AS TO THE ADMISSIBILITY OF
Application no. 74232/01
by Antoni WEIGT
The European Court of Human Rights (Fourth Section), sitting on 11 October 2005 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Mr J. Borrego Borrego,
Ms L. Mijović, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 8 June 2001,
Having deliberated, decides as follows:
The applicant, Antoni Weigt, is a Polish national who was born in 1942 and lives in Prudnik. He was represented before the Court by Mr T. Weigt, a lawyer practising in Bolesławiec.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the material time the applicant was an editor-in-chief of a local weekly “Tygodnik Prudnicki”.
Apparently, on an unspecified date a municipal authority allocated certain municipal apartment to one of the local councillors, which caused widespread indignation in the local community.
On 25 June 1995 the weekly published an article in which the applicant reported on a conflict between J.C., one of the local councillors, and the director of the local social assistance centre. The article contained a statement that “J.C. had instigated four or five supervision procedures in respect of the centre” and that his activities concerning the centre had been aimed at “delaying a public explanation of the conflict [between J.C. and the director of the centre] to the constituency”.
On 27 August 1995 the weekly published an article entitled “Turning Things On Their Head” (“Odwracanie kota ogonem”) in which certain disagreements between J.C. and the director of the centre as to the policy which should be followed by that centre were described.
On 17 September 1995 the weekly published another article, reporting on a session of the Prudnik Municipal Council, during which a motion to remove J.C. from his post of a member of the municipal executive board had been discussed. The article quoted certain arguments advanced by the councillors during the debate, referring to the lawfulness of the procedure and to various local controversies as they found their expression during the debates. It also summarised J. C.’s statements in the following way:
“Consistent” J.C. once again presented his arguments. (...) He reiterated his objections concerning the Social Assistance Centre, threw in, for good measure, “a municipal apartment for one councillor”, [an issue of] premises for the “Tygodnik Prudnicki” – which he branded a “gang”. Many supervision procedures found his complaints about the Centre groundless, and [the question of the apartment and the premises] he had invented himself! Nothing like that had ever occurred. ”
Another article on local politics, entitled “What’s up”, was published on 24 September 1995. In this article its author reported on the last meeting of the local municipal council and also purported to explain to the reader the subtleties of the local politics and personal conflicts behind them.
Following these publications J.C. lodged a private bill of indictment with the Nysa District Court, charging the applicant with defamation in that he had published four articles blackening the plaintiff’s reputation.
In a judgment of 16 October 1997 that court found that the applicant had committed a criminal offence of defamation punishable under Article 178 § 2 of the Criminal Code of 1969 and conditionally discontinued the proceedings, fixing a probation period of one year. It also obliged the applicant to apologise to the plaintiff in writing.
The operative part of the judgment read as follows:
“Having regard to the fact that the publication in September 1995 in issues Nos. 38 and 39 of Tygodnik Prudnicki, a weekly of which [A.W.] was an editor, of articles “A. against J.C.” and “What’s up” containing untrue information that J.C., who in the present case acted as a private prosecutor, had invented the issue of the [municipal] apartment and that he had ‘himself acknowledged that he had overstepped the limits of his competence by conducting many investigations on behalf of the Municipal Board, but without a relevant authorisation’ amounted to making public such allegations about the plaintiff’s conduct as could expose him to a risk of losing the public trust necessary for him to carry out his public function, amounted to a criminal offence provided for by Article 178 § 1 of the Criminal Code
discontinues the criminal proceedings against the accused and sets the period of probation for one year.”
The court observed that the applicant had published in the weekly a number of articles on local politics. They were aggressive towards J. C. and had shown him in a bad light. It was suggested that he had a tendency to fantasise and to overstep the limits of his competence. It was also implied that he was vexatious and unreliable and had abused his powers. The texts and the charges contained therein could therefore expose J.C. to the risk of lowering him in public opinion.
The court referred to the sub-titles of the text published on 17 September 1995, which had read as follows: “Mr C. forgot!”, “Personal ambitions are at play here”, “Detrimental to the interests of the municipality”, “He invented it himself!”. The court observed that these sub-titles well conveyed the essence of the author’s hostility towards J.C.
The court noted that the article had made reference to some municipal apartment. It further noted that it was aware of the fact that a municipal apartment had in the past been assigned to one of the local politicians, a fact which created an uproar in Prudnik. The applicant had undoubtedly taken a certain shortcut when saying in the article of 17 September:
“[the question of the apartment and premises] he had invented himself! Nothing like that had ever occurred. ”
In this connection, the court referred to numerous pieces of evidence referring to the public debate concerning that apartment and concluded that in the light of this evidence the suggestion that J.C. had invented the whole story of the apartment was clearly erroneous.
