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FOURTH
SECTION
CASE OF SEMIK-ORZECH v. POLAND
(Application
no. 39900/06)
JUDGMENT
STRASBOURG
15
November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Semik Orzech
v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
George Nicolaou,
Ledi
Bianku,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 18 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39900/06)
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, Ms Teresa Semik Orzech (“the
applicant”), on 6 September 2006.
2. The
applicant was represented by Mr Ł. Korga, a lawyer practising in
Katowice. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
3. The
applicant alleged that the civil judgments given in her case
had breached her right to freedom of expression.
- On
7 July 2010 the President of the Fourth Section of the
Court decided to give notice of the application
to the Government. It 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
- The
applicant was born in 1955 and lives in
Katowice.
- On
9 December 2002 a hearing in a criminal case concerning a large scale
fraud and generating considerable media interest was held before the
Kraków Śródmieście District Court. Advocate
J.Z., representing three accused (K.W., A.D. and A.M.D.) submitted to
the court a power of attorney authorising another advocate, Ms D.K.
who also represented A.M.D., to replace him for the purposes of
representing his other two clients. The court accepted that document
without any comment.
- During
the same hearing a heated exchange broke out between lawyers
representing various defendants as to the possibility of a conflict
of interest between various clients of lawyers involved in the case,
including between J.Z.’s two clients K.W. and A.D. on the one
hand and A.M.D., represented by advocate D.K., on the other. During
that exchange advocate J.Z. declared that he would not represent
A.M.D. any longer.
The
court expressed the view that it was too early at that stage of the
proceedings to determine whether there was any conflict of interest
between the accused which would have prevented the same lawyers from
representing them. The courts admonished the lawyers several times
for allowing the debate to get out of hand and for their
inappropriate conduct in the courtroom.
- On
15 December J.Z. informed his clients K.W. and A.D. on the phone that
he would not be able to attend the hearing scheduled for 16 December
2002. He referred to the authorisation he had given to Ms D.K.
on 9 December 2002 to replace him for the purposes of that hearing.
He also informed Ms D.K. accordingly.
- On
16 December 2002 the court held the hearing. Advocate J.Z. was
absent. Advocate D.K. informed the court that he had informed her
that he had authorised her to replace him for the purposes of that
hearing and referred to the authorisation submitted to the case file
at the hearing of 9 December 2002.
Subsequently,
the court declared, having regard to the testimony given by A.M.D. at
the previous hearing, that there was a conflict of interest between
K.W. and A.M.D. and that, accordingly, they could not be represented
by the same lawyer.
The
court adjourned the hearing having regard to the fact that advocate
D.K. was to represent both her client A.M.D. and K.W. on the basis of
the authorisation given to her by advocate J.Z. on 9 December
2002 (see paragraph 6 above).
- On
17 December 2002 Dziennik Zachodni, a newspaper published in
Katowice, published an article written by the applicant and entitled
“A Lawyer’s Nonchalance?”
The
applicant alleged that J.Z., the advocate representing the accused in
a major criminal case pending before the Kraków Śródmieście
District Court, had failed to meet his professional obligations and
act diligently by failing to attend the hearing held on 16 December
2002.
The relevant part of the text read:
“(...) ‘it is the absence of the defence
lawyer which is a problem’ explained the presiding judge, E.S.
Advocate J.Z. failed to attend the hearing and did not
justify his absence. He only asked another advocate to tell the court
that he could not attend the hearing and requested that advocate (one
day before the hearing) to replace him. The court could not accept
that replacement, because the interests of the defendants represented
by J.Z. and by that advocate were in conflict. The court could not
but adjourn the hearing.
Advocate Z. was well aware of that conflict. Other
defence lawyers in that case had drawn his attention to it. It is
difficult not to see his absence as disrespect towards the court, the
prosecutor (...), the parties who reside in Silesia. He is, after
all, supposed to know how to justify an absence before a court.
