ECtHR on criminal liability for journalistic defamation of judges

Last week, the ECtHR issued two statements regarding criminal liability for journalistic defamation. However, the Court came to different conclusions in each case. In the first judgment, Maciejewski v. Poland, the ECtHR ruled that a violation of the freedom of speech had taken place. Judges of the Strasbourg Court stressed that the journalist had accurately presented a number of flaws in the functioning of the justice system. In the other case, Łozowska v. Poland, the Court questioned the professional integrity of the journalist who criticised actions of a former judge of a court in Białystok and ultimately held that no violation of Article 10 of the European Convention on Human Rights had occurred.

In 2004, Marian Maciejewski wrote an article describing abuses that had allegedly appeared in courts across the Lower Silesia region. This criticism resulted in his criminal conviction for defamation under article 212(2) of the Criminal Code. The ECtHR stated that this conviction had violated the freedom of expression. It is yet another case in which Poland lost a case before the ECtHR because of article 212(2) of the Criminal Code being applied by domestic courts.

“The ECtHR stated that in defamation cases domestic courts should take into account not only how the judgment will affect a given journalist but also the media in general”, says Dominika Bychawska-Siniarska, HFHR lawyer, representing Mr Maciejewski before the ECtHR together with Dr Adam Bodnar. “The Strasbourg Court emphasised that because of its role the justice system deserves special protection against attacks”, adds Ms Bychawska-Siniarska.

The second case heard by the ECtHR, was also a case of a journalist convicted for defamation. However, in this case the ECtHR found that Article 10 of the Convention had not been violated.

Marzanna Łozowska was convicted for defaming a former judge B.L. In her text, the journalist wrote that the judge “was punished for her shady connections with the underworld”. After the judgment of a disciplinary court, B.L. was expelled from the judiciary. The domestic courts have found that the documentation from the disciplinary proceedings did not entitle M. Łozowska to use such wording.

The Strasbourg Court accepted that ruling of the domestic courts and held that by publishing unverified information the journalist had violated journalistic ethics. “The ECtHR ruled that while the defendant had the right to inform the society about the flaws of the justice system in the name of public interest, she should not have made such serious allegations without sufficient proof”, Ms Bychawska-Siniarska explains.

In 2011, the HFHR filed an amicus curiae brief in the proceedings pending before the ECtHR. “In our brief we pointed out that Ms Łozowska based her article on the public statements of then incumbent Minister of Justice, who commented the case of B.L. mentioning the former judge in the context of connections with the underworld. However, in its decision the ECtHR did not address these arguments”, says Dorota Głowacka, a lawyer of the HFHR. The HFHR opinion may be accessed here.