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FOURTH
SECTION
CASE OF DŁUGOŁĘCKI v. POLAND
(Application
no. 23806/03)
JUDGMENT
STRASBOURG
24
February 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Długołęcki
v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 3 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23806/03) 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 Jacek Długołęcki
(“the applicant”), on 11 July 2003.
- The
applicant was represented by Mr M. Puchalski, a lawyer
practising in Gdynia. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged a breach of his right to freedom of expression
guaranteed by Article 10 of the Convention.
- On
5 September 2007 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1935 and lives in Gdańsk.
1. The article in
Kolbudzkie ABC
- The applicant is a journalist and at the material time
was the editor in chief of a free newsletter called Kolbudzkie
ABC, Periodical, Private, Independent (Periodyk,
Prywatny, Niezależny). In the 13th edition of the
newsletter, of 9 October 1998, the applicant published the following
article:
“The Peter Principle [the title is repeated six
times]
The Peter Principle: During his career in administration
a civil servant aims to rise to a position in which he will be
totally incompetent.
Several years ago Mr A.W. took over and swiftly left the
office of mayor. At that time this matter was widely commented upon.
The surprise of the ABC editors was thus great when we saw the name
of the former mayor of the commune (wójt) on the list
of the candidates for the council (radny).
This is not a candidate like any other, as he became
famous for the scandal of disposing of the rights to an excellent
water source in Pręgów, for half price, to the Gdańsk
company Saur...
We were shocked when we discovered the name of the
unfortunate negotiator forester on the list of candidates for
the council. It can only mean that the failed would-be councillor
thinks that the inhabitants of Kolbudy and the surrounding area have
forgotten about the Saur blunder.
This confirms the Peter Principle – the former
mayor reached his level of incompetence a few years ago. That blunder
(wpadka) did not put him off and he is crawling up (wczołguje
się) again to another level... a Polish speciality....”
- Mr
A.W. was not elected in the municipal elections of 11 October 1998.
However, he succeeded in the supplementary elections to the Municipal
Council of 6 June 1999.
2. The prosecution on charges of defamation and insult
- On
8 January 1999 Mr A.W. lodged with the Gdańsk District Court
(Sąd Rejonowy) a private bill of indictment against the
applicant, charging him with defamation. He submitted that, two days
prior to the elections to the Municipal Council, the applicant had in
his publication debased him in public opinion, which had undermined
public confidence in him, as a consequence of which he had lost the
election. In particular, A.W. complained about the applicant's
allegations that he had sold the rights to water sources for half
price and the applicant's statement that as mayor of a commune he
“had already reached his level of incompetence a few years ago,
but that this blunder had not put him off and he was crawling up
again to another level”. Finally, A.W. considered that the
title of the article, repeated several times, was defamatory.
- On
4 April 2000 the Gdańsk District Court found the applicant
guilty of defamation under Article 212 of the Criminal Code as well
as of proffering insult under Article 216 of the Criminal Code. The
applicant was sentenced to a fine of 1,000 Polish zlotys (PLN) and
was ordered to pay PLN 200 to a charity. Furthermore, the applicant
was ordered to reimburse the private prosecutor PLN 300 for the costs
of the proceedings. The court found as follows:
“In the court's opinion, both the form and the
content of the article 'The Peter Principle' clearly show that [the
applicant's] purpose was to defame the private prosecutor in alleging
abuses when signing the contract with the Saur company, so that the
day before the elections to the Kolbudy Municipal Council he would
lose the public confidence necessary for him to hold public office”.
- On
16 August 2000 the applicant appealed against the judgment alleging,
inter alia, a violation of Article 10 of the Convention.
- On
30 January 2001 the Gdańsk Regional Court allowed the appeal,
quashed the judgment and remitted the case.
