FOURTH SECTION

DECISION

Application no . 19219/07 Krzysztof SYLKA against Poland

T he European Court of Human Rights (Fourth Section), sitting on 3 June 2014 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , George Nicolaou , Nona Tsotsoria , Zdravka Kalaydjieva , Krzysztof Wojtyczek , Faris Vehabović , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 3 May 2007 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Krzysztof Sylka , is a Polish national, who was born in 1972 and lives in Bytów . He was represented before the Court by Mr J. Smallhoover , a lawyer practising in Paris .

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . On 26 September 2005, when driving a car, the applicant was stopped by a police patrol. The police officers explained to the applicant that they had noticed that his seatbelt had not been fastened. A discussion ensued, in the course of which the applicant alleged that the police officers could not have actually seen whether he had his seatbelt fastened. He told the police officers that they should pursue other, real offenders. The applicant also requested that the police officers present their badges to him. A further discussion ensued as he wanted the badges to be shown for a longer period of time than the police officers considered necessary. The applicant referred to some of his previous, negative experience with the local police. In the course of the discussion the applicant also said to the police officers that “he would not descend to their level” ( nie b ę dzie si ę zni ż a ł do ich poziomu ).

4 . Eventually, the police officers asked the applicant whether he accepted the fine of 100 Polish zlotys (PLN; equivalent of EUR 25) for a breach of the Code of Administrative Offences. He refused to accept it. The police officers informed him that the case concerning an administrative offence of driving without a seatbelt fastened would thus be referred to a court and left. The exchange between the applicant and the police officers was witnessed by a passenger in his car.

5 . On 24 October 2005 the Bytów District Court, in summary proceedings, convicted the applicant of the administrative offence ( wykroczenie ) of driving without his seatbelt fastened and sentenced him to a fine of PLN 50 (EUR 12). The applicant did not appeal.

6 . On an unspecified date the Bytów District Prosecutor ( Prokurator Rejonowy ) instituted criminal proceedings against the applicant. The applicant was charged with having insulted the police officers in the course of and in conjunction with them carrying out their duties under Article 226 § 1 of the Criminal Code.

7 . On 16 December 2005 a bill of indictment against the applicant was lodged with the Bytów District Court.

8 . The trial court held hearings on 1 and 28 March 2006. The court heard the applicant and the witnesses, including the police officers concerned and the passenger of the applicant ’ s car. In the course of the judicial proceedings the applicant claimed that he had only uttered part of the impugned statement (“I am not going to descend”) whereas it had been the police officers who had supplemented it with “to our level”. He also argued that the statement had been made during a discussion with the police officers which had been prompted by their inappropriate behaviour when presenting their badges upon his request. He further referred to his previous experience with the local police alleging that the intervention had been carried out in revenge for his previous legal actions.

9 . On 28 March 2006 the Bytów District Court found the applicant guilty of verbally insulting the two police officers in the course of and in conjunction with them carrying out their duties under Article 226 § 1 of the Criminal Code and sentenced him to a fine of PLN 900 (EUR 225). Following a civil claim filed by the Bytów District Prosecutor on behalf of the insulted police officers, the court also ordered the applicant to pay PLN 2,500 (EUR 625) to a local fostering service. He was also ordered to pay PLN 290 (EUR 72) for the costs of the proceedings.

10 . The District Court established that the applicant had uttered the statement “I am not going to descend to your level” towards the police officers in the course of and in conjunction with them carrying out their duties. In the light of the applicant ’ s conviction for having committed an administrative offence of driving without his seatbelts fastened which he did not appeal against, the court found that the police intervention had been justified. The court further found, on the basis of the evidence given by the two police officers, that the applicant had in fact insulted them by uttering the impugned statement. The District Court considered that the statement was objectively insulting as it suggested that the police officers were of a lower intellectual level than the applicant and thus it constituted an expression of contempt for them as people and as civil servants carrying out their duties in a public place.

