FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 75955/01 by Roman SOKOŁOWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 1 June 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 6 August 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Roman Sokołowski, is a Polish national who was born in 1950 and lives in Wodzisław. He was represented before the Court by Ms Agnieszka Massalska, a lawyer practising in Kielce.

A. The circumstances of the case

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

In October 1995 the local branch of the Christian-National Association published a political leaflet entitled “Wodzisławianin”, which contained a following note, written by the applicant:

“The inhabitants of Wodzisław wonder why the lists of the local election commissions [for the coming 1995 presidential election] have not been made public in the city hall, as used to be the case.

We have the answer to this question: the composition of nine election commissions was determined in a secret vote held by the [Wodzisław] Municipal Council, and the councillors elected themselves to hold posts [in these commissions]. Sixteen persons [who were not members of the Council] were not elected, including four representatives of the lower councils, three women [...] who are all respectable citizens.

The payment for the work in the election commission is PLZ 1,500,000, which is equivalent to two thirds of [unemployment benefit], ...

Inhabitants of Wodzisław! When you go to the polls, remember that the election commission No. 8 in P. will be composed of, among others, Mr [...] and Mr J. K., which means that [by receiving their payment] they would take away from you 1,5 tons of coal for this winter, while at the same time they obtain 8 to 10 per cent of the average national salary  as remuneration for their work as councillors of the Municipal Council. [...]”

A list of other municipal councillors who would participate in the election commissions followed, each name followed by names of certain goods, such as 500 loaves of bread or 200 bus tickets, worth PLZ 1,500,000 at that time, which, according to the leaflet, they would thus take away from the reader.

The note went on to say:

“Remember! You could have received this money yourself. That money is to be paid from taxes you have paid.

The municipal councillors, whom you elected, are poor and concerned, above all, about their own interest and that of their families.

You, as a lesser member of the local society, should be thankful that your councillor has informed you about the possibility of earning additional income, that he elected himself to the local election committee, that he put his power to a legitimate use in the interest of the community, that he thus revealed the truth about himself”.

Subsequently J.K. lodged with the court a private bill of indictment against the applicant, complaining that the leaflet was slanderous.

At the first hearing, held on 25 January 1996, J.K. expressed willingness to settle the case, but the applicant declined to do so. At the hearing on 26 June 1996 the plaintiff again proposed to settle the matter amicably. The applicant refused.

The court heard statements from the applicant and the plaintiff. The applicant refused to acknowledge that by publishing the impugned statements he had committed an offence. When interviewed by the court, he confirmed that he had written the contested text.

The court examined as witnesses requested by the prosecution a saleswoman from the kiosk where the applicant had left the leaflets to be taken by its clients and R.B., a journalist who had written an article about the way in which the public had reacted to the leaflet.

The applicant requested the court to admit in evidence the testimony of W.C. as to the contents of the impugned leaflet. He also asked the court to take into consideration two articles about the leaflet and the public reaction to it, one published in “Gazeta JÄ™drzejowska” and another one in “SÅ‚owo Ludu”, written by K.S. He also requested that K.S. be heard as a witness to prove that the leaflet had not been understood as amounting to an accusation of theft against J.K. The court allowed his requests in respect of the articles, but declined to call the witnesses requested by the applicant, considering that their evidence would relate to the contents of the leaflet which had already been included into the case file.

On the same day the Jędrzejów District Court convicted the applicant of disseminating untruthful information about J.K. in order to denigrate him and to lower him in public esteem necessary for his function as a municipal councillor, i.e. the offence of slander, punishable under Article 178 § 2 of the Criminal Code of 1969.

The court established that J.K., a headmaster of a public school in P., had been a municipal councillor in Wodzisław for the past eight years. Until 31 December 1995 he had been the president of the Council's Board of Auditors. During the presidential election in 1995 he had been a member of the election commission in P.

In October 1995 the local branch of the Christian-National Association, of which the applicant was a member, had published a leaflet co-authored by the applicant.

