AS TO THE ADMISSIBILITY OF

                    Application No. 23420/94

                    by Jan TOMASZKIEWICZ

                    against Poland

     The European Commission of Human Rights (Second Chamber) sitting

in private on 17 May 1995, the following members being present:

          Mr.  H. DANELIUS, President

          Mrs. G.H. THUNE

          MM.  G. JÖRUNDSSON

               S. TRECHSEL

               J.-C. SOYER

               H.G. SCHERMERS

               F. MARTINEZ

               L. LOUCAIDES

               J.-C. GEUS

               M.A. NOWICKI

               I. CABRAL BARRETO

               J. MUCHA

               D. SVÁBY

          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 29 November 1993

by Jan TOMASZKIEWICZ against Poland and registered on 7 February 1994

under file No. 23420/94;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

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

summarised as follows:

     The applicant, a Polish citizen born in 1934, is a psychiatrist

residing in Poznan.

     On 23 August 1990 E.B., acting as a private prosecutor, requested

institution of criminal proceedings for defamation against the

applicant before the Warsaw District Court (S*d Rejonowy w Warszawie).

She contended that the applicant, in two letters published in two

periodicals, "Szpilki" and "Czas", in April 1990 and July 1990, had

defamed her late husband O.B.

     In a letter of 18 March 1991 the applicant complained to the

President of the Warsaw District Court that he had become aware of the

criminal proceedings against him pending before that Court through an

informal source.  He requested to be duly served with the bill of

indictment.

     On 14 May 1991 the President sent a copy thereof to the applicant

and confirmed that the indictment had not previously been served on the

applicant.

     On 4 October 1991 the Warsaw Regional Court (S*d Wojewódzki w

Warszawie), in accordance with Article 26 of the Code of Criminal

Procedure, transferred the case from the Warsaw District Court to the

Koscian District Court as it considered that the persons who would have

to be summoned to appear before the court, lived in the vicinity of the

Koscian Court.

     On 28 January 1993 the Koscian District Court convicted the

applicant of defamation and sentenced him to six months' limitation of

liberty in that the applicant had to pay 10 per cent of his salary to

the Association of Assistance to Handicapped Persons in Koscian.

     The Court observed that in January 1990 the Koscian Society had

decided to attribute to the local psychiatric hospital O.B.'s name for

the purpose of acknowledging his professional achievements as a

director of the hospital from 1945 to 1957.  On 4 April 1990 and

28 July 1990 two periodicals, "Szpilki" and "Czas", published the

applicant's letters in which he opposed this idea.  He contended,

without mentioning O.B.'s name or initials, that during his

directorship several patients had died in suspicious circumstances in

the Koscian hospital.  It had given rise to suspicions that there had

been politically motivated murders, committed on the orders of the

communist authorities, in particular as two of those patients had been

former soldiers of the anticommunist Home Army during the Second World

War.  The patients had been selected in categories which received

treatment of unequal quality.  Those patients, whose diseases had been

particularly serious, had been transferred to worse hospitals.  O.B.

had been subservient to the communist authorities.

     The Court considered that it could not be disputed that the

applicant's letters concerned O.B., who had died in 1973.  The

applicant denied that his purpose had been to lower O.B. in public

esteem.  He only wished to dissuade the local authorities from giving

his name to the hospital as he considered him unworthy.  However, it

was obvious that the statements were of a disparaging character,

notwithstanding the applicant's intentions.  These statements did not

find support in the evidence, in particular in the testimony of four

witnesses H.F., J.Z., Z.J. and M.G., who had been O.B.'s collaborators.

The Court also heard witnesses A.R. and I.U, who had not worked with

O.B.  The Court considered the account given by Z.J. of the content of

the medical records of five patients, who allegedly had been killed or

allowed to die in the Koscian hospital on the orders of the communist

authorities and refuted the allegations.  O.B. had owed his position

to his outstanding professional skills, independence of character and

ability to influence people.  He was not a member of the communist

party, although this was normally required from hospital directors.

