PROCEDURE

The case originated in an application (no. 30162/10) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Grzegorz Michal Braun (“the applicant”), on 29 May 2010.

The applicant was represented by Mr S. Hambura, a lawyer practising in Berlin. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

The applicant alleged that his right to freedom of expression was breached in violation of Article 10 of the Convention.

On 14 March 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1967 and lives in Wrocław.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a film director, historian, and author of press articles often commenting on current issues. The Government contested that the applicant could be considered a journalist.

On 20 April 2007 the applicant participated in a debate on a regional radio station, Polskie Radio Wrocław. During the debate he stated as follows: “... among the informers (informator) of the [communist-era] secret political police is Professor [J.M.] – this information confirms the theory that among those who speak out the most against lustration are people who have good reasons for doing so.”

On the same day the applicant called Mr J.M. an “informant” (konfident) on television. The matter was widely commented on in the media.

On 17 May 2007 a special commission set up at Wrocław University to examine the problem of covert surveillance of academics issued a statement in the case of Mr J.M. The statement included a list of documents concerning Mr J.M., which had been found in the archives. The commission concluded that those documents had not led it to the unequivocal conclusion that Mr J.M. had been a collaborator with the secret police.

On 24 May 2007 Mr J.M. brought a civil action for protection of his personal rights against the applicant.

On 3 July 2008 the Warsaw Regional Court allowed the action. It ordered the applicant to pay 20,000 Polish zlotys (PLN) to a charity and to reimburse the claimant PLN 5,800 for the costs of the proceedings. The applicant was also ordered to publish an apology for having damaged the claimant’s good name in six national and regional newspapers, on three national TV channels and on Radio Wrocław. The court considered that the applicant had clearly used several expressions indicating that the claimant had been a secret collaborator with the communist-era secret services. The main question to be considered was whether such statements could be considered true.

The court noted that Mr J.M. was a distinguished linguist and well‑known person in Poland. He was a member of the Polish Language Council and for many years had been presenting a programme on television. The court established that between 1975 and 1984 Mr J.M. had been summoned by agents of the secret services on five occasions for interviews in connection with applications he had made for passports and returns from stays abroad. This was not contested by the claimant, who had himself made this information public. In 1978 Mr J.M. had been formally registered as a secret collaborator (a “TW”). Other notes from the Institute of National Remembrance (“IPN”) archives indicated that until 1989 a two-volume file on the claimant had existed; however, the file could no longer be found at the Wrocław branch of the IPN. The court noted that the case of Mr J.M. had been examined by a special commission set up at Wrocław University to examine the problem of covert surveillance of academics, but that the commission had been unable to reach any unequivocal conclusions.

The trial court heard the applicant and the claimant as well as a number of witnesses: historians (specialists on lustration), former agents of the secret services assigned to recruiting collaborators at Warsaw University, and employees of the IPN. Some of them testified that many files on secret collaborators had been destroyed when the regime fell in 1989. A few witnesses testified that they had not known of any case of fictitious registration of somebody as a secret collaborator or of a situation in which the services had kept a file on somebody for many years even though he or she had not actually been collaborating. The director of the Wrocław branch of the IPN testified that he had heard of an instance of fictitious registration of somebody as a TW. However the probability of such a situation was very low. He also declared that on the basis of the available documents, he would not have concluded that the claimant had been a communist police informant. Another historian called to testify declared that it had been impossible to draw any unequivocal conclusions. A third historian stated that the claimant had been a “real agent of the security service”. A fourth historian testified that the internal files of the secret services were reliable; the regime would only falsify documents for external purposes. The same witness considered that on the basis of the information available to him, he would also have concluded that Mr J.M. had been an intentional and secret collaborator with the communist-era secret services. Two other witnesses, former agents of the secret services, were unable to remember whether they had recruited Mr J.M. as a secret collaborator.

