FOURTH SECTION

DECISION

Application no . 23665/09 Janusz SZCZERBIAK against Poland

The European Court of Human Rights (Fourth Section), sitting on 15 November 2011 as a Chamber composed of:

David Thór Björgvinsson , President, Lech Garlicki , Päivi Hirvelä , George Nicolaou , Ledi Bianku , Nebojša Vučinić , Vincent A. De Gaetano , judges, and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 27 April 2009,

Having regard to the declaration submitted by the respondent Government on 9 September 2011 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Janusz Szczerbiak , is a Polish national who was born in 1953 and lives in Krajenka . His application was lodged on 27 April 2009. He was represented before the Court by Mr R. Kilar , a lawyer practising in Złotó w .

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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

The applicant was a Mayor of the municipality and town of Krajenka ( burmistrz miasta i gminy ). He was running for the same office in municipal elections to be held in November 2006.

On 7 November 2006 a local newspaper, Nowy Tygodnik , published an interview with him. In the interview, the applicant summarised his term of office and presented his views on his achievements as well as problems which he had encountered during that term. In two paragraphs of the interview he also criticised the president of the county council ( przewodniczÄ…cy rady powiatu ) for certain decisions which the latter had taken in his official capacity.

On 26 March 2007 the applicant was served with a private bill of indictment, filed by the president of the council with the Piła District Court. He was charged with an offence of defam ation, punishable under Article 212 of the Criminal Code. The case was later transmitted to the Poznań District Court.

On 19 June 2008 the Poznań District Court convicted the applicant of the offence of defamation, imposed a fine of PLN 8,000 on him and ordered him to pay PLN 3,000 to a charity and to cover the costs of the other party.

The applicant appealed, referring to his right to freedom of expression.

On 31 October 2008 the PoznaÅ„ Regional Court upheld the first ‑ instance judgment.

COMPLAINT

The applicant complained that his conviction had violated Article 10 of the Convention .

THE LAW

The applicant complained that his conviction was in breach of Article 10 of the Convention which, in so far as relevant, provides as follows:

“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.”

By letter dated 9 September 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“ ...the Government hereby wish to express – by way of the unilateral declarati on – their acknowledgement of a violation of the applicant ’ s right to freedom of expression and therefore violation of Article 10 of the Convention.

In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of PLN 18,000 (eighteen thousand Polish zlotys) which they consider to be reasonable in the light of the Court ’ s case law.

The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three ‑ month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points. (...)

The Government would respectfully suggest that the above declaration might be accepted by the Court as ‘ any other reason ’ justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention. ...”

In a letter of 14 October 2011 the applicant expressed the view that the sum mentioned in the Government ’ s declaration was unacceptably low .

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wish es the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o . v. Poland ( dec .) no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec .) no. 28953/03).

The Court has established in a number of cases, including those brought against Poland , its practice concerning complaints about the violation of one ’ s right to freedom of expression (see, for example, Janowski v. Poland [GC], no. 25716/94, ECHR 1999 ‑ I ; KwiecieÅ„ v. Poland , no. 51744/99, 9 January 2007 ; Frankowicz v. Poland , no. 53025/99, 16 December 2008 ; Wojtas-Kaleta v. Poland , no. 20436/02 , 16 July 2009 ; Kania and Kittel v. Poland , no. 35105/04 , 21 June 2011 ; Wizerkaniuk v. Poland , no. 18990/05 , 5 July 2011).

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examinat ion of the application (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Lawrence Early David Thór Björgvinsson Registrar President