‘I am baffled by the attitude of the defence
lawyer’ said judge E.S.
The court informed the local Bar Council about the
lawyer’s conduct.”
- After
the hearing, advocate J.Z. first requested the newspaper to publish a
rectification, within the meaning of Article 31 of the 1984 Press
Act, arguing that the conflict of interest between his clients and
the client of Ms D.K. had been officially acknowledged only on
16 December 2002. Hence, he could not reasonably have been
expected to know that his absence on that date would entail the
adjournment of the proceedings. He argued that at the hearing held on
9 December 2002 there had been an exchange between the lawyers
involved in the case as to the possibility of a conflict arising
between the various defendants, including between his two clients and
Ms A.M.D., represented by Ms D.K. However, on that date the court had
only expressed the view that it was inappropriate to have that
argument in the courtroom. No finding in respect of the conflict of
interest had been made on that date. In any event, he had stepped
down as A.M.D.’s defence lawyer.
- The
newspaper refused to publish a rectification within the meaning of
the 1984 Press Act. On 21 December 2002 it merely published the
advocate’s letter under the heading “Letters”,
accompanied by the applicant’s unfavourable comment,
essentially reiterating the allegation of negligence on his part. The
applicant wrote that J.Z. had informed his clients by phone on 15
December 2002 that he had given Ms D.K. his authorisation to act on
his behalf in their defence. It was further stated that his clients
had been unaware that he would be absent on 16 December 2002.
“[t]his is what they told me” – the applicant
concluded.
- Subsequently,
the advocate sued the newspaper, the applicant and the
editor in chief of Dziennik Zachodni for breach of
his personal rights within the meaning of Articles 24 and 25 of the
Civil Code (see paragraph 30 below).
- At
a hearing in that case held on 26 June 2003 the Katowice Regional
Court heard as witnesses K.W. and A.D., the claimant’s clients
and defendants in the criminal case. K.W. stated that the claimant
had known as early as 9 December 2002 that he would not be able to
attend the hearing scheduled for 16 December 2002 and that he had
therefore authorised Ms D.K. to replace him. The criminal judge had
accepted that authorisation without objections. A.D. made a similar
statement. He added that after the hearing of 16 December 2002 he had
briefly talked with a journalist in the court’s corridor and
that he had not told her that he had not been informed about the
advocate’s absence prior to that hearing.
- The
court had regard to the article published by the applicant on
17 December 2002 and to her comments on the claimant’s
letter published on 21 December 2002 (see paragraphs 10 and 12
above), to the correspondence between the claimant and the defendant
editor-in-chief, to the minutes of the hearings held on 9 and 16
December 2002 and to the parties’ statements.
- The
first-instance judgment was given on 18 September 2003. The Katowice
Regional Court first recounted the exchange of views between the
lawyers during the hearing held in the criminal case on 9 December
2002 as to the possible conflict of interest between their clients.
It noted the criminal court’s statement, recorded in the
minutes of that hearing, that there had been no basis at that time to
find that a conflict of interest had indeed existed. It further found
that on 15 December 2002 the lawyer had informed his clients and Ms
D.K. on the phone that he would not be able to attend the hearing
scheduled for the next day. On 16 December 2002 the criminal
court had made an official declaration, again recorded in the
minutes, that a conflict existed between the interests of A.M.D. and
K.W. and that they could therefore not be represented by the same
lawyer, and adjourned the hearing until 6 January 2003.
The
civil court noted that in her two articles the applicant had accused
the claimant of unprofessional conduct. She had made an untrue
statement to the effect that the claimant’s clients had not
known before the hearing of 16 December 2002 that the claimant would
not attend it. The articles had been widely discussed in local legal
circles and had had a negative impact on the claimant’s
situation. Some of his clients had lost their trust in him.