The judgment further read:

“In this leaflet addressed to the inhabitants of Wodzisław, the authors stated, among other things, that '[... ] and J.K. would take away from you 1, 5 tons of coal for this winter', that the councillors were 'poor and concerned, above all, about their own interest and that of their families', that they had 'elected themselves to the local elections committees', that they 'put their  power to a legitimate use in the interest of the community'

The court considered the following:

The plaintiff had stated that, in his opinion, the leaflet was slanderous. It implied that he intended to commit theft, that when receiving remuneration for his participation in the election committee he had been acting out of base motives and that he had been using the function of councillor for his personal enrichment. The community of Wodzisław understood the leaflet in a similar manner, as had been showed by the testimony given by R. B.

The court, when assessing the statements in the leaflet, shared the opinion of the plaintiff and of the local community that it amounted to slander. The statements that the councillors had 'elected themselves to the local elections committee' and that they were 'concerned, above all, about their own interest and that of their families' related also to the plaintiff.

It is not open to any doubt that the defendant had been distributing the leaflet as he had admitted it; moreover, K.B. had stated that the defendant had personally brought it to the editorial office of 'Słowo Ludu'. Despite the fact that only 150 copies of the leaflet had been printed, the defendant envisaged that that they would have a more extensive readership, as shown by the phrase contained therein:  'If you have read it, pass it on'.

Dissemination of information of this kind was, in the court's view, degrading for the plaintiff; the accused, when publishing it, was fully aware of the degrading character of this information, and he lowered the plaintiff in public esteem, necessary for him to carry out his work as a councillor. This demonstrates the seriousness of his offence, which must be qualified as slander punishable under Article 178 § 2 of the Criminal Code”.

The court imposed on the applicant a fine of PLN 1,000 with three months and ten days' imprisonment in default, ordered him to pay PLN 100 to a local hospital and ruled that the operative part of the judgment should be published in the local daily newspaper. When determining the fine, the court had regard to the fact that the applicant's financial situation was “very good. His monthly income from his shop was PLN 400-600, his wife's monthly salary was PLN 450, and he also owned a farm of 7,40 hectares”. Therefore the sentence imposed on him under Article 178 § 2 read together with Article 54 of the Criminal Code was appropriate to the applicant's situation.

The applicant appealed. He argued that the court had wrongly established the relevant facts in that it considered that his intention had been to insult J.K., while he had been acting out of concern for public interest. It was further argued that the court had wrongly considered credible only the evidence called for the plaintiff, i.e. the testimony of journalist R.B., whom the court had questioned and whose opinions were unfavourable to the applicant. However, the court had refused to call as witness on the applicant's behalf another journalist K.S., who had also published an article about the applicant's case, expressing views favourable to the applicant's stand and sharing the applicant's conclusions. The court admitted this article as evidence, but had not referred to it in its judgment, and had refused to call K.S. as a witness.

On 17 February 1997 the Kielce Regional Court upheld the contested judgment.

The court considered that the lower court had carefully assessed the evidence before it and logically explained its reasons in the written grounds of the judgment. It had not been arbitrary in the assessment of the evidence. It was not in dispute between the parties that it was the applicant who had written the impugned text in the leaflet. That text had informed the public in Wodzisław that J.K. as the local councillor had elected himself to the election commission, had taken care only of his own interests and that of his family, and had thereby abused his powers.

The court considered that the leaflet could undoubtedly lower J.K. in public esteem and divest him of the trust necessary for his work as a councillor. The applicant could not successfully rely on his argument that when publishing the leaflet he had been acting out of concern for a legitimate public interest.

It had to be taken into consideration that the offence of aggravated defamation could be committed if the perpetrator knowingly disseminated false information about the victim. Such defamation could not be justified either by good faith or by public interest. If the perpetrator had any grounds on which he could foresee that the allegations might be untrue, but he or she still disseminated them, he thereby committed the offence of aggravated defamation, punishable under Article 178 § 2 of the Criminal Code. These elements obtained in the applicant's case as he had published his allegations about J.K., acting in bad faith.

The court considered that the sentence imposed was adequate, having regard both to the social danger of the offence and to the applicant's personal situation.

The applicant lodged a cassation appeal with the Supreme Court.

It was first argued that the first-instance court had breached provisions of procedural law in that it infringed the principle that the taking of evidence should be direct. The court had called as a witness for the plaintiff the journalist R.B. and questioned him, but refused to call another journalist K.S as witness on the applicant's behalf.  K.S. had written and published an article in which he agreed with the stand taken by the applicant in the leaflet. The opinion about the character of the leaflet and about the public response to it was entirely different in these two articles, since R.B.'s article was critical of the applicant. Likewise, the articles written by R.B. and K.S. were divergent as to their assessment of the public reaction to the leaflet. The first-instance court had failed to give any grounds in its judgment to explain why it had chosen not to call K.S. as witness.