Thus the allegations of his subservience to the authorities were

unfounded.  The  fact that the patients had been put into different

groups was motivated by needs of treatment; in particular the purpose

had been to avoid a negative influence which the conduct of severely

ill patients could exert on the less severely afflicted ones.

     The Court further observed that the applicant's right to freedom

of expression under Article 10 of the Convention was not unlimited.

Freedom of expression involved a right to express views, which find

support in proven facts.  Legitimate interests of third parties, such

as good reputation, required that public criticism be fair and based

on ascertainable facts and not on conjecture.

     In his appeal against the judgment the applicant, relying on

Articles 6 and 10 of the Convention, pointed out that the Court had

disregarded all evidence favourable to him.   He became aware of the

proceedings only after nine months.  He had never been served with any

decision relating to the transfer of the case to the Koscian Court.

He stressed that he had not mentioned O.B.'s name in the letters at

issue.  He had not alleged that O.B. had caused the deaths of five

patients but had only put forward a suspicion that this might have been

the case.  The applicant complained that three articles in the local

press, which he had submitted to the Koscian Court, had been

disregarded by the Court.

     On 23 June 1993 the Poznan Regional Court changed the judgment

in that it decided that the applicant had disseminated false

information and had acted with intention to lower O.B. in public

esteem, thus having committed aggravated defamation, according to

Section 178 para. 2 of the Criminal Code.  The Court, in addition to

the sentence imposed by the Koscian Court, obliged the applicant to

apologise to O.B.'s widow in the periodicals which had published the

letters at issue and upheld the remainder of the contested judgment.

     The Court observed that the lower court had ample evidence from

various sources and had assessed it carefully, including the three

press articles relied on by the applicant, which the Koscian District

Court had included in the case-file.  It was true that the applicant

had not mentioned O.B.'s name or even his initials.  However, it

clearly appeared from the context that his letters related to him, as

they had mentioned the director of the psychiatric hospital in Koscian.

The applicant should have known that his allegations were untrue as the

sources on which he relied, namely the articles in the local press, had

not contained a sufficient basis therefor; in particular one of them

had only praised O.B. and his modern methods of treatment.  Another

article had described the dramatic state of health in which several

patients had been brought to the hospital in the 1950's, apparently

having been tortured by the communist secret police.  This article had

not contained any suggestion that they had subsequently died as a

result of any acts or negligence of the hospital staff.  While it was

true that O.B. had grouped the patients according to their diseases,

this had not been based on any inappropriate reasons, but had been

justified by the needs of treatment.  The applicant had not adduced any

evidence with regard to his allegations of O.B.'s subservience to the

communist authorities other than the general assumptions about everyone

in managing position during the stalinist years having to conform to

the orders of the political authorities.

     The Court considered that the sentence imposed was adequate

having regard both to the danger of the offence and to the applicant's

personal situation, in particular his bad health.

COMPLAINTS

     The applicant complains under Article 10 of the Convention that

the criminal conviction amounted to a violation of his right to freedom

of expression.  He submits that he had acted in the public interest.

     He complains under Article 6 of the Convention that the

proceedings were unfair.  The courts failed to take into consideration

the evidence submitted by the applicant.  His defence rights were

violated as for nine months he did not know the exact contents of the

bill of indictment.  The courts were not impartial, given that the

Public Prosecutor did not participate in the proceedings and the courts

had to carry out both the judicial function and that of a Public

Prosecutor.  The transfer of the case to the Koscian District Court

negatively affected the impartiality of the court as this Court was

biased against him.

THE LAW

1.   Insofar as the applicant's complaints relate to a period prior

to 1 May 1993, 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 by Poland of the rights

recognised in the Convention through any act, decision or event

occurring after 30 April 1993".

     It follows that this part of the application is outside the

competence ratione temporis of the Commission and therefore

incompatible with the provisions of the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

2.   The applicant complains under Article 10 (Art. 10) of the

Convention that the criminal conviction breached his right to freedom

of expression.  He submits that he had acted in the public interest.

