EUROPEAN COMMISSION OF HUMAN RIGHTS SECOND CHAMBER. Application No /94. Józef Michal Janowski. against. Poland REPORT OF THE COMMISSION

Transcription

1 EUROPEAN COMMISSION OF HUMAN RIGHTS SECOND CHAMBER Application No /94 Józef Michal Janowski against Poland REPORT OF THE COMMISSION (adopted on 3 December 1997) TABLE OF CONTENTS I. INTRODUCTION (paras. 1-15) A. The application (paras. 2-4) B. The proceedings (paras. 5-10) C. The present Report (paras ) II. ESTABLISHMENT OF THE FACTS (paras ) A. The particular circumstances of the case (paras ) B. Relevant domestic law (para. 25) III. OPINION OF THE COMMISSION (paras ) A. Complaint declared admissible (para. 26) B. Point at issue (para. 27) C. As regards Article 10 of the Convention (paras ) CONCLUSION (para. 49) Page DISSENTING OPINION OF Mrs G.H. THUNE, MM. G. JÖRUNDSSON, H. DANELIUS, F. MARTINEZ, I. CABRAL BARRETO, P. LORENZEN and A. ARABADJIEV APPENDIX: DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY OF THE APPLICATION I. INTRODUCTION

2 1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission. A. The application 2. The applicant is a Polish citizen, born in 1937 and resident at Zdunska Wola, Poland. 3. The application is directed against Poland. The respondent Government were represented by their Agent, Mr Krzysztof Drzewicki of the Ministry of Foreign Affairs. 4. The case concerns the applicant's conviction of the offence of insulting civil servants during and in connection with the carrying out of their official duties. The applicant invokes Article 10 of the Convention. B. The proceedings 5. The application was introduced on 25 January 1994 and registered on 18 November On 28 June 1995 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint under Article 10 of the Convention. No partial decision was taken. 7. The Government's observations were submitted on 26 January 1996 after the extension of the time-limit fixed for this purpose. The applicant replied on 13 March On 27 November 1996 the Commission declared admissible the applicant's complaint under Article 10 of the Convention. It declared the remainder of the application inadmissible. 9. The text of the Commission's decision on admissibility was sent to the parties on 9 December 1996 and they were invited to submit such further information or observations on the merits as they wished. The parties did not avail themselves of this opportunity. 10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected. C. The present Report 11. The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present: Mrs G.H. THUNE, President MM J.-C. GEUS G. JÖRUNDSSON A. GÖZÜBÜYÜK J.-C. SOYER H. DANELIUS F. MARTINEZ M.A. NOWICKI I. CABRAL BARRETO J. MUCHA

3 D. SVÁBY P. LORENZEN E. BIELIUNAS E.A. ALKEMA A. ARABADJIEV 12. The text of this Report was adopted on 3 December 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention. 13. The purpose of the Report, pursuant to Article 31 of the Convention, is: (i) to establish the facts, and (ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention. 14. The Commission's decision on the admissibility of the application is annexed hereto. 15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission. II. ESTABLISHMENT OF THE FACTS A. The particular circumstances of the case 16. On 2 September 1992 the applicant observed two municipal guards who were ordering sellers of fruit and vegetables to leave a square where selling was allegedly not authorised by the municipal authorities and to move their makeshift stands to a marketplace nearby. They also imposed high fines on them. The applicant intervened, pointing out to the guards that their actions were devoid of any legal basis and infringed the economic freedom guaranteed by the Economic Freedom Act. He indicated that the municipal authorities had failed to pass any resolution which would allow the guards to clear the square concerned and to impose fines on sellers. He stressed that the guards were apparently acting only upon an oral authorisation from the mayor. The applicant states that he called them "ignorant" and "criminals, who breach applicable laws". The applicant urged the sellers to stay. A large group of passers-by gathered, listening to the lively exchange between the applicant and the guards. 17. Subsequently, on an unspecified date, the Zdunska Wola District Prosecutor (Prokurator Rejonowy) instituted criminal proceedings against the applicant on suspicion of committing the offence of insulting civil servants during and in connection with the carrying out of their duties defined in Section 236 of the Criminal Code. 18. On 5 January 1993 the Zdunska Wola District Prosecutor lodged a bill of indictment with the Zdunska Wola District Court (S*d Rejonowy). The applicant was indicted of having verbally abused municipal guards during and in connection with their carrying out of their official obligations and of acting with flagrant contempt for legal order, i.e. an offence specified in Section 236 of the Criminal Code read together with Section 59 para On 29 April 1993 the Zdunska Wola District Court convicted the applicant of verbal abuse of two municipal guards within the meaning of Section 236 of the Criminal Code, holding that this was an offence "of hooliganism" ("o charakterze chuliganskim") within the meaning of Section 59 para. 1 of the Criminal Code and sentenced him to eight

