed that he had relied solely on the information provided by H.J. The applicant also submitted that following a complaint from H.J. the Wrocław ‑ Stare Miasto District Prosecutor’s Office opened an investigation into the excess of authority by prosecutor R.M. However, subsequently the file of this investigation got lost in unknown circumstances and was never fully reconstituted. 31.     The Opole Regional Court granted leave to the Helsinki Foundation for Human Rights to join the proceedings as a civil society organisation ( przedstawiciel społeczny ). The Foundation submitted its amicus curiae brief in the case. 32.     On 22   February 2005 the Opole Regional Court upheld the first ‑ instance judgment. It ordered the applicant to reimburse PLN   200 (EUR   50) in costs. 33.     The Regional Court endorsed the findings of the trial court. It found, inter alia , that: “The words “thieves” and “mafia ‑ like association” used by the accused amount to a   pejorative assessment of the institutions indicated in the article. (...) The accused’s efforts in the impugned article show that he deliberately misinformed the readers that the stealing prevails in the administration of justice system and his subsequent interpretation of the text was aimed at minimising the fact that he attributed dishonesty to the employees of the administration of justice.” The Regional Court emphasised that a journalist was required to act with particular diligence required by section   12 of the Press Act and in accordance with the relevant deontological standards. It noted that the assessment of the journalist’s intention and goals should be carried out by reference to an average reader. The court also referred to the case ‑ law of the Strasbourg Court which specified that the administration of justice was not exempt from public control and criticism but nonetheless it had to be protected against unfounded and destructive attacks by the journalists. 34.     It observed that defamation within the meaning of the Criminal Code consisted of raising an allegation in person or of disseminating an allegation that had been previously raised by another person. This meant that the offence of defamation could also have been committed by a person quoting a statement made by somebody else if the person quoting the statement clearly approved of it. The Regional Court found that in his article the applicant had approved of the statement of the former bailiff H.J. that there had been a “mafia ‑ like prosecutor ‑ judge association” in the Wrocław courts. 35.     It noted that the administrative authorities of the Wrocław ‑ Krzyki District Court should have not tolerated the practice of collecting of hunting artefacts by a bailiff in his office located in the court building. The President of that court, Judge W.G. admitted that she had made a mistake in not reacting to this situation. She instructed M.K. to remove the hunting trophies from the bailiff’s office and this was later described in the applicant’s articles. The Regional Court agreed that the manner of securing the property located in the bailiff’s office had been contrary to the applicable rules. The Regional Court further held: “The disappearance or the theft of antlers (as it is consistently claimed by the accused) should not be a reason to attribute stealing to the employees of the justice system. Thus, the District Court has correctly held (...) that this type of articles do not pursue any justifiable public interest, but they undermine the interest of maintaining the authority of the judiciary. The justice system (...) [gives] decisions determining disputes before the courts and imposing sanctions on behalf of the State. It is not allowed to lay such a charge against the justice system (...) even in the case of the evidently inappropriate actions of the administrative authorities in the situation that occurred in the Wrocław ‑ Krzyki District Court as regards the lack of suitable reaction to the conduct of bailiff H.J.” 36.     With regard to the defamation of prosecutor R.M., the Regional Court held: “The allegations reported in the press of his [the prosecutor’s] connections with judges in respect of whom he conducted the proceedings, and of breaches of criminal procedure in the course of the investigation against H.J. (...) and even of having used forged documents indisputably exposed the prosecutor conducting the investigation to the risk of losing the confidence necessary for the discharge of his duties. A suspect has the right to make complaints to the relevant authorities. However, the publication in the press of these unverified and false allegations constitutes a defamation of the portrayed person. (...)” The appellate court underlined that the evidence in the case had not indicated that the investigation against H.J. was in breach of the criminal procedure or that it impeded the suspect in adducing his evidence or arguments in pursuance of his defence. 37.     The Regional Court’s judgment was served on the applicant on 8   March 2005. 38.     On 3   June 2005 the applicant filed a constitutional complaint with the Constitutional Court. He claimed that Articles   212   §   2 and   213   §   2 of the CC were incompatible with Article 54 in conjunction with Articles   31   §   3 and   14 of the Constitution. 39.     On 12 May 2008 the Constitutional Court gave judgment (case   no.   