FIRST SECTION
DECISION
Application no. 62279/16
Tadeusz DYBEK
against Poland
The European Court of Human Rights (First Section), sitting on 25 September 2018 as a Committee composed of:
Aleš Pejchal, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Tadeusz Dybek, is a Polish national who was born in 1969 and lives in Bielsko-Biała. He was represented before the Court by Ms J. Wisła-Płonka, a lawyer practising in Bielsko-Biała.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is the president of a housing cooperative in U. On 24 October 2013 statements he made were quoted in a local newspaper article entitled ”Good or Bad Business?”(“Dobry czy kiepski interes”). The writer of the article described a transaction concerning the sale of a plot of land entered into by another housing cooperative in B., of which the applicant was a member. The text suggested that the transaction might not be advantageous to the members of the housing cooperative and that the price obtained for the plot of land had been too low. The statements were as follows:
“The plot of land is located in Kamienica, the part of Bielsko-Biała where land prices are among the highest, reaching much more than PLN 200 per square metre, and sometimes reaching as high as PLN 300; the land also has a beautiful view over the Beskidy Mountains. However, the cooperative obtained a price which would be adequate for nearby Pisarzowice or Janowice. It might be noticed how low this price actually is by taking into account that the Bielsko-Biała municipality sold a nearby plot of land with garages for PLN 259 per [square] metre. How could I possibly give a positive opinion about this transaction, since the price of the land sold was almost two times lower than in the case of urban land?”
and:
“I could understand if the land had been sold to a private company. The road is about 10 acres long, so even taking into account the price for which the plot was previously sold, the cooperative would have obtained over PLN 100,000 for it. However instead of selling the land to an investor there was a right of way established and an agreement reached according to which the driveway leading to the developer’s land would serve at the same time as a fire access road for a few of the housing cooperative’s buildings. But the buildings already have a fire access road! To my mind it is a sort of a gift to the developer under the veil of building fire access roads for the cooperative.”
4. The article ended by stating that the transaction would be investigated by the police.
5. On 7 November 2013 the applicant applied to have criminal proceedings instituted. On 30 April 2014 the Bielsko‑Biała Północ District Prosecutor discontinued proceedings as there was no indication that a crime to the detriment of the cooperative’s members had been committed with reference to the transaction.
6. On 9 December 2013 the cooperative brought a claim against the applicant (relying on Articles 23 and 24 of the Civil Code), stating that his comments had violated its personal rights. It sought an apology and 10,000 Polish zlotys (PLN – 2,500 euros (EUR)) in damages.
7. On 30 October 2014 the Bielsko-Biała Regional Court ordered the applicant to pay the cooperative PLN 5,000 (approximately EUR 1,250) in compensation for non-pecuniary damage and PLN 1,227 (approx. EUR 300) in costs. He was also ordered to publish the following statement in the local press:
“With reference to the article of 24 October 2013 entitled ‘Good or Bad Business?’ I declare that I retract my negative opinion of the transaction conducted by the Beskidzka housing cooperative concerning the sale of the plot of land located on Goleszowska Street in Bielsko-Biała and my accusation concerning the establishment of a right of way over the land, which I referred to as ‘a gift to the developer.’”
8. The Regional Court noted in its reasoning that the facts of the case had been established on the basis of evidence (official and private documents and witness testimony), the veracity and credibility of which had not been questioned by the parties. In particular, it held as follows:
(i) Taking into account that the task of the cooperative was to act in the interests of its members, the applicant’s statements accusing the cooperative in B. of mismanagement and of taking decisions which had not been justified in financial terms and suggesting that the decisions had been a gift to the developer (a free donation) had violated the cooperative’s personal rights such as goodwill and reputation, which were inherent to an entity conducting business activities.
(ii) An analysis of the applicant’s statements in the light of the case-law of the European Court of Human Rights led to the conclusion that some of his statements had been value judgments and as such could not be verified according to the true or false test. However, a necessary condition for the admissibility of value judgments which violated the personal rights of others was the existence of a relationship between the statements and facts on the basis of which the statements were formulated. Facts which served as a basis for value judgments might be verified according to the true or false criteria. Value judgments not having any basis in fact and events which actually occurred could not be considered reliable and thus should be regarded as wrongful statements.