The court further observed that subsequently, on 24 September 1995, the weekly had published an article entitled “What’s up”, purported to explain to the reader the subtleties of the local politics. The article had contained the following statement on J.C:
“He had himself admitted that he had overstepped his powers, having conducted many investigations on behalf of the municipal authorities, but without any relevant authorisation”.
The court observed that J.C. had never admitted that he had been conducting any such investigations which could be established, for example, from the minutes of the session of the municipal council held on 7 September 1995. Hence, the reference to both the alleged non-authorised investigations and to the admission that he had allegedly overstepped his powers was clearly untrue. Having regard thereto, the court considered that the applicant had failed to observe his fundamental obligation as a journalist, in particular in that he had failed to check the veracity of information he had published. In the proceedings before the court he was unable to refer to any source on which he had based his pertinent statements. It was open to him to consult the detailed records of the sessions of the local council, which he had failed to do.
In the absence of convincing evidence to support the applicant’s allegations and innuendos, the court concluded that when publishing the first two articles he had published untrue information, which amounted to a criminal offence of defamation punishable under Article 178 of the Criminal Code.
Referring to the conditional discontinuation of criminal proceedings, the court observed that the offence was not dangerous and that the applicant did not have any criminal record.
The applicant appealed, submitting, inter alia, that the judgment amounted to a breach of his freedom of expression.
On 30 January 1998 the Opole Regional Court dismissed his appeal, considering that the assessment of the evidence by the lower court was not arbitrary. It observed that the applicant had failed to show that he had any factual basis for his allegations when publishing the articles. No evidence had been submitted to the court to show that J.C. had indeed admitted that he had overstepped the limits of his competence, as the applicant implied in the first article. Nor was it true that J.C. had invented the issue of the municipal apartment having been assigned to one local politician. The published statements being untrue, they amounted to defamation.
The court also noted that under the case-law of the European Court of Human Rights freedom of expression covered the transmission of information but not of misinformation; conveying facts, not mendacious innuendos. Lastly, the court observed that the appeal referred to the applicant’s notes prepared for the purpose of writing the articles, but that the case was limited to the examination of the texts as they were eventually published, i.e to the untrue and laconic phrases used in the articles.
On 23 November 2000 the Supreme Court, in a decision to which under applicable provisions of law no written grounds were prepared, dismissed the cassation appeal as manifestly ill-founded.
B. Relevant domestic law
1. Offence of defamation or libel of a public agent
Under Article 178 § 2 of the Criminal Code of 1969, applicable at the material time, whoever disseminated untrue statements about another person’s acts or character with an intention of lowering him or her in public esteem or of making him or her lose the public trust necessary for that person to carry out his or her public functions, committed a criminal offence punishable by a prison sentence of up to three years.
2. Conditional discontinuation of criminal proceedings
Pursuant to Article 27 of the Code of Criminal Procedure of 1969, criminal proceedings could be conditionally discontinued, if the seriousness of the offence, punishable by a prison sentence of less than three years, was not significant, if the circumstances in which it had been committed had been established, if the perpetrator did not have a criminal record and if his personal circumstances and qualities justified a conclusion that he would respect the legal order during the probation period.
Under Article 28, the court, when deciding to discontinue the proceedings for the probation period, could impose certain obligations on the accused: to pay appropriate compensation to the victim of the offence, to apologise to him/her, or to carry out certain work in the public interest.
Under Article 29 of the Code, the court could fix a probation period of between one and two years, running from the date on which the judgment became final.
Criminal proceedings could be resumed if during the probation period the offender disregarded the obligations imposed by the court, acted in flagrant breach of public order, or, in particular, committed a new criminal offence.
The applicant complained under Article 10 of the Convention that his criminal conviction amounted to a breach of his right to freedom of expression.
The applicant complained under Article 10 of the Convention that his criminal conviction amounted to a breach of his right to freedom of expression. Article 10 reads:
“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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.”
a) The Court must first determine whether the applicant can claim to be a victim of a breach of the Convention, given that no final judgment of a criminal court convicting and imposing a sentence on him was given in his case.
Pursuant to the Court’s case-law, an applicant who has complained of violations of the procedural guarantees of Article 6 of the Convention in criminal proceedings against him can no longer claim to be a victim if, at the end of the proceedings, he is acquitted. In such cases the alleged violations of Article 6 is rectified by the acquittal (V.Q. v. Italy, no. 44994/98, Dec. 14 March 2002). Further, in order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see, for example, the Buckley v. the United Kingdom judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1288, §§ 56-59).