The court further considered that the applicant ’ s claims as to the content of the statement and the allegedly inappropriate conduct of the police officers were unfounded in the light of the consistent evidence given by the two officers. The domestic court also considered that the applicant ’ s submissions as to his previous experience with the local police had been irrelevant to the case.

11 . The applicant lodged an appeal. He argued that the statement “I am not going to descend” or even “I am not going to descend to your level” could not be considered an insult within the meaning of Article 226 § 1 of the Criminal Code. The applicant also questioned the findings of fact of the first ‑ instance court alleging that he had been provoked by an inappropriate behaviour of the police officers.

12 . On 7 November 2006 the S ł upsk Regional Court altered the impugned judgment and quashed the applicant ’ s conviction. The Regional Court conditionally discontinued the criminal proceedings against the applicant for a probationary period of one year. It also ordered the applicant to pay PLN 500 (EUR 125) to a local fostering service and PLN 100 (EUR 25) for the costs of proceedings.

13 . The Regional Court upheld the findings of fact of the first ‑ instance court. It pointed out that it was the applicant who had provoked the unnecessary discussion with the police officers. The police intervention had been justified as the applicant had admitted that he had not had his seatbelt on. Consequently, the Regional Court considered that the applicant ’ s statement constituted an insulting remark rather than a legitimate criticism of the conduct of a civil servant. In addition, the applicant had not been hindered in any way in expressing criticism of the police officers ’ actions had he wished to do so by other means. As to the severity of the sentence, the court underlined that the words used by the applicant had only been moderately insulting and found that conditional discontinuation of the criminal proceedings constituted an adequate and proportional reaction of the State in these circumstances.

B. Relevant domestic law and practice

1. Relevant provisions of the Criminal Code

14 . At the relevant time Article 226 § 1 of the Criminal Code provided as follows:

“Anyone who insults a public official or a person called upon to assist him, in the course of or in connection with the carrying out of official duties shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year.”

15 . Under Article 66 §§ 1 and 2 of the Criminal Code, criminal proceedings may be conditionally discontinued if the seriousness of the offence, punishable by a prison sentence of less than three years, and the guilt of the perpetrator is not significant, the circumstances in which it was committed have been established beyond reasonable doubt, the perpetrator does not have a criminal record and his personal circumstances and qualities suggest that he will abide by the law during the probation period.

16 . Under Article 67 § 1 o f the Code, the court can fix a probation period of between one and two years, running from the date on which the judgment became final. Pursuant to Article 67 §§ 2 and 3 of the Code, when deciding to discontinue the proceedings for the period of probation, the court can impose certain obligations on the accused, in particular, to pay appropriate compensation to the vi ctim of the offence or to pay a certain sum to a charity.

17 . Under Article 68 of the Code the conditionally discontinued proceedings may be resumed if during the probation period the offender disregards the obligations imposed by the court, acts in flagrant breach of public order, or, in particular, commits a new criminal offence. The proceedings cannot be resumed later than six months after the expiry of the probation period (Article 68 § 4).

2. Relevant provisions of the National Criminal Register Act

18. In accordance with section 1 § 1 (2) of the Act the information about persons against whom the criminal proceedings have been conditionally discontinued is entered into the Nati onal Criminal Register. Section 14 § 1a of the Act, which entered into force on 2 November 2007, reads, in so far as relevant:

“The data of the persons who are referred to in section 1 § 1 (2) of the Act shall be removed from the Register after the expiry of the time-limit specified in Article 68 § 4 of the Criminal Code, ... ” .

3 . The Constitutional Court ’ s judgment of 11 October 2006 (case no. P 3/06) on Article 226 § 1 of the Criminal Code

19 . On 11 October 2006 the Constitutional Court ruled on a legal question referred to it by the Lublin District Court challenging constitutionality of Article 226 § 1 of the Criminal Code. The Constitutional Court held that this provision was partly incompatible with Article 54 § 1 (freedom of expression) read in conjunction with Article 31 § 3 (principle of proportionality) of the Constitution in so far as it criminalised insult of a public official committed in private or in public but not in the course of the carrying out of official duties. It extensively referred to the jurisprudence of the Strasbourg Court.

