Last Updated on October 3, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 11915/15
Endy GĘSINA-TORRES
against Poland
The European Court of Human Rights (First Section), sitting on20 February 2018 as a committee composed of:
Aleš Pejchal, President,
Krzysztof Wojtyczek,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 3 March 2015,
Having regard to the observations submitted by the respondent Government, the observations in reply submitted by the applicant and to written submissions received from Article 19, a non-governmental organisation which had been granted leave by the President to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 2),
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Endy Gęsina-Torres, is a Polish national, who was born in 1984 and lives in Warsaw. His application was lodged on 3 March 2015. He was represented before the Court by Ms D. Bychawska-Siniarska, a lawyer practising in Warsaw.
2. The Polish Government (“the Government”) are represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was born in 1984 and lives in Warsaw. He is a journalist.
5. In late 2012, alarmed by a number of reports about the alleged ill treatment of aliens in a detention centre for refugees run by the Border Guard near Białystok and about conditions there, he decided to draw the attention of the public to the issue.
6. He concluded a contract with Polish public television for a programme on the subject.
7. On 10 January 2013 he arrived in Białystok and provoked police officers into stopping him to check his identity documents, although he did not have any on him. He gave them a fictitious name and told them that he had crossed the Polish border illegally after losing his documents.
8. By a subsequent judicial decision, he was placed in the Border Guard’s closed centre for aliens in Białystok.
9. He signed all the documents concerning his arrest and placement in detention under a false name and used that name during his subsequent stay in the centre.
10. He stayed in the centre for three weeks, trying to make recordings with a device placed in his watch. His real identity was found out on 28 January 2013.
11. Criminal proceedings were subsequently instituted against the applicant.
12. On 20 November 2013 the Białystok District Court found the applicant guilty of the offences of the use of forged documents, committed by way of signing documents relating to his arrest and detention under a false name, and of giving false testimony by making false statements about how he had illegally crossed the Polish border prior to his arrest.
13. The court was of the view that the applicant’s conduct had jeopardised the administration of justice as the court which had decided to place him in the detention centre for aliens had been misled about his identity.
14. Using the court as an instrument in that way could not be accepted in a democratic State governed by the rule of law. The applicant had not acted in a situation of necessity as his impersonation had not been the only possible way to find out what was happening in the centre and whether aliens’ rights were indeed being breached by State agents.
15. The court found that prior to his arrest there had already been a number of relevant reports available in the public domain and that articles by other journalists had also been published. Hence, his act of impersonation had not been the only way in which it had been possible to establish the relevant facts. The court took note of the applicant’s argument that his action should be regarded as investigative journalism aiming at disclosing issues which were being kept from the public. However, it was of the opinion that the purpose of his conduct had been to present a television programme to the public about facts which were already known. Hence, his acts could not be regarded as inoffensive. The act of taking on a false identity and presenting himself to the court as an illegal alien had undermined the authority of the court and its independence. The courts in a democratic society were, under the case-law of the European Court of Human Rights, guarantors of justice. They had to be protected from people trying to undermine the confidence which society was entitled to have in them.
16. The court was further of the view that the criminal proceedings against the applicant could not reasonably be regarded as an interference with his right to freedom of expression. During the criminal proceedings against the applicant no reference had been made by the prosecution to the programme which had been made on the basis of the material he had gathered during his detention in the centre. The court referred to the Court’s case‑law stressing the duties and responsibilities of journalists.
17. The court decided not to impose a penalty on the applicant, noting that his intention had merely been to have direct confirmation of the allegations that had previously been made public about the treatment of aliens in the centre and also because of the fact that he had no criminal record. The applicant was ordered to pay 2,000 Polish zlotys (PLN) to a charity and PLN 747 in costs.
18. The court had regard to the following evidence: the testimony of eleven witnesses, including seven Border Guard officers, three police officers and Judge E.D., who had decided on the applicant’s detention in the centre (see para. 10 above). It also heard T.S., the producer of the programme which was made on the basis of the material gathered by the applicant, and K.R., a lawyer working for the Helsinki Foundation for Human Rights, who had been in regular contact with the Białystok Detention Centre prior to the applicant’s being detained there and with whom the applicant had talked with a view to obtaining her views about the situation in the Centre at the time.