The applicant submitted that once he had discovered that Mr J.M. was on the list of secret collaborators with the secret services it had been his duty to inform the public about it. His intention had not been to offend the claimant. He had acted in the general interest, taking part in a public debate on matters of considerable importance to society. Moreover, his assertion had been provoked by public statements made by the claimant, who had questioned the importance of lustration. The applicant also argued that he had not alleged that the claimant had caused harm to other people or that he had been paid for his services. The information provided by him - that J.M. had been a collaborator - had therefore been truthful and given in the public interest.

Nevertheless, the court noted that no documents confirming that the claimant had agreed to be a collaborator or that he had actively reported to the secret services were available. The court referred to the definition of collaboration contained in the 1997 Lustration Act and reiterated that collaboration had to be intentional, secret and consist of passing on information. It concluded that registration by the secret services alone was not sufficient to consider that someone had been a secret collaborator.

The applicant lodged an appeal against the judgment. He argued that the registration of Mr J.M. as a secret collaborator by the services, in light of generally known facts, had allowed him to conclude that he had been a collaborator. Mr J.M. had remained registered as a TW for eleven years, his files had been destroyed, and the secret services had not been known for falsifying their internal files. According to historians, in 1989 the services had only destroyed the files of important collaborators. The applicant underlined that he had acted in the general interest as the claimant had been a public figure who had recently criticised the process of lustration.

On 29 October 2008 the Wrocław Court of Appeal dismissed the appeal. It further ordered the applicant to pay the claimant PLN 2,000 as reimbursement of the costs of the appellate proceedings. The court accepted all the findings of the first-instance court regarding the facts of the case. It considered that when personal rights had been breached by a statement of alleged facts, the illegality of such action could be excluded only if the statement contained truthful information. Acting in the general interest did not exclude responsibility for making untrue statements. In the present case there was no evidence, in the form of either documents or witness statements, proving that Mr J.M. had indeed actively collaborated with the secret services. Therefore, in the light of the material collected in the case, the court concluded that the applicant had not proved the veracity of his statements. Furthermore, the court considered that the applicant had not fulfilled his duty to act with particular diligence and caution in making serious allegations on the basis of unconfirmed circumstantial evidence.

The applicant lodged a cassation appeal against the judgment and requested that a hearing be held.

At the hearing, held on 10 September 2009, the Supreme Court announced the judgment and gave an oral summary of the reasons. It dismissed the applicant’s cassation appeal but amended the text of the apology and limited its reach to one national daily newspaper and Radio Wrocław. The applicant was ordered to reimburse the claimant a further PLN 2,000 for the costs of the cassation proceedings. The text of the apology to be published by the applicant was as follows: “I apologise to Professor J.M. for having made, on 20 April 2007, the untrue assertion that he had been an informer of the [communist-era] political police”.

Following the announcement of the judgment the applicant’s lawyer requested the court to prepare written reasons and to deliver them to him. The Supreme Court’s judgment with reasons, fifteen pages long, was received by the applicant’s lawyer on 30 November 2009.

In analysing the interplay between two competing rights – the right to freedom of expression and the right to protect one’s good name – the court referred to a resolution of the Supreme Court (18 February 2005, III CZP 53/04 OSNC 2005, nr 7-8, p 114). According to the conclusion of this resolution a journalist’s actions would not be considered illegal if they were made in the public interest and the duty to act with due diligence was fulfilled. Imposing an obligation on a journalist to prove the veracity of each statement would unjustifiably limit the freedom of the press in a democratic society. However, the Supreme Court considered that this approach could not be applied to the applicant’s case as his statement had been of a private nature and the applicant could not be considered to be a journalist with a socially necessary duty to inform. Therefore, the interpretation of the law adopted by the lower courts was correct. Making false allegations was illegal, whereas the question of due diligence would be taken into account only when assessing the fault of the defendant.

