Communicated on 10 September 2019
Application no. 46296/17
lodged on 21 June 2017
STATEMENT OF FACTS
The applicant, Mr Daniel Stołowski, is a Polish national who was born in 1976 and lives in Przemyśl.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a journalist and editor of a local Przemyśl newspaper, the PrzemyskiTelegraf.
In August 2014 he published, both in a paper and an online edition thereof, an article headlined “C’s deal with R” (Układ C z R). The article concerned a supposed corruption deal between a local private company R, which made window frames, and the town’s mayor R.C. The company belonged to a certain A.P., privately the mayor’s friend. A.P. was also a director of R’s management board. The applicant recounted that R had allowed the mayor to use its advertisement boards free of charge in his election campaign, that its employees had put up the mayor’s election posters and that it had employed an image/PR expert for the mayor during the campaign. He suggested that these actions had reflected an illegal financing of R.C.’s electoral campaign and that R had provided material benefits to R.C.’s electoral committee. The journalist also stated that more than 80% of window frames installed in the public buildings had been produced by R and suggested that this might have been due to the mayor’s involvement. In particular, he wrote that some of the window frames had been made by R for the town even before the end of the tender proceedings. Moreover, he put the question of whether this situation had already amounted to corruption, as penalised under criminal law, and cited the relevant provisions of the Criminal Code. The applicant quoted a former employee of R’s as an anonymous source of his information. He also relied on documents from the mayor’s election campaign, which were public, including the campaign’s financial statement. The latter lacked invoices for several (according to the applicant, most probably four) advertisement boards for seven advertisement banners named “external banner – R” which, in the applicant’s view, suggested who had been the owner of the advertisement boards. Finally, he made some inquiries asking third persons and institutions about the owner of the advertisement banners, including the local sports centre which, by a letter dated 9 May 2014, informed him that an advertisement banner placed on its land was the property of R.
2. Criminal proceedings against the applicant
On 7 October 2014 company R lodged a private bill of indictment against the applicant with the Przemyśl District Court. It complained that the applicant had published untrue information, which could have undermined public confidence in the company’s capacity necessary for business transactions. It relied on Article 212 of the Criminal Code, penalising the offence of defamation (zniesławienie).
On 11 October 2016 the Przemyśl District Court (II K 1084/14) delivered its judgment. It convicted the applicant of defamation through the media under Article 212 of the Criminal Code. The court convicted him for stating that R had an ambiguous (niejasny) and corrupt deal with the town’s mayor R.C., which consisted of engaging R’s employees in putting up the mayor’s election posters under threat of termination of their employment contracts, employing an image/PR expert for the mayor’s campaign, illegal financing of the mayor’s electoral campaign by R and irregularities in public tenders to R’s benefit (starting the production of the window frames for particular public buildings before the end of the tender procedure).The court sentenced the applicant to a fine of PLN 2,000 (approximately EUR 500). It also ordered him to pay PLN 1,000 (approximately EUR 250) to charity, to reimburse PLN 2,012 (approximately EUR 503) in costs and to publish the contents of its judgment in a local weekly newspaper, ŻyciePodkarpackie.
The district court found the following:
– The applicant had been convinced of the truthfulness of the article’s submissions and had made them in defence of a justifiable public interest (that is a correct decision-making process by the electorate).
– While the article concerned mainly R.C., it resulted in defamation of a private company. There existed relations between R.C. and R; however, the proceedings regarded the company R and not the mayor R.C.