20 . Following the judgment of th e Constitutional Court, Article 226 § 1 was amended on 25 July 2008. The amended provision reads as follows:

“Anyone who insults a public official or a person called upon to assist him, in the course of and in connection with the carrying out of official duties shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year.”

COMPLAINTS

21 . The applicant complained under Article 10 of the Convention about a violation of his right to freedom of expression. He argued that the domestic courts had applied the provisions of domestic law in an unforeseeable manner and that the interference had thus not been “prescribed by law”. He further alleged that the judgments in question had not been proportionate to the legitimate aim. The aim of his remarks was not to insult the police officers but to express criticism of their official actions.

22 . He further complained under Article 6 § 1 of the Convention about the outcome of the proceedings in question, in particular the allegedly erroneous assessment of evidence by the courts. The applicant also invoked Article 6 § 2 alleging that not all of the constitutive elements of the offence had been proved in the domestic proceedings.

THE LAW

A. Complaint under Article 10 of the Convention

23 . The applicant complained under Article 10 of the Convention that his right to freedom of expression had been infringed. He alleged that the Criminal Code had been applied in an unforeseeable manner and that the measures imposed on him had been disproportionate.

24 . The Court considers it appropriate to first examine whether the complaint under Article 10 is admissible in the light of Article 35 § 3 (b) of the Convention. This provision added a new admis sibility requirement to Article 35 § 3 of the Convention with the entry into force of Protocol No. 14 on 1 June 2010. It reads as follows:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as de fined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

25 . In accordance with Article 20 of the Protocol, the new provision applies from the date of its entry into force to all applications pending before the Court, except those declared admissible. The Court may raise the new admissibility criterion of its own motion (see Adrian Mihai Ionescu v. Romania ( dec. ), no. 36659/04, § 30 , 1 June 2010).

26 . The purpose of the new admissibility criterion is to enable more rapid disposal of unmeritorious cases and thus to allow the Court to concentrate on its central mission of providing legal protection of human rights at the European level (see the Explana tory Report to Protocol No. 14, CETS No. 194, §§ 39 and 77 ‑ 79). The High Contracting Parties clearly wished the Court to devote more time to cases which warrant consideration on the merits, whether seen from the perspective of the legal interest of the individual applicant or considered from the broader perspective of the law of the Convention and the European public order to which it contributes (ibid., § 77).

29 . In the present case, the Regional Court, applying Articles 66 § 1 and 67 § 1 of the Criminal Code, conditionally discontinued the criminal proceedings against the applicant for insulting police officers and fixed a probationary period for one year. It further o rdered the applicant to pay PLN 500 (EUR 125) to a local fostering service and PLN 100 (EUR 25) in respect of costs.

30 . The seriousness of an alleged violation should be assessed by taking into account the applicant ’ s subjective perceptions and what is objectively at stake in a particular case. The applicant ’ s subjective perception is relevant; the Court is ready to accept that individual perceptions encompass not only the monetary aspect of a violation, but also the general interest of the applicant in pursuing the case (see, Havelka v. Czech Republic ( dec. ), no. 7332/10, 20 September 2011). However, subjective perception does not suffice for the Court to conclude that the applicant suffered a significant disadvantage. It must also have regard to objective grounds. With regard to the first element, the Court accepts that the issue at stake in this case was clearly of subjective importance to the applicant.