The court agreed with the facts as established by the lower courts in particular as regards the conclusion that the statement made by the applicant had not been true. Following the approach taken in the case thus far, the court considered that making an untrue statement that offended the personal rights of a person would always be contrary to the law. Breaching someone’s personal rights would not be against the law only if the statement could be proven to be true. An untrue statement would remain illegal even if all efforts had been made to diligently collect and examine its factual basis. In consequence, whether the applicant had acted in good faith and in the public interest or believed that the statement had been true did not influence the illegality of his action and could only be considered when assessing his financial liability for offending the personal rights of Mr J.M.
NOT_CONFIDENTIAL
check
001-147676_a3_e1
001-147676_a3_em1
CODE
DIRECT
30162/10
NOT_CONFIDENTIAL
correct
001-147676_a3_e2
001-147676_a3_em2
ORG
NO_MASK
Republic of Poland
NOT_CONFIDENTIAL
check
001-147676_a3_e3
001-147676_a3_em3
DEM
NO_MASK
Polish
NOT_CONFIDENTIAL
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001-147676_a3_e4
001-147676_a3_em4
PERSON
DIRECT
Mr Grzegorz Michal Braun
NOT_CONFIDENTIAL
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001-147676_a3_e5
001-147676_a3_em5
DATETIME
QUASI
29 May 2010
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001-147676_a3_e6
001-147676_a3_em6
PERSON
QUASI
Mr S. Hambura
NOT_CONFIDENTIAL
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001-147676_a3_e7
001-147676_a3_em7
LOC
QUASI
Berlin
NOT_CONFIDENTIAL
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001-147676_a3_e8
001-147676_a3_em8
ORG
NO_MASK
Polish Government
NOT_CONFIDENTIAL
check
001-147676_a3_e9
001-147676_a3_em9
PERSON
QUASI
Ms J. Chrzanowska
NOT_CONFIDENTIAL
insert
001-147676_a3_e10
001-147676_a3_em10
ORG
NO_MASK
Ministry of Foreign Affairs
NOT_CONFIDENTIAL
check
001-147676_a3_e11
001-147676_a3_em11
DATETIME
QUASI
14 March 2013
NOT_CONFIDENTIAL
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001-147676_a3_e12
001-147676_a3_em12
DATETIME
QUASI
1967
NOT_CONFIDENTIAL
insert
001-147676_a3_e13
001-147676_a3_em13
LOC
QUASI
Wrocław
NOT_CONFIDENTIAL
insert
001-147676_a3_e14
001-147676_a3_em14
DEM
QUASI
film director
NOT_CONFIDENTIAL
insert
001-147676_a3_e15
001-147676_a3_em15
DEM
QUASI
historian
NOT_CONFIDENTIAL
insert
001-147676_a3_e16
001-147676_a3_em16
DEM
QUASI
author of press articles
POLITICS
insert
001-147676_a3_e17
001-147676_a3_em17
DEM
NO_MASK
journalist
NOT_CONFIDENTIAL
check
001-147676_a3_e18
001-147676_a3_em18
DATETIME
QUASI
20 April 2007
NOT_CONFIDENTIAL
insert
001-147676_a3_e19
001-147676_a3_em19
ORG
QUASI
Polskie Radio Wrocław
POLITICS
insert
001-147676_a3_e20
001-147676_a3_em20
DEM
NO_MASK
informers (informator) of the [communist-era] secret political police