– The evidence gathered (statements by the applicant before the court, testimony by A.P., the published article in question, documents from the electoral campaign provided by R.C.’s electoral committee, information obtained by the applicant from various local and public institutions as well as testimony from several third persons) did not confirm the veracity of the impugned statements, in particular those concerning the alleged financing of the mayor’s electoral campaign by R. A.P. confirmed that he had been involved in the mayor’s campaign, but as a private citizen. Moreover, A.P.’s statement that the advertisement boards belonged to him and that he had lent them as a private person for the election campaign of his friend, mayor R.C., was credible.The applicant failed to prove that the advertisement boards had been the property of the company and not A.P.’s private property. The fact that R had been the tenant of the land on which the boards had been placed did not justify the article’s statements. Witness testimony by a certain R.K., a former employee of R, was presented to the court. This testimony had been given in a separate set of criminal proceedings concerning allegations of irregularities in tender proceedings, in which R had participated, and the illegal financing of R.C.’s electoral campaign. It confirmed the article’s submissions concerning the engaging of R’s employees in putting up the mayor’s election posters and employing an image/PR expert for the mayor’s campaign, but was considered “too vague” (ogólnikowe) to be relied on. The amount of window frames produced by R for the town had been marginal compared to its overall production and, thus, from an economic point of view any possible corruption dealings with the mayor would not have been worth R’s effort (z ekonomicznegopunktuwidzenianiesąwartezachodówkorupcyjnych).
– The applicant had failed to comply with the standards of journalistic diligence since his sources seemed inexistent or unreliable and he had published the article in the press without sufficient checks, if any. The publication of the article was, admittedly, preceded by the applicant’s journalistic investigation. Yet, its results did not constitute an objective basis to publish the incriminated statements. The applicant had not made any attempts to verify the contents of his article directly with company R. He based his article to a large extent on the assertions of an anonymous informant. He did not distance himself from the information received from his informant, but identified himself with it.
– The imposed sentence was, in the court’s view, proportionate to the social noxiousness of the applicant’s offence. It was imposed taking into account the mitigating circumstances, such as the applicant’s clean criminal record, the fact that he had published the incriminated statements during an electoral campaign and in good faith, as well as his financial situation.
The court dismissed the applicant’s request to stay the judicial proceedings in order to await the outcome of the criminal investigation against R. The court found that it was not necessary since, firstly, it had already requested the information gathered in the other set of proceedings which it deemed relevant in the proceedings before it and, secondly, the applicant was not hindered in lodging any application for evidence in the pending proceedings. In this regard it has to be noted that the court asked the Prosecutor’s Office whether, in the investigation proceedings, the applicant had revealed the name of his informant/source.
The applicant appealed. He argued that the court had committed numerous errors of fact and law, among others by having dismissed some of the applicant’s applications for evidence concerning the article’s statements, in particular those seeking to oblige civil servants subordinate to the mayor to release the complete documentation on the public tenders, to hear witnesses (in particular the representatives of R.C.’s electoral committee, R.C. and R.K.) and to assess the veracity of A.P.’s testimony by admitting a letter of 9 May 2014 from a local sports centre informing the applicant that an advertisement board placed on its land, rented to R.C. for his electoral campaign, had been R.’s property. The applicant submitted that he had established, based on a financial report of R.C.’s electoral committee, that no invoices had been issued for the rental of the advertisement boards although this was required by law, and that the recipient of some boards had been R. He alleged that the testimony of R.C.’s electoral committee representative for financial matters had been incoherent. He also stated that, when gathering material for his article, he had acted with due diligence required from a journalist and based the impugned statements on documents (in particular a report of R.C.’s electoral committee), information received from his anonymous informant and public institutions under the Freedom of Information Act (Ustawa o dostępie do informacjipublicznej) as well as his own factual findings.The applicant also maintained that his conviction had been incompatible with the Convention provisions.
On 27 April 2017 the Przemyśl Regional Court (II Ka 331/16) upheld the contested judgment. It also ordered the applicant to pay PLN 420 (approximately EUR 105) in legal costs for the appeal proceedings. It shared the conclusions of the lower court on the legal assessment of the facts of the case. The court noted that the applicant had failed to prove the veracity of his statements and to comply with the standards of journalistic diligence while collecting material for his article.
A cassation appeal was not available.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning the protection of personal rights by means of the criminal law is set out in the Court’s judgment in the case of Gąsior v. Poland, no. 34472/07, §§ 21-22, 21 February 2012.
The applicant complains under Article 10 of the Convention that the domestic courts interfered with his right to freedom of expression.
QUESTION TO THE PARTIES
Has there been an interference with the applicant’s freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference necessary and proportionate to the legitimate aim pursued in terms of Article 10 § 2 of the Convention?