In the applicant’s case the courts conditionally discontinued the proceedings against him, and fixed the period of probation at one year. Although no sentence was imposed on him, such a decision, under the provisions of Polish law applicable at the relevant time, could only be given in cases in which it was not open to doubt that a criminal offence had been committed and the circumstances of its commission had been established. Moreover, it remained open for the courts to resume the proceedings at any time during the probation period if the applicant committed a new offence. Consequently, even though the court did not rule on the sentence to be imposed on him, the applicant was sufficiently directly affected by the judgments complained of to consider that he could claim to be a victim of a breach of the Convention (Sassyn v. Poland, no. 58625/00, dec. 22.10.2002).
b) The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and the safeguards to be afforded to the press are of particular importance. Whilst the press must not overstep the bounds set, inter alia, in the interest of "the protection of the reputation or rights of others", it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog" (see, for instance, the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, pp. 29-30, § 59).
According to the Court’s well-established case-law, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate of questions of public interest (see, mutatis mutandis, among many other authorities, Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42, and Sokolowski v. Poland, no. 75955/01, 29 March 2005, § 41).
However, Article 10 of the Convention does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it “duties and responsibilities”, which also apply to the press. These “duties and responsibilities” are liable to assume significance when, as in the present case, there is a question of attacking the reputation of private individuals and undermining the “rights of others”. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see the Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports of Judgments and Decisions 1996-II, p. 500, § 39, and Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I).
In its practice, the Court has distinguished between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see Jerusalem v. Austria, no. 26958/95, § 42, ECHR 2001-II).
The Court first observes that the judgments complained of constituted an interference with the applicant’s freedom of expression in that the courts stated that his acts had amounted to a criminal offence, and ordered him to pay the court fee and to apologise to J.C. in writing.
The courts gave these judgments on the basis of Article 178 § 2 of the Criminal Code of 1969. The interference complained of was therefore “prescribed by law” within the meaning of paragraph 2 of Article 10 of the Convention.
The Court further observes that the judgments complained of served the legitimate interest of the “protection of the reputation of others”.
As to whether the interference was “necessary in a democratic society, the Court recalls that the test of “necessity in a democratic society” requires it to determine whether the interference complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III, and Cumpana and Mazare v. Romania [GC], judgment of 17 December 2004, no. 33348/95, § 88).
In this connection, the Court notes that the first instance court, in its judgment of 16 October 1997, observed that impugned articles “contained untrue information”. Hence, the conviction complained of in the present case concerned the statements of fact contained in those articles. The first-instance courts, having regard to the evidence before it, considered that these statements were false.
The Court further observes that the applicant was not convicted for a public expression of value judgments which are not susceptible of proof. The Court notes that the first-instance court observed that in the proceedings before that court the applicant had been unable to refer to any source on which he had based his statements. The first-instance court emphasised that it was open to him to consult the detailed records of the sessions of the local council, which he had failed to do. The Court considers that the responsibility of a journalist publishing statements of fact for ensuring that such statements are correct goes further than in the case of value judgments. The domestic courts considered that the applicant had failed to observe his fundamental obligation as a journalist in that he had failed to check the veracity of information he had published. In the light of the circumstances of the case and having regard in particular to the reasoning of these courts, the Court finds that the applicant cannot be said to have discharged this obligation.
In the Court’s opinion, restrictions on the exercise of the right to freedom of expression by way of a judicial decision insofar as this decision has been based on a thorough assessment of the evidence which led the court to a conclusion that the information published was simply untrue, cannot, as such, be said to be in breach of this freedom.
Further, as regards the requirement of necessity, and in particular as regards the question of proportionality, the Court recalls that in 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, ECHR 1999-IV; Skalka v. Poland, no. 43425/98, 27 May 2003). In this connection, the Court notes that as the proceedings were conditionally discontinued, no penalties normally involved in criminal cases were imposed on the applicant at all; he was only obliged to apologise to J. C. in writing. No obligation to publish these apologies was imposed by the courts. Moreover, the probation period was only for a period of one year.
Having regard to the circumstances of the case as a whole, the interference complained of can be said to be proportionate to the legitimate aim served and to be necessary in a democratic society.
It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’Boyle Nicolas Bratza
WEIGT v. POLAND DECISION
WEIGT v. POLAND DECISION