- On
10 December 2002 the Gdańsk District Court gave a judgment. The
court acquitted the applicant of the charge of defamation under
Article 212 of the Criminal Code. It found however that the
applicant had insulted A.W. (znieważenie), within the
meaning of Article 216 §§ 1 and 2 of the Criminal Code, in
that he had stated in his article “The Peter Principle”
that he “had already as mayor reached his level of incompetence
a few years ago, but this blunder [had] not put him off and he [was]
crawling up again to another level”. The court, however,
decided to conditionally discontinue the proceedings for a
probationary period of one year, as it had established that the guilt
and danger to society of the act committed by the applicant had not
been significant. The applicant was ordered to publish an apology in
Kolbudzkie ABC, to pay 50 Polish zlotys (PLN) [approximately
13 euros (EUR) at the material time] to a charity, to reimburse the
private prosecutor PLN 300 for the costs of the proceedings and to
pay the State Treasury PLN 118 for the costs of the proceedings.
- The
trial court, in acquitting the applicant of the charge of defamation,
had referred to standards set by the Convention and the Court,
underlining the importance of free speech in the context of elections
and considering that the limits of acceptable criticism as regards a
politician were wider. In particular the court took into account that
criminal proceedings had been instituted against Mr A.W. in which he
had been charged with mismanagement while selling the above-mentioned
water source. Although Mr A.W. was acquitted in this set of
proceedings, the court considered that the applicant in his article
had merely alleged his incompetence which had been within the limits
of acceptable criticism.
- With
regard to the charge of proffering insult under Article 216 of the
Criminal Code the trial court established as follows:
“The statement about A.W., in the article 'The
Peter Principle', that he '[had] as mayor reached his level of
incompetence a few years ago, but this blunder [had] not put him off
and he [was] crawling up again to another level' amount to proffering
insult because the use of those words, particularly the word
'crawling' are undoubtedly pejorative and the fact of publishing
those words in the newsletter Kolbudzkie ABC qualifies that
act as an insult proffered through the mass media.
At the same time the court has established... that this
statement objectively violated the good name of the person against
whom it was directed.
...
There is thus no doubt that in the present case the
conditions for the offence of proffering insult through the media,
under Article 216 §§1 and 2 of the Criminal Code, have been
fulfilled....
...against the background of the collected evidence,
[the applicant] should be considered guilty... However, [while] the
social danger of the act committed by [the applicant] is not
significant, it is undoubtedly not unimportant (znikoma). In
the light of the above the court finds that the circumstances in
which the applicant had committed the offence of insulting [Mr A.W.]
in the newsletter Kolbudzkie ABC were established beyond any
doubt. ...the court has thus decided to conditionally discontinue the
proceedings for a probationary period of one year...
The court also has regard to the fact that the insult
related only to the public activity of the private prosecutor and it
is commonly known that a person who undertakes such activity should
be prepared to accept attacks against himself, relating to the
assessment of his work or allegations made during an election
campaign, more often than other people in society. At the same time,
it is known that for the proper functioning of democracy it is
necessary to secure the right to unrestrained criticism of actions
taken by elected representatives.
...
The [payment to the charity in the amount of PLN 50] is
intended to cause real detriment to the accused, against whom the
criminal proceedings have been conditionally discontinued. In setting
the amount of the fine the court took into consideration the rather
difficult financial situation of the accused and the insignificant
danger to society of the offence attributed to him....”
- Both
the applicant and the private prosecutor lodged appeals against the
judgment. The applicant maintained that he had not intended to insult
the politician and that he had not been aware that his literary
metaphor could be understood as an insult. His actions were motivated
by the interest of the local community and he had acted within the
boundaries of admissible criticism and freedom of press.
- On
21 March 2003 the Gdańsk Regional Court dismissed the appeals
and ordered the applicant to pay PLN 50 for the costs of the
proceedings. The court held as follows:
“...taking into account reading of the whole of
[the applicant's] article, and in particular the negative and
contemptuous-sounding expression “to crawl up to another
level”, there is no doubt as to the fact that we are dealing
with an insult. ...
