FIRST SECTION
DECISION
Application no. 67068/10
Mirosław GARLICKI
against Poland
The European Court of Human Rights (First Section), sitting on 14 May 2019 as a Committee composed of:
Armen Harutyunyan, President,
Krzysztof Wojtyczek,
Pere Pastor Vilanova, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 10 October 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mirosław Garlicki, is a Polish national who was born in 1960 and lives in Cracow. He was represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, 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. Background information
3. The applicant was a renowned cardiac surgeon. On 12 February 2007 he was arrested at a workplace by officers of the Central Anti-corruption Bureau. At the relevant time he was the Director of the Cardiac Surgery Clinic in the Ministry of Internal Affairs and Administration Hospital in Warsaw. The applicant was charged with numerous offences, including taking bribes from patients. The applicant’s case attracted widespread media coverage.
4. The complaints relating, inter alia, to the applicant’s arrest and the alleged breach of his right to be presumed innocent were examined by the Court in its judgment concerning the applicant’s first case (Mirosław Garlicki v. Poland, no. 36921/07, 14 June 2011).
2. Civil proceedings against journalists
5. On 15 February 2007 an Internet portal, D, published an article “Doctor Death in government hospital” written by A.R., a journalist.
6. On 16 February 2007 the same portal published an article “Cardiac surgeon without a heart” authored by J.J., another journalist. Two other articles about the applicant written by the same journalist were published on 26 August and 31 December 2008.
7. On 10 February 2010 the applicant lodged an application for protection of his personal rights with the Warsaw Regional Court against the journalists. He sought an order requiring the defendants to publish an apology and, in respect of J.J., compensation. The applicant referred to articles authored by the defendants, which had included untrue information about him and statements implying that he had committed criminal offences. The publication of those articles had amounted, in his view, to an infringement of his reputation and good name.
8. In his statement of claim the applicant included the address of the Internet portal where the journalists were working.
9. By an order of 22 February 2010, a judge instructed the applicant’s lawyer to provide the court with the addresses (adres zamieszkania) of the defendants within seven days.
10. On 3 March 2010 the applicant’s lawyer asked the Minister of Internal Affairs to provide him with the addresses of the defendants.
11. On 8 March 2010 the applicant’s lawyer applied to the court for an extension of the time-limit to thirty days, arguing that it was not possible to comply with the order before the original deadline. He also informed the court that he had submitted a request to the Minister of Internal Affairs and Administration. However, there was a four-week period for examination of such requests.
12. By an order of 22 March 2010, the President of the Third Civil Division of the Warsaw Regional Court returned the applicant’s statement of claim. She noted that the applicant’s lawyer had failed to comply with the order of 22 February 2010 and that the court could not extend the statutory time‑limit of seven days.
13. The applicant appealed and requested that the orders returning his statement of claim be set aside. He argued that it was sufficient to indicate in his statement of claim the address of the Internet portal where the defendants had been working and had published their articles, since he had had difficulties in establishing their home addresses. Providing the address of the employer would enable the court to serve the pleadings on the defendants; however the Regional Court had not made use of this possibility and accordingly its decision to return the statement of claim had been in breach of Article 130 § 1 of the Code of Civil Procedure.
14. In his supplementary pleadings, the applicant submitted that the order to return his statement of claim had been also in breach of Article 6 § 1 of the Convention. He noted that when he had lodged his claim he had had no possibility to establish the registered address (adres zameldowania) of the defendants because of the Data Protection Act. No authority would have provided the applicant with such address without a prior court order. In addition, it had been impossible to establish the defendants’ registered addresses within seven days of the court order. The applicant maintained that the order to return his statement of claim had resulted in him being deprived of the possibility to seek damages from the defendants, owing to the expiration of the limitation period.
15. On 14 April 2010 the Ministry requested that the applicant’s lawyer produce a power of attorney given by the applicant. The applicant was informed that a failure to comply with the above request would result in his application being rejected.
16. On 29 July 2010 the Warsaw Court of Appeal dismissed an interlocutory appeal on the part of the applicant. It noted that the requirement under Article 126 § 2 of the Code of Civil Procedure (“the CCP”) to specify in an initial application the place of residence (miejsce zamieszkania) of a defendant, obliged a claimant to indicate not only a municipality where that person resided, but his or her precise address. A statement of claim had to be directed against a specific person, with his or her name and his or her place of residence indicated, and not just the address of an employer. Accordingly, the Regional Court could not be faulted for having failed to serve the statement of claim at the defendants’ employer’s address.
17. The court underlined that the defendants were journalists. It was a specific characteristic of this profession that journalists very often worked for different media outlets but did not have an employment contract with a specific newspaper, television station or Internet portal. Therefore, it could not be assumed that D was the defendant’s employer.
18. The court further noted that, despite the appellant’s arguments to the contrary, there had been no insurmountable obstacles to obtaining the defendants’ addresses. The relevant department of the Ministry of Internal Affairs and Administration provided such information at the request of persons who had a legal interest in having access to such data. It was acknowledged that a person seeking judicial protection of his or her personal rights had such a legal interest.
