FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43797/98 by Izabela MALISIEWICZ-GÄ„SIOR and Jan GÄ„SIOR against Poland

The European Court of Human Rights (First Section) , sitting on 30 January 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mr V. Zagrebelsky , Mr L. Garlicki , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 20 October 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicants, Izabela Malisiewicz-Gąsior (“the first applicant”) and Jan Gąsior (“the second applicant”), are Polish nationals, who were born in 1950 and 1949 respectively. They are married to each other and live in Łódź, Poland. The first applicant is a choreographer and the second applicant is an actor.

A. The circumstances of the case

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

1. The prosecution of the first applicant on charges of kidnapping

(a) Events of 10 and 11 June 1992

On 10 June 1992 at 11 p.m. Mr Andrzej Kern, at that time the Deputy Chairman of the Sejm [1] , complained to the Łódź Regional Prosecutor E.S. alleging that the applicants had kidnapped his 17 year old daughter M.K. The allegation was false as in fact M.K. had run away from home and had only been accompanied by the applicants’ son who had been her boyfriend for a long time. M.K. had previously run away from home on many occasions because of conflicts with her parents. Prosecutor E.S., who was a friend of Mr Kern, immediately instructed the Łódź Deputy Regional Prosecutor E.C. to take charge of the case.

On 10 June 1992 prosecutor E.C. signed a search warrant for the applicants’ flat. The warrant stated as its object the search for M.K. and drugs. On 11 June 1992 prosecutor E.C. signed an order allowing the tapping of the first applicant’s telephone.

On 11 June 1992 at 1 a.m. the second applicant went to his cottage situated in the suburbs of Łódź. He was arrested by the police officers who then searched the cottage. Prosecutor E.S. and Mr Kern were present on the scene. Subsequently, the second applicant was taken to the Łódź Regional Police Station, where he was detained overnight in inhuman conditions.

On 11 June 1992 at 4 a.m. the police officers searched the applicants’ flat in the presence of the first applicant. However, they did not find either M.K. or drugs. The police officers advised the first applicant that her husband was detained and served her with a summons to report on the same day at 12 noon to the Regional Police Station for questioning.

In the morning of 11 June 1992 the second applicant was taken handcuffed to the premises of the regional prosecution service. He was questioned by prosecutors E.S. and E.C. Mr Kern was present during questioning. The second applicant was released when the questioning ended.

(b) The detention of the first applicant

The first applicant failed to report for questioning on 11 June 1992. She submitted to the police a letter explaining that she had to provide care to her daughter who was ill. Subsequently, the first applicant failed to report for questioning on 15 and 17 June 1992. On 23 and 24 June 1992 the police officers tried to serve a summons on the first applicant but could not find her at her place of residence.

On 25 June 1992 prosecutor E.C. charged the first applicant with kidnapping and signed an arrest warrant for her. Prosecutor E.C. also charged the applicants’ son with kidnapping.

On 29 June 1992 the first applicant was taken into custody. She was detained in the Łódź prison hospital.

On 1 and 2 July 1992 the first applicant was questioned by prosecutor E.C. She was also confronted with Mr Kern.

In the afternoon of 2 July 1992 the first applicant was released from detention.

(c) The end of the criminal proceedings against the first applicant

On 30 June 1992 the first applicant applied for a transfer of her case to a prosecutor who worked outside the Łódź region. On 4 August 1992 the Ministry of Justice advised her that the application had been allowed and her case had been taken over by the Poznań Regional Prosecutor R.G.

On 16 September 1992 prosecutor R.G. decided to discontinue the criminal proceedings against the first applicant and her son. He considered that they had not kidnapped M.K. The prosecutor referred to the statement taken from M.K. who testified that it had been her decision to run away from home and that she had asked the applicants’ son to accompany her.

Mr Kern and his wife lodged appeals against the decision to discontinue the criminal proceedings against the first applicant and her son but on 15 February 1993 prosecutor B.M. of the Ministry of Justice dismissed them. The prosecutor considered that the allegations of kidnapping were groundless.

(d) The publicity surrounding the case

The case concerning the alleged kidnapping of M.K. received wide coverage in the media.

