Defamation / Reputation
Afanasyev v. Zlotnikov
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The First Section of the European Court of Human Rights has ruled that the applicant’s right to freedom of expression, as protected under Article 10 of the Convention, was violated when he faced disciplinary sanctions for submitting an unsubstantiated criminal complaint as a lawyer. The Court emphasized that lawyers, as intermediaries in the administration of justice, have a responsibility to contribute to the proper administration of justice while maintaining public confidence. It noted that disciplinary actions against whistleblowers should only be justified in exceptional circumstances, and in this case, the applicant had not acted with malicious intent, and the authorities had not thoroughly examined the evidence provided. The Court concluded that the disciplinary authorities had not provided sufficient reasons for their decision and had exceeded their margin of appreciation, leading to a violation of Article 10. Thus, the Court awarded the applicant EUR 535 for pecuniary damage and EUR 9,750 for non-material damage, covering emotional distress and reputational harm.
In January 2011, the applicant, a lawyer, filed a formal notification of a crime on behalf of his client company, alleging that prosecutor M.P. accepted a bribe under Article 228 § 1 of the Criminal Code). This was in connection with an ongoing investigation into contract forgery against the client. The notification alleged that prosecutor M.P. had committed bribery by accepting a bribe from unknown individuals, supposedly employees of a named company, and thereby violated Article 228 § 1 of the Criminal Code. The applicant asserted that the alleged offense was linked to an ongoing investigation into contract forgery against his client. The applicant claimed that the investigation was prematurely halted without proper examination of evidence and expert reports, which led him to suspect bribery as the motive behind this decision. However, the notification provided no details about the alleged bribe offerers except for the company they were presumed to be employed by. [para. 5-6]
On January 28, 2011, the Warsaw-Centre District Prosecutor rejected the allegations, citing a lack of evidence. [para. 7] The prosecutor argued that no evidence or factual circumstances were presented to substantiate the bribery claims. No appeal was made against this decision. On 11 May 2011, the Warsaw Regional Prosecutor informed the Dean of the Warsaw Regional Bar Council about the lawyer’s criminal complaint, seeking to determine if the lawyer violated professional ethics rules. [para. 8]
On November 23, 2012, the disciplinary officer of the Warsaw Bar Association charged the applicant for lacking moderation in filing the complaint. [para. 9] During the hearing on November 23, 2012, the applicant reiterated the complaint’s content and explained M.P.’s decision to close the forgery investigation without forensic examination. [para. 10] The applicant’s client suspected bribery and stated he hadn’t seen or heard of M.P. taking a bribe. The client could not confirm instructing the complaint, but the lawyer wasn’t acting against his will. The applicant discussed attending meetings with unspecified Central Anticorruption Bureau (CAB) officers in 2009 and 2010, claiming CAB agents expressed interest in M.P.’s bribery.
On November 13, 2013, the Disciplinary Court found the applicant guilty of making an unsupported complaint, breaching the Bar Act and Lawyer’s Code of Professional Ethics. The court analyzed the complaint’s language and context, considering witness submissions and events like M.P.’s term. The Disciplinary Court concluded that the applicant’s version lacked corroboration. The court noted lawyers must avoid unsubstantiated complaints and use conditional language. [para. 11]
The Disciplinary Court noted that a lawyer’s freedom of expression differed from constitutional rights and had limitations to prevent unjustified attacks on others. Lawyers were required to exercise moderation, proportionality, and caution. The language used in the lawyer’s complaint was found to be contrary to these principles and derogatory toward M.P. and the prosecutor’s office. [para. 13] The Disciplinary Court imposed a fine on the lawyer, equating to twenty basic professional contributions to the bar association, amounting to 2,400 Polish zlotys (PLN), approximately 535 euros (EUR). Additionally, the lawyer was banned from being a professional tutor for a year. [para 14]
On September 27, 2014, the High Disciplinary Court upheld the decision of the Disciplinary Court, emphasizing that lawyers should prioritize professional ethics over client expectations. Thereafter, on July 8, 2015, the Applicant’s cassation appeal was dismissed by the Criminal Chamber of the Supreme Court, as it was deemed manifestly ill-founded. On 10 October 2016, the lawyer was charged PLN 1,000 (approximately EUR 220) for the costs associated with the disciplinary proceedings.
The ECtHR delivered the unanimous judgment. The primary issue for consideration before the Court was to determine, whether the Applicant’s right to freedom of expression was violated under Article 10 of the Convention.