     Article 10 (Art. 10) of the Convention 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 Commission considers that the applicant's conviction for

aggravated defamation constituted an interference with the exercise of

his freedom of expression within the meaning of Article 10 para. 1

(Art. 10-1) of the Convention.  Such interference is in breach of

Article 10, unless it is justified under paragraph 2 of Article 10

(Art. 10-2), i.e. it must be "prescribed by law", have an aim or aims

that is or are legitimate under Article 10 para. 2 (Art. 10-2) and be

"necessary in a democratic society".

     The Commission notes that the applicant's conviction was based

on Section 178 para. 2 of the Criminal Code, and was, therefore,

"prescribed by law" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention.

     Moreover, the interference complained of was aimed to protect

"the reputation or rights of others",i.e. the right of O.B.'s widow to

have her husband's reputation protected against unfounded attacks,

which is a legitimate aim under Article 10 para. 2 (Art. 10-2) of the

Convention.

     It remains to be examined whether the interference was "necessary

in a democratic society".  The term "necessary" implies the existence

of a "pressing social need".  Nevertheless, the Contracting States

enjoy a certain  margin of appreciation in determining whether such a

need exists, but this goes hand in hand with a European supervision,

the extent of which depends upon the circumstances.  The review under

the Convention is confined to the question whether the measures taken

on the national level are, in the light of the case as a whole,

justifiable in principle and proportionate (cf. Eur. Court H.R., Sunday

Times (No. 2) judgment of 26 November 1991, Series A no. 217, pp.28-29,

para. 50).

     The Commission observes that the applicant was convicted of

defamation because he had published two letters, containing allegations

that O.B. had not observed professional conduct in managing the Koscian

psychiatric hospital in 1945-1957.  The applicant's statements in these

letters were considered to be of disparaging nature as they questioned

both O.B.'s professional skills and his moral character.

     It is true that the subject of both publications related to a

matter of general interest.  However, having regard to the fact that

the applicant's allegations were not found to be supported by relevant

evidence as well as the sentence imposed on the applicant, the

obligation to pay 10 per cent of his monthly salary to a non-profit

organisation, the applicant's interest in criticising the idea of

attributing O.B.'s name to the hospital cannot, in the Commission's

opinion, outweigh the right of O.B.'s widow to have her late husband's

reputation protected against being disparaged in public.  Therefore,

the Commission considers that the interference at issue was justifiable

and proportionate.

     In these circumstances, the interference complained of can be

reasonably regarded as "necessary in a democratic society" within the

meaning of Article 10 para. 1 (Art. 10-1) of the Convention.

     This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.   The applicant complains under Article 6 (Art. 6) of the

Convention that the proceedings were unfair and the courts were not

impartial.

     The Commission first observes that certain events of which the

applicant complains took place before 1 May 1993, notably the serving

of the bill of indictment and the transfer of the case to the Koscian

District Court.  There is no indication that these events affected the

fairness of the proceedings after 1 May 1993.  They are therefore

outside the Commission's competence ratione temporis (see 1. above).

     The Commission recalls that the admissibility and assessment of

evidence is primarily governed by the rules of domestic law, and as a

general rule it is for the national courts to assess the evidence

before them.  The Commission's task is to ascertain whether the

proceedings, considered as a whole, including the way in which the

evidence was submitted, were fair (see Eur. Court.H.R., Lüdi judgment

of 15 June 1992, Series A no. 238, p. 23, para.43).

     In the present case there is no indication that the applicant

could not duly put forward his submissions or any evidence.

     The applicant also complains of the lack of impartiality of the

courts as they carried out both a judicial function and that of Public

Prosecutor.  However, the Commission notes that in the proceedings

concerned the prosecuting function was carried out by O.B.'s widow.

The applicant has not submitted any ascertainable facts which might

raise doubts as to the impartiality of the courts.

     In sum, the Commission finds no appearance of a violation of

Article 6 (Art. 6) of the Convention.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons, the Commission by a majority

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber    President of the Second Chamber

     (M. T. SCHOEPFER)                     (H. DANELIUS)