2. The first applicant’s campaign in the parliamentary elections

In 1993 the first applicant stood as an independent candidate in the parliamentary elections.

On 22 August 1993 she published an article in a weekly “Angora”. The first half of the article, which was published in a section entitled “Pre ‑ election Pranks”, read as follows:

“WHY?

I am an independent candidate to the Senate, not connected to any ‘networks’, relations or obligations. The fact that I am described in the press and television as ‘a mother-in-law of M (...) K (...)’ probably shows that the authors cannot mention names since they use such an euphemism. It is not my achievement and it was not a result of my efforts that we have become a family with Mr Kern. It can be explained by my son and his wife, if it is important ...

In order to explain the origin of the idea of standing in the elections to the Senate I have to go back to the events which took place a year ago. At that time, I learned at my cost what did the abuse of power mean! The Deputy Chairman of the Sejm at that time, directed by emotions and personal animosities, made the persons responsible for respecting the law – the Regional Prosecutor and his Deputy, and even the Minister of Justice – breach the law because of ‘the solidarity of colleagues’. I was arrested, detained in a psychiatric cell, my flat was provocatively searched for ‘drugs’, my telephone calls were tapped, a car damaged. After such compromising events, a politician of such a calibre in the West would have had to leave. But here he still felt good – and the Sejm decided not to dismiss him! I can imagine what sort of arrangements must have existed in the Sejm to make such a decision! I was so shocked by this that I was ready to go abroad as nothing could be changed. A turning point came when the President dissolved the Parliament. People started to telephone and write letters asking me to stand in the elections. They were saying that the events which had taken place a year ago showed that I could fight. I am convinced that I am not the only one touched by the breaches of the law committed by the representatives of ‘the new democracy’. However, the law is the same for everybody, regardless of whether somebody is in power or is ‘an ordinary man’. This fundamental rule of democracy must be respected!”

The second half of the article described the first applicant’s ideas about working in the Senate.

On 5 September 1993 the first applicant published in the same weekly the following article:

“ABOUT ME

The first years of my professional life were dedicated to art. As a dancer and a choreographer I worked with numerous theatres and cultural centres – both in Poland (among others the Łódź Grand Theatre), and abroad. I also worked as a pedagogue with children and young people. In 1981 I started to run a private business and presently I am a co-owner of a company ‘AVATAR’. I have two children: a 22-year old son (...) and a 6-year old daughter (...), my husband – Jan – is an actor. I did not belong to any political party, I did not participate actively in politics ...

In the summer of 1992 events took place, which changed my attitude to the world. The abuse of authority, which I experienced, has made it impossible for me to stand idly on the sideline and watch people who should be the guardians of the law, breaking it ruthlessly for the sake of their private interests. After all, precisely that was done to me by the former Deputy Chairman of the Sejm, the former Minister of Justice, the former Regional Prosecutor and his former deputy.

It is not by chance that today for some malicious people it is not important that I am an independent candidate for the Senate but only that I can be called the mother-in-law of M (...) K (...). They are not interested in the fact that a year ago I was arrested groundlessly and imprisoned – purposely! – in a psychiatric cell, that my home was searched  under the pretext of ‘looking for drugs’, that after my release I was followed, my telephone calls were tapped and my car damaged, causing me constant mental pressure! All this happened in a country in which a western-style democracy had just set in!

Today the Vice Minister of Justice sees ‘clear pressure brought by the Deputy Chairman Kern on the Łódź prosecution service’, and there are criminal proceedings pending against its former employees.

I am a strong person. I have endured... However, I do not want any other innocent person to suffer similar harassment. There must be justice and equality before the law – regardless of whether somebody is ‘the man in the street’ or the Deputy Chairman of the Sejm! I know that I can fight and win! I have remained independent! That is why I have decided to enter the political arena!”

In election broadcasts on the Łódź local radio station on 6, 9 and 15 September 1993 the first applicant made the following statement:

“A turning-point came last year. You remember that story, it was well-known in the whole of Poland, although I did not cause it. At that time, I realised at my cost what did the abuse of power mean. The Deputy Chairman of the Sejm at that time, directed by emotions, made the Regional Prosecutor, his Deputy, and even the Minister of Justice breach the law because of the solidarity of colleagues. I was arrested, detained in a psychiatric cell, my flat was provocatively searched for drugs, my telephone calls were tapped, a car damaged. All this because the daughter of Mister Deputy Chairman decided to spend holidays with my son without her daddy’s permission. Until then I had thought that such behaviour had been possible only in the Stalinist era.”