According to the court [the applicant] wrongly
interprets the boundaries of acceptable criticism. Insult or abusive
language should by no means be included in the definition of
criticism. Criticism consists of a negative or positive assessment of
someone's action or attitude; it is however restricted to the purpose
of denouncing negative attitudes. To reach this objective it is not
necessary to use statements that insult the person in question and
for this reason exceed the boundaries of acceptable criticism. The
concept of acceptable criticism applies to the offence of defamation
and only in so far as it concerns a charge raised against such
person. To cover by this principle a statement that was not a charge
against this person, but an expression of contempt and disrespect,
would be against the [law]. All criticism should be limited by
fairness and the above-mentioned purpose of public interest. In the
present case these boundaries were overstepped and it was not
necessary, for the purpose of the protection of a public interest, to
commit an insult. To sum up, the applicant's action for the purpose
of a socially justified interest could not influence [his]
responsibility for acting in a debasing manner and, in consequence,
for the insult committed by him...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of the 1997 Criminal Code provide as follows:
“Article 212 § 1. Anyone who
imputes to another person, a group of persons, an institution, a
legal person or an organisation without legal personality, such
behaviour or characteristics as may lower this person, group or
entity in public opinion or undermine public confidence in their
capacity necessary for a given position, occupation or type of
activity, shall be liable to a fine, a restriction of liberty or
imprisonment not exceeding one year.
§ 2. If the perpetrator commits the
act described in paragraph 1 through the mass media he shall be
liable to a fine, a restriction of liberty or imprisonment not
exceeding two years.”
“Article 216 § 1. Anyone who insults another
person in his presence, or, although in his absence, in public, or
with the intention that the insult shall reach such a person, shall
be subject to a fine or the penalty of restriction of liberty.
§ 2. Anyone who insults another
person through the mass media shall be subject to a fine, the penalty
of restriction of liberty or the penalty of deprivation of liberty
for up to one year.
§ 5. Prosecution takes place under
a private bill of indictment.”
- Articles
66 et seq. of the 1997 Criminal Code concern the conditional
discontinuation of criminal proceedings.
Article
66 reads, in so far as relevant:
Ҥ 1. The court may
conditionally discontinue the criminal proceedings if the guilt and
social danger of the act are not significant and the circumstances of
its commission do not raise doubts, and that the attitude of the
perpetrator not previously punished for an intentional offence, his
personal characteristics and his way of life to date provide
reasonable grounds for the assumption that, even in the event of the
discontinuance of the proceedings, he will observe the legal order
and in particular will not commit an offence.”
- A
more detailed rendition of the relevant domestic law provisions
concerning conditional discontinuation of the proceedings is set out
in the Court's judgment Dąbrowski v. Poland,
no. 18235/02, §§ 14-16, 19 December 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained of a 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. Admissibility
- The
Government submitted that the applicant had not exhausted all
domestic remedies as required by Article 35 § 1 of the
Convention. In particular, the applicant could have availed himself
of the opportunity of lodging a constitutional complaint with the
Constitutional Court. They relied on a previous case in which the
Court had recognised the constitutional complaint as an effective
remedy (see Szott-Medyńska v. Poland (dec.), no.
47414/99, 9 October 2003). The Government referred to the
Constitutional Court's judgment of 11 October 2006 which concerned
the constitutionality of Article 226 § 1 of the Criminal Code,
which penalises insulting a public official.
- The
applicant disagreed with the Government. He submitted that the
constitutional complaint was not an effective remedy within the
meaning of Article 35 § 1 of the Convention. The applicant
claimed that he had appealed against the Regional Court's judgment by
which he had exhausted available domestic remedies.
