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FOURTH
SECTION
CASE OF
KUBASZEWSKI v. POLAND
(Application
no. 571/04)
JUDGMENT
STRASBOURG
2 February
2010
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 Kubaszewski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and
Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 12 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 571/04) 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 Czesław Kubaszewski
(“the applicant”), on 8 December 2003.
- The
applicant was represented by Mr A. Zielonacki, a lawyer practising in
Poznań. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs.
- The applicant alleged, in particular, that proceedings
brought against him under the relevant provisions of the Civil Code
regulating the protection of personal rights had infringed his right
to freedom of expression under Article 10 of the Convention.
- On
10 November 2008 the President of the Fourth Section of the Court
decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
- The
applicant and the Government each filed written observations (Rule 59
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1944 and lives in Kleczew.
A. The session of the Municipal Council
- At
the material time the applicant was a member of the Kleczew Municipal
Council.
- On
22 March 2000, in the course of a session of the Kleczew Municipal
Council, the applicant gave a speech in his capacity as a member of
the Council. The purpose of the debate was to take a vote on whether
the Municipal Board (Zarząd Gminy) had made appropriate
use of the 1999 municipal budget. In this context the applicant made
the following statements:
“What the members of the Municipal Council
received is all lumped together; it is unclear what costs how much
...
According to the Municipal Council's resolution of 22
June 1999, spending on investments was to be increased. The money was
to be spent on modernising and renovating the purification plant and
building access to it.”
9. The
applicant had doubts as to whether that investment had in fact been
made. He also referred to another investment project, the sanitary
sewage system, saying:
“It is unclear how many metres have been built. It
is important, because this is public money. Everyone knows how to
spend his own money, but where public money is concerned, it is being
spent as much as possible.”
- The
applicant further compared the Kleczew municipality with the
neighbouring Wilczyn municipality, which had had a small budget but
had managed to construct an interceptor sewer at much less expense,
which was an example of rational public spending (gospodarność),
and said:
“And this is shocking; with contractors earning
660,880 zlotys, is this not money laundering in our municipality?”
- The
applicant asked the members of the Board many other questions
relating to the 1999 budget.
- During
a break in the session the applicant gave an interview to a
journalist from the local newspaper, the Local Express (Ekspres
Powiatowy).
- On
24 March 2000 the “Local Express” published an article
entitled “Where is the million?” with the subtitle
“Kleczew municipal councillor accuses Municipal Board of money
laundering”. The article read that “according to the
councillor's statement made at the session of the Municipal Council,
one million zlotys from the municipal budget allocated for the
autonomous activity of the municipality has disappeared”. The
article went on to cite the following statement made by the
applicant:
“... I made these calculations because there was
something not right here, a million is missing and I am sure of that.
Maybe the Municipal Board is money laundering? I will inform the
institutions which deal with controlling the municipalities of the
matter”
B. Civil proceedings against the applicant
- On
10 May 2000 seven members of the Kleczew Municipal Board lodged a
claim with the Konin Regional Court (Sąd Okręgowy)
for the protection of their personal rights. Among other things, they
sought an order requiring the applicant to publish an official
apology in the local newspaper.
- On
17 April 2002 the Poznań Regional Court gave judgment finding
that the statements made by the applicant at the Council meeting on
22 March 2000 and given to the press had been untrue and had
infringed the plaintiffs' personal rights (by tarnishing their good
name and reputation). The court further found that the plaintiffs
were public officials and their good name, reputation and reliability
were of great importance. It ordered the applicant to publish an
official apology in the Local Express and to make a statement of
apology at the next Municipal Council session for his statements made
at the 22 March 2000 session and subsequently reproduced in the Local
Express of 24 March 2000.
- On
an unspecified date the applicant appealed against that judgment.
- On
28 November 2002 the Poznań Court of Appeal (Sąd
Apelacyjny) partly amended the first-instance judgment. It found
that most of the applicant's statements made at the session on 22
March 2000 had fallen within the limits of permissible criticism and
that the applicant, as a representative of the local community acting
in their interest, had had the right to ask critical questions
relating to the way public money was spent by the Municipal Board.