32 . Furthermore, the information about the conditional discontinuation of the criminal proceedings was entered into the National Criminal Register for a period equal to the probationary period plus six months (i.e. in the applicant ’ s case 18 months starting from the date on which the Regional Court ’ s judgment became final). After the expiry of this period the information about the conditional discontinuation is removed from the Register (cf. section 14 § 1a of the National Criminal Register Act which entered into force on 2 November 2007). In addition, the applicant did not submit any information to the Court indicating that the conditionally discontinued proceedings were resumed during the above 18-month period or that the information on the Register had affected him adversely in any tangible way.

33. The financial implications of the proceedings could not represent a particular hardship for the applicant, given the modest amount at stake (EUR 150 in aggregate) and the fact that that he was an entrepreneur.

35 . The Court would also note that the subject matter of the complaint does not give rise to an important matter of principle (compare and contrast, Berladir and Others v. Russia , no. 34202/06 , § 34, 10 July 2012 which concerned the operation of the “notification-and-endorsement procedure” for public gatherings). The applicant was prosecuted for insulting a public official . Such an offence is a common feature of many legal systems in the Council of Europe Member States . Moreover, on its face the present case goes no further than an unfortunate verbal confrontation with no wider implications or public interest undertones which might ra ise real concerns under Article 10 o f the Convention (see paragraph 28 above). The case is to be distinguished from Eon v. France judgment (no. 26118/10 , §§ 34-35, 14 March 2013) where, in rejecting the Government ’ s objection on the grounds of lack of significant disadvantage, the Court took into account the national debate whether the offence of insulting the head of State should remain a criminal offence and a wider issue of its compatibility with the Convention. Furthermore , the Regional Court ’ s decision was consistent with the Constitutional Court ’ s judgment of 11 October 2006, case no. P 3/06 in which the latter court reviewed t he constitutionality of Article 226 § 1 of the Criminal Code. The Constitutional Court held that the offence of insulting a public official was compatible with the constitutional provision safeguarding freedom of expression only in so far as it had been committed in public and in the course of carrying out of their official duties (see paragraph 19 above). Such was the situation in the applicant ’ s case.

36 . In view of the foregoing, the Court concludes that in the circumstances of the case the applicant has not suffered a significant disadvantage as a result of the alleged violation of the Convention.

37 . The seco nd element contained in Article 35 § 3 (b) compels the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify the States ’ obligation under the Convention or to induce the respondent State to resolve a structural deficiency. Considering the present case in this way the Court does not discern any compelling reason to warrant its examination on the merits. Thus, the Court finds that respect for human rights does not require an examination of this case.

38 . Lastly, Article 35 § 3 (b) doe s not allow the rejection of an application under the new admissibility requirement if the case has not been duly considered by a domestic tribunal. The purpose of that rule, qualified by the drafters as a “second safeguard clause” (see the Explanatory report, § 82), is to ensure that every case receives a judicial examination, either at the national or at the European level, so as to avoid a denial of justice (see Korolev , cited above; and Finger v. Bulgaria , no. 37346/05 , § 7 3, 10 May 2011 ). The Court notes that the case against the applicant was examined on the merits by the Bytów District Court and the Słupsk Regional Court and that the applicant was able to submit his arguments in adversarial proceedings. Consequently, the third element of the new admissibility requirement has been satisfied.

39. It follows that the applicant ’ s complaint under Article 10 must be declared inadmissible in accordance with Article 35 §§ 3 (b) and 4 of the Convention.

B. Other complaints made by the applicant

40 . The applicant also complained under Article 6 § 1 of the Convention about the unfavourable outcome of the proceedings against him, in particular the allegedly erroneous assessment of evidence by the courts. He further alleged a breach of Article 6 § 2 of the Convention claiming that not all of the elements of the offence had been proved in the domestic proceedings against him.

41 . The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in 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 insofar as they may have infringed rights and freedoms protected by the Convention (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). In the light of all the material in its possession, the Court finds that the applicant ’ s allegations do not disclose any appearance of a violation of Article 6 §§ 1 and 2 of the Convention.

42 . 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.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Fatoş Aracı Ineta Ziemele Deputy Registrar President