19. After the Court of Appeal’s decision, the applicant did not continue the proceedings before the Minister of Internal Affairs since his claim for protection of personal rights had become time-barred.
B. Relevant domestic law and practice
1. Civil Code
20. Article 25 of the Civil Code provides:
“The place of residence of a natural person shall be the town where that person stays with the intention of remaining permanently.”
21. Article 4421 of the Civil Code sets out limitation periods for civil claims based on tort, including claims under Article 23 read in conjunction with Articles 24 and 448 of the Civil Code. This provision, in the version applicable as from 10 August 2007, reads, in so far as relevant, as follows:
“1. A claim for compensation for damage caused by a tort shall lapse ... three years after the date on which the claimant learned of the damage and of the person liable for it. However, this time-limit may not be longer than ten years following the date on which the event causing the damage occurred.”
2. Code of Civil Procedure
22. Article 126 of the Code of Civil Procedure specifies what information should be contained in pleadings. Paragraph 2 provides, in particular, that the first pleadings submitted to a court should indicate the parties’ place of residence (miejsce zamieszkania) or their seat.
23. Article 130 § 1 of the CCP specifies that if pleadings cannot be processed owing to non-compliance with formal requirements, a judge must order a party to rectify or supplement the pleadings within a one-week deadline. According to Article 130 § 2 of the CCP, a judge will return the pleadings to the party if the shortcoming was not rectified within the one‑week deadline.
24. Article 135 § 1 of the CCP provides as follows:
“Service may be effected at home, at work or where an addressee is found.”
3. Case-law of the Supreme Court
25. In its resolution no. III CZP 43/14 of 17 July 2014, the Supreme Court dealt with the following legal question submitted to it by the Białystok Court of Appeal:
“Does the plaintiff’s non-indication in a statement of claim of a place of residence of a defendant, who is a natural person – while indicating the place of his employment in the manner allowing the service of pleadings – constitute a formal shortcoming of the statement of claim justifying an order to return it?”
26. The Supreme Court adopted the following resolution:
“The plaintiff’s non-indication in a statement of claim of a place and address of residence of a defendant, who is a natural person, is a formal shortcoming of the statement of claim preventing its proper examination”.
4. The Press Act
27. Section 38(1) of the Press Act provides that an author, editor or other person responsible for the publication of press material may be held civilly liable for a breach of the law caused by a publication of the press material. It further specifies that their liability does not exclude the publisher’s liability.
COMPLAINT
28. The applicant complained under Article 6 § 1 of the Convention that his right of access to a court had been violated.
THE LAW
29. The applicant complained of a breach of his right of access to a court. Article 6 § 1 provides, in so far as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. The parties’ submissions
1. The Government
30. The Government firstly argued that the applicant had not exhausted domestic remedies. He should have lodged a constitutional complaint, alleging unconstitutionality of the relevant provisions of the Code of Civil Procedure. A constitutional complaint would have been an effective remedy in the applicant’s case, having regard to the criteria set out in the Court’s case-law (see Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003).
31. Secondly, the Government argued that the refusal to entertain the applicant’s claims had not amounted to a violation of Article 6 § 1. They submitted that formal requirements of pleadings set out in Article 126 of the CCP guaranteed the correct conduct of a hearing. In accordance with Article 126 § 2 of the CCP a plaintiff was obliged to provide the place of residence of the defendant so that the latter could be summonsed.
32. Alternative possibilities of serving pleadings, envisaged in Article 135 § 1 of the CCP, did not exempt a plaintiff from his or her obligation to indicate in a statement of claim the defendant’s place of residence (address). The applicant’s situation was not comparable to that in the case Nowiński v. Poland, where the plaintiff had not indicated to the court his place of residence since he had had no permanent place of residence. A seven-day period set out in Article 130 § 1 of the CCP had not been an obstacle to obtaining the relevant data after the deadline. In the event of the court returning the applicant’s claim, the applicant retained the right to sue again.
33. The argument concerning the limitation period had not been properly raised by the applicant. Under Article 442 § 1 of the Civil Code limitation period for tortious claims, in general, should expire after the expiration of a three-year period from the day on which the claimant learned of the damage and of a person liable for it. Within that time-limit, a plaintiff should obtain the place of residence of the defendants. Secondly, an objection on the grounds of limitation period had to be raised by the defendant. In assessing that objection, the court should take into account the principles of equality set out in Article 5 of the Civil Code.
34. The Government argued that the procedure via the Minister of Internal Affairs with a view to obtaining defendants’ addresses was effective.
2. The applicant
35. The applicant maintained that a constitutional complaint could not be regarded as an effective remedy in the circumstances of his case.
36. The applicant maintained that court had failed to serve his statement of claim at the address of the Internet portal where the journalists usually published their articles. This had been possible under Article 135 § 1 of the CCP. Journalists were protected from litigation unless the court served a statement of claim at the address of a publisher. As a result of the court’s failure to serve his statement of claim, the applicant had been deprived of a possibility to protect his personal rights. Following the Court of Appeal’s decision of 29 July 2010 the applicant’s claims had become time-barred.