4 months' imprisonment suspended for two years and a fine of old PLZ 1,500,000. The applicant was ordered to pay the sum of old PLZ 400,000 to be used for a public purpose and court costs of old PLZ 346, In the reasons for its judgment the court found that on 2 September 1992 the applicant had challenged two municipal guards who had ordered fruit and flower-sellers to leave an unauthorised square and imposed fines on them. The applicant had indicated that the actions of the guards were contrary to the Economic Freedom Act. He had pointed out that there was no resolution of the local municipal council allocating certain places in town for selling purposes and prohibiting selling in other places. He had suggested to the sellers that they should disobey the orders as they lacked any legal basis. He had also verbally abused the guards. 21. On an unspecified date the applicant filed an appeal against this judgment, submitting that his conviction was based on insufficient evidence as the Zdunska Wola Court had failed to establish what precise defamatory words had been used. The court had only found that the applicant had called the guards "ignorant". This word should not have been regarded as an insult but as an acceptable criticism of public servants. The applicant further contended that the court had wrongly applied the law. Thus, it was evident that his acts were not ones "of hooliganism" as he had only intended to protect poor people against illegal acts by the municipal police. The impugned judgment was thus manifestly inequitable and the applicant should have been acquitted. 22. On 29 September 1993 the Sieradz Regional Court (S*d Wojewódzki) quashed the part of the contested judgment relating to the sentence of imprisonment and the order to pay old PLZ 400,000 to be used for a public purpose, upheld the fine imposed and reduced the court costs to the sum of old PLZ 150,000. At the material time the fine in question was near to the monthly unemployment allowance. The court considered that the lower court had clearly been wrong in establishing that the offence at issue had been one "of hooliganism" as the applicant's motive had genuinely been to defend sellers against the, in his opinion, wrongful and illegal acts of the municipal guards. Thus the applicant had not acted without any justifiable motive, which was a prerequisite for finding that the offence was one "of hooliganism". 23. The court held that the applicant had correctly considered that there had been no resolution of the municipal council prohibiting selling merchandise on the streets and that no public notice to this effect had been posted at the material place and time. Therefore there had been no grounds for the lower court's finding that the applicant had demonstrated flagrant contempt for legal order. 24. Finally, the court admitted that the grounds of the judgment had not mentioned the actual abusive words used by the applicant. It observed, however, that there was sufficient evidence in the case-file to consider that the applicant had in fact abused the guards. The abuse consisted of calling them "oafish" and "dumb" ("cwoki" and "glupki"), which were words commonly considered to be offensive. Thus the applicant had overstepped the limits of freedom of expression and had been correctly convicted of the offence under Section 236 of the Criminal Code. The court contended that the purpose of this provision was not to protect the personal dignity of civil servants, but to ensure that they were not hindered in carrying out their tasks. B. Relevant domestic law 25. Section 236 of the Criminal Code reads: "Anyone who insults a civil servant (...) during and in connection with the carrying out of his/her official duties, is liable to up to two years' imprisonment, to restriction of