Secondly, the appellant submitted that the contested judgments were in breach of substantive law. This was so because the lower courts had wrongly accepted that the applicant's acts amounted to a criminal offence of slander. The applicant's text published in the leaflet should have been regarded as legitimate criticism of public persons, the councillors of the Wodzisław Municipal Council, compatible with the applicant's freedom of expression guaranteed by Article 10 of the Convention.

On 20 February 2001 the Supreme Court, in a decision for which no written grounds were given, dismissed the cassation appeal as manifestly ill-founded.

B. Relevant domestic law

Under Article 178 § 2 of the Criminal Code of 1969, applicable at the material time, whoever disseminated untrue statements about other person's acts or character with an intention of lowering him or her in public esteem or of making him or her lose the public trust necessary for that person to carry out his or her public functions, committed a criminal offence punishable by a prison sentence of up to three years.

Under Article 54 of the Code, if an offence concerned in a given case was punishable by imprisonment of not less than three months, and the sentence to be imposed by the court, given the circumstances of the case, would not be higher than one year's imprisonment, it was open to the court to replace the prison sentence by a fine, if it considered that a prison sentence in the circumstances of the case would not be appropriate.

COMPLAINTS

The applicant complains under Article 10 of the Convention that the sentence imposed on him amounted to a breach of his freedom of expression. The text published in the leaflet concerned J.K., who was at that time a public figure, a local politician. He should have accepted that legitimate and fair criticism of persons in the public eye could be more severe. J.K. participated as a councillor in taking decisions concerning the local community which, in the nature of things, could not always be universally accepted and were open to public scrutiny.

Freedom of expression is not limited to information or judgments, which are favourably received or a matter of indifference, but covers also those, which offend, shock or disturb. The courts in the present case failed to take into consideration these arguments, advanced by the applicant in particular in his cassation appeal, and arbitrarily accepted that the applicant had been acting in order to lower J.K. in public esteem. At the same time, the courts entirely disregarded the applicant's arguments that he was in fact defending the public interest.

The applicant further complains under Article 6 § 3 (d) of the Convention that the court admitted the oral evidence of R.B., but that it refused oral evidence from another journalist K.S., proposed by the applicant.  K.S. had written and published an article favourable to the applicant, whereas R.B. had written another article, disapproving of the applicant's acts. The assessment of the situation in these two articles was entirely different. Likewise, these articles differed in their appreciation of the reception that the text published by the applicant had had in Wodzisław. The first-instance court had failed to give any grounds in its judgment which would allow one to understand why it had chosen not to call K.S. as a witness, while it had decided to call R.B.

THE LAW

1. The applicant complains under Article 10 of the Convention that the sentence imposed on him amounted to a breach of his freedom of expression.

Article 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 Government argue that the limits of acceptable criticism are wider as regards a politician than such as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his words and deeds by journalists and the public at large, and he must consequently display a greater degree of tolerance (see Lingens v. Austria , judgment of 8 July 1986, Series A no. 103, p. 26, § 42, or Incal v. Turkey , judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54). In the present case the impugned leaflet concerned local politicians and, consequently, the relationship between them and the local society must be considered as a background for the assessment of the case. In a local political context people make their choices on the basis of personal qualities of candidates, not on the basis of party preferences as is the case in national elections to the legislative. Consequently, statements about local political activists which aim to lower them in public esteem and divest them of the trust necessary for carrying out their political work successfully can cause irreparable damage to their political reputation.

In the Government's view, the significance of the allegations made in the leaflet must be assessed in the light of the serious consequences they could have for J.K. as a local politician. The Government recall that the Court has distinguished between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see Lingens v.Austria judgment, cited above, p. 28, § 46, and Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, p. 27, § 63). The applicant alleged in the leaflet that J.K. intended to commit theft. This was a statement of fact, not a value judgment.  During the proceedings before the courts the applicant had not adduced any proof that J.K. indeed intended to steal anything. Such a statement, in the circumstances of the present case, fell outside of the ambit of acceptable criticism.

