CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 mars 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 11 March 2019   FIRST SECTION Application no. 34282/12 Krzysztof WYSZKOWSKI against Poland lodged on 8 May 2012 STATEMENT OF FACTS The applicant, Mr Krzysztof Wyszkowski, is a Polish national, who was born in 1947 and lives in Sopot. He is represented before the Court by Mr   K. Ways, a lawyer practising in Warsaw. A.     The circumstances of the case 1.     The facts of the case, as submitted by the applicant, may be summarised as follows. 2.     In a judgment of 11 August 2000 the Warsaw Court of Appeal held that L.W. had filed a true lustration declaration. L.W.’s declaration stated that he had not collaborated with the communist security services. 3.     On 16 November 2005 the Institute of the National Remembrance granted L.W. the status of “injured party” under section 6 of the Institute of Act. This fact was widely reported by the media. 4.     In the evening of the same day news programmes of two television stations, TVP II and TVN 24 reported this information. The journalists sought comments from the applicant as a former friend and associate of L.W. The applicant stated that “... today the status of an ‘injured party’ does not mean that you were not an informant. L.W. was a secret collaborator with alias Bolek, (he) reported on his colleagues, (he) received money for it ...” 5.     On an unspecified date L.W. brought a civil action with the Gdansk Regional Court against the applicant for infringement of his personal rights. He claimed that the defendant had disseminated untrue information about him and damaged his reputation. L.W. demanded that the defendant publish an apology and sought an order requiring the defendant to make a payment to a charity. 6.     In its first judgment of an unspecified date, the Regional Curt allowed the claim and ordered the applicant to publish an apology. On appeal, the Gdansk Court of Appeal set aside the judgment and remitted the case. In its second judgment of an unspecified date, the Regional Court again allowed the claim and its judgment was once more set aside by the Court of Appeal. 7.     On 31 August 2010 the Gdansk Regional Court dismissed L.W.’s claim. 8.     The court established the facts on the basis of the official and private documents as well as on the basis of evidence of witnesses: H.K., S.C. and J.S. It noted that the applicant had been friends with the claimant since the 1970s. In 1992 their relationship broke down. Subsequently, the applicant claimed that L.W. had been an informant of the security services. The court relied on the evidence of witness S.C., a historian. This witness published a   book in 2004 based on the allegedly original documents of the security services. S.C. claimed that according to these documents L.W. had been registered as a secret informant with alias Bolek at the end of December 1970 and had been struck out in June 1976. 9.     The Regional Court refused to hear certain witnesses requested by the applicant since some of them had died and, in respect of some, the applicant had not provided their addresses. 10.     The Regional Court held that the applicant’s statement had violated the claimant’s personal rights (reputation and honour). It noted that the key aspect of the case was to determine whether the applicant had acted with special diligence in collecting and using the material in the light of the lustration judgment and the grant of the status on an “injured party”. 11.     The parties disagreed about the consequences of the lustration court’s judgment. The claimant argued that the Regional Court was bound by the lustration court’s decision. However, the court found that the lustration court’s decision could not have been qualified as a judgment of a civil court and therefore did not bind it. 12.     The applicant argued that he had evidence to support his assertion, and that, as a journalist he had collected information about the claimant, and that his statement had been based on the diligent analysis of the sources. 13.     The court noted that the claimant was the leader of the Solidarity trade union and the symbol of Poland’s transition to democracy. For these reasons, his person attracted a lot of interest on the part of the public and historians. There was an ongoing public debate about the LW’s role in the modern history of Poland. 14.     The Regional Court noted that the present case concerned a dispute about the existence of certain historical facts. In such a case, it was not the court’s role to unequivocally determine on the basis of the adduced evidence whether a historical fact had occurred and to determine the soundness of a related claim for protection of personal rights of a living person. 15.     The court noted that the defendant had the right to participate in the public debate since he, as a journalist, has been for many years involved in researching and publishing material on the role of L.W. The claimant, as a public figure and a particular actor of the contemporary history, had to accept that the whole period of his public activity would be scrutinized. 16.     