Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 25716/94

Józef Michal Janowski

against

Poland

REPORT OF THE COMMISSION

(adopted on 3 December 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .3

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .3

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .3

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .4

II. ESTABLISHMENT OF THE FACTS

(paras. 16-25) . . . . . . . . . . . . . . . . . . . . .5

A. The particular circumstances of the case

(paras. 16-24). . . . . . . . . . . . . . . . . . .5

B. Relevant domestic law

(para. 25). . . . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

(paras. 26-49) . . . . . . . . . . . . . . . . . . . . .8

A. Complaint declared admissible

(para. 26). . . . . . . . . . . . . . . . . . . . .8

B. Point at issue

(para. 27). . . . . . . . . . . . . . . . . . . . .8

C. As regards Article 10 of the Convention

(paras. 28-48). . . . . . . . . . . . . . . . . . .8

CONCLUSION

(para. 49). . . . . . . . . . . . . . . . . . . . 12

DISSENTING OPINION OF Mrs G.H. THUNE, MM. G. JÖRUNDSSON,

H. DANELIUS, F. MARTINEZ, I. CABRAL BARRETO,

P. LORENZEN and A. ARABADJIEV . . . . . . . . . . . . . . . 13

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION. . . . . . . 14

I. INTRODUCTION

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 1994.

6. 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 1996.

8. 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

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. 1.

19. 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

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 346,000.

20. 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

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.

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. 22-23, paras. 48-49).

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".

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 1997 ... para. 29).

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 G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

DISSENTING OPINION OF Mrs G.H. THUNE, MM. G. JÖRUNDSSON,

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.

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JANOWSKI v. POLAND

JANOWSKI v. POLAND

LEXI