The court found, however, that the applicant's allusion to money
laundering made during the session of the Municipal Council had gone
beyond the limits of permissible criticism and that by that
statement, referring to a type of crime traditionally associated with
organised criminal groups, the applicant had infringed the
plaintiffs' personal rights. The court ordered the applicant to
publish an official apology for his allusion to money laundering in
the Local Express and to make the same apology at the next session of
the Municipal Council.
- On
an unspecified date the applicant lodged a cassation appeal with the
Supreme Court (Sąd Najwyższy).
- On
1 August 2003 the Supreme Court refused to entertain that appeal.
- The
applicant appealed against that decision but, on 17 October 2003,
the Supreme Court dismissed his appeal as inadmissible in law.
C. Criminal proceedings against the applicant
- On
27 July 2007 the Konin District Prosecutor instituted criminal
proceedings against the applicant for making false accusations about
another person before a prosecuting body. Notification of the
possible commitment of a crime was lodged by the Mayor of Kleczew.
- The
criminal proceedings against the applicant are pending.
II. RELEVANT DOMESTIC LAW
Personal rights and their protection under the Civil Code
- Article
23 of the Civil Code contains a non-exhaustive list of rights known
as “personal rights” (dobra osobiste).
This provision states:
“The personal rights of an individual, such as
health, liberty, reputation (cześć), freedom of
conscience, name or pseudonym, image, secrecy of correspondence,
inviolability of the home, scientific or artistic work, [as well as]
inventions and improvements, shall be protected under civil law
regardless of the protection laid down in other legal provisions.”
- Article
24 of the Civil Code provides for ways of redressing infringements of
personal rights. Under that provision, a person faced with the threat
of an infringement may demand that the prospective perpetrator
refrain from the wrongful activity, unless it is not unlawful. Where
an infringement has taken place, the person affected may, inter
alia, request that the wrongdoer make a relevant statement in an
appropriate form, or demand satisfaction from him or her. If an
infringement of a personal right causes financial loss, the person
concerned may seek damages.
- Under
Article 448 of the Civil Code, a person whose personal rights have
been infringed may seek compensation. That provision, in its relevant
part, reads:
“The court may grant a suitable sum as pecuniary
compensation for non-pecuniary damage (krzywda) suffered by
anyone whose personal rights have been infringed. Alternatively,
without prejudice to the right to seek any other relief that may be
necessary to remove the consequences of the infringement, the person
concerned may ask the court to award a suitable sum for the benefit
of a specific social interest. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant alleged 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. ...
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 ... for the
protection of the reputation or rights of others ...”
A. Admissibility
- The
Court notes that this complaint 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
(a) The Government
- The
Government admitted that the domestic courts' decisions had amounted
to an interference with the applicant's right to freedom of
expression. They submitted, however, that the interference had been
justified under Article 10 § 2 of the Convention.
- The
Government further submitted that in the course of numerous internal
control proceedings, all charges relied on by the applicant
concerning the alleged irregularities in rational spending of public
money had been found to be untrue. They produced relevant documents
to support their allegations.
- They
also submitted that there were criminal proceedings pending against
the applicant for formulating false accusations and that, taking into
account the applicant's behaviour, he should not be given any
credibility.
- In
conclusion, the Government submitted that the interference with the
applicant's freedom of expression could be reasonably considered
“necessary” in a democratic society for the protection of
the reputation or rights of others and was proportionate within the
meaning of Article 10 § 2 of the Convention.
(b) The applicant
- The
applicant's lawyer submitted that the municipal authorities had acted
mainly in order to keep the applicant away from the financial issues
of the municipality. He considered the municipal authorities' actions
“unjustified and unfair”.
2. The Court's assessment
(a) Existence of an interference
- There
is no dispute that the domestic court's judgments ordering the
applicant to publish an official apology amounted to an interference
with the exercise of his right to freedom of expression. The Court
sees no cause to conclude otherwise (see, for example, Societe
Prisma Presse c. France (dec.), no. 71612/01).
(b) Prescribed by law
- The
interference referred to above was “prescribed by law”;
it was based on the relevant provisions of the Civil Code providing
for the protection of personal rights.