- The
court noted that the evidence before it had demonstrated that the
applicant’s allegation that K.W. and A.D. had been informed of
the claimant’s absence only at the hearing of 16 December
2002 was untrue. The claimant had already known about his absence on
9 December 2002. It was shown by the fact that on that date he
had authorised another lawyer to act on his behalf in the defence of
his clients. They had already been aware of it on that date. The
criminal court had accepted this authorisation for Ms D.K. to
act without comments or objections. On that date no finding had been
made by that court that there had been a conflict of interest between
the clients represented by the claimant and those represented by
Ms D.K. In these circumstances, the claimant had had no reason
to expect that his absence on 16 December 2002 would disturb the
conduct of the proceedings. Consequently, his non-attendance on
16 December 2002 could not be seen as unjustified or his conduct
regarded as nonchalant or disrespectful.
- The
court was of the view that the articles concerned had breached the
claimant’s personal rights. The applicant had alleged that he
had failed to attend the hearing and to justify his absence and that
the hearing on 16 December 2002 had had to be adjourned because
of his conduct.
The
court noted that under the Press Act the press enjoyed freedom of
expression. That freedom was not absolute; it could be restricted in
certain circumstances. In particular, the press was obliged to
respect the rights of other persons. The Press Act obliged
journalists to show diligence and integrity in gathering materials
and publishing articles, because press publications could potentially
harm individuals in a manner much more powerful than any other means
of defamation.
- The
court was of the view that the applicant should have contacted the
claimant before the publication of the article on 17 December
2002 and ask for his comments. She had failed to do so.
- The
article published by the applicant had lacked objectivity, contained
undeserved criticism of the claimant and had been sensationalist
rather than aimed at informing readers about the criminal case in a
balanced manner. In particular, its title was particularly
sensationalist. The newspaper had a wide readership in the region and
therefore the impact of the article on public opinion was likely to
have been significant and seriously detrimental to the claimant’s
interests. Hence it was necessary to impose on the defendants an
obligation to publish an apology and a rectification.
- The
court further imposed on the defendants an obligation to pay,
jointly, 30,000 Polish zlotys (PLN) to a charity. It observed that
that amount was significant enough to have an impact on the
publisher, but not high enough to be seen as seriously detrimental to
his financial position.
- The
applicant appealed, submitting that she had fulfilled her
journalistic duties in reporting the case. Her view that the advocate
had failed to act diligently in the representation of his clients had
been well-founded and the first instance court had wrongly
established the facts of the case.
- On
7 October 2003 the Katowice Court of Appeal upheld the contested
judgment, essentially sharing the conclusions of the lower court.
- It
observed that the right to freedom of expression guaranteed both by
the Constitution and the Convention could be restricted in a
democratic society for the purposes of the protection of individual
rights such as dignity or personal rights within the meaning of the
Civil Code and in compliance with the principle of proportionality
enshrined in the Constitution. Where the exercise of the freedom of
expression collided with the protection of the reputations of
individuals, such a conflict had to be resolved with due regard being
had to the case-law of the European Court of Human Rights.
- The
court noted that the applicant’s article published on
17 December 2002 concerned the conduct of a criminal case
generating considerable interest among the general public. However,
that did not imply that an interference with the claimant’s
personal rights had been necessary. Judicial reporting had to be
objective and strict priority had to be given to information, with
due regard to the facts recorded by way of court records, which could
be considered reliable; not to the reporter’s opinions and
views. In the light of this principle, nothing justified the title
“A Lawyer’s Nonchalance?”, referring to the
lawyer who had been named in the article. Moreover, the text had
contained untrue information to the effect that the court had made
clear its intention to complain about the lawyer’s conduct to
the local Bar Association. It had not been shown that the court had
indeed made such a declaration or even suggested that it intended to
do so. The applicant’ s intention to annoy the claimant and to
undermine his professional reputation and integrity for the purposes
of making the text more attractive or sensational could not be open
to any doubt.
- On
25 January 2006 the Supreme Court refused to entertain the
applicant’s cassation appeal.
II. RELEVANT DOMESTIC LAW
- Article
54 of the Constitution provides:
“1. Freedom to express opinions, and to
acquire and disseminate information shall be ensured to everyone.