- The
Court reiterates that the object of the rule on exhaustion of
domestic remedies is to allow the national authorities (primarily the
judicial authorities) to address an allegation of a violation of a
Convention right and, where appropriate, to afford redress before
that allegation is submitted to the Court (see Kudła
v. Poland [GC], no. 30210/96, § 152,
ECHR 2000 XI). The Court further reiterates that Article 35
of the Convention, which sets out the rule on exhaustion of domestic
remedies, provides for a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the applicant's complaints and offered reasonable prospects of
success (see Selmouni v. France [GC], no. 25803/94, § 76,
ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00,
§ 15, ECHR 2002-VIII).
- The
Court has also held that the constitutional complaint in Poland could
be recognised as an effective remedy, within the meaning of the
Convention, only where: 1) the individual decision, which allegedly
violated the Convention, had been adopted in direct application of an
unconstitutional provision of national legislation; and 2) procedural
regulations applicable to the revision of such type of individual
decisions provided for the reopening of the case or the quashing of
the final decision in consequence of the judgment of the
Constitutional Court in which unconstitutionality had been found (see
Pachla v. Poland (dec), no. 8812/02, 8 November
2005, and Szott-Medynska, cited above).
- Turning
to the circumstances of the instant case, the Court notes that the
applicant was found guilty of proffering insult in breach of Article
216 of the Criminal Code. This article prohibits proffering insults
to another person through mass media and is not concerned with the
special situation of insulting a public figure. The applicant's
sanction was thus a result of judicial interpretation which applied
this provision to the particular circumstances of the applicant's
case. In this connection the Court points to the established
jurisprudence of the Constitutional Court which provided that
constitutional complaints based solely on the allegedly wrongful
interpretation of a legal provision were excluded from its
jurisdiction (see Palusinski v. Poland
(dec.), no. 62414/00, ECHR 2006 ...).
Therefore
the Court considers that the constitutional complaint cannot be
regarded with a sufficient degree of certainty as an effective remedy
in the applicant's case.
For these reasons, the Government's
plea of inadmissibility on the ground of non-exhaustion of domestic
remedies must be dismissed.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Arguments of the parties
- The
applicant submitted that the interference with his right to freedom
of expression was not necessary in a democratic society as it was not
justified by a pressing social need. He emphasised that the language
used by him had not overstepped the boundaries of admissible and
civilised journalistic expression of criticism. The statements in
question were not offensive and were not an intentional personal
assault on that politician. The applicant's intention was to
highlight that politician's incompetence in the context of upcoming
local elections. Moreover, the statements were quoted after a
well-known book by Laurence J. Peter, which could not be considered
offensive.
- The
applicant argued that his statements should be put in the context of
freedom of press in the democratic society and taking into account
his obligations as a journalist to report on incompetency of a
politician. His article concerned matters of public interest,
particularly since it was published during the election campaign.
Thus the politician should have shown more tolerance when facing
criticism.
- The
applicant concluded that the authorities had overstepped the margin
of appreciation afforded to them. Moreover, in the field of freedom
of press the authorities should not have resorted to criminal
proceedings as a criminal sentence carries various negative
consequences for a person involved. The applicant considered it
irrelevant that the domestic courts had conditionally discontinued
the proceedings and had imposed a lenient penalty. It was important
that they found that the applicant had committed the offence of
proffering insult and that judicial decision entered the National
Crime Register. In consequence of the institution of the criminal
proceedings against him he had decided to stop publishing his
newsletter. Thus, his right to freedom of expression had been
violated.
- The
Government admitted that the penalty imposed on the applicant had
amounted to an “interference” with his right to freedom
of expression. However, they pointed to the fact that the applicant
had been acquitted of the charge of defamation and the proceedings in
his case had been discontinued. The Government also submitted that
the interference was “prescribed by law” and pursued a
legitimate aim as it was intended to protect the reputation and
rights of others.
- Furthermore,
the Government pointed out that the freedom of the press was not
absolute and that the domestic authorities had not overstepped their
margin of appreciation in balancing two competing interests. They
submitted that the domestic courts had found that the statements made
by the applicant had not been a critical opinion aimed at a
politician but an insult. The Government underlined that while the
limits of acceptable criticism are wider as regards a politician, the
latter should also receive protection.