37. The applicant argued that the Regional Court had imposed on him an impossible obligation to provide the home addresses of the journalists within seven days. In order to obtain information about an address from the Minister it was necessary to provide it with further details concerning a person (date and place of birth, names of parents, and so forth). Such requests were usually examined within a four-week period. The Minister provided information about a person’s registered address. In practice, many people did not reside at their registered addresses.
38. The applicant further submitted that the first-instance court had not assisted him in obtaining the defendant’s address by requesting it from the Minister. The court had also had a possibility of staying the proceedings under Article 177 § 1(6) of the CCP until the issue of the defendant’s address had been resolved.
B. The Court’s assessment
39. The Court does not find it necessary to determine whether the applicant has complied with the rule of exhaustion of domestic remedies as the application is, in any event, inadmissible for the reasons set out below.
40. The Court reiterates that the right of access to a court secured by Article 6 § 1 is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, which may vary in time and in place according to the needs and resources of the community and of individuals. In laying down such regulations, the Contracting States enjoy a certain margin of appreciation, but the final decision as to observance of the Convention’s requirements rests with the Court. Limitations on the right to a court are compatible with Article 6 only if they do not restrict or reduce the access left to the litigant in such a way or to such an extent that the very essence of the right is impaired. Moreover, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among many others, Nowiński v. Poland, no. 25924/06, § 31, 20 October 2009; and Zubac v. Croatia [GC], no. 40160/12, § 78, 5 April 2018).
41. Furthermore, it is not the Court’s task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 33, Reports of Judgments and Decisions 1998-I). This applies in particular to the interpretation by courts of rules of a procedural nature (see, among other authorities, Bělěs and Others v. the Czech Republic, no. 47273/99, §§ 51, 60, ECHR 2002-IX).
42. In the present case, the applicant brought two civil cases for the protection of his personal rights against the journalists who had published articles on an Internet portal. The court ordered the applicant to provide it with the home addresses of the journalists. The applicant, in his subsequent pleadings, referred to the practical difficulties in obtaining their addresses and argued that the provision of the defendants’ work address would be sufficient for the service of documents. Ultimately, the applicant’s statement of claim was returned since he had not provided the home addresses. It has to be noted that under the Polish law the fact that the court returned the applicant’s statement of claim did not prevent him from lodging a fresh statement of claim after obtaining the address of the respondent journalists from the Minister of Internal Affairs.
43. The Court has already determined that in Polish law there was a procedure in order to obtain the registered address of any person living in Poland. Everyone who has demonstrated his or her legal interest (for instance by providing a copy of a court order to communicate the address of a defendant) may ask the Minister of Internal Affairs to communicate to him or her the registered address of a specific person. This remedy is the usual way used by plaintiffs in Poland to comply with the requirement to communicate the address of a defendant to a court (see R.A. v. Poland (dec.), no. 60606/11, 10 June 2014, § 29). The Court of Appeal took the same position in the applicant’s case (see paragraph 18 above).
44. In the instant case, the applicant initiated the procedure before the Minister of Internal Affairs (see paragraph 10 above). However, it appears that he failed to respond to the Minister’s request to produce a power of attorney given in the administrative proceedings (see paragraph 15 above). In any event, the applicant admitted that he had not pursued the procedure before the Minister following the Court of Appeal’s decision rejecting his interlocutory appeal.
45. The applicant submitted some arguments about the alleged difficulties facing a person seeking registered addresses in this procedure, for example the need to provide personal details of the defendant, such as his or her date and place of birth (see paragraph 37 above). The Court is aware that the requirement to provide the domestic court with a defendant’s private address might in certain circumstances be difficult to comply with for the claimant and therefore amount to an obstacle in bringing a civil claim before the courts. However, in the present case the applicant has not demonstrated in concrete terms that any of the alleged difficulties had prevented him from obtaining the defendant’s address in the procedure before the Minister or that the said procedure was bound to be ineffective.
46. Furthermore, the Court notes that the articles which allegedly gave rise to a breach of the applicant’s personal rights were published on 15 and 16 February 2007, while the applicant lodged his civil claims on 10 February 2010 (see paragraph 7 above). In consequence, and as admitted by the applicant, his claims became time-barred. The applicant did not specify why he had not taken any earlier steps to seek protection of his personal rights. In addition, the Court notes that under the Press Act, the applicant could sue not only an author of the publication, but also the editor or another person responsible for the publication, as well as the publisher (see paragraph 27 above).
47. In these circumstances, the Court cannot accept that the very essence of the applicant’s right of access to a court in respect of his claims for the protection of his personal rights was impaired in a way that can be said to be incompatible with the requirements of Article 6 § 1 of the Convention.
48. 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 6 June 2019.
Renata DegenerArmen Harutyunyan
Deputy RegistrarPresident
Full & Egal Universal Law Academy