2. Preventive censorship of means of social
communication and licensing of the press shall be prohibited.”
- The
relevant provisions concerning the correction of information in the
press and other media are contained in the Press Act (Prawo
prasowe) of 26 January 1984.
Section 31
provides, in so far as relevant, as follows:
“At the request of a natural or legal person or
other organisational entity, the editor-in-chief of the relevant
daily or magazine is under an obligation to publish, free of charge:
1. a factually based (rzeczowe i odnoszące
się do faktów) rectification of untrue or inaccurate
statements,
2. a factually based (rzeczową) reply
to any statement which might infringe an individual’s personal
rights”
- 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.”
- Article 24 of the Civil Code provides for ways of
redressing infringements of personal rights. Under that provision, a
person facing a risk of an infringement of his or her rights may
demand that the prospective perpetrator refrain from the wrongful
activity, unless it is not unlawful. Where an infringement has taken
place, the person affected may, inter alia, request that the
wrongdoer make a relevant statement in an appropriate form, or claim
just satisfaction from him/her. If an infringement of a personal
right causes financial loss, the person concerned may seek damages.
- Under
Article 448 of the Civil Code, a person whose personal rights have
been infringed may seek compensation. That provision, in its
relevant part, reads:
“The court may grant an adequate sum as pecuniary
compensation for non-material damage (krzywda) caused to
anyone whose personal rights have been infringed. Alternatively, the
person concerned, regardless of seeking any other relief that may be
necessary for removing the consequences of the infringement
sustained, may ask the court to award an adequate sum for the benefit
of a specific public interest ...”
THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant alleged that the civil judgments given in her case
had breached her right to freedom of expression guaranteed by
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
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant submitted that the civil judgments
given in the case against her had been in breach of her right to
freedom of expression and that the interference with that freedom had
been unjustified and disproportionate.
- The
Government argued that the freedom of expression enshrined in Article
10 of the Convention was not absolute. Paragraph 2 of Article 10
formulated certain conditions and restrictions concerning its
exercise. Journalists, in order to comply with the duties and
responsibilities referred to in that provision, were obliged to act
in good faith and to provide accurate and reliable information to the
public.
- The
Government averred that the applicant had failed to respect those
obligations. They drew the Court’s attention to discrepancies
between the facts as established by the courts having examined the
applicant’s case and the statements contained in the
applicant’s articles. The applicant had failed to get in touch
with the advocate concerned, J.Z., in order to establish the relevant
facts. Furthermore, in her comment to the advocate’s letter to
the editor-in-chief, published on 21 December 2002, she had
stated that his clients had been unaware that he would not attend the
hearing scheduled for 16 December 2002. However, they had confirmed
before the civil court that they had been informed thereof prior to
that hearing.
- The
Government stressed that the domestic courts had correctly considered
that the statements the applicant made in her articles were presented
as statements of fact. On the basis of witness testimonies, the
courts had found that the statements lacked a sufficient basis.
- The
Government submitted that the interference complained of by the
applicant had been prescribed by law, pursued a legitimate aim and
had been necessary in a democratic society to achieve that aim. The
restrictions imposed on the applicant had been necessary as they had
met a pressing social need, namely the protection of the legal
profession. This profession played a special role in the system of
administration of justice. The decisions of the domestic courts
constituted an appropriate reaction to defamatory accusations made by
the applicant against advocate J.Z., accusations which had been
devoid of any factual foundation and had been made in bad faith.
- The
Government further argued that the domestic courts had given relevant
and sufficient reasons for their decisions. In particular, the courts
had justified in detail, with reference to the evidence before them,
the reasons why they had considered that the applicant’s
statements amounted to an infringement of the advocate’s
personal rights.
- The
Government concluded that the interference with the applicant’s
right to freedom of expression had been necessary in a democratic
society.