Having regard to the Court’s case-law under Article 10 of the Convention, the court found that the applicant was not required to make out the defence of truth. For this reason, the court refused as redundant the applicant’s request to examine other evidence with a view to demonstrating the accuracy of his assertion. The applicant was not required to demonstrate that his assertion had been true, having regard to the ongoing dispute among the historians on the subject, but to show that, as a journalist, he had acted with requisite diligence in collecting and verifying information, and that he had relied on reliable sources. In this respect, the court had regard to section   12 of the Press Act. 17.     The court found that the applicant had demonstrated, by a number of documents and the evidence of witness S.C., to have acted with requisite diligence in collecting information about the claimant’s collaboration with the security services. On the basis of these sources, he had been entitled to make his assertion, which although controversial (and impossible to be verified as true or not by the court), had been based on documents and evidence of reliable witnesses. The applicant also demonstrated that he had acted in pursuit of the public debate. At the same time, the court did not determine whether the fact of the claimant’s collaboration with the security service had actually taken place. Having regard to the above, the court found that the applicant had acted within the limits of the freedom of expression, and that his assertion could not have been considered unlawful within the meaning of Article 24 of the Civil Code. 18.     The court found that, having regard, inter alia , to the claimant’s own admissions about some contacts with the security service and the existence of many documents in the archives indirectly pointing to such collaboration, and the importance of this fact for the contemporary history of Poland, the interest of the claimant’s reputation had to yield to the interest of open public debate. The court found that in the circumstances of the case, and having regard to section 12 of the Press Act, the applicant had been entitled to make the particular statement which was based on a journalistic material collected with the requisite diligence. This circumstance excluded the unlawful character of the applicant’s action. Accordingly, the court dismissed the claim. 19.     The claimant filed an appeal. He argued that the lower court had wrongly applied Articles 23 and 24 of the Civil Code and that his claim should have been allowed. He also maintained that the defendant had not adduced any evidence demonstrating that the claimant had acted as an informant of the communist security services. 20.     On 24 March 2011 the Gdansk Court of Appeal reversed the first ‑ instance court’s judgment. It allowed the claim and ordered the applicant to publish an apology on the two television stations. It dismissed the remainder of the claimant’s appeal. 21.     The Court of Appeal noted in its earlier judgments in the same case that the defendant had the right to demonstrate the truthfulness of his assertions, which would then exclude his liability for infringement of the claimant’s personal rights. 22.     With regard to the claimant’s argument concerning the binding effect of the lustration court’s judgment, the Court of Appeal noted that that decision was not a judgment given in a civil case, and thus other civil courts were not bound by it. Nonetheless, the lustration court’s judgment was, to some extent, binding on the civil courts. The civil courts were bound by the lustration court’s judgments in so far as they were precluded from making a determination about the fact of collaboration, or the lack of it, within the meaning of the Lustration Act in other proceedings because of the exclusive jurisdiction of the lustration court in this matter. 23.     The Court of Appeal noted that a civil court examining a claim for protection of personal rights could assess whether, in the light of the newly available evidence, unknown to the lustration court, a subsequent allegation that a lustrated person had collaborated with the security service was not an unlawful act, and thus excluding civil liability foreseen in Article 24 of the Civil Code. Thus, the defendant could seek to demonstrate the truthfulness of the allegations raised against the claimant on the basis of the evidence that had not been available to the lustration court. 24.     The first-instance court found that, although there was no evidence demonstrating that the claimant had acted as an informant, the defendant, as a journalist, had the right to disseminate his opinions about the claimant, since he had acted with requisite diligence. It found that the reliance on historians’ views (witness S.C.) and the ongoing debate about the claimant’s past justified the defendant’s assertion. 25.     The Court of Appeal disagreed with the approach of the first-instance court. It noted that the case involved a conflict between two equal rights: freedom of expression and the right to reputation. Thus, the permissible criticism could not violate the dignity and reputation of other persons, unless it was based on the true allegations and pursued a justifiable public interest. If the allegations against the claimant were based on the true facts, then the claimant could not have sought protection of his reputation, because as a public person he had to accept public criticism of his actions. 