The Applicant contended that his fundamental right to freedom of expression had been violated, asserting that the domestic courts had unlawfully and unjustifiably restricted this right by finding fault with his submission of what was deemed an unsubstantiated criminal complaint. Furthermore, the Applicant invoked Article 6 of the Convention, alleging that their right to a fair trial had been compromised. He asserted that two of the judges serving on the High Disciplinary Court might have displayed bias, raising concerns about the impartiality of the proceedings. Lastly, the Applicant asserted that the disciplinary punishment imposed upon them was not only unlawful but also disproportionate given the circumstances. He pointed out various shortcomings and deficiencies in the proceedings, suggesting that these procedural flaws further compounded the injustice they experienced.
On the other hand, the State contended that the restriction imposed on the Applicant’s freedom of expression was both lawful and warranted. They argued that considering the Applicant’s profession as a lawyer, a higher degree of prudence should have been exercised, as the statements in question were baseless and damaging to others, constituting defamation.
The ECtHR referenced previous cases such as Nikula v. Finland, (2002) and Steur v. the Netherlands, (2003) to establish the principles regarding professional practice and Article 10. [para 38] The Court stressed that lawyers have a central position in the administration of justice as intermediaries between the public and the courts. Therefore, it is legitimate to expect them to contribute to the proper administration of justice and maintain public confidence therein [Schmidt v. Austria, (2008)]. [para. 39] The Court highlighted international conventions, such as the Council of Europe’s Criminal Law Convention on Corruption and the United Nations Convention Against Corruption, to underscore the significance of protecting those who report corruption. These conventions, ratified by Poland, require effective protection for whistleblowers. [para. 40]
Turning to the case, the Court acknowledged that the disciplinary decision against the applicant constituted an interference with his rights under Article 10 of the Convention. [para. 41] The Court found that the interference was prescribed by law, as the requirement for lawyers to exercise moderation, proportionality, and caution complemented the provisions of the Bar Act regulating freedom of expression and disciplinary liability. [para. 42]
The Court stressed that the usual rules of conduct imposed on members of the Bar as regards “dignity, honor or integrity” or “respect for the fair administration of justice”, contribute to the protection of the judiciary from gratuitous and unfounded attacks and that therefore the impugned interference aimed at contributing to the proper administration of justice. [Bono v. France, (2015); Morice v. France, (2015); and Bagirov v. Azerbaijan, (2020)]. The Court observed that the Advocate’s Code of Professional Ethics stipulated that advocates should act with moderation and caution when making their statements toward state authorities. [para. 43]
The Court stated that it needed to assess whether the interference was “necessary in a democratic society” by considering its proportionality to the legitimate aim pursued and the grounds provided by the domestic authorities. The Court explained that the applicant received a disciplinary sanction for filing a criminal complaint without proper factual basis, moderation, proportionality, or caution. It was noted that the domestic court condemned the applicant for accepting instructions that accused a prosecutor of bribery without sufficient evidence. [para. 45] The Court mentioned that criticism of civil servants exercising their powers might have wider limits, but in this case, the criticism took the form of a formal criminal denunciation. It observed that the applicant did not engage in personal attacks against the prosecutor, nor did he make his allegations publicly. [Zakharov v. Russia, (2006)] Instead, he followed a procedure for reporting a crime. [para. 46] The Court emphasized that it was only in exceptional circumstances that recourse to criminal or disciplinary proceedings against a whistleblower could be justified within the meaning of Article 10. [Grigoriades v. Greece, (1997); Kazakov v. Russia (2008); Zakharov; and Sofranschi v. Moldova, (2010)] It noted that the authorities considered the applicant’s action a violation of the principle of good administration of justice, but there was no evidence of malicious intent or exceptional circumstances justifying disciplinary proceedings. [para. 47]
The Court stressed the importance of citizens being able to notify competent state officials about irregular or unlawful conduct by civil servants, highlighting this as a precept of the rule of law. [Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina (2017); Zakharov; and Lešník] [para. 48] The ECtHR noted that the disciplinary authorities considered that the applicant had failed to indicate circumstances to support his accusation. However, the ECtHR took a different stance, asserting that the offense alleged by the applicant, on behalf of his client, did not lack any argument entirely in support of his version of events. This viewpoint was contrasted with previous cases like Schmidt and Peruzzi, (2015) as well as cases including L.P. and Carvalho v. Portugal, (2019), and Steur. [para. 50] The Court accepted the applicant’s argument that “it is in the nature of passive bribery allegations that people reporting such acts do not have access to evidence of the offense unless they have tried to offer a bribe or witnessed such an event.” [para.50]