2. The Court’s assessment
- The
Court reiterates that freedom of expression constitutes one of the
essential foundations of a democratic society and one of the basic
conditions for its progress and for each individual’s
self fulfilment (see Lingens v. Austria, 8 July
1986, § 41, Series A no. 103, p. 26).
- In
this context, the safeguards to be afforded to the press are of
particular importance (Janowski v. Poland [GC],
no. 25716/94, § 30, ECHR 1999-I). Not only does
the press have the task of imparting information and ideas: the
public also has a right to receive them. Were it otherwise, the press
would be unable to play its vital role of “public watchdog”
in imparting information of serious public concern (see, among other
authorities, Observer and Guardian v. the United
Kingdom, 26 November 1991, § 59, Series A no. 216,
and Gawęda v. Poland, no. 26229/95, § 34,
ECHR 2002-II). Although the press must not overstep certain bounds,
in particular in respect of the reputation and rights of others and
the need to prevent the disclosure of confidential information, its
duty is nevertheless to impart information and ideas on all matters
of public interest (see Jersild v. Denmark, 23 September
1994, § 31, Series A no. 298, and De Haes and
Gijsels v. Belgium, 24 February 1997, § 37,
Reports 1997-I).
- This
duty extends to reporting and commenting on court proceedings which,
provided that they do not overstep the bounds set out above,
contribute to their publicity and are thus consonant with the
requirement under Article 6 § 1 of the Convention that hearings
be public. Not only do the media have the task of imparting such
information and ideas: the public has a right to receive them (see
News Verlags GmbH & Co.KG v. Austria, no. 31457/96,
§§ 55-56, ECHR 2000 I; Worm v. Austria,
29 August 1997, § 50, Reports 1997 V; and
Egeland and Hanseid v. Norway, no. 34438/04, § 49,
16 April 2009).
- Nonetheless, Article 10 of the Convention does not
guarantee a wholly unrestricted freedom of expression even with
respect to press coverage of matters of serious public concern. Under
the terms of paragraph 2 of this provision,
freedom of expression carries with it “duties and
responsibilities”, which also apply to the media even with
respect to matters of serious public concern. By reason of these
“duties and responsibilities”, the safeguard
afforded by Article 10 to journalists in relation to reporting
on issues of general interest is subject to the proviso that they are
acting in good faith in order to provide accurate and reliable
information in accordance with the ethics of journalism (see, for
example, Goodwin v. the United Kingdom, 27 March
1996, § 39, Reports 1996-II; Fressoz and Roire
v. France [GC], no. 29183/95, § 54, ECHR
1999-I; Pedersen and Baadsgaard v. Denmark [GC],
no. 49017/99, § 78, ECHR 2004-XI; Lindon,
Otchakovsky-Laurens and July v. France [GC], nos. 21279/02
and 36448/02, § 67, ECHR 2007-...; Rumyana Ivanova
v. Bulgaria, no. 36207/03, § 61,
14 February 2008 and Weigt v. Poland (dec.),
no. 74232/01, 11 October 2005).
- In
its practice the Court has distinguished between statements of fact
and value judgments. While the existence of facts can be
demonstrated, the truth of value judgments is not susceptible of
proof. The classification of a statement as a fact or as a value
judgment is a matter which in the first place falls within the margin
of appreciation of the national authorities, in particular the
domestic courts. Where a statement amounts to a value judgment, the
proportionality of the interference may depend on whether there
exists a sufficient factual basis for the impugned statement, since
even a value judgment without any factual basis to support it may be
excessive (see De Haes and Gijsels, cited above, § 47,
and Feldek v. Slovakia, no. 29032/95, § 76,
ECHR 2001 VIII).