19. The prosecution and the applicant appealed. The applicant relied, inter alia, on Article 10 of the Convention. He stressed that he had acted in the interests of and out of concern for the people detained in the Centre whose human rights had possibly been breached by State agents.
20. On 11 September 2014 the appellate court amended the first instance judgment and sentenced the applicant to a fine of PLN 2,000. It ordered him to pay court fees of PLN 300.
21. As far as the applicant’s reliance on Article 10 of the Convention was concerned, the court shared the views of the first-instance court. It was of the opinion that the criminal proceedings had not in any way related to the material gathered by him during his stay at the centre. He had not been prevented in any way from airing his views and disseminating the information he had gathered during his detention under false pretences. There had therefore been no interference with his right to freedom of expression.
22. The appellate court further noted that the applicant had argued that his acts should be seen as an act of journalistic provocation in the pursuit of an important social interest, which should be exempt from criminal responsibility. However, the applicant had not shown that it was impossible to gather the information he had sought in any other way than the one he had actually chosen. The court was of the view that the arguments advanced by the applicant had to be weighed against another important interest, namely the opinion that the public might have formed about the courts after watching the programme that had been made on the basis of his material. That opinion could well have been that the administration of justice was inept because only a television programme produced on the basis of unlawfully gathered material had been able to prompt the authorities to try to improve the situation in the centre. Such a conclusion would have been erroneous and incompatible with the tenets of the rule of law.
23. By his acts, the applicant had taken upon himself the role of a police officer. There had been no basis for that decision as several weeks prior to his actions the police and competent authorities had started to take measures to remedy the situation in the centre. The court referred to press articles published in October 2012 and to a hunger strike at the centre, which had started on an unspecified date. The actions undertaken by the applicant in January 2013 had therefore not been capable of providing any new and unknown information about the situation in the centre.
24. The court concluded that it had been possible to inform the general public about the situation in the centre without recourse to unlawful acts which had blackened the reputation of the State in general and of the courts in particular.
25. The amount of the fine was set at PLN 2,000, with the court noting that the applicant did not have any criminal record. The applicant was further ordered to pay court costs of an aggregate PLN 300.
26. No further appeal lay against the judgment of the appellate court.
27. The television programme based on the material gathered by the applicant was broadcast on an unspecified date.
COMPLAINT
28. The applicant alleged that finding him criminally responsible for the use of forged identity documents and giving false testimony in the context of investigative journalism had amounted to an interference with his right to freedom of expression, in breach of Article 10 of the Convention.
THE LAW
29. The applicant alleged that finding him criminally responsible had amounted to an interference with his right to freedom of expression, in breach of 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. 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 parties’ submissions
30. The applicant submitted that his conviction for the use of false documents had amounted to an interference with his right to freedom of expression. It had a negative impact on his career. He had left Poland for several months and had not resumed his journalistic activity until 2015. The criminal proceedings against him were a direct result of his work as a journalist. His trial and conviction had resulted from his use of the valuable and well-established journalistic method of impersonation, which had given rise in history to well-known and valuable articles and books. In order to gather his material he had had to rely on provocation by way of undercover reporting, a method recognised and legally protected in various countries by the ethical codes of the journalistic profession.
31. The applicant acknowledged that the interference complained of was prescribed by law.
32. As to whether the interference had served a legitimate aim, the applicant submitted that it had not been his intention to undermine the authority of the judiciary. During the trial he had personally apologised for lying to the judge who had sent him to the closed detention centre. Moreover, his false testimony as to his identity had been given at a court session which had been closed to the public and it could therefore not have undermined society’s confidence in the judicial system.
33. As to whether the interference was necessary in a democratic society, the applicant submitted that the courts dealing with the criminal case against him had failed to take account of the fact that in order to guarantee proper protection for freedom of expression there had also to be protection in situations where a of the law of a merely technical character had occurred in the context of a journalistic investigation serving the public interest. Likewise, the courts had failed to take into consideration the defendant’s intentions and the fact that his actions had not been aimed at undermining the authority of the judiciary.
