AS TO THE ADMISSIBILITY OF

                      Application No. 25716/94

                      by Józef Michal JANOWSKI

                      against Poland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 27 November 1996, 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

           Ms.   M.-T. SCHOEPFER, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 25 January 1994

by Józef Michal JANOWSKI against Poland and registered on

18 November 1994 under file No. 25716/94;

      Having regard to:

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on

      26 January 1996 and the observations in reply submitted by the

      applicant on 13 March 1996;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant, a Polish citizen born in 1937, is a journalist

residing at Zdunska Wola.

      The facts of the case, as submitted by the parties, may be

summarised as follows:

Particular circumstances of the case

      On 2 September 1992 the applicant observed two municipal guards

who ordered sellers of fruits and vegetables to leave a place where

selling was not authorised by the municipal authorities and to move

their improvised 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 vacate the place concerned

and to impose fines on sellers.  He stressed that the guards were

acting only upon an oral authorisation of the town mayor.  The

applicant had 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 animated exchange

between the applicant and the guards.

      On 5 January 1993 the Zdunska Wola Public Prosecutor transmitted

an indictment against the applicant to the Zdunska Wola District Court

(S*d Rejonowy).  The applicant was charged with having verbally abused

municipal guards during and in connection with their carrying out their

official obligations and of acting with a flagrant contempt for legal

order, i.e. an offence specified in Article 236 of the Criminal Code

read together with Article 59 para. 1.

      On 7 January 1993 the indictment was served on the applicant.

The first hearing was held on 25 January 1993.  The applicant requested

rectification of the minutes.  The next hearing was held on 15 April

1993.  On 22 April 1993 the applicant requested that the minutes of

this hearing be rectified.

      On 29 April 1993 the applicant requested the Zdunska Wola

District Court to be granted legal aid as the proceedings against him

had been conducted in an unfair manner.  He was unemployed and he had

ceased to receive unemployment benefits since 1 March 1993.  At the

hearing on the same date the Zdunska Wola District Court refused to

grant legal aid to the applicant, considering that he had not

sufficiently substantiated his difficult financial situation.  The

Court further refused to rectify the minutes of the hearing of

15 April 1993.  Thereupon the applicant left the courtroom.  The Court

continued the hearing and heard further witnesses in the applicant's

absence.  On the same day the Court convicted the applicant of verbal

abuse of two municipal guards within the meaning of Section 236 of the

Criminal Code read in conjunction with Article 59 para. 1 of the Code.

      The Court found that on 2 September 1992 the applicant had

challenged two municipal guards, who had ordered sellers of fruit and

flowers to leave an unauthorised place 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 which would allocate certain

places in town for selling purposes and prohibit 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.

      The Court considered that the applicant's offence was "of a

hooligan character" ("o charakterze chuliganskim") within the meaning

of Section 59 para. 1 of the Criminal Code and sentenced him to eight

months' imprisonment (suspended) and a fine of 1.900.000 zlotys.  He

was ordered to pay the court costs.

      The applicant appealed against this judgment.  He submitted that

his conviction was based on insufficient evidence as the Zdunska Wola

Court had failed to establish what actual defamatory words had been

used.  The Court had found only that the applicant 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 "of a hooligan character" as he had only

intended to protect poor people against illegal acts of the municipal

police.  The impugned judgment was thus manifestly inequitable and the

applicant should have been acquitted.

      At a hearing on 29 September 1993 the Sieradz Regional Court (S*d

Wojewódzki), in the presence of the applicant and his lawyer, whom he

had retained in the meantime, quashed the contested judgment in its

part relating to the prison sentence and upheld it in its remainder.

