FOURTH SECTION
DECISION
Application no. 42801/07
Jarosław SROKA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 6 March 2012 as a Chamber composed of:
David Thór Björgvinsson, President,
Lech Garlicki,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 1 October 2007,
Having regard to the declaration submitted by the respondent Government on 1 September 2011 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Jarosław Sroka, is a Polish national who was born in 1969 and lives in Warsaw. His application was lodged on 1 October 2007. He was represented before the Court by Mr A. Bodnar from the Helsinki Foundation of Human Rights. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The article and its correction
On 16 July 2004, in the weekend edition of the Puls Biznesu (“Business Pulse”), a daily newspaper, an article entitled “Śląskie Stopy” was published. It was written by the applicant. It described the privatisation process of the Łaziska Smelting Plant (“the Smelting Plant”), which had been bought by the limited liability company GEMI. According to the article, there were many questions regarding the lawfulness of the privatisation. The applicant suggested in the article that several contracts had been signed. The buyer of the company paid 18,500,000 Polish zlotys (PLN) for the shares but at the same time it acquired the debts of the company worth over PLN 83,000,000. The article further alleged that GEMI had bought coal at reduced, export prices.
On 27 July 2004 a lawyer from GEMI sent a letter to the applicant demanding that he publish the following correction of untrue statements that had been made in the article of 16 July 2004:
“With reference to the article Śląskie Stopy published in the Puls Biznesu of 16 July 2004, I hereby correct the untrue statements made therein:
It is not true that GEMI entered into a contract with Upper Silesia Electroenergetic Plant (Górnosląski Zakład Eklektroenergetyczny – GZE), on the understanding that GEMI would acquire the outstanding debts owed by GZE to the Smelting Plant.
It is not true that GZE transferred to GEMI debts of PLN 83,100,000 originally owed to the Smelting Plant.
It is not true that GEMI took over the pledge securing the contract with the Smelting Plant because the Smelting Plant had not fulfilled its payment obligations towards GEMI; it is likewise not true that the Smelting Plant did not pay its debts to GEMI,...”
The correction went on to list eight further statements appearing in the article which the company considered to be untrue. Each sentence began with the same words: “It is not true that...”
On 20 August 2004 the applicant, in accordance with the relevant provisions of the Press Act, replied to the lawyer in writing, refusing to publish the correction requested. He submitted, relying on documents or on conversations with witnesses, that the statements made in the article were true.
2. Criminal proceedings against the applicant
On an unspecified date lawyers for both GEMI and the Smelting Plant notified the police that an offence had been committed.
On 24 June 2005 the applicant was interviewed by the police as a suspect.
On 27 July 2005 a bill of indictment against the applicant was lodged with the Warsaw District Court. The applicant was charged with an offence provided for in section 46 of the Press Act, namely refusal to publish a correction of untrue or inaccurate statements.
On 9 August 2005 the applicant’s lawyer lodged a request with the Warsaw District Court asking for the criminal proceedings to be discontinued. He claimed that the applicant’s omission had not constituted an offence.
On 25 October 2006 the Warsaw District Court found the applicant guilty of having committed the offence with which he had been charged and sentenced him to a fine of PLN 3,000. The court found that the text of the correction had been consistent with the requirements laid down in section 31 of the Press Act and therefore the applicant had had no right to refuse its publication.
On 12 December 2006 the applicant’s lawyer appealed.
On 5 March 2007 the Warsaw Regional Court, finding that the first‑instance court had properly and exhaustively examined the circumstances of the case, upheld the judgment at issue.
A cassation appeal was not available to the parties to the proceedings.
On 19 March 2007 the applicant’s lawyer asked the Ombudsman to lodge a cassation appeal on his behalf.
On 14 June 2007 the Ombudsman refused, finding no grounds on which to grant the applicant’s lawyer’s request.
However, on 7 September 2007 the Ombudsman applied to the Constitutional Court and requested the court to hold that the provision providing for criminal liability for the refusal to publish a correction was inconsistent with the relevant provisions of the Constitution. As emerges from the reasoning of the Ombudsman’s request, it was based to a large extent on the facts of the present case.
On 1 December 2010 the Constitutional Court gave judgment (see below, relevant domestic law and practice).
3. Civil proceedings against the applicant for the protection of personal rights
The members of the management boards of GEMI and the Smelting Plant also instituted civil proceedings against the applicant and the author of the article for the protection of personal rights. In their claim of 15 July 2005, the plaintiffs sought a finding of a violation of their personal rights, an order to publish a correction of untrue statements and the payment of PLN 20,000 to charity.
On 30 January 2007 the Warsaw Regional Court dismissed the claim. The court found that the plaintiffs had failed to prove that the defendants had infringed their personal rights by publishing the article concerned.
It appears that no appeal was lodged against the first-instance judgment.
B. Relevant domestic law and practice
1. Right of correction/reply
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. based on fact (rzeczowe i odnoszące się do faktów) a correction of untrue or inaccurate statements,
2. based on fact (rzeczową) a reply to any statement which might infringe someone’s personal rights”
Section 32 provides, in so far as relevant, as follows:
“...Without the consent of the claimant, it is forbidden to shorten or make any other amendments to the correction or reply which would weaken its significance or alter the intentions of the author. The correction may not be commented upon in the same edition or broadcast...”
Section 33 provides, in so far as relevant, as follows:
“1. The editor-in-chief is under an obligation to refuse publica
