ZIEMBINSKI v. POLAND (No. 2) - 1799/07 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 607 (05 July 2016)

In the case of Ziembiński v. Poland (no. 2),

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          András Sajó, President,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Iulia Motoc,
          Gabriele Kucsko-Stadlmayer,
          Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 7 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 1799/07) 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 Maciej Ziembiński (“the applicant”), on 22 November 2006.

2. The applicant was represented by Ms K. Zakrzewska, a lawyer practising in Radomsko. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

3. The applicant alleged that his conviction for insult had been in breach of his right to freedom of expression.

4. On 8 March 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1944 and lives in Kłomnice.

6. The applicant is proprietor and editor-in-chief of the local weekly newspaper “Komu i Czemu”, published in the Radomsko and Bełchatów Districts.

7. In issue no. 33 of 18 August 2004 the applicant published an article entitled “Elegantly wrapped dung” (“Łajno - elegancko opakowane”). It read, in so far as relevant:

“A poser is someone who does everything to produce external effects by his conduct, speech and, in particular, with the populism he preaches. He is a numbskull posing as the people’s tribune. The only panacea, or universal cure, for such a person is to recognise his intentions and take up a bloodless fight using arguments. An argument against any kind of tricks by a poser or populist will be always a counter-argument based on reality, logic and the opportunity to put one’s intentions into practice.

I remember when, not so long ago, the author of the proposal to develop a quail farm as a panacea against rural unemployment had a go at me in an accommodating local newspaper, accusing me of malice, a willingness to discredit every good idea, and mindlessness leading to nasty mental disease and many other irreversible disorders of the mind. At the same time he declared that he would continue doing his job, that is, condemning farmers to breeding nice little birds in order to collect their eggs. His boss considered the quail business very important, because it would eliminate the need for viagra. There has not been a sideshow like it in the Radomsko District for a long time. So the time is approaching when pilgrimages of men from all over Poland, and maybe even the European Union, will come to Radomsko to taste quail eggs and later begin procreating.

I wonder who has gone mad in the district, and why mad ideas, supported by even madder arguments, can be accepted by our officials. But no matter. Every dull boss can be convinced by any rubbish. Once more I want to authoritatively and responsibly declare that neither quail breeding, nor mushroom growing, nor Eternit [a registered trademark for fibre cement], which suddenly seems to have dropped out of the picture, will solve the unemployment problem in the villages of our region. And I will continue calling the actions of dim-witted officials and their dull bosses pretentious and populist, and no numbskull will convince me that I am wrong. ...”

8. The applicant went on to describe in general terms a local economic development programme, which had been presented to him by a businessman. He finished his article with the following paragraph:

“This is not a venture of the quail variety by some smart poser or populist who is able to sell his dull bosses dung nicely wrapped in words. And he actually sells it.”

9. On 8 March 2005 M.D., the mayor of the Radomsko District (starosta), G.D., the head and spokesperson of the district’s marketing department, and K.H., an employee of that department, lodged a private bill of indictment against the applicant with the Radomsko District Court. In respect of the impugned article, they accused him of defamation committed through the mass media under Article 212 § 2 of the Criminal Code. In particular, they alleged that the copious use of words such as “numbskull”, “dull boss”, “dim-witted official”, “poser” and “populist” (“palant”, “nierozgarnięty szef”, “przygłupawy urzędnik”, “pozer”, “populista”) had defamed them as local government officials. The statements had lowered them in public opinion and undermined the public confidence necessary for the discharge of their duties.

10. The private prosecutors sought an order requiring the applicant to publish an apology in the weekly newspaper. They further sought reimbursement of their legal costs and payment by the applicant of 5,000 Polish zlotys (PLN) to a charity.

11. The Radomsko District Court ruled that it did not have jurisdiction in the case, and transmitted the private bill of indictment to the Piotrków Trybunalski District Court. The trial court held two hearings.

12. On 8 February 2006 the Piotrków Trybunalski District Court gave its judgment. It held that the use of the words “numbskull”, “poser” and “dim-witted official” in respect of K.H., and the use of the words “dull bosses” in respect of M.D. and G.D., had amounted to insult (zniewaga) committed through the mass media, within the meaning of Article 216 § 2 of the Criminal Code. The court convicted the applicant under that provision and ordered him to pay a fine of PLN 10,000 (approximately 2,630 euros (EUR)). It also ordered him to reimburse the private prosecutors’ costs (PLN 900, approximately EUR 236) and the costs of the State Treasury (PLN 1,000, approximately EUR 263).

13. As to the facts, the court observed that, since March 2004, the applicant’s newspaper had been publishing articles which were critical of M.D., the mayor of the Radomsko District, and his officials. The newspaper was particularly critical of K.H.’s initiative to develop quail farming in order to tackle the impoverishment of the local population. K.H. was an official in the district’s marketing department. G.D., the head of the marketing department, was also involved in the implementation of this project. In April 2004 the applicant had published an article in which he had made ironic remarks about K.H.’s initiative. In June 2004 a journalist at the same newspaper had published a detailed article on the same subject. The conflict between the applicant and the private prosecutors had intensified with each successively published article.

14. The court further noted that, in his article entitled “Elegantly wrapped dung”, the applicant had again written about the quail farming. Being aware of the publicity which the initiative promoted by K.H. and G.D. had received, the applicant had decided once again to mock the two officials, as well as their superior, M.D. He had referred to K.H., the author of the initiative, as a “poser”, “numbskull” and “dim-witted official”, while the idea of quail farming had been referred to as “nicely wrapped dung”. According to the applicant, this kind of “product” had been sold to “dull bosses”, that is, first G.D. and then M.D., the mayor of the district.

15. The trial court rejected the applicant’s argument that the impugned article had been a simple weekly column in which any similarity to actual persons had been purely coincidental. It found that the article in issue had been part of a campaign carried out by the newspaper against the private prosecutors. They had not been mentioned by name, but they had been easily identifiable on account of the publicity generated by the quail farming project and the earlier articles published by the applicant’s newspaper. The court established that there was no doubt that the words “numbskull”, “dim-witted official” and “poser” had referred to K.H., and the term “dull bosses” to M.D. and G.D.