(c) Legitimate aim
- The
Court is ready to accept the Government's submissions that the
interference with the applicant's freedom of expression pursued a
legitimate aim, namely the protection of the reputation or rights of
individual Municipal Board members.
(d) Necessary in a democratic society
(i) The relevant principles
- Freedom
of expression 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”.
As set forth in Article 10, this freedom is subject to exceptions,
which must, however, be construed strictly, and the need for any
restrictions must be established convincingly (see the following
judgments: Handyside v. the
United Kingdom, 7 December
1976, Series A no. 24, p. 23, § 49; Lingens v.
Austria, 8 July 1986, Series A no. 103, p. 26,
§ 41; and Jersild v. Denmark, 23 September
1994, Series A no. 298, p. 23, § 31).
- The
adjective “necessary”, within the meaning of
Article 10 § 2, implies the existence of a
“pressing social need”. The Contracting States have a
certain margin of appreciation in assessing whether such a need
exists, but it goes hand in hand with a European supervision,
embracing both the legislation and the decisions applying it, even
those given by an independent court. The Court is therefore empowered
to give the final ruling on whether a “restriction” is
reconcilable with freedom of expression as protected by Article 10
(see the above-mentioned Lingens judgment, p. 25, § 39).
- 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), especially when
the speech is given by an elected representative (see, mutatis
mutandis, Castells v. Spain, 23 April 1992, § 42,
Series A no. 236 and Jerusalem v. Austria, no. 26958/95,
§ 38, ECHR 2001 II). Moreover, the limits of acceptable
criticism are wider as regards a politician as such than as regards a
private individual. Unlike the latter, the former inevitably and
knowingly lays himself open to close scrutiny of his words and deeds
by journalists and the public at large, and he must consequently
display a greater degree of tolerance (see Lingens v. Austria,
cited above, § 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).
- In
exercising its supervisory jurisdiction, the Court must look at the
impugned interference in the light of the case as a whole, including
the content of the remarks held against the applicant and the context
in which he made them. In particular, it must determine whether the
interference in issue was “proportionate to the legitimate aims
pursued” and whether the reasons adduced by the national
authorities to justify it are “relevant and sufficient”
(see Lingens, cited above, pp. 25-26, § 40, and
Barfod v. Denmark, judgment of 22 February
1989, Series A no. 149, p. 12, § 28).
In doing so, 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 decision on an acceptable assessment of the relevant facts (see
Jersild, cited above, p. 24, § 31).
(ii) Application of the above principles
to the instant case
- The
Court has to examine whether, taking into consideration all the
relevant circumstances of the present case, the domestic court's
judgment, by which the applicant was ordered to make an official
apology in the Local Express for his allusion to money laundering and
to make the same apology at the next session of the Municipal
Council, amounted to a disproportionate interference with the
applicant's right to freedom of expression. In other words, the Court
has to assess whether the sanction applied to the applicant answered
a “pressing social need” and was “proportionate to
the legitimate aim pursued”, as well as whether the reasons
adduced by the national authorities in justification thereof were
“relevant” and “sufficient”.
- The
Court notes at the outset that the second-instance court found all
the statements made by the applicant during the Municipal Council
session, except for the statement concerning the alleged money
laundering, to constitute an acceptable element of a public debate
falling within the scope of freedom of expression. The Court will
thus limit its examination to the latter statement.
- At
the material time the applicant was a member of the Municipal Council
and his speech was given in that capacity during a session of the
Municipal Council. The session was devoted to deciding on whether the
Municipal Board had made appropriate use of the municipal budget in
conformity with its statutory obligation. The Court considers that
this was the best time and place to discuss any alleged financial
irregularities concerning the municipal budget. In this respect the
Court recalls that while freedom of expression is important for
everybody, it is especially so for elected representatives of the
people. They represent the electorate, draw attention to their
preoccupations and defend their interests. Accordingly, interferences
with their freedom of expression call for the closest scrutiny on the
part of the Court (see Castells v. Spain, cited above, pp.
22-23, § 42).