As to the proportionality of the interference, the Government argue that  the case was instituted by private prosecution and that at no time was the public prosecutor involved in the proceedings. The applicant twice refused to settle the case, as proposed by J.K. As to the fine of PLN 1,000 imposed on the applicant, it was proportional to the injury suffered by J.K. and to the applicant's financial situation. Accordingly, the Government conclude that this complaint should be declared inadmissible for being manifestly ill-founded.

The applicant disagrees with the Government's opinion that the leaflet contained 'statements of fact'. The leaflet clearly contained value judgments, concerning an assessment of the public activity of the local councillors. He emphasises that the analysis of the leaflet must be made in the light of the entire text, not only on the basis of certain phrases taken out of context, as was done by the domestic courts. It had been said in the leaflet that the election committees would be composed almost exclusively of the councillors as they had elected themselves to these committees. The councillors were criticised as they were receiving per diem remuneration for their work in the council, and because, seeking additional income, they had seized the opportunity, submitted their candidatures to the election committees and elected themselves to them.  The payment J.K. was to receive for his participation in the committee was subsequently represented as equivalent to the price of 1,5 tons of coal. It clearly transpired from the context that the applicant did not accuse J.K. of stealing, or of intending to steal. What the applicant blamed J.K. for was that he, by becoming a member of the committee and by carrying out this work for remuneration, he had deprived other inhabitants of Wodzisław, being in a worse financial situation, of a possibility to get additional income. The amount to be received by J.K. represented, in the economic conditions prevalent in the municipality at that time, a significant purchasing power. It was only fair that this amount should have been paid to other persons, not to the councillors, who were at the same time in receipt of considerable payments for their work in the municipal council. It was only in this sense that it was said in the leaflet that the councillors would 'take away' some goods from their constituents. The text of the leaflet should therefore be regarded as a value judgment. It amounted to criticism of J.K.'s public activity as a councillor, not to an accusation of theft or of an intention to steal.

It may be the case, the applicant argues, that the leaflet can be considered harsh in its form, but its purpose was to draw the attention of the public to the shortcomings of the acts of councillors, including J.K. In the Court's case law it has been reiterated on many occasions that freedom of expression is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that shock, offend or disturb.

The applicant stresses that it is of no relevance for the assessment of this complaint that the case was instituted by J.K. bringing a private prosecution against the applicant, and that the prosecuting authorities did not join in the case. The only relevant fact is that the applicant was convicted and this conviction was by a court acting in the name of the respondent State. Likewise, it is not important that the applicant refused to settle the case. He did so, considering that by criticising the manner in which J.K. had been carrying out his office he did not commit any criminal offence. The fact that the courts imposed a fine on him can be assimilated to a form of censorship, aiming at discouraging himself and other constituents from publicly criticising local politicians. These sanctions amounted to a restriction of public debate on issues of interest to the local public.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complains under Article 6 § 3 (d) of the Convention that the court admitted the oral evidence of R.B., but that it refused oral evidence from another journalist K.S., proposed by the applicant.

Article 6 § 3 (d) of the Convention reads:

“3. Everyone charged with a criminal offence has the following minimum rights:

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

The Court recalls that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among many other authorities, Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, § 50). In particular, “as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce... More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses” (see Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, § 33).

The Court observes that in the present case the first-instance court questioned R.B., journalist whose article had corroborated the point made by the complainant, i.e. that the public had understood the leaflet as an accusation of theft, while it refused to take evidence from a journalist proposed by the applicant, whose article had been favourable to the applicant. Moreover, the court relied on the evidence given by R.B. when concluding that the leaflet was understood as accusing the complainant of base motives and of having used his public function for his personal enrichment. However, the Court is of the view that, in order for the domestic court to make its ruling, it was the leaflet itself which was crucial for the assessment whether its content amounted to a criminal offence punishable under Article 178 § 2 of the Criminal Code.  Moreover, the Court notes that the District Court allowed the applicant's request to admit in evidence two articles about the leaflet and about the public reaction to it. On the whole, the Court is of the opinion that the applicant's defence rights were not unduly affected by the refusal to hear one witness proposed by the applicant, whose testimony would cover the same aspects of the case which had already been covered by the press articles admitted as evidence at the applicant's request.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints concerning his criminal conviction for slander;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President