- The
Government also submitted that the domestic courts in making their
assessment had adduced detailed reasons that had been in accordance
with the Convention standards. In particular they took into
consideration the Court's case-law as regards the value of a public
debate, the crucial importance of political debate in the context of
free elections, and the wider limits of acceptable criticism
applicable to a politician.
- The
Government concluded that the interference complained of had been
proportionate to the legitimate aim pursued and thus necessary in a
democratic society to protect the reputation of others. The penalty,
a symbolic payment to a charity and an order to apologise to A.W.,
was a lenient one and did not constitute a conviction. Although a
notice of the proceedings against the applicant is revealed in the
National Crime Record, the information is removed after a successful
expiry of the probation period. They submitted that there had been no
violation of Article 10 of the Convention.
2. The Court's assessment
(a) General principles
- The
Court reiterates that freedom of expression, as secured in
paragraph 1 of Article 10, 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, 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 that pluralism,
tolerance and broadmindedness without which there is no “democratic
society” (see, among many other authorities, Oberschlick v.
Austria (no. 1), judgment of 23 May 1991, Series A no. 204,
§ 57, and Nilsen and Johnsen v. Norway [GC],
no. 23118/93, § 43, ECHR 1999 VIII).
- The
limits of critical comment are wider if a public figure is involved,
as he inevitably and knowingly exposes himself to public scrutiny and
must therefore display a particularly high degree of tolerance (see
Lingens v. Austria, judgment of 8 July 1986, Series A no.
103, p. 26, § 42; Incal v. Turkey, judgment of 9 June
1998, Reports 1998-IV, p. 1567, § 54; and Scharsach
and News Verlagsgesellschaft v. Austria, no. 39394/98, § 30,
ECHR 2003 XI).
- Although
freedom of expression may be subject to exceptions they “must
be narrowly interpreted” and “the necessity for any
restrictions must be convincingly established” (see Observer
and Guardian v. the United Kingdom, 26 November 1991, § 59,
Series A no. 216).
- There
is little scope under Article 10 § 2 of the Convention for
restrictions on political speech or on debate on questions of public
interest (see Sürek v. Turkey (no. 1) [GC], no.
26682/95, § 61, ECHR 1999-IV). In the context of a public debate
the role of the press as a public watchdog allows journalists to have
recourse to a certain degree of exaggeration, provocation or
harshness. Freedom of the press affords the public one of the best
means of discovering and forming an opinion of the ideas and
attitudes of their political leaders (see Castells v. Spain,
judgment of 23 April 1992, Series A no. 236, § 43).
It is true that, whilst an individual taking part in a public debate
on a matter of general concern is required not to overstep certain
limits as regards – in particular – respect for the
reputation and rights of others, he or she is allowed to have
recourse to a degree of exaggeration or even provocation, or in other
words to make somewhat immoderate statements (see Kuliś
v. Poland, no. 15601/02, § 47, 18 March 2008).
- One
factor of particular importance is the distinction between statements
of fact and value judgments. While the existence of facts can be
demonstrated, the truth of value judgments is not susceptible of
proof. A requirement to prove the truth of a value judgment is
impossible to fulfil and infringes freedom of opinion itself, which
is a fundamental part of the right secured by Article 10.
However, even where a statement amounts to a value judgment, the
proportionality of an interference may depend on whether there exists
a sufficient factual basis for the impugned statement, since even a
value judgment may be excessive where there is no factual basis to
support it (see Turhan v. Turkey, no. 48176/99, § 24,
19 May 2005, and Jerusalem v. Austria, no. 26958/95,
§ 43, ECHR 2001-II).