- The
Court observes that in the present case the domestic courts found
against the applicant in civil defamation proceedings, which as a
rule will suffice to amount to an “interference” with the
exercise of his right to freedom of expression (see, for
example, Kuliś and Różycki v. Poland,
no. 27209/03, § 34, 6 October 2009, and
Myrskyy v. Ukraine, no. 7877/03, § 37,
20 May 2010).
- The
Court also finds that the interference complained of was prescribed
by law, namely, Articles 23 and 24 of the Civil Code. It further
notes that in her articles published on 17 and 21 December 2002
the applicant formulated statements which presented the professional
conduct of advocate J.Z. in a negative light. The judicial decisions
complained of were therefore intended to pursue a legitimate aim
referred to in Article 10 § 2 of the Convention,
namely to protect “the reputation or rights of others”.
- Hence,
the only point at issue is whether the interference was “necessary
in a democratic society” to achieve that aim. This
determination must be based on the following general principles
emerging from the Court’s case law (see, among other
authorities, Cumpǎnǎ and Mazǎre v. Romania
[GC], no. 33348/96, §§ 88 91, ECHR
2004 XI; Kasabova v. Bulgaria, no. 22385/03,
§ 54, 19 April 2011, with further references):
(a) The
test of “necessity in a democratic society” requires the
Court to determine whether the interference corresponded to a
pressing social need. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes
hand in hand with European supervision, embracing both the
legislation and the decisions applying it, even those delivered by
independent courts. The Court is therefore empowered to give the
final ruling on whether a “restriction” is reconcilable
with freedom of expression as protected by Article 10.
(b) The
Court’s task in exercising its supervisory function is not to
take the place of the competent domestic courts but rather to review
under Article 10 the decisions they have taken pursuant to their
power of appreciation. This does not mean that the supervision is
limited to ascertaining whether the respondent State exercised its
discretion reasonably, carefully or in good faith; what the Court has
to do is to look at the interference complained of in the light of
the case as a whole, including the content of the statements held
against the applicant and the context in which he or she has made
them.
(c) In
particular, the Court must determine whether the reasons adduced by
the national authorities to justify the interference were relevant
and sufficient and whether the measure taken was proportionate to the
legitimate aims pursued. In doing so, the Court has to satisfy itself
that the national authorities, basing themselves on an acceptable
assessment of the relevant facts, applied standards which were in
conformity with the principles embodied in Article 10.
(d) The
Court must also ascertain whether the domestic authorities struck a
fair balance between the protection of freedom of expression as
enshrined in Article 10 and the protection of the reputation of those
against whom allegations have been made, a right which, as an aspect
of private life, is protected by Article 8 of the Convention.
49. The
nature and severity of the penalties imposed are also factors which
should be taken into account when assessing the proportionality of an
interference with the freedom of expression guaranteed by Article 10
(see Skałka v. Poland, no. 43425/98,
§§ 41-42, 27 May 2003; Kwiecień v. Poland,
no. 51744/99, § 56, 9 January 2007).
- In
the instant case the applicant was found to have defamed the lawyer.
The impugned assertions contained in the articles written by the
applicant alleging improper professional conduct on the part of the
advocate representing defendants in a criminal case were presented as
factual statements.
- The
Court has already held that a lawyer’s behaviour in the
exercise of his or her profession, particularly during court
proceedings held in public is a matter of public interest (see
Aquilina and Others v. Malta, no. 28040/08,
§ 46, 14 June 2011).
- The
applicant alleged, in the article published on 17 December 2002,
that at the hearing held in the criminal case on 9 December 2002
the advocate had been negligent, because he had known about the
existence of a conflict of interest between his clients and their
co-accused, who was at the same time the client of another lawyer, Ms
D.K. The applicant presented the situation in such a way that it
could be understood that the advocate, knowing that, had subsequently
chosen simply not to attend the subsequent hearing and requested Ms
D.K. to replace him which, in turn, must have led to the hearing
being adjourned. The lawyer’s negligence was suggested by the
title of the article concerned.
