Communicated on 26 May 2014
FOURTH SECTION
Application no. 57675/10
Jan BESTRY against Poland
lodged on 20 September 2010
STATEMENT OF FACTS
The applicant, Mr Jan Bestry, is a Polish national, who was born in 1954 and lives in Warsaw. He is represented before the Court by Mr P. Kruszyński, a lawyer practising in Warsaw.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Press publications and the press conference
At the relevant time the applicant was a member of the Polish parliament.
In October 2006 a series of publications appeared in the Polish press in which the applicant’s past was described. It was reported that the applicant had sexually abused students when he had worked as a teacher. The relevant articles were published in the Polish daily newspapers “Super Express”, “Rzeczpospolita” and “Gazeta Wyborcza” as well as on the internet portal and on the Information Radio Agency.
On 30 October 2006 the applicant organised a press conference which was held in the Sejm building. The conference was transmitted by a TV information channel, TVN24. At the press conference the applicant said:
“... of course this was connected with the blackmail against us. Today we already know which journalists cooperated and with whom in order to obtain money from us under false pretences. Today this is almost one hundred percent clear to us. I think that today those three gentlemen already know about that. Those journalists cooperated with the informer, who supplied this information, on the basis of which the whole matter has been spread and today, as far as we know, they are being paid for that. I do not yet know how much, some 15 or 20% of the obtained amount...”
Following this statement, a journalist from the daily “Super Express” J.H. said:
“I am the author of this article, J.H., Super Express, my question concerns the people who inspired me... maybe you could tell something more about these family‑financial relations?”
The applicant replied:
“I will reply to you. The first claim will be lodged against you [with the court] tomorrow. After that there will be three claims lodged...”
On 31 October 2006 the “Rzeczpospolita” daily published an article titled “Jan Bestry: I did not rape, I will sue “Super Express”.” According to this article, the “Super Express” daily wrote that in the 1980’s the applicant’s employment contract had been terminated without notice because he had sexually abused young girls. The article went on to say that a few days after this publication the TV station TVN published information that the applicant had been convicted in 1982 for having beaten a woman passenger on a train when he had worked as a train conductor. The article also mentioned that during an interview with “Rzeczpospolita” the applicant said, “Publication of this information is an effect of plot in which “Super Express” was to be involved”. The author of the publication was G.P., who wrote the article after having interviewed the applicant on the phone. According to G.P. the applicant approved the publication of the contents of the article and the statements cited in the article were the statements made by the applicant. The applicant however denied having spoken to G.P. or having approved any information to be published in the press article.
2. Civil proceedings against the applicant
On 1 December 2006 a chief editor of the Super Express daily, T.L., and the publisher of this newspaper, the company Media Express Sp. z o.o., lodged a civil claim against the applicant for the protection of their personal rights. They claimed that the applicant had harmed their good name and credibility by his statements made at the press conference on 30 October 2006 and in the article published by “Rzeczpospolita“ on 31 October 2006.
On 29 May 2008 the Warsaw Regional Court granted the claim in part and ordered the applicant to publish an apology for the statements he had made and which were cited in the article published by “Rzeczpospolita”. The court dismissed the remainder of the claim finding that the statements made by the applicant at the press conference could not unambiguously be interpreted as concerning the journalists of any concrete newspaper, because no names of any journalist or newspaper had been expressly mentioned by the applicant.
Both parties appealed against the first-instance judgment.
On 12 February 2009 the Warsaw Court of Appeal amended the challenged judgment in that it ordered the applicant to publish an apology additionally for the statements which he had made during the press conference on 30 October 2006. The court found that although the applicant had not mentioned the names of journalists or newspapers, for an average person it was clear from the context of the statements concerned that the charges of blackmail and obtaining money under false pretences had been directed at the journalists of “Super Express”.
The applicant lodged a cassation appeal.
On 20 April 2010 the Supreme Court refused to examine it.
B. Relevant domestic law
Personal rights and their protection under the Civil Code
Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” (dobra osobiste). This provision states:
“The personal rights of an individual, such as 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 under 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 faced with the threat of an infringement 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 demand satisfaction from him or 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 a suitable sum as pecuniary compensation for non-pecuniary damage (krzywda) suffered by anyone whose personal rights have been infringed. Alternatively, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement, the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest. ...”
COMPLAINT
The applicant complains under Article 10 of the Convention of an unjustified interference with his right to freedom of expression.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention? In particular, was the interference complained of necessary in terms of Article 10 § 2?
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