FOURTH SECTION
Applications nos. 30346/11 and 60551/11
Robert KISIEL against Poland
and Ewelina ŚWIĘCH against Poland
lodged on 10 May 2011 and 15 September 2011 respectively
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Robert Kisiel, is a Polish national, who was born in 1968 and lives in Brzezówka. The second applicant, Ms Ewelina Święch, was born in 1978 and lives in Będziemyśl.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant is a journalist of a local newspaper “Głos Powiatu”, published in Ropczyce. The second applicant is the newspaper’s editor-in-chief.
On 3 December 2008 the newspaper published the first applicant’s article entitled “Slave Traders” (Handlarze niewolników). The article informed the public about a criminal case concerning charges related to a large-scale human trafficking scheme carried out by way of recruiting employees for work abroad under false pretences as to the conditions and wages with a view to making them perform forced labour once transported to Italy. That case was at the time pending before the Kraków Regional Court.
One of the accused, Ł.Z., brought before the Rzeszów Regional Court a civil action against the applicant and the newspaper’s editor-in-chief, E.S., for the protection of his personal rights within the meaning of Articles 24 and 25 of the Civil Code. He submitted that the article had breached his rights in that his full name and place of residence had been given and that it had contained untrue information which had not been based on charges brought against him before the criminal court. He requested the court to make an award of compensation in the amount of PLN 30,000 and to order the applicants to publish his apologies in the same newspaper for “having published untrue and disparaging information in the article “Slave Traders””.
On 12 May 2010 the Rzeszów Regional Court dismissed the claim. It found that a criminal case against the plaintiff was at that time pending before the Kraków Regional Court. He had been charged, together with other persons, with establishing and participating in an organised criminal group making profit from criminal activity. This activity consisted in trafficking in human beings. The defendants were also charged with multiple counts of forgery of the documents, fraud committed to the detriment of persons employed under false pretences as to conditions of their future work and wages, transporting them to Italy and transferring them to various persons with a view to making them carry out forced labour in forced work colonies, theft of passports and ID cards and with fraud committed against the employees to the amount of PLN 622,483. The indictment had been published by the prosecuting authorities on their Internet site, including the defendant’s full name and place of residence. The same information had been included in the European Arrest Warrant published by the police. Hence, the plaintiff’s name had already been in the public domain. Consequently, it could not be held against the applicant that they had disclosed his name and place of residence.
The court further found that the impugned article referred to the plaintiff as a gang leader of contemporary slave traders (“herszt bandy współczesnych handlarzy niewolników”). It included accurate information about the charges set out in the bill of indictment against him. However, the article had also implied that the prosecuting authorities “did not rule out that charges of murder and rape would be brought” against the plaintiff and other defendants in the criminal case. This did not reflect the subject matter of the criminal case pending before the Kraków Regional Court.
The court was of the view that the applicants had failed to show journalistic responsibility and professionalism. The title of the article was unduly sensationalist. The same applied to the reference to the plaintiff as a “gang leader of contemporary slave traders”. Hence, his personal rights had been breached. However, there were no grounds on which to allow his compensation claim and the claim for the publication of apologies, given that the article for the most part relayed true information based on publicly available information generated by the police and prosecuting authorities and also because in his statement of claim the plaintiff had failed to make a specific claim as to the actual content of the apologies to be published.
The plaintiff appealed.
On 17 March 2011 the Rzeszów Court of Appeal amended the contested judgment in that it ordered the applicants to pay, jointly, PLN 30,000 to the defendant. It further ordered them to pay PLN 3,768 in various court costs and legal fees.
The court noted and shared the assessment made by the lower court that the plaintiff’s personal rights had been breached by the impugned article. It acknowledged that information published by the applicants had in part originated from the publicly available bill of indictment prepared by the Kraków Regional Prosecutor. However, the applicants had indicated in the impugned article the plaintiff’s place of residence and suggested that he had also committed serious crimes of murder and rape. The court further noted:
“They had also stated, without there being any factual basis for it, that the defendant had been involved in the slave trade”.
The fact that the applicants had relayed in the impugned article information found on the Internet and articles published by other newspapers did not exempt them from their professional obligations to inform the public accurately.
The Court of Appeal shared the conclusion of the lower court that there were no grounds on which to impose on the applicants an obligation to publicly apologise for the article as information therein had in part been true. Public apologies should correspond to the facts of the case and could only relate to information found to be in breach of the plaintiff’s personal rights, not to the article as a whole. The declaration of apology demanded by the plaintiff was not specific enough as it implied that the article seen as a whole amounted to a breach of his personal rights.
The appellate court was of the view that in the circumstances of the case it was justified to impose on the applicants an obligation to pay compensation to the plaintiff. It ordered them to pay, jointly, PLN 30,000 as an amount adequate in the circumstances of the case.
The criminal case concerning the charges against the defendant is still pending before the domestic courts. 180 hearings had been held in this case prior to September 2011.
COMPLAINTS
The applicants complain under Article 10 of the Convention that the judgments of the civil court given in their case amounted to a breach of their freedom of expression.
The applicants complain, relying on Article 6 of the Convention, that the courts erred in the assessment of the evidence and that they found against them on an insufficient basis.
QUESTION
Has there been a violation of the applicants’ right to freedom of expression contrary to Article 10 of the Convention?
Full & Egal Universal Law Academy