34. In so far as the Government relied on the applicant’s failure to consult a lawyer prior to undertaking the actions in question, the applicant stressed that he had in fact contacted the Helsinki Foundation for Human Rights with a view to prepare his actions in the best way possible.
35. As to the severity of the sentence imposed on the applicant, he submitted that not only had a fine of PLN 2,000 been imposed on him, but the sentence had also led to the creation of a criminal record. Such a record had had a serious impact on his professional life as he could not apply for posts in the public sector, his ability to borrow was limited and under Polish law he could not hold certain posts (for example as an editor- in- chief).
36. The Government were of the view that in the circumstances of the case there had been no interference with the applicant’s right to freedom of expression. The existence of such an interference depended to a large extent on the specific facts of a case, in particular whether or not the person concerned had been able to continue to express his or her opinion in the wake of the measure complained of and whether he or she had also been able to express his or her views on other matters of public interest, or whether the measure complained of might have generated a chilling effect for the applicant or those expressing similar views (see, mutatis mutandis, Petropavlovskis v. Latvia, no. 44230/06, § 77, ECHR 2015). In the present case, the applicant’s conviction for the use of forged documents and giving false testimony in court in the context of proceedings concerning his placement in the detention centre had not in any way affected his ability to use the material he had gathered for the purposes of the programme which was based on that material. Nor had there been any interference by the authorities with the material thus gathered. The applicant had prepared the programme as planned and it had been broadcast. Furthermore, the applicant had continued to work as a journalist without any restrictions.
37. The Government argued that the applicant’s unlawful conduct had undermined the authority of the courts and their role as the guarantors of justice. It was possible that his actions had not only negatively affected society’s confidence in the justice system, but that it had also affected the confidence of courts in the truthfulness of persons appearing before them. The interference had served legitimate aims, namely maintaining “the authority and impartiality of the judiciary” and the “prevention of disorder or crime” within the meaning of Article 10 of the Convention.
38. As to whether the interference had been necessary in a democratic society, the Government argued that the applicant had had prior knowledge that in order to be detained in the centre for aliens he would have to give false information about his identity. It had therefore to be assumed that he had accepted that he would break the law and give false testimony to the courts and other authorities. When giving testimony before the court in the criminal proceedings he had admitted that he had been aware that his actions had been on the margins of the law and had crossed the fine line between lawfulness and illegality.
39. The Government further submitted that the applicant’s actions had breached the ethical rules of journalism to the extent that they stated that journalists should act within the limits of the law, in accordance with the work ethics and principles of social coexistence as defined by section 10 of the 1984 Press Act. Hidden cameras and microphones were only allowed in the case of investigative journalism looking into allegations of crime, corruption and abuse of power.
40. The Government were of the view that the ultimate aim of the applicant’s actions, namely gathering material for the purposes of informing society of an issue of importance to the general public, could not override the unlawfulness of his conduct, especially as it had been possible for him to use other, lawful means of gathering that information.
41. The Government argued that the domestic courts had provided detailed reasoning for their decisions. They had based their judgments on a thorough and sufficient examination of the case and on extensive evidence. The courts had provided detailed reasoning as to why the applicant could not be absolved from criminal responsibility, noting the lack of the necessity for his illegal actions, especially in the light of their non‑revelatory character, their detrimental effect on the authority of the justice system, as well as the fact that the applicant had had other ways to establish the facts relevant to his television programme at his disposal.
42. The Government further noted that the applicant had been sentenced to only a relatively small fine of PLN 2,000, which could not be perceived as a severe punishment in the light of the maximum sanctions provided for his actions, that is three or five years in prison. In applying the fine, the second-instance court had taken the applicant’s financial and personal situation into account (his salary, assets, whether he provided for anyone and so forth). The proportionality of the sanction for the applicant’s conscious violation of the law was also shown by the fact that he had not been prevented from exercising his right to freedom of expression in his journalistic work, both with regard to his television programme on the conditions of detention in centres for foreigners and to his future work.