16. With regard to the applicant’s criminal responsibility, the trial court noted that a journalist had the right to criticise the actions of public officials, but was not entitled to use media in a manipulative way to wage private wars. The latter behaviour was not only unethical and unprofessional, but also incompatible with the role of the media, which was to serve the State and society. The trial court further held:

“The fair criticism and objective coverage, free from personal emotions, which is desired in journalism, gave way to the private interest of the defendant, pursued through expressions which, in common understanding, remain offensive and disrespectful. It is difficult not to agree with the position that the word “numbskull” (“palant”) in the analysed context, although its literal meaning is legally irrelevant, fulfils all the criteria of insult within the meaning of Article 216 of the Criminal Code. Of an equally offensive character are the terms “poser”, “dim-witted official” and “dull boss”. It would be hard to find a person who would not feel offended by similar epithets, especially if formulated in the press.

Incidentally, it should also be noted that the word “dung” used in the title of the article has a cruder equivalent, and undoubtedly that equivalent was meant to describe K.H.’s contribution to the development of local entrepreneurship, which was accepted without reservation by his “dull bosses”. “Dull” meaning not sharp, unintelligent, intellectually retarded.

However, the court found no grounds to hold that the impugned words had the effect of lowering the private prosecutors in public esteem, or undermining the public confidence necessary for the discharge of their duties as local government officials. Accordingly, it would not be justified to classify the applicant’s acts as coming under Article 212 § 2 of the Criminal Code. The quoted statements were rather harmful to the private prosecutors’ perception of their dignity, and such, in the court’s view, was the defendant’s intention. By using insulting words in respect of the district officials, Maciej Ziembiński intended to derive satisfaction from doing them moral harm. By doing so in a newspaper, he fell within the scope of Article 216 § 2 of the Criminal Code, acting unlawfully, reprehensibly, and, in the absence of circumstances capable of precluding or mitigating his guilt, also culpably.”

17. The trial court noted that the present case involved a conflict between constitutionally guaranteed freedom of speech and the right of each citizen to have his reputation protected. However, it found that the applicant’s acts had constituted a blatant abuse of freedom of speech and professional ethics. The court observed that his acts and motivation had been reprehensible, since he had been settling a private conflict with the officials and transgressing basic professional standards.

18. As regards sentence, the court found that, having regard to the circumstances of the case, it would be disproportionate to impose a prison sentence, and that a fine would be the most appropriate penalty. It imposed a fine of PLN 10,000, which it considered proportionate to the gravity of the offence and the degree of the applicant’s guilt.

19. The applicant appealed. He contested the factual findings of the first-instance court, in particular that his article had concerned the private prosecutors personally. He argued that the impugned article had presented in a sarcastic light people who achieved personal gain by pretending to work, and their dull bosses who accepted such practices. The applicant emphasised that criticism of the quail farm project as a solution to a decline in agriculture in the region had been entirely legitimate. Lastly, he submitted that public figures such as M.D., the district mayor, and other officials had to accept harsh criticism of their activities.

20. On 18 April 2006 the Piotrków Trybunalski Regional Court (“the Regional Court”) upheld the first-instance judgment. It ordered the applicant to pay PLN 1,000 (approx. EUR 256) in respect of the costs of the appeal proceedings.

21. The Regional Court held that the lower court had correctly established the facts of the case. It endorsed the trial court’s findings that the words used in the article had been insulting and harmful to the private prosecutors’ dignity. It further held that, although fair criticism of public authorities and officials was socially desirable and legally accepted, the protection afforded by law did not extend to the use of insulting words which offended human dignity.

22. The judgment was served on the applicant on 29 May 2006.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Constitutional provisions

23. Article 14 provides:

“The Republic of Poland shall ensure freedom of the press and other means of social communication.”

Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides:

“Any limitation on the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”

Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:

“Everyone shall be guaranteed freedom to express opinions and to acquire and disseminate information.”

B. Relevant provisions of the Criminal Code

24. Article 216 of the Criminal Code provides, in so far as relevant:

“§ 1. Anyone who insults another person in his presence, or, although not in his presence, in public, or with the intention that the insult should reach that person, shall receive a fine or a penalty of restriction of liberty.

§ 2. Anyone who insults another person through the mass media shall receive a fine, a penalty of restriction of liberty or a penalty of deprivation of liberty for up to one year.

§ 5. Prosecution takes place under a private bill of indictment.”

C. The Constitutional Court’s case-law

25. In its judgment of 30 October 2006 (case no. P 10/06), the Constitutional Court held that Article 212 §§ 1 and 2 of the Criminal Code was compatible with Article 14 and Article 54 § 1 of the Constitution, read in conjunction with Article 31 § 3. The Constitutional Court found that, in some circumstances, the protection of rights and freedoms like dignity, good name and privacy might prevail over the protection of freedom of expression. The Court further found that there was no basis to assume that the protection of personal rights through civil law alone would be just as efficient as protection through criminal law. The protection of personal rights by means of criminal law did not, by itself, infringe the relevant provisions of the Constitution.

26. In its judgment of 12 May 2008 (case no. SK 43/05), the Constitutional Court examined the constitutionality of the defence provided in Article 213 § 2 of the Criminal Code in respect of the offence of defamation committed through the mass media (Article 212 § 2 of the Criminal Code). It ruled that Article 213 § 2 was compatible with the Constitution in so far as it required that an allegation had to be true. The Constitutional Court held, however, that this provision was unconstitutional in so far as it necessitated that a true allegation concerning the conduct of a public official had to pursue a justifiable public interest.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

27. The applicant complained that there had been a violation of his right to freedom of expression, and alleged that the fine imposed on him had been disproportionate. He relied on Article 10 of the Convention, which reads:

“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

28. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The applicant’s submissions

29. The applicant argued that he had not harmed other people’s good name, nor violated their rights. He had not even put the initials of the district officials in his article. He claimed to have respected the principle of accuracy required of journalists under the Press Act. Referring to the Constitutional Court’s judgment of 12 May 2008, the applicant argued that a person accused of insult should not be held liable if he or she had complied with the standards of accuracy and reliability in gathering and verifying information, even if eventually the relevant allegations proved to be false.

30. The applicant asserted that he had accurately reported on the issue of the quail farm project having been appropriated by the local officials. The courts’ interference with his right to present his opinion on the negative phenomena affecting local life had been unjustified. Not only the Press Act, but also the Constitution enabled the free and independent media to criticise phenomena which occurred in the exercise of power by local government.

31. The applicant maintained that he had not insulted any person, because had had not used names or initials in the article. He had only criticised people’s methods and acts, without mentioning the office which they represented. The words mentioned in the article had not personally referred to anybody, and had been used to indicate the problem regarding the populist activity of the authorities and the supposed work of the local officials. The dictionaries did not list these words as insulting expressions. Furthermore, public figures had to accept the risk of being exposed to more severe criticism.