It pointed out that while the information regarding the meetings with the CAB (Central Anticorruption Bureau) was imprecise and ultimately uncorroborated, the applicant had identified specific employees of a certain company as the likely individuals responsible for offering the bribe. Lastly, the Court noted that the authorities had only considered the applicant’s corruption report for eight days before deciding not to investigate the matter. This raised questions about whether the authorities had thoroughly examined the circumstantial evidence provided by the applicant. In light of these elements, the Court concluded that it could not be said that the applicant had failed to substantiate, to the extent possible under the circumstances, that the information he disclosed was accurate and reliable. This contrasted with the reasoning in the Gawlik case, emphasizing the room for doubt and suggesting that the applicant had met the required standard of substantiation. [para 50] The Court also raised concerns about the disciplinary proceedings being triggered by a superior prosecutor and his disclosure of the applicant’s non-public crime report. [para 51]
Further, the Court considered the principle of proportionality in assessing the interference. It noted that the nature and severity of the penalties imposed are essential factors to take into account, referencing the case of Ceylan v. Turkey, (1999). The Court observed that the applicant had received a fine, and while it was not excessive, it was also not the mildest penalty for professional misconduct, as previously detailed. However, the Court acknowledged the applicant’s submission that the disciplinary proceedings had significant adverse consequences. The applicant’s professional reputation had been severely damaged, leading to a loss of commitment to his legal practice. Additionally, the financial resources had been redirected toward the disciplinary proceedings, affecting his legal practice financially. Furthermore, he had been barred from serving as a professional tutor for one year. [para. 52]
The Court concluded that the disciplinary authorities had not provided relevant and sufficient reasons for their decision and had exceeded their margin of appreciation when finding the applicant at fault and imposing a fine for unethical conduct. This conclusion was supported by references to cases such as Peruzzi, Schmidt, and Kincses, as well as Wingerter v. Germany. [para. 53] The Court stated that this conclusion, in itself, was sufficient to conclude that there had been a violation of Article 10 of the Convention. [para. 54] The Court noted that, given the particular circumstances of the case and the violation found, it was unnecessary to further examine the fairness of the impugned disciplinary proceedings or the question of procedural guarantees afforded to the applicant.
The Court awarded EUR 535 for pecuniary damage, covering financial losses directly related to the violation. Additionally, the Court acknowledges that the applicant must have experienced non-pecuniary harm due to the violation and, ruling on an equitable basis, grants him EUR 9,750 for this non-material damage, which includes emotional distress and reputational harm.
Joint Dissenting Opinion of Justice Wojtyczek and Poláčková
In their dissenting opinion, Judges Wojtyczek and Poláčková disagreed with the majority’s view that Article 10 of the Convention had been violated in the case at hand. They observed that the complaint lodged by the applicant, who was an advocate representing a client, lacked supporting evidence and was rightly deemed a breach of professional ethics by the Disciplinary Court of the Warsaw Bar Association. The dissenting judges emphasized that Article 10’s protection of advocates’ freedom of speech had to be limited by the interests and instructions of their clients. They believed that advocates should have provided services supported by at least some evidence or argument and should have adhered to professional standards.
The dissenting opinion also highlighted the importance of self-regulation by certain professions, known as the “liberal professions,” and suggested that the diverse traditions and approaches in Europe regarding professional self-regulation should have been taken into account when applying the Convention. Furthermore, the dissenting judges argued that any criminal complaint should have been based on a minimum amount of evidence to prevent unnecessary stress and strain on the resources of prosecuting authorities. They criticized the majority for introducing a new and lower evidential threshold by using the phrase “the most exceptional circumstances” and creating a disclosure-based test that they found irrelevant to reporting a criminal offense.
Finally, the dissenting opinion emphasized that the civic duty to report a criminal offense under Polish law required a person to have had knowledge, not just vague suspicion, of the offense. Since the applicant, in this case, did not have such knowledge, the dissenting judges concluded that the legal professional bodies in Poland had not exceeded their margin of appreciation under Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This ruling expands the freedom of expression, particularly in the context of legal professionals and whistleblowers. The European Court of Human Rights (ECtHR) affirmed the importance of allowing lawyers to report potential misconduct and corruption without undue restrictions, emphasizing that disciplinary actions against whistleblowers should only be justified in exceptional circumstances. The ECtHR’s decision highlighted the duty of lawyers to contribute to the proper administration of justice while maintaining public confidence, and it stressed that criticism of public officials, even in the form of formal criminal denunciations, should be allowed within reasonable limits. By prioritizing the protection of those who report irregular or unlawful conduct, the ruling underscores the broader principles of transparency, accountability, and the rule of law, ultimately expanding the boundaries of freedom of expression for legal professionals and individuals seeking to expose wrongdoing.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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