B. The third-party intervener
43. The third party non-governmental organisation Article 19 argued that the case should be considered in the context of a broad right to impart information on issues of public interest to the general public and the corresponding right of the public to receive such information. Editorial independence was a crucial aspect of media freedom. The manner in which a particular matter has been investigated and discussed by a particular media company should in no way prevent other media actors from covering the same topic. Even when current events had already been discussed in print media or in Web‑based media, that should not bar audio-visual media from engaging in their own coverage and discussion of the issues of the day. It was a well‑known fact that in certain circumstances good faith and responsible journalism came into conflict with legal requirements. In certain cases it could happen inadvertently, in others to avoid unnecessary delays. Sometimes acting in defiance of the law might amount to a legitimate act of defiance, as was the case when journalists refused to disclose their sources. The lawfulness of a journalist’s action was a relevant consideration when determining whether he or she had acted responsibly but was not decisive.
44. Where a breach of the law occurred in the context of a journalistic investigation serving the public interest, the right to freedom of expression should prevail over unlawful conduct by a journalist. In a number of European countries the publication of illegally recorded material was considered legal when done in the public interest. In such situations the courts would also consider whether any precautions had been taken to protect the rights of others or to mitigate the impact of the unlawful act on those rights.
45. It had been long recognised that in order to bring important information to the public, journalists might have to resort to unconventional forms of information gathering, such as undercover reporting. Undercover methods of journalism were permissible where the information could not be acquired otherwise and where there was a sufficiently strong public interest. Various ethical codes recommended that journalists and editors hold prior discussions before using those methods in order to discuss any relevant ethical issues. There were numerous instances where immersion or infiltration had been part of remarkable journalistic endeavours which had shed light on important issues of public interest. In addition, there were situations where undercover reporting was the only way to report on situations that public authorities were trying to cover up.
C. The Court’s assessment
1. The general principles
46. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among many other authorities, Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999‑I, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999‑VIII).
47. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to 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 Court supervision, embracing both the legislation and the decisions applying it, even those delivered 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 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V, and Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 88, ECHR 2004-XI).
48. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts, but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation (see Fressoz and Roire, cited above § 45). In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measures taken were “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004‑VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see, among many other authorities, Zana v. Turkey, 25 November 1997, § 51, Reports of Judgments and Decisions 1997‑VII). In addition, the fairness of the proceedings, the procedural guarantees afforded (see, mutatis mutandis, Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR 2005 II) and the nature and severity of the penalties imposed (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV, and Skałka v. Poland, no. 43425/98, §§ 41-42, 27 May 2003) are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10 (see Kyprianou v. Cyprus [GC], no. 73797/01, § 171, ECHR 2005-XIII).
49. The Court also reiterates that the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism The concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the contents of information which is collected and/or disseminated by journalistic means. That concept also embraces, inter alia, the lawfulness of the conduct of a journalist, including, and of relevance to the instant case, his or her public interaction with the authorities when exercising journalistic functions. The fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly (Pentikäinen v. Finland [GC], no. 11882/10, § 90, ECHR 2015). Notwithstanding the vital role played by the media in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that, as journalists, Article 10 affords them a cast-iron defence. In other words, a journalist cannot claim an exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question was committed during the performance of his or her journalistic functions (Pentikäinen, cited above, § 91).
50. The Court has already dealt with cases where the applicants’ actions in the exercise of their freedom of expression rights were in breach of the law. In a case concerning the illegal possession of a firearm which occurred in investigations planned and carried out by the applicants for an article which was subsequently written and published with a view to drawing the attention of the public opinion to the issue of accessibility of illegal arms in the area concerned (Salihu and Others v. Sweden (dec.), no. 33628/15, 10 May 2016) the factors to be taken into consideration included whether the issue was of public interest; whether the applicant knew that their actions infringed ordinary criminal law, whether the issue concerned could be illustrated in other ways. Further, in a case concerning use of a hidden camera in the context of recording a conversation with an insurance broker for the purposes of drawing the public attention to poor quality of advice offered by private insurance brokers, the way in which the information was obtained and its veracity were also important factors (Haldimann and Others v. Switzerland, no. 21830/09, § 61, ECHR 2015).