32. The applicant disagreed with the domestic courts’ view that journalistic criticism should be devoid of personal feelings or emotional engagement. Journalists and their newspapers did not function as a government bulletin, recording only facts. Publications devoid of emotion would not even be noticed by readers, let alone read. Therefore, a journalist could not be forced to present events without emotional engagement.

33. The applicant further contested the proportionality of the punishment imposed on him, arguing that it had led to the gradual economic downfall of the newspaper. He also maintained that, in a case like this, the issue of the limits of acceptable criticism should have been determined by means of civil rather than criminal law.

2. The Government’s submissions

34. The Government maintained that the interference with the applicant’s right to freedom of expression had been compatible with the terms of Article 10. Being based on Article 216 of the Criminal Code, the interference had been prescribed by law and had pursued a legitimate aim, namely the protection of the reputation or rights of others.

35. With regard to the necessity of the interference, the Government acknowledged that there was little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest. In the Government’s view, the domestic courts had given “relevant and sufficient” reasons for their decisions and had thoroughly justified their finding that the applicant’s statements had amounted to insult. They argued that the applicant had overstepped the limits of acceptable criticism. For that reason, he had been given a fine of PLN 10,000, which had been calculated in the light of his financial situation. The courts had decided not to impose more severe measures, namely a penalty of restriction of liberty or a term of imprisonment for up to one year. The penalty actually imposed had been the most lenient one out of the range of applicable penalties, and should be seen as proportionate in relation to the degree of his guilt and the danger to society which his act had represented.

36. The Constitutional Court, in its judgments in cases nos. P 10/06 (30 October 2006) and SK 43/05 (12 May 2008), underlined the importance of freedom of expression in a democratic society, while stressing that the dignity of an individual also had to be protected by the authorities. In the case of conflict between freedom of expression and the right to private life, the latter could prevail over the former. The Constitutional Court further held that the protection of reputation and good name - things which were inextricably linked to a person’s dignity - by means of criminal law did not, by itself, infringe the relevant provisions of the Constitution. Civil sanctions would be sufficient if they made it possible to re-establish the previous state of affairs. However, the consequences of attacking a person’s good name could not be reversed, and subsequent apologies could not eradicate the fact of an attack. Lastly, the Government noted that the criminal proceedings in the applicant’s case had been initiated by a bill of indictment lodged by private individuals, and not by a public prosecutor.

3. The Court’s assessment

37. It was common ground between the parties that the applicant’s conviction and sentence amounted to “interference” with the exercise of his right to freedom of expression. The Court also finds that the interference complained of was prescribed by law, namely Article 216 § 2 of the Criminal Code, and pursued the legitimate aim referred to in Article 10 § 2 of the Convention, namely “the protection of the reputation or rights of others”.

38. It remains to be established whether the interference was “necessary in a democratic society”. The general principles for assessing whether an interference with the exercise of the right to freedom of expression is “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention are well-settled in the Court’s case-law. They were recently restated in Pentikäinen v. Finland ([GC], no. 11882/10, § 87, ECHR 2015) and Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016).

39. The Court must also ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations were made, a right which, as an aspect of private life, is protected by Article 8 of the Convention. In two fairly recent cases, the Court defined its own role in balancing these two conflicting interests. It went on to identify a number of relevant criteria where the right to freedom of expression is being balanced against the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 82-95, 7 February 2012 and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 101-113, ECHR 2012).

40. In the instant case, the applicant wrote a satirical article criticising the quail farming project endorsed by the local officials as a remedy to the problem of local unemployment. There is no doubt that this issue, relating to the exercise of the local officials’ functions, was a matter of legitimate public interest (see Kwiecień v. Poland, no. 51744/99, § 51, 9 January 2007). The applicant’s publication therefore concerned a sphere in which restrictions on freedom of expression are to be strictly construed.

41. The applicant was convicted of insult for having used the words “numbskull” (palant), “poser” (pozer) and “dim-witted official” (przygłupawy urzędnik) in respect of K.H., and the words “dull bosses” (nierozgarnięci szefowie) in respect of M.D. and G.D. The trial court held that the applicant had not referred to the local officials by name, yet they were identifiable on account of the publicity surrounding the project in question.

42. The Court notes that M.D. was the mayor of the district, and therefore an elected local politician and official. It is well established in the Court’s case-law that the limits of acceptable criticism are wider with regard to politicians than with regard to a private individual (see Lingens v. Austria, 8 July 1986, § 42, Series A no. 103; Oberschlick v. Austria (no. 2), 1 July 1997, § 29, Reports of Judgments and Decisions 1997-IV; Mamère v. France, no. 12697/03, § 27, ECHR 2006-XIII; and Kwiecień, cited above, § 47). The two other people to whom the applicant’s criticism was addressed - according to the trial court - were local civil servants G.D. and K.H., the head of the district’s marketing department and an official in that department respectively. It is true that civil servants acting in an official capacity are, like politicians, subject to wider limits of acceptable criticism than private individuals. However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent politicians do (see Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999-I, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 80, ECHR 2004-XI).

43. With regard to the classification of the statements in issue, the Court notes that the domestic courts did not take a clear position in this respect. They held that the applicant had exceeded the limits of fair criticism and resorted to expressions which were disrespectful and offensive. These expressions were further held to be harmful to the claimants’ perception of their dignity.

44. The Court notes that the assessment of the necessity of the interference in the present case cannot be detached from the context and the apparent goal of the applicant’s criticism. It further considers that the satirical nature of the text and the irony underlying it should be taken into account when analysing the applicant’s article (see Sokołowski v. Poland, no. 75955/01, § 46 in fine, 29 March 2005). The use of sarcasm and irony is perfectly compatible with the exercise of a journalist’s freedom of expression (see Smolorz v. Poland, no. 17446/07, § 41, 16 October 2012). However, it appears that the domestic courts did not take sufficient account of these features, even though they noted that the applicant had intended to mock the officials and had earlier published an ironic article on the same subject. In this context, the Court reiterates that, while any individual who takes part in a public debate of general concern - like the applicant in the instant case - must not overstep certain limits, particularly with regard to respect for the reputation and rights of others, a degree of exaggeration or even provocation is permitted; in other words, a degree of immoderation is allowed (see Mamère, cited above, § 25; Dąbrowski v. Poland, no. 18235/02, § 35, 19 December 2006; Uj v. Hungary, no. 23954/10, § 24, 19 July 2011; Novaya Gazeta and Borodyanskiy v. Russia, no. 14087/08, § 29, 28 March 2013; and Marian Maciejewski v. Poland, no. 34447/05, § 79, 13 January 2015).