26.     The Court of Appeal accepted the position of the Supreme Court expressed in the judgment of 10 September 2009 (case no. V CSK 64/09) that in order to exclude liability of a person infringing personal rights it was necessary that the impugned factual statements were true. The liability would not be excluded on the ground that a person acted with requisite diligence in verifying the information on which the allegation was based. 27.     The Court of Appeal analysed the circumstances and facts invoked by the defendant to demonstrate the truthfulness of the allegation raised. It noted that except for the statements of witness S.C. about the unoriginal documents created by the officers of the security services, which could point to the alleged collaboration of the claimant with those services, the defendant did not offer any evidence capable of confirming it. The evidence of witnesses’ H.K. and J.S. was not relevant for the assessment of the applicant’s conduct since they provided information to the applicant after he had made his statement. 28.     With regard to a few newly available documents, the Court of Appeal noted that it was impossible to determine whether they had been created at the material time and whether they reflected the true relationship of the claimant with the security services. It was important that witness S.C. explained that at the time when he informed the defendant about the newly found documents neither that witness nor the defendant had been certain that the documents concerned the claimant. Witness S.C. explained that he had carried out the detailed analysis of these documents in 2006-2008, which was after the impugned statement had been made. 29.     Nonetheless, the defendant made a categorical statement about the claimant. The Court of Appeal noted that such a categorical statement containing serious allegation should have been based on the verified and solid evidence. However, there had been no such evidence in the case. 30.     The Court of Appeal did not accept the lower court’s finding that the defendant had acted as journalist when making his statement. In its view, he acted as a citizen requested to make a statement in connection with the grant to the claimant of the status of an “injured party”. According to the author of the television programme, the defendant was requested to make a statement as one of the main opponents of the claimant and his one-time associate. For these reasons, the Press Act was not applicable to the defendant’s statement. In addition, the defendant did not demonstrate that at the relevant time he had been an active journalist. 31.     In conclusion, the Court of Appeal held that the defendant had not demonstrated that his statement about the claimant’s reprehensible conduct was true. The defendant’s suspicion that the claimant could have collaborated with the security service based on his own research and that of certain historians could not exempt him from liability. The defendant was thus required to remove the consequences of the infringement of the claimant’s personal rights. For this reason, the Court of Appeal ordered the applicant to publish an apology. 32.     The applicant filed a cassation appeal. He argued, inter alia , that his statement had not been unlawful since he had demonstrated that the claimant had collaborated with the security services. The applicant also alleged that the Court of Appeal had wrongly found that he had not been a journalist and thus could not have relied on the provisions of the Press Act. He submitted that he had acted with the requisite diligence. The applicant further alleged a breach of the procedural provisions. He submitted that the Court of Appeal had allowed the claimant’s appeal without having regard to the fact that the first-instance court had admitted only a small part of the evidence that the applicant had wished to adduce with a view to demonstrating the accuracy of his statement. 33.     On 30 November 2011 the Supreme Court refused to entertain the cassation appeal. B.     Relevant domestic law 1.     The Civil Code 34.     Article 23 of the Civil Code contains a non-exhaustive list of “personal rights” ( dobra osobiste ). This provision states: “The personal rights of an individual, such as, in particular, health, liberty, honour, 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.” Article 24 § 1 of the Civil Code provides: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.” 2.     The Press Act 35.     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, to verify the truthfulness of obtained information. COMPLAINT The applicant complains that the judicial decisions in his case violated Article 10 of the Convention. He asserts that his right to impart information about L.W.’s collaboration with the security service was unduly restricted, given, inter alia , his status of a journalist. QUESTION TO THE PARTIES Has there been a violation of the applicant’s right to freedom of expression, in particular his right to impart information, contrary to Article   10 of the Convention?