- In
this connection, the Court notes that the civil courts found that at
the hearing held on 9 December 2002 in the criminal case there had
been a heated exchange between various lawyers as to the possibility
of a conflict arising between their clients, including between the
applicant’s two clients and another co-accused, Ms D.K.’s
client. However, on that date the criminal court merely expressed the
view that it was inappropriate to hold that argument in the courtroom
and that at that stage of the proceedings the issue of a conflict of
interest did not arise (see paragraphs 6 7 above). The civil
court dealing with the applicant’s case examined the issue of a
potential conflict of interest. It had regard to the minutes of the
hearing held on 9 December 2002 and noted that on that date the
criminal court had expressly stated that there were no grounds on
that date to hold that such a conflict existed. The civil court
concluded that it could not therefore be said that prior to
16 December 2002 the lawyer had known that his absence on that
date would lead to the hearing being adjourned.
- The
Court further notes that the criminal court found that there was a
conflict of interest and made a formal declaration to that effect
only on 16 December 2002.
- The
Court is therefore satisfied that there were no grounds on which to
accept that the existence of the conflict had already been
established prior to the hearing of 16 December 2002 or that it
should have prevented the lawyer from failing to attend the next
hearing.
- Moreover,
the applicant alleged that the advocate had informed his clients of
his absence only one day before that hearing. She presented the facts
in such a way as to make him appear responsible for the adjournment
of the hearing on 16 December 2002. In particular, she alleged
that he had failed to present a justification for his absence to the
court. However, the civil court established that the advocate had
authorised Ms D.K. to act on his behalf for the defence at the
hearing of 9 December 2002 and that the criminal court had
accepted this.
- It
is further noted that the courts found that the applicant, when
gathering information for her article, had failed to act with the
requisite diligence. The first-instance court noted that the
applicant had failed to get in touch with the advocate as to the
reasons for his absence on 16 December 2002 before publishing
her article on 17 December 2002. No arguments have been advanced
either before the domestic courts or before the Court to justify that
failure on the applicant’s part. The Court would point out in
that connection that according to its case-law, the more serious an
allegation is, the more solid its factual basis should be (see
Cumpǎnǎ and Mazǎre, § 101; Pedersen
and Baadsgaard, § 78 in fine; cited above, and
Rumyana Ivanova v. Bulgaria, no. 36207/03,
§ 64, 14 February 2008). The allegation in the instant
case was serious as it undermined the lawyer’s professional
integrity and called his diligence into question (see Wołek
and Others v. Poland (dec.), no. 20953/06, 21 October
2008, mutatis mutandis), and thus called for thorough research
on the part of the applicant.
- In
this connection, it is noted that it was open to the applicant to
consult the court records in order to check whether and at which
stage of the proceedings the conflict of interest between the accused
had arisen in the case. Likewise, she could have contacted the lawyer
in order to clarify the situation. However, it has not been argued,
let alone shown, that she as much as tried to do so. The applicant,
in her desire to get the news out quickly, failed to consult
trustworthy sources (see Rumyana Ivanova, cited above, § 64).
- The
Court observes that the civil courts were of the view that the title
of the applicant’s article published on 17 December 2002
was sensationalist, misleading for the reader and that, on the whole,
the applicant had sacrificed accuracy for the sake of sensation. In
the light of the above conclusions concerning the weak factual basis
for the allegations made by the applicant, this conclusion of the
domestic courts is not open to criticism.
- In
the article published on 21 December 2002 the applicant referred to
her conversation with the two defendants in the criminal case, K.W.
and A.D. She unequivocally stated that they had told her that they
had been informed of their lawyer’s absence only one day before
the hearing scheduled for 16 December 2002. However, when
questioned by the first-instance civil court both defendants denied
that they had given such information to the applicant. The civil
courts relied, inter alia, on that evidence when concluding
that the applicant’s allegations lacked a solid factual basis.
- Furthermore,
the Court notes that the advocate requested the newspaper to publish
a rectification in respect of the article published on 17 December
2002 and submitted to the newspaper a detailed explanation of the
relevant facts (see paragraph 11 above). The newspaper refused
to publish the rectification. Instead, on 21 December 2002 the
advocate’s letter was published with the applicant’s
comment, essentially reiterating the allegations of negligence.