45. In the Court’s view, without taking a stand on each specific remark made by the applicant, there is no doubt that the remarks in question, used in the particular context of the article, remain within the limits of admissible exaggeration. The domestic courts failed to consider the applicant’s remarks in the context of the article as a whole. The Court has observed on several occasions that satire is a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with the right to use this means of expression should be examined with particular care (see Vereinigung Bildender Künstler v. Austria, no. 8354/01, § 33, 25 January 2007; Alves da Silva v. Portugal, no. 41665/07, § 27, 20 October 2009; and Eon v. France, no. 26118/10, § 60, 14 March 2013).

46. Lastly, the nature and severity of the penalty imposed are factors to be taken into account when assessing the proportionality of the interference. While the use of criminal-law sanctions in defamation cases is not in itself disproportionate (see Radio France and Others v. France, no. 53984/00, § 40, ECHR 2004-II; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 47, ECHR 2007-IV; Długołęcki v. Poland, no. 23806/03, § 47, 24 February 2009), the nature and severity of the penalties imposed are factors to be taken into account, because they must not be such as to dissuade the press or others who engage in public debate from taking part in the discussion of matters of legitimate public concern (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004-XI). In the instant case, the Court takes into account the fact the applicant was sentenced to a fine of PLN 10,000 (EUR 2,630) and that he was further ordered to reimburse various costs in the aggregate amount of EUR 755.

47. Having regard to the foregoing considerations, the Court finds that the domestic courts did not give “relevant and sufficient” reasons to justify the applicant’s conviction and sentence for insult. Accordingly, the interference with his right to freedom of expression was disproportionate to the aim pursued, and was thus not “necessary in a democratic society”.

II. OTHER ALLEGED VIOLATION OF THE CONVENTION

48. The applicant further complained that the proceedings against him had been unfair. He alleged that the courts had not taken into account evidence adduced by him and had accepted false evidence submitted by the private prosecutors. The Court finds that this complaint falls to be examined under Article 6 of the Convention.

49. The Court reiterates that, in accordance with Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national court (see Garćia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, with further references).

50. In the present case, the Court finds that the applicant’s allegations do not disclose any appearance of a violation of the guarantees of a fair hearing within the meaning of Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. 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

52. The applicant claimed repayment of the fine imposed on him in the amount of 10,000 Polish zlotys (PLN) (2,630 euros (EUR)) and the costs which he had been ordered to pay in the aggregate amount of PLN 2,900 (EUR 755). He further claimed PLN 300,000 (approx. EUR 75,950) in respect of non-pecuniary damage.

53. The Government argued that the amount claimed for non-pecuniary damage was exorbitant, having regard to awards made by the Court in similar cases against Poland. In the event that the Court established that there had been a violation of Article 10 in the case, the Government submitted that a finding of a violation would constitute sufficient just satisfaction. In the alternative, they asked the Court to assess the issue of compensation on the basis of its case-law in similar cases, with due regard to the national economic circumstances.

54. The Court considers that the applicant is, in principle, entitled to recover any sums that he has paid in fines and costs, by reason of their direct link with the national court judgments which the Court found to be in breach of his right to freedom of expression (see Lingens, cited above, § 50; Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 50, ECHR 2003-XI; Yordanova and Toshev v. Bulgaria, no. 5126/05, § 78, 2 October 2012; and Stankiewicz and Others v. Poland, no. 48723/07, § 87, 14 October 2014). The claim made by the applicant falls under the heading of pecuniary damage. Having regard to the above, the Court awards the applicant EUR 3,385 in respect of pecuniary damage, this sum corresponding to the combined amount of fine and costs.

55. Furthermore, the Court considers that the applicant must have suffered non-pecuniary damage, in the form of distress and frustration, as a result of the breach of his right to freedom of expression. That damage cannot be adequately compensated by the finding of a violation. Having regard to the nature of the breach and deciding on an equitable basis, the Court awards the applicant EUR 1,000 plus any tax that may be chargeable, in respect of non-pecuniary damage.

B. Costs and expenses

56. The applicant also claimed PLN 7,200 (EUR 1,822) in respect of the costs of his legal representation before the Court.

57. The Government submitted that the amount claimed was excessive, and that no receipts or invoices had been produced in support of this claim.

58. According to the Court’s case-law, an applicant is entitled to the reimbursement of 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. The Court notes that the applicant did not submit any supporting documents showing that he had actually incurred costs in respect of his legal representation in the proceedings before it. In those circumstances, and bearing in mind the terms of Rule 60 §§ 2 and 3 of its Rules, the Court makes no award in respect of this claim.

C. Default interest

59. The Court considers it appropriate that the default interest rate 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

1. Declares, unanimously, the complaint concerning Article 10 of the Convention admissible and the remainder of the application inadmissible;

2. Holds, by five votes to two, that there has been a violation of Article 10 of the Convention;

3. Holds, by five votes to two,

(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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,385 (three thousand three hundred and eighty-five euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

4. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli András Sajó Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Wojtyczek and Kūris is annexed to this judgment.

A.S.
M.T.

JOINT DISSENTING OPINION OF
JUDGES WOJTYCZEK AND KŪRIS

1. With all due respect, we cannot accept the majority’s finding that there has been a violation of Article 10 of the Convention in the present case. It is our firm belief that, on the contrary, this Article has not been breached.

2. We agree that “[t]he use of sarcasm and irony is perfectly compatible with the exercise of journalistic freedom of expression” (see paragraph 45 of the judgment). Indeed, it is not illegitimate for a journalist (and not only a journalist) to use harsh words, particularly when depicting pathologies in the functioning of public institutions. This, however, does not mean that any harsh words can be used, no matter what. Freedom of expression, as clearly transpires from Article 10 § 2, is not unlimited. This freedom should not be used as a cover for insulting other individuals, whatever the gravity of the acts that may be (subjectively) imputed to them by a journalist.