(iii) The applicant’s views “how could I possibly give a positive opinion about this transaction” and “to my mind it is a sort of a gift to the developer”, although in themselves value judgments, had been formulated on the basis of statements provided by him in the article (“the price of the sold land was almost two times lower than in the case of urban land”, “the Bielsko-Biała municipality sold a nearby plot of land with garages for PLN 259 per [square] metre”, “the cooperative obtained a price which would be adequate for nearby Pisarzowice or Janowice”, “these buildings already have a fire access road!”) which could be verified as true or false. However, the applicant had not provided any evidence to prove the veracity of these statements. In particular, he had failed to prove that the cooperative had sold a right of perpetual usufruct for a price too low or that the buildings forming part of it already had a fire access road. Moreover, his statements suggested untruth, that is that the cooperative had sold a property right and not a right of perpetual usufruct. The applicant had had an opportunity to show that the accusations he had made against the cooperative had been justified in the light of the facts, since at his request the cooperative had enabled him to examine the documentation concerning the transactions which he had questioned. Despite the lack of any evidence justifying his value judgments, the applicant had made a press statement accusing the cooperative of mismanagement. He had failed to act with the diligence required of a person taking part in a public debate, because, for example, he had not previously analysed transactions in the local real estate market similar to the one he had questioned.
(iv) The applicant, as a member of the cooperative, had the right to criticise its activities on the condition that the critique was reliable and based on facts; however, the critique of the cooperative’s actions made by the applicant in the press could not be considered reliable and diligent as it had had no factual basis. Moreover, taking into account that it had stemmed from the facts established by the court that the transaction criticised by the applicant had been a rational decision from a financial point of view, the incriminating statements had not served to protect the interests of the cooperative’s members.
While administering sanctions the court took into account the scale of the violation of the personal rights of the cooperative, the possible influence the statements might have had on its activities and the applicant’s financial situation. In this connection, it held that the publication of a statement in a form demanded by the claimant in the newspaper that had published the incriminating statements of the applicant would be an adequate measure to eliminate the effects of the violation of the personal rights of the cooperative. It also held that the demand for compensation was justified as a matter of principle since the violation of personal rights had been an effect of the intentions of the applicant who, while having had the opportunity to verify his statements on the basis of the documentation which had been accessible to him, had formulated negative value judgments which could not be supported by the documentation concerning the cooperative’s activities. However, since the cooperative had failed to prove that the incriminating statements had had any influence on its proper functioning, the court awarded a much lower amount of compensation than requested by the claimant during the proceedings.
9. The applicant and the cooperative appealed. The applicant claimed that he had been acting in the public interest as a member of the cooperative and had only expressed value judgments concerning the transaction, which he had been entitled to do. He also claimed that the cooperative had failed to prove that his comments had had any influence on its functioning.
10. On 9 April 2015 the Katowice Court of Appeal dismissed both appeals. It held that the first-instance court had made an appropriate assessment of the evidence and had duly interpreted the relevant provisions of the law.
11. The applicant lodged a cassation appeal with the Supreme Court.
12. The Supreme Court refused to entertain the cassation appeal on 3 March 2016. On 22 April 2016 the Supreme Court’s decision was served on the applicant.
B. Relevant domestic law
13. Article 23 of the Civil Code contains a non-exhaustive list of personal rights (dobra osobiste). It 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.”
14. 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.
15. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. The relevant parts of the provision read:
“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
16. The applicant complained under Article 10 of the Convention that the judgments given in his case had violated his right to freedom of expression.
THE LAW
17. The applicant complained that his right to freedom of expression had been breached. 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...
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.”
18. The Court finds that domestic judgments given in the civil proceedings against the applicant interfered with his right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. The interference was prescribed by law, namely the relevant provisions of the Polish Civil Code, and pursued a legitimate aim, namely the protection of the reputation of others (the cooperative). It should be determined whether the interference complained of was necessary in a democratic society in order to achieve this legitimate aim (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 85).
19. The Court reiterates its well-established case-law that the adjective “necessary”, within the meaning of Article 10 § 2 implies the existence of 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 a European supervision embracing both the law and the decisions applying it, even those given by an independent court. 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.
20. The Court’s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation (see News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 52, ECHR 2000‑I).
21. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against an applicant and the context in which they were made. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004‑VI).
