Advocate Paweł Osik’s Commentary to the ECHR’s Judgement in Braun v. Poland
In such a situation, it is necessary to conduct an in-depth analysis of each case and draw a dividing line between the conflicting rights of different individuals. In particular, conflicts can arise between the right to protection of one’s reputation and good name (Article 8 of the Convention) and the right to freedom to hold opinions and freedom of expression (Article 10 of the Convention). It does not raise any doubts that a person exercising one’s freedom of expression cannot, without any substantiation in reality, present views and information about another person which would violate this person’s reputation and good name. These values are protected by law even in relation to public figures.
In the judgement, the ECHR did not, however, solve the conflict between the applicant Grzegorz Braun’s rights and the rights of Professor Jan Miodek who sought protection before civil courts by initiating a lawsuit for protection of personal rights. Moreover, it has to be emphasised that Professor Jan Miodek, even though he was a party to civil proceedings before national courts, did not in any way participate in the proceeding before the ECHR.
It must also be stressed, especially considering media commentaries which appeared after the publication of the judgement, that the ECHR did not examine and address on the merits the admissibility of the applicant Grzegorz Braun’s utterances. In particular, ECHR did not state whether the applicant was correct and had the right to accuse Professor Jan Miodek of being “an informer of PPR’s political police,” thus violating his reputation and good name. Neither did the ECHR confirm that these were truthful statements.
In its judgement, the ECHR referred only to procedural matters and to the fact that national courts had expected the applicant to prove the veracity of his statements (to show evidence of truthfulness). The ECHR did not examine whether he had exercised due diligence required of a journalist. In the ECHR’s assessment such requirement was not justified and solely for that reason a violation of the Convention occurred.
The ECHR did not go beyond the above-described matters. Above all, the ECHR did not indicate that the judgement issued by the Supreme Court was wrong on the merits, or that the statements presented by the applicant were in accordance with the facts. The ECHR indicated irregularities in the manner in which the result in the Polish courts was achieved, but did not question the result itself.
Furthermore, it does not follow from the judgement that, in civil proceedings before a national court, the applicant would be able to successfully prove, under the requirements indicated by the ECHR, his due diligence in gathering materials and formulating statements about Professor Jan Miodek. The ECHR does not have competences to examine this issue, as this can only be verified by a national court. On the basis of the ECHR judgement, the applicant can, however, attempt to resume national proceeding on account of being unable to defend his rights as a result of a violation of Article 10 of the Convention, as pronounced by the ECHR.
It is worth noting that the Helsinki Foundation for Human Rights (HFHR) was engaged as an observer in the lawsuit for violation of personal rights filed by Professor Jan Miodek before national courts. HFHR dealt with the case within its programme on “Human Rights and Reckoning with the Past.”
Grzegorz Braun’s statements, which were questioned by Professor Jan Miodek and Polish courts, including the Supreme Court, were uttered in the midst of a heated debated, just after the Lustration Law had entered into force in 2006, and while the proceeding before the Constitutional Tribunal were pending. In its initial form, the Law imposed lustration duties on academic staff members. Eventually, the Constitutional Tribunal in the judgement of 11 May 2007 (case no. K 2/07) pronounced these provisions of the Lustration Law unconstitutional and, as a result, they expired.
Initially, the text was published on the website of the Observatory of Media Freedom in Poland of the Helsinki Foundation for Human Rights.