3. In Poland, the litigation focused on the four expressions used by the applicant: “pozer”, “nierozgarnięci szefowie”, “palant” and “przygłupawy urzędnik”. In the judgment, these expressions are translated into English as “poser”, “dull bosses”, “numbskull” and “dim-witted official” respectively; however, these word-for-word renderings do not in all cases (and certainly not in the cases of “palant” and “przygłupawy urzędnik”) convey the equivalent of the emotional poundage carried by the Polish “originals”. We suggest that the English terms “braggart”, “dim-witted bosses”, “jerk/moron” and “dumb clerk/official” would be closer in tone to the Polish text. The insulting nature of these Polish expressions was established by the domestic courts. The latter made their assessment on the basis of their knowledge of the factual situation surrounding the dispute under examination and of the quality of public discourse in the country, but also - and no less importantly! - of the semantics of Polish vocabulary and phraseology. Moreover, the Polish courts provided extensive reasoning to substantiate their findings.

An international court should be extremely cautious in deciding to dismiss such findings by the domestic courts, whereby certain words or phrases are authoritatively held to be beyond the limits of acceptability in a particular society, on the ground that an international instrument (such as the Convention) allegedly allows for the use of certain language. After all, this is a question not only of legal, but also of linguistic and cultural expertise. No international court can have all these competences. It would be false pride to claim so.

4. It is evident that the expressions used by the applicant vary as to the degree of their linguistic intensity and, consequently, as to the punch of the emotional message. This circumstance gives a basis for assessing whether the Convention requires a departure from the findings of the domestic courts. This departure is precisely what the Court resorts to here. It gives precedence not to the meaning of the expressions but to the context in which they were used. We must emphasise this point: the Court’s examination of the impugned expressions was not complemented but instead replaced by that of the context, if “examination” of the latter there was at all, which the disquisition below may lead the reader to doubt.

Nevertheless, we do accept that, as a matter of principle, a certain concession as to the admissibility of the expressions used by the applicant can be made by this Court in view, inter alia, of the context in which they were used and the genre of the publication (compare paragraph 44). But (and this goes without saying!) any departure from the findings of the domestic courts as to the inadmissibility of the use of certain expressions must, in order not to be arbitrary, be argued thoroughly, and as a minimum no less thoroughly than by the domestic courts.

5. Proceeding now to the assessment of the expressions which gave rise to the present dispute, we acknowledge that two of them, namely “pozer” and “nierozgarnięci szefowie”, although harsh and unpleasant when taken in isolation from their context, may fall within the limits of freedom of speech protected by Article 10.

At the same time, in Polish, “palant” and “przygłupawy urzędnik” are insulting expressions. A Pole, if described as a “palant” or “przygłupawy urzędnik”, would feel scorched, affronted, piqued. The Polish courts have authority to rule that, under domestic law, the use of these expressions is not justified even in the context of the most critical political message and irrespective of the genre in which the message is clothed. If authority to decide on these matters does not lie with the domestic courts, then with whom can it lie at all? The Strasbourg Court’s role is but to respect the judicious judgment of the domestic courts in such cases. In terms of the margin of appreciation, the margin enjoyed by this Court is incomparably narrower than that enjoyed by the domestic courts. After all, the national courts are, and always will be, peerlessly better equipped than this Court to judge what is insulting to a native speaker.

6. We could stop here, because if the domestic courts have found that a certain expression in the language of that country contaminates public discourse to an extent that is intolerable, that’s it. No further discussion is required. Nonetheless, in order to be fully consistent in our own reasoning, we cannot ignore those arguments which point to the opposite conclusion and which others may find important and convincing. Having conceded that the use of two of the expressions under consideration may, in the specific context of the case, be protected by Article 10, we must, accordingly, deal also with the use of the remaining two - not only by “declaring” them inadmissible (as we have already done, relying on the Polish courts’ authoritative expertise), but also by looking into whether any weighty arguments were put forward by the majority to justify the departure from the domestic courts’ findings regarding the use of these two other expressions and to substantiate the finding of a violation of Article 10 in this case.

So let us go all the way. Let us follow the reasoning of the majority. Its reasoning is grounded not only in the presumption that the impugned expressions must be analysed in the context of the whole text (as already mentioned in paragraph 2 above), but also in the (related) presumption that even expressions that are seemingly intolerable per se may enjoy the protection of Article 10 on account of the context in which they were used and/or the genre of the publication. The majority suggests (inter alia, in paragraph 44) that the general sharp tone of the article waters down the personality-debasing impact of the impugned expressions.

Let us verify whether this has been proven in the present case.

7. The impugned utterances were part and parcel of an article published in the local press. The entire article was written in very sharp terms and in a sarcastic tone. The majority finds the article to be permeated with irony and, without even a semblance of analytical consideration, equates it with satire (see paragraphs 40, 44 and 45). They emphasise this feature of the article to such an extent that it seems as though it were in itself a legitimate excuse for all the words and phrases used in the publication. We shall come back to this “excuse” argument a bit later. But before we do so, however, we must admit that, in our opinion, the article in question really does contain some irony, even a considerable amount. Its classification as satire, however, is far from equally obvious. Not every emotional text bulging with sarcasm and angry irony is a satire, just as not every text written in verse amounts to poetry. Although, of course, it is not for legal professionals (not excluding us judges) to have the final say on whether this article (or any other publication) may be correctly qualified as satire, we nonetheless doubt that many literary critics would easily agree with such a classification, so abruptly pronounced by the majority. But even if the article can be described as satirical, as the majority suggests, the fact of being satire cannot represent such a privilege that it can, in itself, absolve the author of any responsibility for the words and phrases employed in the publication. The fact of being satire is not absolution. There are satires that can be tolerated and satires that simply cannot be tolerated. This applies equally to a joke, a comedy, a grotesque, a lampoon, a parody, a caricature, an internet meme... the list can be extended. True, the limits of admissibility of language (and images) in these genres are very broad, even exceptionally broad, but they are by no means non-existent.

8. After all, the legal issue brought before the domestic courts and also before this Court is not only the article as a whole, but - first and foremost! - the specific expressions employed in that article. The courts, not excluding this Court, are sometimes criticised for failing to see the forest for the trees. But when attempting to see the forest, courts, including this Court, should also not lose sight of the trees which make up the forest. Freedom of expression - fine; but in every specific case the Court has to deal with specific expressions.

9. What is important from the perspective of judicial reasoning is that the majority’s reasoning which has led to the finding of a violation of Article 10 is clearly flawed.