22. In the present case, the Court notes that the applicant formulated in an article published in the local press a series of critical statements concerning the housing cooperative in B. Among other things, the applicant questioned the commercial transactions entered into by the cooperative and accused it of mismanagement and acting to the detriment of its members. In view of the above, the Court accepts that the applicant’s criticism in the impugned article may be regarded as imparting ideas in order to contribute to a debate on a matter of legitimate interest important for the local community (see Fressoz and Roire v. France [GC], no. 29183/95, § 50, ECHR 1999‑I).
23. This being so, the Court reiterates that, under its case-law, any individual who takes part in a public debate of general concern – like the applicant in the instant case – must not overstep certain limits, particularly with regard to respect for the reputation and rights of others (see Kurłowicz v. Poland, no. 41029/06, § 46, 22 June 2010).
24. In the present case, the domestic courts held that the applicant’s statements published in the local press had violated the reputation and goodwill of the claimant. Taking into the account the criteria in the Court’s case-law with respect to Article 10 of the Convention, the domestic courts noted that although some of the applicant’s utterances had been of a value judgment nature, they had had no basis in facts and events that occurred. In particular, the domestic courts found that the incriminating utterances did not constitute reliable criticism, since the accusations made by the applicant against the cooperative had had no basis in the documentation concerning the transactions entered into by the cooperative which was accessible to him. According to the courts, the applicant had in no way verified the factual assumptions on which he had based his critical utterances concerning the activities of the cooperative and had consequently not shown the diligence required of a person taking part in a public debate.
25. The Court reiterates that it has consistently held that in assessing whether there was a “pressing social need” capable of justifying interference with the exercise of freedom of expression, a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof (see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports of Judgments and Decisions 1997‑I, and Harlanova v. Latvia (dec.), no. 57313/00, 3 April 2003).
26. Admittedly, where allegations are made about the conduct of a third party, it may sometimes be difficult to distinguish between assertions of fact and value judgments. Nevertheless, even a value judgment may be excessive if it has no factual basis to support it (see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II).
27. In the instant case, the Court concurs with the domestic courts as to the nature of the applicant’s incriminating statements. Just like the domestic courts, it notes that the applicant’s allegations – of themselves value judgments – were formulated on the basis of factual statements which he brought up in the press publication. However, he failed to provide any evidence to support the veracity of the factual statements on the basis of which he formulated his value judgments concerning the activities of the cooperative. Moreover, the domestic courts held that, in the light of the cooperative’s documentation, which was accessible to the applicant, some of the statements were untrue. The Court also notes that the proceedings concerning the alleged violations as regards the cooperative’s activities which the applicant applied to have instituted were discontinued by the domestic authorities for lack of evidence of a crime.
28. Having regard to the above, the Court concurs with the conclusions of the domestic courts that the applicant failed to prove in any way that the incriminating allegations were supported by any factual basis. The Court sees no reason to depart from the findings of the domestic courts in the present case. The Court admits that the incriminating utterances might have had a negative influence on the reputation of the cooperative, which is a commercial entity. The applicant failed to prove that his negative opinion about its activities made in the press was justified in the light of the facts of the case and that he acted with the diligence required of a person taking part in a public debate, that is to say he undertook actions aimed at verifying the facts serving as a basis for his opinion (see Alves Costa v. Portugal (dec.), no. 65297/01, 25 March 2004).
29. Lastly, the Court reiterates that while assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account (see Ceylan v. Turkey [GC], no. 23556/94, § 49, and Cumpana and Mazare, cited above, §§ 111-124). In this connection, the Court notes that as a result of the proceedings before the domestic courts the applicant was ordered to publish a statement in a local newspaper retracting his negative opinion concerning the transaction entered into by the cooperative and his accusation concerning the establishment of a right of way, and pay compensation in the amount of EUR 1,250 and the costs of the proceedings. The Court notes that the aim of the measures imposed by the domestic courts was to undo the effects of the violation of the right to reputation of the claimant, and that the amount of compensation was decided in accordance with the scale of the violation of that right, as well as the financial means of the applicant. In this regard, the Court considers that the penalty imposed on the applicant cannot be considered excessive.
30. In the light of the foregoing, the Court considers that the reasons advanced by the domestic courts in support of their decisions were relevant and sufficient and that the interference was not disproportionate to the legitimate aim pursued, namely the protection of reputation of others. Therefore, the interference with the applicant’s freedom of expression was “necessary in a democratic society”.
31. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 October 2018.
Renata DegenerAleš Pejchal
Deputy RegistrarPresident
Full & Egal Universal Law Academy