5 personal liberty or to a fine." Section 59 of the Criminal Code provides: "If a perpetrator committed a premeditated offence of hooliganism, the court shall impose a sentence of imprisonment of not less than one-and-a-half times the minimum such sentence available..." Section 120 para. 14 of the Criminal Code provides that an offence shall be regarded as being of a hooligan character if the perpetrator acts in public, without any justifiable motive or with an obviously unjustified one, thus demonstrating flagrant contempt for legal order. III. OPINION OF THE COMMISSION A. Complaint declared admissible 26. The Commission has declared admissible the applicant's complaint that his conviction violated his right to freedom of expression. B. Point at issue 27. Accordingly, the issue to be determined is whether there has been a violation of Article 10 para. 1 (Art. 10-1) of the Convention. C. Article 10 (Art. 10) of the Convention 28. The applicant complains under Article 10 (Art. 10) of the Convention that his conviction and the penalty imposed on him were in breach of this provision. 29. Article 10 (Art. 10) of the Convention provides, insofar as relevant: "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." 30. The applicant submits that he merely expressed an acceptable criticism of civil servants who had publicly acted in an unlawful manner. Thus, the Sieradz Regional Court found that there had been no legal basis, in particular no adequate resolution of the municipal council, authorising guards to interfere with the sale of goods in the square where the incident in question occurred. The guards, however, went even further and imposed unjustified high fines on the sellers, ignoring the fact that there was no prohibition on what they were doing. Since the guards' acts lacked any legal basis, he correctly considered them unlawful and reacted thereto. As a consequence, he was only exercising his civic and moral duty which, in these particular circumstances, was to defend other citizens against a clear abuse of powers by the municipal guards.

6 31. The Government observe that the Sieradz Regional Court recognised that the applicant's motive had been to protect the sellers as he knew that neither had a resolution of the municipal authorities prohibiting sales in the streets been taken, nor had a notice to this effect been made available to the public at the scene of the incident. Accordingly, the court reduced the sentence. The court considered that the evidence showed that the applicant had called the guards "dumb" and "oafish" and not "ignorant" as he had stated in his submissions before the Zdunska Wola District Court. The Government therefore admit that the conviction constituted an interference with the applicant's freedom of expression. 32. However, the Government maintain that the applicant's action was undoubtedly in breach of Section 236 of the Criminal Code. It is irrelevant for the existence of the offence in question whether the acts of a civil servant are consonant with equity. Even if they are not, civil servants still enjoy the protection of this provision. They conclude that the interference was "prescribed by law" as it was covered by Section 236 of the Criminal Code. 33. Moreover, the measure complained of pursued the legitimate aim of the "protection of the reputation or rights of others", i.e. of the municipal guards. 34. The interference was also "necessary in a democratic society" as a wide margin of appreciation is left for the domestic authorities in assessing the necessity of interference with the freedom of expression. State authorities are in principle in a better position than the international judge to give an opinion on the exact contents of the concept of morals in a given society as well as on the "necessity" of a "restriction" or "penalty". This, however, goes hand in hand with a European supervision. Whoever exercises his freedom of expression undertakes "duties and responsibilities" the scope of which depends on his situation and the technical means he uses (Eur. Court HR, Handyside v. United Kingdom judgment of 7 December 1976, Series A no. 24, pp , paras ). 35. The Government further contend that the domestic authorities did not overstep the margin of appreciation provided for by Article 10 para. 2 (Art. 10-2). Criticism of public authorities cannot in principle be penalised; on the contrary, in a democratic society it should be approved of; however, certain standards must be observed when voicing such criticism, and the authorities must react in particular when legal regulations as to public order are flagrantly breached. The applicant's behaviour undoubtedly did not comply with the applicable standards. Not only had he breached moral principles universally considered to be binding in Poland, but his behaviour was also in violation of criminal law. As a consequence, the interference concerned was "necessary in a democratic society". 36. The Commission considers that the applicant's conviction constituted an interference with his right to freedom of expression guaranteed under Article 10 para. 1 (Art. 10-1) of the Convention. It must therefore examine whether this interference was justified under para. 2 of this provision, i.e. whether it was prescribed by law, pursued a legitimate aim and whether it was necessary in a demorcatic society. 37. In this respect the Commission observes that the applicant was sentenced to the fine of old PLZ 1,500,000 under Section 236 of the Polish Criminal Code, which states that anyone who insults a civil servant during and in connection with the carrying out of his official duties is liable to imprisonment of up to two years, to restriction of his liberty or to a fine of between old PLZ 500,000 and old PLZ 25,000,000. Thus, the interference in question was "prescribed by law".