This entire reasoning, or at least the heart of it, is contained in one single paragraph (no. 45) and consists of only three quotes from the Court’s case-law (references to the relevant cases are omitted in this opinion) and - as we will describe it - a “conclusion as to the admissibility of the expressions used”. The latter precedes the arguments, which ex post substantiate that conclusion, but this structural technicality is not in itself a flaw.

Let us reiterate the arguments of the majority in a somewhat schematic - but adequate - form:

Argument no. 1: “[S]atire is a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate”.

Our questions: Must satire “naturally”, necessarily, be also insulting? Must that exaggeration, distortion, provocation or agitation “naturally” be personality-debasing? And regarding the “satire” under consideration in this case: had the expressions “palant” or “przygłupawy urzędnik” been kept in storage, would this have deprived the article of its property of “satire”?

Argument no. 2: “[A]ccordingly, any interference with the right to use this means of expression should be examined with particular care”.

Our questions: Does this requirement apply only to domestic courts, or to this Court, too? Does it apply to this Court’s reasoning in this particular case? If not, on what legitimate ground does this Court enjoy such a franchise?

Argument no. 3: “The use of sarcasm and irony is perfectly compatible with the exercise of a journalist’s freedom of expression”.

Our questions: Must sarcasm (like satire) necessarily be insulting? And can the mere fact that an insulting expression is sarcastic in and of itself tone down the personality-debasing impact of that expression?

These three highly general arguments, completely detached from the specific circumstances of the case, allow the majority to reach the “conclusion” that the specific expressions in question were admissible. That “conclusion” is phrased in the following way: “In the Court’s view, without taking a stand on each specific remark made by the applicant, there is no doubt that the remarks in question, used in the particular context of the article, remain within the limits of admissible exaggeration.”

10. What is most striking in this sequence of legal reasoning is that the majority, having itself stated that “any interference with the right to use this means of expression should be examined with particular care” (Argument no. 2; see paragraph 9 above), stops right there. The majority itself does not examine the impugned expressions “with particular care”. It does not examine them with at least some care. It does not examine them at all. To use the term employed in the “particular care” clause which constitutes the essential part of Argument no. 2, the majority does not care.

Moreover, it explicitly refuses to examine the impugned expressions and the interference with the freedom to use them. It does this by announcing that it is not “taking a stand on each specific remark made by the applicant”. However, this careful and sleek wording fails to convey the actual “methodology of examination” of the expressions in question: it is not “each specific remark” on which the majority fails to take a stand, but on all of the remarks, because none of them is examined. For the majority, examination of any of the impugned remarks is not necessary, notwithstanding the requirement, set out immediately before, that these issues have to be examined “with particular care”.

This conclusion is reached after the Court has reminded itself of its obligation to “ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations were made, a right which, as an aspect of private life, is protected by Article 8 of the Convention” (see paragraph 39). How any balancing of rights, let alone a fair one, can be struck without “taking a stand on each specific remark made by the applicant” remains a mystery.

11. To be very precise, the “conclusion” dealt with here also includes an argument. It would make little sense to categorise it as an “autonomous” “Argument no. 4”, because it is the culmination of the three arguments mentioned (see paragraph 9 above). That argument is: “there is no doubt”.

We shall not expand on the dubious force of this argument, a masterwork of uncritical perspective: when, for the Court, “there is no doubt” even “without taking a stand” on the matter, legal reasoning is in deep trouble. As are personality rights.

12. Thus, the entire reasoning leading to the finding that the use of the impugned expressions was admissible under the Convention boils down to one simple argument. That purified real argument is the following: the published text is “satirical” (because the majority has labelled it so), and for this sole reason the use in that text of virtually any harsh language is a priori admissible. This is what the principal and only argument of the majority looks like, once it has been sifted out from the description of the facts of the case and the “general principles” which ought to have been (but were not) applied to it, as well as from some other textual ornaments.

In order to ensure that the formula “virtually any harsh language is a priori admissible” is not misunderstood as being too absolutist and, therefore, baselessly accusatory, we must stipulate that we do expect that the majority would allow such exceptions from the all-permissibility of “satirical” language as a form of persecution for instances of hate speech or incitement to violence and for other abusive attacks of that sort, which would not be prevented by the “satirical” nature of the message. But this caveat is immaterial to this particular case and to our considerations, and thus we shall not repeat it on every occasion further in this opinion.

13. True, the judgment also contains, passim (paragraphs 40, 42-44), some other considerations, but they do little (if anything) more than merely repeat and extend the arguments mentioned above, in § 9. The additional considerations pertaining to “the nature and severity of the penalty imposed” on the applicant (see paragraph 46) are of a somewhat different content. Still, even these penalty-related considerations are clearly not decisive for the outcome of the case. They are secondary, because the severity of the penalty simply cannot be considered in any meaningful way if the offence for which that penalty was imposed is not considered.

14. Time and again in the Court’s case-law (but, most fortunately, not all of its case-law!), the principal argument described above (see paragraph 12) stems from the conviction that Article 10 is the “star Article”. This conviction, which, to our regret, emerges time and again in Article 10 cases, is never openly acknowledged, but even a very simple analysis will unveil it from the canopy of simulated argumentation and divulge the mindset behind it. That this is the underlying conviction is clear from the “there is no doubt” argument (see paragraph 11 above). When confronted with freedom of expression, and in particular freedom of the press, all other values become subordinate, if they remain at all. (On this approach, with which we could not disagree more, we refer to our joint dissenting opinion in Fürst-Pfeifer v. Austria (nos. 33677/10 and 52340/10, 17 May 2016)). The majority states that an “individual who takes part in a public debate of general concern ... must not overstep certain limits, particularly with regard to respect for the reputation and rights of others” (see paragraph 44). Correct words! But there is not a single hint indicating these limits to be found in the judgment; instead, the majority is satisfied that “a degree of exaggeration or even provocation is permitted” and that “a degree of immoderation is allowed” (see paragraph 44). What degree?

For the majority, it is not necessary to address this issue, because the “satirical article [dealt with] the exercise of the local officials’ functions, [which was] a matter of legitimate public interest”, and thus “concerned a sphere in which restrictions on freedom of expression are to be strictly construed” (see paragraph 40), as if dealing with a matter of legitimate interest is yet another ground for absolution (like being satirical in nature; compare § 7 above) from any responsibility for the words and phrases employed in the article. In reality, this “strictly construed”, in the context of the majority’s entire reasoning as examined above, means “not allowed”.