- The
Court's task in exercising its supervisory function is not to take
the place of the national authorities but rather to review under
Article 10 the decisions they have taken pursuant to their power of
appreciation. In so doing, the Court must look at the “interference”
complained of in the light of the case as a whole and determine
whether the reasons adduced by the national authorities to justify it
are “relevant and sufficient”. In so doing, the Court has
to satisfy itself that the national authorities applied standards
which were in conformity with the principles embodied in Article 10
and, moreover, that they based their decisions on an acceptable
assessment of the relevant facts (see Vogt v. Germany,
judgment of 26 September 1995, Series A no. 323, pp. 25-26, §
52, and Jerusalem v. Austria, cited above, § 33
and Feldek v. Slovakia, no. 29032/95, §§ 77 and
78, ECHR 2001 VIII).).
- Free
elections and freedom of expression, particularly freedom of
political debate, together form the bedrock of any democratic system
(see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2
March 1987, Series A no. 113, p. 22, § 47). The
two rights are inter-related and operate to reinforce each other. For
this reason, it is particularly important in the period preceding an
election that opinions and information of all kinds are permitted to
circulate freely (see, Bowman v. the United Kingdom, judgment
of 19 February 1998, Reports 1998-I, § 42). This
principle applies equally to national and local elections (see
Kwiecień v. Poland, no. 51744/99, § 48, ECHR
2007 ...).
(b) Application of the general principles
to the present case
- The
Court observes that it is undisputed that the domestic courts'
decisions complained of by the applicant amounted to an
“interference” with the exercise of his right to freedom
of expression. The Court also finds, and the parties agreed on this
point, that the interference complained of was prescribed by law,
namely Article 216 §§ 1 and 2 of the Criminal Code, and was
intended to pursue a legitimate aim referred to in Article 10 §
2 of the Convention, namely to protect “the reputation or
rights of others”. Thus the only point at issue is whether the
interference was “necessary in a democratic society” to
achieve such aims.
- The
applicant, who was a journalist, had published, two days prior to
municipal elections, an article concerning a local politician, a
candidate for these elections and the former mayor of the commune.
The domestic courts in the criminal proceedings instituted against
the applicant upon an application lodged by that politician
considered that the statement that “as mayor [A.W.] reached his
level of incompetence a few years ago, but this blunder [had] not put
him off and he [was] crawling up again to another level”
amounted to proffering insult contrary to the Criminal Code.
At
the same time the domestic court acquitted the applicant of
defamation in particular as regards the statements in which the
applicant alleged that Mr A.W. as a mayor had been guilty of
mismanagement when selling a water source to a private company. The
court considered that this allegation had been sufficiently confirmed
by the facts as to fall within the scope of permissible criticism and
the freedom of press.
The
Court also notes that the impugned article 'The Peter Principle' was
based on a theory developed in a 1968 book by Laurence J. Peter,
which expounds the principle of hierarchiology, namely “in a
hierarchy every individual tends to rise to his level of
incompetence.”
Finally,
the Court observes that the applicant expressed his opinion in an
eight-page-long free newsletter, self-edited and distributed, which
was addressed to the inhabitants of Kolbudy commune. Its range and
impact were thus very limited.
- In
the light of the above the Court considers that the impugned
statement should be considered a value judgment on a matter of public
interest which cannot be said to have been devoid of any factual
basis. The Court is of the opinion that the content and the tone of
the article were on the whole fairly balanced.
- As
regards the reasons given by the domestic courts, the Court firstly
notes that when acquitting the applicant of the charge of defamation
the court considered that his statements were within the limits of
acceptable criticism of a politician in the context of political
debate (see paragraph 13 above). For instance, the domestic
courts acknowledged that his allegations that the politician, as
mayor of the commune, was incompetent, had a sufficient factual
basis. However, when establishing that the applicant had insulted the
politician by stating that he was crawling up to another level of
incompetence, the domestic courts failed to take into consideration
that the impugned statement was a value judgment on a matter of
public interest. The domestic court adopted a narrow definition of
what could be considered acceptable criticism, excluding from it all
statements expressing “contempt and disrespect” (see
paragraph 16 above). In doing so the court did not take into
consideration the fact that the impugned statements had been made in
the context of a heated political debate. Moreover, it failed to
notice that the applicant was exercising his right to impart
information and ideas on political questions and on other matters of
public interest and in so doing might have recourse to a degree of
exaggeration. The statements in question were limited to an
assessment of the professional sphere of the life of Mr A.W. and
denounced his alleged lack of ability as a politician. The Court
notes that although political invective often spills over into the
personal sphere, in the instant case the applicant's critical comment
did not concern the private or family life of that politician (see a
contrario Lopes Gomes da Silva v. Portugal, no. 37698/97,
§ 34, ECHR 2000-X, and Kulis, cited above, §
52).