2. Application of the above principles to the present case
51. The Court notes that the applicant was convicted for the manner in which he gathered information in order to produce a television programme. The domestic authorities did not interfere with the content of the programme The Court finds nonetheless that the applicant’s criminal conviction may be regarded as interfering with his rights under Article 10 of the Convention (see, mutatis mutandis, Pentikäinen, cited above, § 83; Dammann v. Switzerland, no. 77551/01, § 52, 25 April 2006; Erdtmann v. Germany((dec.), no. 56328/10, § 16, 5 January 2016); and Salihu (cited above).
52. It is common ground between the parties that the interference was prescribed by law, namely Articles 270, 233 and 238 of the Criminal Code.
53. The Court accepts that the interference pursued the legitimate aim of maintaining public safety and prevention of disorder and crime as well as maintaining the authority of the judiciary within the meaning of Article 10 § 2 of the Convention.
54. As to whether the interference was necessary in a democratic society, the Court first notes that the investigation carried out by the applicant concerned a matter of public interest. Allegations of harsh treatment in closed detention camps for refugees and of breaches of fundamental rights by staff clearly fell within the ambit of that notion.
55. However, in assessing the necessity of the interference, it is important also to examine the reasons adduced by the domestic courts to justify the interference and the way in which the relevant domestic authorities dealt with the case, and in particular whether they applied standards which were in conformity with the principles embodied in Article 10 of the Convention.
56. The Court notes that prior to starting the impersonation the applicant knew that by using forged documents and a false identity he would be acting in breach of the law. The domestic courts examined that aspect of the case and also found that he must have known that his actions would infringe the ordinary criminal law. The Court emphasises that the breach, namely lying about his identity, was the very foundation of his modus operandi and was not merely an accessory element of his actions in gathering information.
57. The Court also observes that the courts examined in their judgments whether or not information concerning the alarming situation in the camps was already in circulation when the applicant started his impersonation. That, in turn, shows that other means of gathering information had proved effective for disclosing and establishing facts concerning allegations of ill‑treatment of foreigners in the detention centres. Those two elements were duly noted by the domestic courts. They referred in that regard essentially to the following evidence: the public report on the situation in the centre and also testimony given by the lawyer who had participated in the preparation of that report. The applicant did not argue, let alone show that he was not aware of that information when deciding to launch his impersonation project in early January 2013. Hence, the Court does not find his argument that that was the only manner which he could use to gather information about the situation in the centres convincing as by then it was already in the public domain.
58. The Court notes that the first‑instance court referred to the Court’s case-law when it stressed the duties and responsibilities of journalists (see paragraph 15 above). The Court further notes that the second-instance court weighed the arguments advanced by the applicant in defence of his stance and his freedom of expression against another important interest, namely the interest that a democratic society has in preserving the authority of the judiciary (see paragraph 22 above). It is also noted that the first‑instance court emphasised the role of the courts in a democratic society as guarantors of justice (see paragraph 15), an approach which the Court cannot but fully endorse.
59. The domestic courts interviewed numerous witnesses (see paragraph 20 above). Hence, the applicant was given ample opportunity to argue his case. The Court is also of the view that the meticulousness shown by the courts in gathering and analysing the ample evidence also shows that the courts did not overstep their margin of appreciation and made use of it in good faith, carefully and reasonably.
60. It is further noted that the applicant was represented by a lawyer throughout the proceedings.
61. The Court further observes that the second-instance court ultimately fined the applicant PLN 2,000 and ordered him to pay aggregate costs of PLN 300 for courts over two levels of jurisdiction, which cannot be regarded as a harsh sentence. Furthermore, the courts did not deprive him of his liberty and never envisaged such action.
62. In the light of the above, the Court concludes that the domestic authorities, when justifying the interference concerned in the present case, relied on grounds which were both relevant and sufficient. The Court is also satisfied that there was no failure to examine the case in so far as it lent itself for assessment in the light of Article 10 of the Convention. Consequently, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this 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 15 March 2018.
Renata Degener Aleš Pejchal
Deputy Registrar President
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