15. The bottom line of our approach is that neither the context of the expressions, nor the genre chosen by the author, can by itself whitewash personality-debasing nature of the expressions used in the article.

16. The context of a publication may justify the use of even the harshest expressions, but only on condition that the expressions themselves are analysed and assessed. The requirement to look into the context does not mean that the obligation to look into the content of the text disappears. Even the loveliest forest (when regarded from a distance) may have warped or even disease-infested trees. There are spots even on the Sun. The Court is never absolved from the obligation to look into the specific circumstances of the case, and cannot be satisfied with only “the picture in general”. We repeat (compare paragraph 4 above): in order to justify the use, in a publication, of expressions recognised by the domestic courts as insulting, a thorough argumentation as to the meaning and weight of these expressions is indispensable. The Court itself has unequivocally recognised such an approach (see paragraph 35 below). Otherwise the judgment will be based on a fiat, and a fiat is not a legal argument. What is more, it is not an argument at all - it is permission, authorisation, approval, endorsement, and nothing more.

One may also ask whether the Court really considers that the context of a publication can only serve to justify the use of harsh expressions. Isn’t the opposite possible too? We believe that it is. Still, our reading of this judgment is that, in the view of the majority, only one-way traffic is allowed in such cases. However, analysis of the article in question and its context, as provided by the domestic courts (see paragraphs 19-26 below), allows for the conclusion that, in the circumstances of the case, the wider background does not reduce the personality-debasing impact of the impugned expressions, but rather amplifies it.

17. Now, to the genre of the publication. The same message, including that of political criticism, can be transmitted to the public using various genres. One of them is satire. It is a matter of choice of strategy as to which genre, in the message sender’s opinion, is most suitable for making the message more resonant for the addressee, and thus more effective. In other words, it is a matter of choosing the means towards the end. The choice of genre is the means, and transmitting a message with a particular content is the end.

We wish nevertheless to maintain that in the European civilisation of the XXI century it is an incontestable truth, both of political morality and legal justice, that the means do not justify the end. It appears that the present judgment is based on the opposite methodology: everything is forgiven if the “correct” strategy is chosen by an author, that is, the strategy which provides a priori absolution for whatever language is employed. Thus, the choice of the “correct” genre of an article is to adopt the genre which, in the author’s opinion, will not only can make that article more effective, but also can absolve the author from any responsibility for the words and phrases employed in it. In this respect, satire becomes the genre of genres. Form rules over content.

18. The above considerations, especially those pertaining to the absence of arguments on the most important merits of this particular case and the majority’s refusal to examine the impugned expressions, in particular “palant” and “przygłupawy urzędnik”, allow us to conclude that it is proven that the majority’s finding of a violation of Article 10 is not proven.

III

19. But there is more to it than that. In sharpest contrast to the real argument on which the finding of a violation of Article 10 is based (see paragraph 12 above) and the sequence of reasoning in this case, one finds the majority’s reproaches to the Polish courts. These reproaches are pronounced three times in the judgment:

Reproach no. 1: “With regard to the classification of the statements in issue, the Court notes that the domestic courts did not take a clear position in this respect” (paragraph 43).

Reproach no. 2: “[I]t appears that the domestic courts did not take sufficient account of these features [i.e. “the satirical nature of the text and the irony underlying it”] (paragraph 44).

Reproach no. 3: “[T]he domestic courts did not give “relevant and sufficient” reasons to justify the applicant’s conviction and sentence for insult” (paragraph 47).

20. Reproaches nos. 1 and 2 could be taken as serious, legitimate and even weighty, had the Court itself taken “relevant account” of all the elements of the case and had it itself given “relevant and sufficient reasons” to justify its own finding.

As we have seen, it has even refused to look into the matter. How, in such a case, can these reproaches convince anyone?

Moreover, Reproach no. 2 speaks of the “features”, but the reference provided is not to the circumstances of the case under consideration, but to a different case against Poland, decided as long ago as 2005 and pertaining to something which occurred as far back as 1995. Has the Court assessed the possible changes in the quality of public discourse in that country, which are also an important aspect of the context of the publication? No. There is a quote, imitating analysis, and that solves everything.

As to the domestic courts’ alleged lack of a “clear position ... [w]ith regard to the classification of the statements in issue”, we believe that it was as clear as it could be: the applicant’s “statements” were found to be insulting and personality-debasing, and this is why he was convicted. But what is most important, and even shocking, is that this reproach is flung at the domestic courts by the Court, which has declared that it itself is not even going to “tak[e] a stand on each specific remark made by the applicant”.

This is what some would call a double standard.

21. But perhaps the reproaches are not baseless in themselves, even if the Court failed itself to abide by the requirements it addresses to the domestic courts, and thus does not comply with its own standards?

22. For our part, we note that although the domestic courts did not elaborate in very great detail on the context of the impugned expressions, they nonetheless referred to the text as a whole and to the tone of the entire publication.

23. Moreover, the impugned expressions should be analysed not only in the context of the text as a whole, but also in the broader social context in which the article was published. The trial court, unlike this Court, took account of this aspect of the case. In particular, it established that the article in issue had been part of a broader campaign conducted by the newspaper against the officials-turned-private-prosecutors (see paragraph 15).

Did the majority pay heed to this most important factual circumstance? No. The Polish courts did.

24. One more aspect, which is particularly relevant to the present case but also to other similar cases, must be mentioned (it was briefly touched upon in § 14 above). As rightly held by the majority (although not directly stated in the judgment), the article addressed issues of legitimate public interest and contributed to a debate of general concern (compare, inter alia, paragraphs 40, 44 and 46). At the same time, the attitudes, statements or actions of the individuals attacked by the author of the article have also to be taken into consideration. Nothing in the case file even dimly suggests that the use in the article of not merely critical, harsh or exaggerated, but of insulting and personality-debasing expressions was a reaction to any provocative attitude or statement, or other behaviour by any of the individuals concerned.

Did the majority take this circumstance into account? Again, no - unlike the Polish courts.

25. Lastly, the reasoning in the domestic judgments shows that the Polish courts were well aware of the importance of freedom of expression and the difficulties in adjudicating in cases concerning freedom of speech. The district court unambiguously underlined the sensitivity of those matters. It also referred to various Polish and international documents whereby standards of journalistic ethics are defined, including the 1980 Mexico Declaration, the 1983 Paris Declaration and the 1993 Resolution no. 1003 of the Parliamentary Assembly of the Council of Europe “The Ethics of Journalism”. Against, inter alia, that background, the district court found that the applicant had breached the rules of journalistic ethics.