7 38. Furthermore, as the Sieradz Regional Court pointed out in its judgment of 29 September 1993, this interference pursued the aim of ensuring that civil servants were not hindered in carrying out their tasks and its purpose was, therefore, the "prevention of disorder" which must be considered to be legitimate under the aforementioned provision. 39. In examining whether the measure applied was "necessary in a democratic society" the Commission recalls, firstly, that freedom of expression constitutes one of the essential foundations of a democratic society; subject to para. 2 of Article 10 (Art. 10-2), it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population (see Eur. Court HR, Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A no. 239, p. 27, para. 56 and Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria judgment, Series A no. 302, p. 17, para. 36). It further reiterates that freedom of expression, as enshrined in Article 10 (Art. 10), is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established (see the Thorgeir Thorgeirson judgment, loc. cit.). 40. In the present case the applicant witnessed the municipal guards fining people selling goods in a town square. In his reaction to the incident, which did not concern himself, he publicly expressed his critical views on the purpose of this interference, its justification and lawfulness. In particular, he pointed out that the guards' actions were devoid of any legal basis and infringed the economic freedom guaranteed under the Economic Freedom Act, stressing that no resolution had been passed by the municipal authorities prohibiting selling in that square and thus allowing it to be cleared and fines to be imposed on the street sellers (see para. 16). During the incident he apparently also called the guards "oafish" and "dumb" (see para. 23). 41. The Commission observes that the applicant was eventually convicted for having insulted the municipal guards by describing them as "oafish" and "dumb" and that the Sieradz Regional Court, in its judgment of 23 September 1993, found that the use of these words amounted to verbal abuse. Since they were commonly regarded as offensive, the court took the view that the applicant had overstepped the limits of freedom of expression (see para. 24). 42. The same court also found that the applicant had been correct in considering that neither had there been any resolution passed by the municipal authorities prohibiting selling of goods in the place of the incident, nor had a notice for the public been posted to this effect. This finding resulted in that court's ruling that the applicant had not demonstrated flagrant contempt for legal order (see para. 23). 43. However, such a finding confirms that the criticism of the guards' actions expressed by the applicant in defence of the street sellers was justified, because his opinion that there was no legal basis for the interference with the sale was correct. The fact that the guards were acting in their official capacity could not, in the Commission's view, make up for the absence of adequate legal grounds for their action. 44. The Commission further observes that in respect of civil servants, like politicians, acting in their public capacity, the limits of acceptable criticism are inevitably wider than in relation to a private individual. Civil servants who are entrusted with public functions and, therefore, endowed by society with power, should be open to close scrutiny, debate and criticism (see, mutatis mutandis Eur. Court HR, Oberschlick v. Austria judgment of 1 July 1997, to be published in Reports of Judgments and Decisions para. 29).