SK 43/05). It examined the constitutionality of the defence provided in Article   213   §   2 of the CC in respect of the offence of defamation committed through the mass media (Article   212   §   2 of the CC). The Constitutional Court ruled that Article   213   §   2 was compatible with the Constitution in so far as it required that an allegation had to be true. It held, however, that this provision was unconstitutional in so far as it necessitated that a true allegation concerning the conduct of a public official had to pursue a justifiable public interest. It further discontinued the proceedings in respect of the constitutionality of Article   212   §   2 of the CC, having regard to its earlier judgment of 30   October 2006 in the case no.   P 10/06. B.     Civil proceedings against the applicant 40.     On an unspecified date in 2001 Judge W.G. brought a civil action against the applicant and the editor ‑ in ‑ chief of the newspaper for infringement of her personal rights on account of certain passages in the impugned article. 41.     On 9   December 2003 the Świdnica Regional Court partly granted the claim and ordered the defendants to publish an apology in the newspaper. The defendants appealed. On 29   June 2004 the Wrocław Court of Appeal amended the first ‑ instance judgment in respect of the text of the apology. The defendants appealed. 42.     On 7   July 2005 the Supreme Court quashed the Court of Appeal’s judgment and remitted the case. It held that the Court of Appeal had breached the principle of reformationis in peius . On 6   April 2006 the Wrocław Court of Appeal dismissed the claim of Judge W.G. in its entirety. It found that the impugned passages in the article did not contain untrue information infringing the personal rights of the claimant. C.     The investigation in the case concerning excess of authority by prosecutor R.M. 43.     It appears that in 1998 H.J. filed a criminal complaint against prosecutor R.M. He alleged that the prosecutor had exceeded his authority in the criminal investigation conducted against H.J. in 1995 ‑ 1996. Secondly, H.J. alleged that the prosecutor had forged his signature on a document from the investigation. 44.     On 2   March 2005 the Wrocław-Stare Miasto District Prosecutor discontinued the investigation. She concluded that the prosecution in respect of the first charge had become time ‑ barred. With regard to the second charge and having regard to an expert report, the prosecutor found that no offence had been committed. D.     Criminal proceedings against M.K. 45.     On an unspecified date in 2001 the Wrocław ‑ Stare Miasto District Prosecutor opened an investigation against M.K. On 16   November 2001 the prosecutor filed a bill of indictment with the Wrocław ‑ Śródmieście District Court against M.K. M.K. was charged with theft of hunting trophies and forgery of the list of trophies. The case was transferred to the Ostrów Wielkopolski District Court. On 18   June 2002 that court remitted the case to the prosecution on account of shortcomings in the bill of indictment. It appears that on 29 November 2002 the Wrocław ‑ Stare Miasto District Prosecutor discontinued the investigation against M.K. A copy of this decision has not been produced by the parties. E.     Criminal proceedings against H.J. concerning the charges of embezzlement 46.     In 1995 the Wrocław Regional Prosecutor Office opened an investigation against H.J. The investigation was conducted by prosecutor R.M. On 19   January 1996 prosecutor R.M. remanded H.J. in custody. On 18   October 1996 the prosecution filed a bill of indictment against him with the Wrocław Regional Court. H.J. was charged with numerous counts of embezzlement. H.J. was released on 14   November 1997. On an unspecified date the case was transferred to the Kalisz Regional Court. 47.     On 22   March 1999 the Kalisz Regional Court convicted H.J. of embezzlement of PLN   370,000 and sentenced him to four years’ imprisonment. Subsequently, the Łódź Court of Appeal quashed the conviction and remitted the case. On 22   May 2002 the Kalisz Regional Court again convicted the applicant of numerous counts of embezzlement and sentenced him to the same penalty. On 25   February 2003 the Łódź Court of Appeal upheld the first ‑ instance judgment for the most part. It remitted the case only in respect of one count of embezzlement and reduced the sentence to three years and ten months’ imprisonment. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant constitutional provisions 48.     Article   14 of the Constitution 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.” B.     Relevant provisions of the Criminal Code 49.     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 that person, group or entity in public esteem 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.” 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 moral corruption of a minor.” C.     The Press Act 50.     In accordance with section   12   §   1   (1) of the Press Act a journalist is under the duty to act with particular diligence in gathering and using the information, and, in particular, is required to verify the truthfulness of obtained information. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 51.     The applicant complained that there had been a violation of his right to freedom of expression on account of his conviction and sentence for defamation. He relied on Article   10 of the Convention, which reads as follows: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A.     Admissibility 52.     The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article   35   §   3   (a) of the