Did the majority take any position on these issues of journalistic ethics? None at all.

26. To sum up, we see that the Polish courts took into account:

(i) the contents and the weight of the expressions in issue;

(ii) the context (in its different manifestations) in which these expressions were used;

(iii) the international standards of journalistic ethics.

27. To all these considerations, this Court responds by:

(i) the mantra, consisting of three powwows from its case-law, detached from the circumstances of the case (compare paragraph 9 above); and

(ii) the “conclusion” that “there is no doubt that the remarks in question, used in the particular context of the article, remain within the limits of admissible exaggeration” (compare paragraphs 9 and 10 above).

In fact, the Court fails to respond on the merits. It sticks on labels: “did not take a clear position”, “did not take sufficient account”, did not give “relevant and sufficient” reasons”. An imitation of analysis.

28. Moreover, the quotations from the Court’s case-law by which the majority replied to all of the reasoning advanced by the domestic courts, are not only detached from the specific circumstances of the case - they are arbitrarily selective. The representation given of the Court’s doctrine in this judgment is categorically and wantonly one-sided, whereas that doctrine is much richer and much more balanced and nuanced than the singling-out and exceptional underlining of the “strict construction” clause (see paragraph 14 above) suggests.

For instance, although Article 10 § 2 explicitly mentions the “duties and responsibilities” of those exercising their freedom of expression, the majority (as in Fürst-Pfeifer v. Austria (cited above)) found no need even to mention the notion of responsible journalism, although this case is, essentially, about responsible v. irresponsible journalism. The majority limited itself, in paragraph 38, to general references to some paragraphs of Pentikäinen v. Finland ([GC], no. 11882/10, ECHR-2015) and Bédat v. Switzerland ([GC], no. 56925/08, 29 March 2016), the judgments in which the Court expanded on this principle. Note that the paragraphs indicated in the references are not the paragraphs in which the principle of responsible journalism is dealt with!

This sparing methodology, by which the “general principles” which ought to be applied to the case are only implicitly embarked upon by referring to the Court’s case-law, is not defective in itself. But if some of the tenets, such as the principle of responsible journalism, are ingeniously cold-shouldered, while others, such the “strict construction” clause, are emphasised (compare paragraph 14 above), this is nothing other than a resourceful misrepresentation of the Court’s doctrine. We suspect that this misrepresentation has a lot to do with the threatening conviction that all other values must give way to freedom of expression, and in particular freedom of the press (see paragraph 14 above).

Such an approach, and this judgment in particular, tends to impoverish the Court’s doctrine. It also sets a pattern of reasoning which, we believe, the Court would not itself ever openly recommend to the domestic courts, and which it would not approve if the domestic courts, whose decisions this Court has to scrutinise, were to use it.

31. For the reasons set out above, we conclude that the Polish courts did not infringe upon the applicant’s rights under Article 10 when they found that certain of the remarks in question, namely “palant” and “przygłupawy urzędnik”, used in the particular context, infringed upon the rights of third persons and, thus, overstepped the limits of freedom of expression. That infringement is obvious. The criminal conviction of the applicant remained within the limits of margin of appreciation of the member State. Even if the criminal act imputed to the applicant could have been qualified by the Polish courts more narrowly, without reference to the expressions “pozer” and “nierozgarnięci szefowie”, the domestic law provided sufficient grounds for convicting the applicant of insult. Even if, more often than not, criminal responsibility is not the most desirable or adequate way to counter abusive speech and react to it, its invocation in instances of arrant personality debasement falls within the margin of appreciation of the national authorities. Thus, we are unable to follow the majority in concluding that there has been a violation of Article 10.

32. The present case raises a truly general concern. Abusive speech hurts, and it may even kill. It is necessary to strike the correct balance between freedom of expression and the other fundamental rights and values which may conflict with it, including personality rights. The Court’s long-standing case-law has accepted even very harsh utterances in the press, by emphasising the freedom of the press in the event of conflict with other fundamental rights and values, including the right to human dignity. Nonetheless, we would be unable to allege in many of these cases that such acceptance was unfounded, or, as a minimum, that it was not reasoned.

The present judgment, however, is unreasoned. It cannot strike the above-mentioned balance because it does not search for balance. In this respect, it is in stark contrast even with this Court’s most far-reaching toleration of harsh language. It assures journalists that, despite the use of insulting, personality-debasing expressions, no legal sanction, even that provided for in the clearest domestic law, may be imposed on them. By the Court’s casual decision, foul-mouthed ribalds are encouraged to make use of their freedom of expression in such a way that that freedom knows virtually no limits.

33. What is more, in the Polish context, this judgment is even more sadly ironic and sinister. It sends a clear message to Polish society that insults such as “palant” and “przygłupawy urzędnik” will be considered, by this Court, as acceptable in public debate in the future. Great achievement.

34. This is a slippery slope. This risks provoking a snowball effect, and the “initial” snowball is being made by this Court. This snowball is doomed to gain mass and momentum, as it rolls down to crush what has been built by civilised people. The majority defends the impugned article as “satire [which] aims to provoke and agitate” (see paragraph 45). In fact, what it itself does is to provoke and agitate, no less than any satire, good or bad, tasteful or tasteless, would do.

This judgment contributes to the brutalisation of political speech in Europe and to the decline in the standard of public debate.

It is absolutely necessary for the Court to revisit its approach to situations such as that assessed above - but not properly examined in the judgment.

35. In this context, let us remind ourselves that the Court’s own standard in Article 10 cases is that “[w]here the balancing exercise between [the] rights [under Article 10 and Article 8] has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts” (see, among other authorities, Axel Springer AG v. Germany [GC], no. 39954/08, § 88, 7 February 2012, and the case-law cited therein). This tenet has been repeated, more or less verbatim, in numerous cases, most recently in Bédat v. Switzerland [GC] (no. 56925/08, § 54, 29 March 2016; see also the case-law cited therein).

Where are these “strong reasons” in this judgment? There are none. And there is no balancing of rights, not even a trace of it. Only a fiat, rooted in the a priori conviction of the exceptionality of the rights protected under Article 10 vis-à-vis personality rights and all other values protected by the Convention.

36. To conclude, this judgment is a perfect example of how the Court disregards its own standards.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> ZIEMBINSKI v. POLAND (No. 2) - 1799/07 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 607 (05 July 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/607.html Cite as: [2016] ECHR 607