Consequently,
the Court finds that the domestic authorities failed to take into
consideration the crucial importance of free political debate in a
democratic society particularly in the context of free elections (see
Malisiewicz-Gąsior v. Poland, no. 43797/98,
§ 67, 6 April
2006). Regard being had to the nature of the
statements, and the fact that they had been made in the context of
local elections, the Court is of the opinion that the reasons adduced
by the domestic courts cannot be regarded as relevant and sufficient
to justify the interference at issue.
- Lastly,
the Court reiterates that the nature and severity of the penalty
imposed are factors to be taken into account when assessing the
proportionality of the interference (see, for example, Sürek
v. Turkey (no. 1) [GC], cited above, § 64,
and Chauvy and Others v. France, no. 64915/01, § 78,
ECHR 2004-VI). In that connection, it notes that while the penalty
imposed on the applicant was relatively light (a payment of PLN 50 to
a charity and reimbursement of the costs of the proceedings which
amounted in total to PLN 518 – approximately 120 euros
(EUR) at the material time), and although the proceedings against him
were conditionally discontinued, nevertheless the domestic courts
found that the applicant had committed a criminal offence of
proffering insult. In consequence, the applicant had a criminal
record. Moreover, it remained open to the courts to resume the
proceedings at any time during the period of his probation should any
of the circumstances defined by law so justify (see Dąbrowski
v. Poland, no. 18235/02, § 36, 19 December 2006, and
Weigt v Poland (dec.), 74232/01, 11 October 2005).
- Furthermore,
while the penalty did not prevent the applicant from expressing
himself, it nonetheless amounted to a kind of censorship which was
likely to discourage him from making criticisms of that kind again in
the future. Such a conviction is likely to deter journalists from
contributing to public discussion of issues affecting the life of the
community. By the same token, it is liable to hamper the press in the
performance of its task of purveyor of information and public
watchdog (see, mutatis mutandis, Barthold v. Germany,
judgment of 25 March 1985, Series A no. 90, p. 26,
§ 58, and Lingens v. Austria, cited above, p. 27,
§ 44). Indeed, the applicant submitted that because of the
criminal proceedings instituted against him, he had abandoned his
journalistic activity.
- Finally,
the Court notes that the criminal proceedings in the present case had
their origin in a bill of indictment lodged by the politician himself
and not by a public prosecutor (see, a contrario, Raichinov
v. Bulgaria, no. 47579/99, § 50, 20 April 2006) and
that they resulted in conditional discontinuation of these
proceedings. In view of the margin of appreciation left to
Contracting States a criminal measure as a response to defamation
cannot, as such, be considered disproportionate to the aim pursued
(see Lindon, Otchakovsky-Laurens and July v. France [GC],
nos. 21279/02 and 36448/02, § 59, ECHR 2007-..., Radio France
and Others v. France, no. 53984/00, § 40, ECHR 2004 II
and Rumyana Ivanova v. Bulgaria, no. 36207/03, §
68, 14 February 2008). Nevertheless, the Court notes that when a
statement, whether qualified as defamatory or insulting by the
domestic authorities, is made in the context of a public debate, the
bringing of criminal proceedings against the maker of the statement
entails the risk that a prison sentence might be imposed. In this
connection, the Court recalls that the imposition of a prison
sentence for a press offence will be compatible with journalists'
freedom of expression as guaranteed by Article 10 only in
exceptional circumstances, notably where other fundamental rights
have been impaired, as for example, in the case of hate speech or
incitement to violence (see Cumpǎnǎ and Mazǎre v.