NOT_CONFIDENTIAL
insert
001-147676_a3_e21
001-147676_a3_em21
PERSON
QUASI
001-147676_a3_em22
Professor [J.M.]
NOT_CONFIDENTIAL
insert
001-147676_a3_e21
001-147676_a3_em22
PERSON
QUASI
Mr J.M
POLITICS
insert
001-147676_a3_e20
001-147676_a3_em23
DEM
NO_MASK
001-147676_a3_em20
informant” (konfident)
NOT_CONFIDENTIAL
check
001-147676_a3_e22
001-147676_a3_em24
DATETIME
QUASI
17 May 2007
NOT_CONFIDENTIAL
correct
001-147676_a3_e23
001-147676_a3_em25
LOC
QUASI
Wrocław University
NOT_CONFIDENTIAL
check
001-147676_a3_e21
001-147676_a3_em26
PERSON
QUASI
001-147676_a3_em22
Mr J.M.
NOT_CONFIDENTIAL
correct
001-147676_a3_e21
001-147676_a3_em27
PERSON
QUASI
Mr J.M.
NOT_CONFIDENTIAL
check
001-147676_a3_e21
001-147676_a3_em28
PERSON
QUASI
Mr J.M.
NOT_CONFIDENTIAL
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001-147676_a3_e24
001-147676_a3_em29
DATETIME
QUASI
24 May 2007
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001-147676_a3_e21
001-147676_a3_em30
PERSON
QUASI
Mr J.M.
NOT_CONFIDENTIAL
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001-147676_a3_e25
001-147676_a3_em31
DATETIME
QUASI
3 July 2008
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001-147676_a3_e26
001-147676_a3_em32
ORG
QUASI
Warsaw Regional Court
NOT_CONFIDENTIAL
insert
001-147676_a3_e27
001-147676_a3_em33
QUANTITY
QUASI
20,000 Polish zlotys (PLN)
NOT_CONFIDENTIAL
insert
001-147676_a3_e28
001-147676_a3_em34
QUANTITY
QUASI
PLN 5,800
NOT_CONFIDENTIAL
check
001-147676_a3_e29
001-147676_a3_em35
ORG
QUASI
Radio Wrocław
POLITICS
insert
001-147676_a3_e30
001-147676_a3_em36
DEM
NO_MASK
secret collaborator with the communist-era secret services
NOT_CONFIDENTIAL
correct
001-147676_a3_e21
001-147676_a3_em37
PERSON
QUASI
Mr J.M.
NOT_CONFIDENTIAL
insert
001-147676_a3_e31
001-147676_a3_em38
DEM
NO_MASK
linguist
NOT_CONFIDENTIAL
check
001-147676_a3_e32
001-147676_a3_em39
LOC
NO_MASK
Poland
NOT_CONFIDENTIAL
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001-147676_a3_e33
001-147676_a3_em40
ORG
NO_MASK
Polish Language Council
NOT_CONFIDENTIAL
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001-147676_a3_e34
001-147676_a3_em41
DATETIME
NO_MASK
many years
NOT_CONFIDENTIAL
check
001-147676_a3_e35
001-147676_a3_em42
DATETIME
NO_MASK
between 1975 and 1984
NOT_CONFIDENTIAL
check
001-147676_a3_e21
001-147676_a3_em43
PERSON
QUASI
Mr J.M.
POLITICS
insert
001-147676_a3_e30
001-147676_a3_em44
DEM
NO_MASK
001-147676_a3_em36
agents of the secret services
NOT_CONFIDENTIAL
check
001-147676_a3_e36
001-147676_a3_em45
DATETIME
QUASI
1978
NOT_CONFIDENTIAL
check
001-147676_a3_e21
001-147676_a3_em46
PERSON
QUASI
Mr J.M.
POLITICS
insert
001-147676_a3_e37
001-147676_a3_em47
DEM
NO_MASK
secret collaborator (a “TW”)
POLITICS
insert
001-147676_a3_e38
001-147676_a3_em48
DEM
NO_MASK
secret collaborator
NOT_CONFIDENTIAL
insert
001-147676_a3_e39
001-147676_a3_em49
ORG
NO_MASK
Institute of National Remembrance (“IPN”)