Hence, the applicant was given an opportunity of rectifying the
errors concerning the events of 9 December 2002, but failed to
do so.
- The Court notes that the appellate court suggested
that journalists in judicial reporting were obliged to limit their
reports to statements of fact and abstain from presenting their own
opinions (see paragraph 25 above). There is no authority in the
Court’s case law for such a statement and such an approach
does not appear to be compatible with the role of the press in
ensuring the public character of judicial proceedings and their
transparency and fairness. While the Court has stressed the
importance of journalistic objectivity and balance in the context of
judicial reporting (see Egeland and Hanseid, cited above,
§ 49; Reinboth and Others v. Finland,
no. 30865/08, § 78, 25 January
2011), it is of the view that it is of primary importance for
the proper functioning of judicial systems that journalists are free
not only to inform the general public about the factual aspects of
cases examined by the courts, but also to formulate and disseminate
their views and opinions on important issues involved in or connected
with the subject-matter of cases under judicial consideration. In the
same vein, it is important that the courts have an opportunity to
obtain feedback on how their acts and judicial decisions are
understood and regarded by the public. Such knowledge contributes to
the quality of judicial decision-making and to a better understanding
by society at large of the complexity of the issues involved in the
administration of justice.
- The
Court further notes that the civil courts recognised that the case
before them involved a conflict between the applicant’s right
to freedom of expression and the protection of her reputation and the
rights of the advocate. They carried out a careful balancing exercise
between the interests involved (compare and contrast Keller
v. Hungary (dec.), no. 33352/02, 4 April 2006 and
Kwiecień v. Poland, no. 51744/99, § 52,
ECHR 2007 ...). In particular, the first instance court
adopted the test of adequate diligence in assessing whether the
journalist had discharged her obligations. The approach taken by the
courts is therefore compatible with freedom of expression guaranteed
by Article 10 of the Convention (contrast Sokołowski
v. Poland, no. 75955/01, § 46, 29 March 2005;
Zakharov v. Russia, no. 14881/03, §§ 29
and 30, 5 October 2006; and Karman v. Russia,
no. 29372/02, §§ 42 and 43, 14 December
2006). The Court notes that the present case is to be distinguished
from the case of Aquilina and Others v. Malta, cited above,
where all the evidence heard by the domestic courts in the defamation
proceedings against the applicants clearly indicated that the
magistrate hearing the bigamy case had made a finding of contempt of
court in respect of the lawyer appearing for the accused. In that
case, however, the domestic courts (in the defamation proceedings)
paid little or no attention to this evidence, preferring to rely on
the brief and apparently incomplete record of the proceedings before
the Court of Magistrates (see paragraphs 47 – 49 of that
judgment). Moreover in that case the court reporter had shown due
diligence in attempting to verify the facts, and the newspaper had
published an apology two days later (paragraph 50).
- The
Court observes that the defendants were found only to be civilly
liable: no criminal proceedings were instituted or even envisaged
against them.
- Furthermore,
the defendants were ordered, jointly, to pay PLN 30,000 to a
charity. While the amount was significant, the pecuniary impact of
the interference complained of cannot be said to have been excessive
(contrast Tolstoy Miloslavsky v. the United Kingdom,
13 July 1995, §§ 46 51, Series A no. 316 B,
mutatis mutandis). Moreover, the defendants in the
civil case had to pay that amount jointly; the applicant was not
obliged to pay that amount alone.
- Having
regard to the circumstances of the case seen as a whole, the Court is
of the view that the interference complained of may be regarded as
“necessary in democratic society” within the meaning of
paragraph 2 of Article 10 of the Convention.
- There
has accordingly been no violation of this provision of the Convention
in the present case.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been no violation of
Article 10 of the Convention.
Done in English, and notified in writing on 15 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas
Bratza Registrar President