- In the light of the above, the Court considers that
the applicant's allegations of money laundering were part of a
political debate. Even if the statement contained harsh words, it was
not made personally against a specific person but against the whole
Municipal Board, whose members are politicians and, as noted above,
for whom the limits of acceptable criticism are wider than as regards
a private individual. It is precisely the task of an elected
representative to ask awkward questions when it comes to public
spending and to be hard-hitting in his criticism of fellow
politicians responsible for the management of the public purse. The
latter must be expected to display a greater degree of tolerance than
private individuals when exposed, in a political setting, to scathing
remarks about their performance or policies (see, mutatis
mutandis, Lombardo and Others v. Malta, no. 7333/06,
§ 54, 24 April 2007). The Court reiterates its view expressed in
numerous judgments that very strong reasons are required to justify
restrictions on political speech. Allowing broad restrictions on
political speech in individual cases would undoubtedly affect respect
for the freedom of expression in general in the State concerned (see,
among many other authorities, Feldek v. Slovakia, no.
29032/95, § 83, ECHR 2001 VIII, and Sürek v. Turkey
(no. 1) [GC], cited above, § 61).
- The
Court further notes that, in contrast to cases such as Sanocki v.
Poland, no. 28949/03, § 5, 17 July 2007 or Janowski
v. Poland [GC], no. 25716/94, § 14, ECHR 1999 I,
the statements made by the applicant did not contain any offensive
statements ad personam.
- As
regards the reasons given by the domestic courts, the Court welcomes
the second-instance court's judgment which found that most of the
applicant's statements had fallen within the limits of permissible
criticism and that the applicant, as a representative of the local
community acting in their interest, had had the right to ask critical
questions relating to the way public money was spent by the Municipal
Board. The Court is also satisfied that the party who felt offended
had recourse to means of civil law which, in the Court's view, are
appropriate in cases of defamation.
- 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 the present case the sanction imposed on the
applicant was relatively light (see paragraph 17 above).
- The Court observes, however, that neither the
first-instance nor the appellate courts took into account the fact
that the members of the Municipal Board, being politicians, should
have shown a greater degree of tolerance in face of criticism.
Accordingly, the Court finds that the domestic authorities failed to
take into consideration the crucial importance of free political
debate in a democratic society. Thus, the national authorities cannot
be considered as having applied the standards embodied in Article 10
of the Convention and the Court's case-law.
- Taking into account the above considerations the Court
finds that the domestic courts overstepped the narrow margin of
appreciation afforded to member States, and that there was no
reasonable relationship of proportionality between the measures
applied by them and the legitimate aim pursued.
- The
authorities therefore failed to strike a fair balance between the
relevant interests of, on the one hand, the protection of
politicians' rights and, on the other, an elected representative's
right to freedom of expression in exercising this freedom where
issues of public interest are concerned.
- In
those circumstances the Court finds that the interference with the
applicant's exercise of his freedom of expression was not “necessary
in a democratic society” within the meaning of paragraph 2
of Article 10 of the Convention.
- There
has therefore been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also alleged a breach of Article 13 in that the Supreme
Court had refused to entertain his cassation appeal.
- The
Court has already found that the provisions of the Code of Civil
Procedure which allow the highest domestic
court to refuse the examination of unmeritorious cassation appeals or
cassation appeals in which no serious issue of law arises are not
incompatible with the general obligation to secure an effective
remedy under Article 13 of the Convention (see, for example, (see
Zmaliński v. Poland, (dec.) no. 52039/99,
16 October 2001).
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. 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 100,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered this claim exorbitant and requested that it be
rejected.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 1,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The applicant, who was
represented by a lawyer, also claimed 38,984.56 Polish zlotys (PLN)
in respect of costs and expenses, including PLN 4,200 for costs of
legal representation before the Court. He produced two copies of
bills from which it emerges that he paid his lawyer PLN 400.
- The Government likewise
considered these claims exorbitant and requested that they be
rejected.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,000 for the proceedings
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 complaint under Article 10 of the Convention admissible and the
remainder of the application inadmissible;
- 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 of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Polish zlotys at the rate applicable on
the date of settlement:
(i) EUR
1,000 (one thousand euros) in respect of non-pecuniary damage plus
any tax that may be chargeable;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses plus any
tax that may be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 2 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