The Court considered that the lower court was obviously wrong in having

established that the offence at issue had been "of a hooligan

character" as the applicant's genuine motives were 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 "of

a hooligan character".  The applicant had correctly considered that

there had been no resolution of the municipal council prohibiting

selling merchandise on the streets and that there was no notice for the

public to this effect at the material place and time.  Therefore there

had been no grounds for the lower court's finding that the applicant

had demonstrated a flagrant contempt for legal order.  As regards the

complaint concerning insufficient evidence, the Court admitted that the

grounds of the judgment did not mention the actual abusive words used

by the applicant.  However, the Court found 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 the guards "dumb"

and "oafish" ("cwoki" and "glupki"), which were words commonly

considered to be offensive.  Thus the applicant had overstepped the

limits of freedom of expression and had correctly been found to be in

breach of the relevant provision of the Criminal Code.  The Court

observed that the purpose of this provision was not to protect personal

dignity of civil servants, but to ensure that they were not hindered

in carrying out their tasks.  The Regional Court further considered

that the first instance court had sufficiently demonstrated which

evidence it had considered credible and given sound reasons therefore.

Relevant domestic law

      Article 236 of the Criminal Code reads:

      "Anyone who insults a civil servant (...) during and in

      connection with carrying out his/her official duties, is liable

      to an imprisonment up to two years, to restriction of his

      personal liberty or to a fine."

      Article 59 of the Criminal Code provides:

      "If a perpetrator committed a premeditated offence of a hooligan

      character, the court shall impose a prison sentence not lower

      than its lower limit increased by half (...)"

      Article 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.

COMPLAINTS

      The applicant complains under Article 6 para. 3 of the Convention

that the Zdunska Wola District Court refused to hear two witnesses for

the defence and to grant him legal aid.

      He complains under Article 6 para. 1 of the Convention that the

Court was biased against him in that it dictated the minutes of the

hearing in a way which did not reflect the actual statements made by

witnesses and the applicant during the hearing.  He submits that he

twice requested the Court to rectify the minutes.

      The applicant further complains that his conviction breached his

right to freedom of expression as his acts were only acceptable

criticism of public servants.  He submits that the acts of the

municipal guards were unlawful and he was right in criticising them.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 25 January 1994 and registered

on 18 November 1994.

      On 28 June 1995 the Commission decided to communicate the

applicant's complaint concerning the alleged violation of Article 10

of the Convention and invited the parties to submit written

observations on the admissibility and merits before 10 October 1995.

Upon the Government's request of 5 October 1995, an extension of the

time-limit was granted until 15 December 1995.  In view of the length

of the extended time-limit, the Government were further requested to

submit the translation of the observations into one of the official

languages by the same date.

      By a letter of 22 January 1996 the Government were informed that

the case was being considered for inclusion in the list of cases for

examination at the Commission's session beginning on 26 February 1996.

The Government's written observations were submitted on

26 January 1996.  The applicant replied on 13 March 1996.

      By letter of 28 June 1996 the Government were reminded that the

time-limit for the submission of the translation of the Government's

observations had expired.  The Government were informed that if the

Commission did not receive the translation before 2 September 1996, it

would examine the application without the benefit of the translation.

THE LAW

1.    The Government first submit that the application, insofar as it

relates to events prior to 1 May 1993, i.e. the date of recognition of

the right of individual petition by Poland, is outside the competence

ratione temporis of the Commission.  They further submit that events

prior to this date should be taken into account merely as a background

to the issues before the Commission (Eur. Court HR, Hokkanen v. Finland

judgment, Series A vol. 299, p. 19, para. 53).  As regards the

complaints relating to events after that date, the Commission is

competent ratione temporis to examine them.

      The Commission recalls that Poland recognised the competence of

the Commission to receive individual applications "from any person,

non-governmental organisation or group of individuals claiming to be

a victim of a violation of the rights recognised in the Convention

through any act, decision or event occurring after 30 April 1993".  It

follows that the Commission is not competent to examine complaints

relating to violations of the Convention by acts, decisions or events

that have occurred prior to this date.

      It follows that the Commission is competent ratione temporis to

examine the application insofar as it relates to the events after

30 April 1993, including the applicant's criminal conviction of

29 September 1993.

2.    Insofar as the applicant complains about the alleged unfairness

of the proceedings before the Zdunska Wola District Court, the

Commission recalls that these proceedings ended by a first instance

judgment of 29 April 1993, the date being prior to the recognition of

the right of individual petition against Poland.  However, the

Commission leaves open whether this part of the application is

compatible ratione temporis with the provisions of the Convention as

it observes that, in any event, the applicant did not raise these

complaints in his appeal to the Regional Court.  Therefore he has not

exhausted the remedies available under Polish law.