NOT_CONFIDENTIAL
check
001-147676_a3_e40
001-147676_a3_em50
DATETIME
NO_MASK
1989
NOT_CONFIDENTIAL
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001-147676_a3_e13
001-147676_a3_em51
LOC
QUASI
Wrocław
NOT_CONFIDENTIAL
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001-147676_a3_e39
001-147676_a3_em52
ORG
NO_MASK
001-147676_a3_em49
IPN
NOT_CONFIDENTIAL
check
001-147676_a3_e21
001-147676_a3_em53
PERSON
QUASI
Mr J.M.
NOT_CONFIDENTIAL
check
001-147676_a3_e23
001-147676_a3_em54
LOC
QUASI
Wrocław University
NOT_CONFIDENTIAL
insert
001-147676_a3_e41
001-147676_a3_em55
DEM
NO_MASK
historians
POLITICS
check
001-147676_a3_e30
001-147676_a3_em56
DEM
NO_MASK
agents of the secret services
NOT_CONFIDENTIAL
check
001-147676_a3_e42
001-147676_a3_em57
ORG
NO_MASK
Warsaw University
NOT_CONFIDENTIAL
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001-147676_a3_e39
001-147676_a3_em58
ORG
NO_MASK
IPN
NOT_CONFIDENTIAL
check
001-147676_a3_e40
001-147676_a3_em59
DATETIME
NO_MASK
1989
POLITICS
check
001-147676_a3_e38
001-147676_a3_em60
DEM
NO_MASK
secret collaborator
NOT_CONFIDENTIAL
check
001-147676_a3_e34
001-147676_a3_em61
DATETIME
NO_MASK
many years
NOT_CONFIDENTIAL
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001-147676_a3_e13
001-147676_a3_em62
LOC
QUASI
Wrocław
NOT_CONFIDENTIAL
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001-147676_a3_e39
001-147676_a3_em63
ORG
NO_MASK
IPN
POLITICS
correct
001-147676_a3_e38
001-147676_a3_em64
DEM
NO_MASK
001-147676_a3_em48 001-147676_a3_em36
TW
POLITICS
insert
001-147676_a3_e43
001-147676_a3_em65
DEM
NO_MASK
communist police informant
NOT_CONFIDENTIAL
check
001-147676_a3_e15
001-147676_a3_em66
DEM
QUASI
historian
NOT_CONFIDENTIAL
check
001-147676_a3_e15
001-147676_a3_em67
DEM
QUASI
historian
POLITICS
insert
001-147676_a3_e44
001-147676_a3_em68
DEM
NO_MASK
agent of the security service
NOT_CONFIDENTIAL
check
001-147676_a3_e15
001-147676_a3_em69
DEM
QUASI
historian
NOT_CONFIDENTIAL
check
001-147676_a3_e21
001-147676_a3_em70
PERSON
QUASI
Mr J.M.
POLITICS
check
001-147676_a3_e30
001-147676_a3_em71
DEM
NO_MASK
secret collaborator with the communist-era secret services
POLITICS
check
001-147676_a3_e30
001-147676_a3_em72
DEM
NO_MASK
agents of the secret services
NOT_CONFIDENTIAL
insert
001-147676_a3_e21
001-147676_a3_em73
PERSON
NO_MASK
001-147676_a3_em53
Mr J.M
POLITICS
check
001-147676_a3_e38
001-147676_a3_em74
DEM
NO_MASK
secret collaborator
NOT_CONFIDENTIAL
check
001-147676_a3_e21
001-147676_a3_em75
PERSON
QUASI
Mr J.M.
NOT_CONFIDENTIAL
insert
001-147676_a3_e21
001-147676_a3_em76
PERSON
NO_MASK
001-147676_a3_em21
J.M
NOT_CONFIDENTIAL
check
001-147676_a3_e45
001-147676_a3_em77
DATETIME
NO_MASK
1997
POLITICS
check
001-147676_a3_e38
001-147676_a3_em78
DEM
NO_MASK
secret collaborator
NOT_CONFIDENTIAL
insert
001-147676_a3_e21
001-147676_a3_em79
PERSON
NO_MASK
Mr J.M.
POLITICS
check
001-147676_a3_e38
001-147676_a3_em80
DEM