Romania [GC], no. 33348/96, § 115, ECHR 2004 XI).
For the Court, similar considerations should apply to insults
expressed in connection with a public debate. The Court would
further observe that the Parliamentary Assembly of the Council of
Europe in its Resolution 1577 (2007) urged those member States which
still provide for prison sentences for defamation, even if they are
not actually imposed, to abolish them without delay (Resolution
Towards decriminalisation of defamation adopted on 4 October
2007).
- Having regard to the above considerations, the
interference in the applicant's case was disproportionate to the
legitimate aim pursued, having regard in particular to the interest
of a democratic society in ensuring and maintaining the freedom of
the press in the context of free elections.
There
has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 20,000 in respect of non-pecuniary damage.
- The
Government submitted that the claim was excessive.
- The
Court accepts that the applicant has suffered
non-pecuniary damage – such as distress and frustration
resulting from the proceedings against him and the adverse judgments
– which is not sufficiently compensated by the finding of
violation of the Convention. Making its assessment on an equitable
basis, the Court awards the applicant EUR 3,000 under this head.
B. Costs and expenses
- The
applicant, who was represented by a lawyer, did not claim
reimbursement of any costs and expenses incurred before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention,
EUR 3,000 (three thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Polish zlotys at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Judge
Bratza is annexed to this judgment.
N.B.
T.L.E.
CONCURRING OPINION OF JUDGE BRATZA
- I
am in full agreement with the other members of the Chamber that the
applicant's rights under Article 10 of the Convention were violated
in the present case and only wish to add a few remarks of my own on
the question of the use of the criminal law to punish journalists in
respect of personal insults.
- In
paragraph 47 of the judgment it is noted that the Court has
previously held that the use of a criminal measure as a response to
defamation cannot, as such, be considered disproportionate to the aim
pursued. This is, of course correct, although it is also correct
that, in holding an interference with freedom of expression to have
been disproportionate, the Court has frequently placed emphasis on
the fact that recourse could have been had to means other than
criminal sanctions (see, for example, Lehideux and Isorni v.
France, judgment of 23 September 1998, Reports of Judgments
and Decisions 1998-VII, §§ 51 and 57; Raichinov v.
Bulgaria, no. 47579/99, § 50, 20 April 2006). The Chamber
goes on in the same paragraph to hold that when a statement, whether
qualified as defamatory or insulting by the domestic authorities, is
made in the context of a public debate, the bringing of criminal
proceedings against the maker of the statement “entails the
risk that a prison sentence might be imposed” and that the
imposition of a prison sentence for a press offence would be
compatible with journalists' freedom of expression as guaranteed by
Article 10 only in exceptional circumstances.
- In
appearing to tie the lack of proportionality of the use of criminal
sanctions for personal insult to a case where a journalist risks the
imposition of a prison sentence, this statement of principle does not
in my view go far enough. Irrespective of the severity of the penalty
which is liable to be imposed on the journalist, the use of the
criminal law, with the attendant risk of a criminal conviction and a
criminal penalty, for criticising a politician or other public figure
in a manner which can be regarded as personally insulting, is likely
to deter a journalist from contributing to public discussion of
issues affecting the life of the community and, more generally, to
hamper the press in carrying out its important role as a public
watchdog. In cases such as the present, involving criticism of a
politician in the course of a public debate, it would in my view only
be in the most exceptional circumstances that recourse to criminal
proceedings against a journalist for alleged insult would be
considered as a proportionate response, whether those proceedings
originated in a bill of indictment lodged by a public prosecutor or,
as in the present case, by the politician himself. The facts of the
present case disclose no such exceptional circumstances.