      It follows that this part of the application must be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

3.    The applicant further complains that his conviction breached his

right to freedom of expression as his acts constituted an acceptable

criticism of public servants.  He submits that the acts of the

municipal guards were unlawful and he was right in criticising them.

      Article 10 (Art. 10) of the Convention, insofar as relevant,

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."

      The Government first submit that the applicant complains mostly

about the alleged unfairness of the proceedings.  They express doubts

as to whether the applicant intended to submit a complaint under

Article 10 (Art. 10) of the Convention.  The Government consider that

this issue has been raised by the Commission proprio motu as the

applicant did not consider himself a victim of a breach of freedom of

expression.  However, the Government address the complaints under

Article 10 (Art. 10).

      The Government further stress the importance of freedom of

expression in a democratic society.  The limitations thereof contained

in para. 2 of Article 10 (Art. 10-2) of the Convention are but

exceptions from the general principle set out in para. 1.  The

Government are fully aware that these exceptions must meet the

requirements set out in para. 2 of Article 10 (Art. 10-2) of the

Convention.

      The Government submit that the facts of the case are not in

dispute between the parties.  In the proceedings before the domestic

courts the applicant stressed that the acts of the municipal guards did

not comply with their statutory obligations.  He maintained that the

selling on the streets was based on the Economic Freedom Act and the

Local Government Act.  The fines imposed on the sellers and the

prohibition to sell on the streets were devoid of legal basis.  He

stated that he knew that certain complaints to the municipal

authorities about the guards' actions in this respect had proven to be

ineffective in the past and declared that his acts had been motivated

by civic considerations to curb their unlawful and unjustified acts.

      The Government observe that the Regional Court recognised that

the applicant's motive had been to protect the sellers as he knew that

neither a resolution of the municipal authorities prohibiting sales in

the streets had been taken, nor a notice to this effect had been

available to the public at the scene of the incident.  Accordingly, the

Court alleviated the sentence.  The Court considered that the evidence

had shown that the applicant had called the guards "dumb" and "oafish"

and not "ignorant" as he had stated in his submissions before the

District Court.  The Government conclude that the conviction

constituted an interference with the applicant's freedom of expression.

      The Government maintain that the applicant's action was

undoubtedly in breach of Article 236 of the Criminal Code.  They submit

that it is not in dispute that the municipal guards enjoyed protection

of this Article, accorded to civil servants.   They submit that it is

irrelevant for the existence of the offence under Article 236 of the

Criminal Code 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 Article 236 of the Criminal

Code.

      The Government further submit that the measure complained of

pursued the legitimate aim of the "protection of the reputation or

rights of others", i.e. of the municipal guards.

      As to whether the interference was "necessary in a democratic

society", the Government rely on a wide margin of appreciation of 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 the 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 29 April 1996,

Series A vol. 24, p. 29, paras. 48-49).

      The Government further contend that the authorities acted

rationally and in good faith.  They did not overstep the margin of

appreciation provided for by Article 10 para. 2 (Art. 10-2).  The

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.

      The Government conclude that the interference concerned was thus

"necessary in a democratic society" and that, consequently, this part

of the application should be declared manifestly ill-founded.

      The applicant submits that the Government's observations are in

fact limited to reiteration of the arguments relied on by the first

instance court.  The Government failed to address the applicant's

argument that the action of the municipal guards was in breach of

applicable laws.

      The Commission considers that the applicant's above complaint

raises serious issues of fact and law under the Convention the

determination of which should depend on an examination of the merits.

It follows that this part of the application cannot be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

      For these reasons, the Commission, by a majority,

      DECLARES ADMISSIBLE, without prejudging the merits, the

      applicant's complaint that his conviction was in breach of his

      right to freedom of expression;

      DECLARES INADMISSIBLE the remainder of the application.

       M.-T. SCHOEPFER                              G.H. THUNE

          Secretary                                  President

    to the Second Chamber                      of the Second Chamber