8 This concerns, in particular, persons who are responsible for maintaining public order. They must enjoy public confidence if they are successfully to carry out their duties. It may also prove necessary to protect such confidence against destructive and unfounded attacks (see, mutatis mutandis, Eur. Court HR, Prager and Oberschlick v. Austria judgment of 26 April 1995, Series A no. 313, p. 18, para. 34). However, in the first place, persons who maintain public order must themselves act in accordance with law as this is the fundamental rule inherent in them effectively performing their duties. Without observing this rule they cannot properly discharge their responsibilities and functions and, hence, enjoy public confidence. 45. Accordingly, if civil servants act without a legal basis, they should expect criticism from citizens and must accept that such criticism may, in certain instances, be harsh or expressed in a strong form. Thus, it must be remembered that Article 10 (Art. 10) protects not only the substance of the ideas, opinions or information expressed but also the form in which they are conveyed (see, the Oberschlick judgment, loc. cit. para. 34). 46. It is true that calling civil servants "oafish" ("cwoki") and "dumb" ("glupki") in public may offend them. However, regard must be had to the particular circumstances in which this happened. The applicant spontaneously reacted to the State authorities' interference with third parties and correctly assessed that the guards' actions were unjustified. Nor can it be said that his concern about his fellow-citizens was unreasonable; rather, he acted out of genuine civic considerations. Even though the language employed by the applicant may be considered to be exaggerated, this in itself did not amount to a deliberate and gratuitous personal attack. Thus, in contrast to an opinion expressed in a publication, which by its nature allows the author to reflect upon its content, an opinion expressed ad hoc in the course of a sudden event is intuitive because, as in the present case, it is provoked by the immediacy of the situation. The Commission considers, therefore, that the applicant did not overstep the limits of the criticism which was acceptable in these particular circumstances. 47. The authorities, nonetheless, eventually convicted the applicant of a criminal offence solely on account of the insulting meaning of two words used by him, taken in isolation from the whole context of the situation which had provoked his reaction. It is true that they found that he had not demonstrated contempt for legal order and that his motives had genuinely been to defend third parties, but these findings resulted only in a certain mitigation of the penalty originally imposed. In this respect it is noteworthy that, at the material time, the fine of old PLZ 1,500,000 finally imposed on the applicant was near to the monthly unemployment allowance in Poland. As a result, the penalty in question cannot be considered to be a lenient one either. 48. Assessing the facts of the case as a whole, the Commission finds that the applicant's conviction was not proportionate to the legitimate aim pursued and was not, therefore, "necessary in a democratic society... for the prevention of disorder" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention. CONCLUSION 49. The Commission concludes, by 8 votes to 7, that in the present case there has been a violation of Article 10 (Art. 10) of the Convention. M.-T. SCHOEPFER Secretary to the Second Chamber G.H. THUNE President of the Second Chamber DISSENTING OPINION OF Mrs G.H. THUNE, MM. G. JÖRUNDSSON,

9 H. DANELIUS, F. MARTINEZ, I. CABRAL BARRETO, P. LORENZEN and A. ARABADJIEV We have voted against the Commission's conclusion that there has been a violation of Article 10 of the Convention in the present case. Our reasons are as follows. First of all, we recall that the applicant was not convicted and sentenced for expressing the opinion that the municipal guards' actions were illegal but for publicly referring to them by expressions commonly regarded as insulting. We agree with the majority that in respect of civil servants, acting in their official functions, the limits of acceptable criticism are inevitably wider than in relation to a private individual. We are of the opinion that civil servants who are entrusted with public power should be open to close scrutiny and criticism and that this concerns not least those officials who are responsible for maintaining public order. At the same time, public confidence in civil servants is essential for them to be able to carry out their duties efficiently. They should therefore enjoy some protection against destructive and unfounded attacks. We consider that, when calling the guards "oafish" and "dumb", the applicant went beyond the limits of acceptable criticism, even if his spontaneous response to the municipal guards' actions may have been dictated by genuine civic considerations and the immediacy of the incident in question could to some extent provide an excuse for exaggeration. Taking into account the margin of appreciation which is left to Contracting States in such circumstances (see Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 25, para. 39), we cannot find that the Polish authorities, by convicting the applicant and sentencing him to a fine, failed properly to balance the various interests involved in the present case. Consequently, the interference with the applicant's right to freedom of expression could reasonably be considered necessary in a democratic society for the prevention of disorder and for the protection of the reputation and rights of others within the meaning of Article 10 para. 2 of the Convention.