NO_MASK
secret collaborator
NOT_CONFIDENTIAL
check
001-147676_a3_e21
001-147676_a3_em81
PERSON
QUASI
Mr J.M.
POLITICS
insert
001-147676_a3_e38
001-147676_a3_em82
DEM
NO_MASK
TW
NOT_CONFIDENTIAL
check
001-147676_a3_e46
001-147676_a3_em83
DATETIME
NO_MASK
eleven years
NOT_CONFIDENTIAL
check
001-147676_a3_e41
001-147676_a3_em84
DEM
NO_MASK
historians
NOT_CONFIDENTIAL
check
001-147676_a3_e40
001-147676_a3_em85
DATETIME
NO_MASK
1989
NOT_CONFIDENTIAL
check
001-147676_a3_e47
001-147676_a3_em86
DATETIME
QUASI
29 October 2008
NOT_CONFIDENTIAL
check
001-147676_a3_e48
001-147676_a3_em87
ORG
QUASI
Wrocław Court of Appeal
NOT_CONFIDENTIAL
correct
001-147676_a3_e49
001-147676_a3_em88
QUANTITY
QUASI
PLN 2,000 as
NOT_CONFIDENTIAL
check
001-147676_a3_e21
001-147676_a3_em89
PERSON
QUASI
Mr J.M.
NOT_CONFIDENTIAL
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001-147676_a3_e50
001-147676_a3_em90
DATETIME
QUASI
10 September 2009
NOT_CONFIDENTIAL
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001-147676_a3_e51
001-147676_a3_em91
ORG
NO_MASK
Supreme Court
NOT_CONFIDENTIAL
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001-147676_a3_e29
001-147676_a3_em92
ORG
QUASI
Radio Wrocław
NOT_CONFIDENTIAL
insert
001-147676_a3_e52
001-147676_a3_em93
QUANTITY
QUASI
PLN 2,000
NOT_CONFIDENTIAL
insert
001-147676_a3_e53
001-147676_a3_em94
MISC
QUASI
“I apologise to Professor J.M. for having made, on 20 April 2007, the untrue assertion that he had been an informer of the [communist-era] political police”
NOT_CONFIDENTIAL
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001-147676_a3_e54
001-147676_a3_em95
PERSON
NO_MASK
J.M.
NOT_CONFIDENTIAL
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001-147676_a3_e18
001-147676_a3_em96
DATETIME
QUASI
20 April 2007
NOT_CONFIDENTIAL
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001-147676_a3_e55
001-147676_a3_em97
ORG
NO_MASK
Supreme Court’s
NOT_CONFIDENTIAL
insert
001-147676_a3_e56
001-147676_a3_em98
QUANTITY
NO_MASK
fifteen pages
NOT_CONFIDENTIAL
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001-147676_a3_e57
001-147676_a3_em99
DATETIME
QUASI
30 November 2009
NOT_CONFIDENTIAL
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001-147676_a3_e51
001-147676_a3_em100
ORG
NO_MASK
Supreme Court
NOT_CONFIDENTIAL
insert
001-147676_a3_e58
001-147676_a3_em101
MISC
QUASI
18 February 2005, III CZP 53/04 OSNC 2005, nr 7-8, p 114
POLITICS
check
001-147676_a3_e17
001-147676_a3_em102
DEM
NO_MASK
journalist
POLITICS
check
001-147676_a3_e17
001-147676_a3_em103
DEM
NO_MASK
journalist
NOT_CONFIDENTIAL
check
001-147676_a3_e51
001-147676_a3_em104
ORG
NO_MASK
Supreme Court
POLITICS
check
001-147676_a3_e17
001-147676_a3_em105
DEM
NO_MASK
journalist
NOT_CONFIDENTIAL
check
001-147676_a3_e21
001-147676_a3_em106
PERSON
QUASI
Mr J.M.
Grzegorz Michal Braun
POL
CHAMBER
Task: Annotate the document to anonymise the following person: Grzegorz Michal Braun