In election broadcasts on the Łódź local television station on 13 and 16 September 1993 the first applicant made the following statement:

“The abuse of authority, which I experienced, has made it impossible for me to stand on the sideline and idly watch people, who should be the guardians of the law, breaking it ruthlessly for the sake of their private interests. Precisely that was done to me by the former Deputy Chairman of the Sejm, the former Regional Prosecutor and his  deputy. Today there are criminal proceedings pending against them. I am a strong, enduring person, however I do not want any other innocent person to suffer similar harassment.”

3. The prosecution on charges of defamation

(a) The private bill of indictment

On 27 September 1993 Mr Kern lodged with the Łódź District Court a private bill of indictment. He charged the first applicant with seven counts of defamation under Article 178 § 2 of the Criminal Code. In particular, Mr Kern alleged that the first applicant had published the above articles and had broadcast the above election statements “in order to debase in the public opinion the Deputy Chairman Andrzej Kern and to expose him to loss of the trust necessary to perform his public and political functions.”

(b) The trial

The first applicant was tried by the Skierniewice District Court between 22 May 1995 and 18 March 1996. On 19 March 1996 she was convicted on all seven counts. However, the court considered that her publications and statements constituted a single continuous offence under Article 178 § 1 of the Criminal Code. By making them, the first applicant “defamed Andrzej Kern and made allegations – untrue – which could have debased the victim in the public opinion and exposed him to loss of the trust necessary to perform the functions of the Deputy Chairman of the Sejm of the Republic of Poland and other public functions as well as to work as a lawyer-advocate”.

The first applicant was sentenced to eighteen months’ imprisonment suspended for five years. Moreover, the court ordered the first applicant to pay for the publication of the judgment in two national dailies and a local newspaper. She was also ordered to make at her own expense public announcements in the newspaper “Angora” and on the Łódź radio and television stations apologising to Mr Kern and declaring that “allegations about pending criminal proceedings and making the Regional Prosecutor, his Deputy and the Minister of Justice breach the law, made in respect of Andrzej Kern between 22 August 1993 and 16 September 1993 in those media during her election campaign, were untrue.” Finally, the first applicant was ordered to reimburse the private prosecutor 800 Polish zlotys (PLN) for the costs of the proceedings and to pay a PLN 75 fee to the State Treasury.

(c) The appellate proceedings

The first applicant appealed to the Skierniewice Regional Court against her conviction. On 18 November 1997 the court delivered a judgment in which it upheld her conviction but changed the sentence. The first applicant’s prison term was lowered to one year suspended for three years. She was ordered to pay for the publication of the judgment in one national daily and the announcement containing her apologies in the weekly “Angora”. Moreover, the first applicant was ordered to reimburse the private prosecutor PLN 480 for the costs of the appellate proceedings and to pay a PLN 90 fee to the State Treasury.

The appellate court considered that the trial court’s assessment of facts and legal reasoning were correct. It also agreed with the first-instance court that “the action of I. Malisiewicz-Gąsior directed against A. Kern was an element of her election campaign, aiming at ‘promoting’ (...) her own person, in order to obtain a positive election result.” Therefore, the first applicant could not be said to defend a socially justified interest, as she tried to achieve her private objective.

(d) The cassation appeal

The first applicant could not afford to hire a lawyer to lodge a cassation appeal and therefore she applied to the Minister of Justice and the Ombudsman to lodge a cassation appeal against her conviction. On 15 December 1998 the Ombudsman allowed her application and filed with the Supreme Court a cassation appeal against the judgment of the Skierniewice Regional Court.

The Ombudsman submitted that the courts had failed to take into account evidence pointing to the fact that “the inadequacy of the actions of the police and the prosecution service in respect of herself and her family in the case concerning the kidnapping of M (...) K (...) could have led [the first applicant] to the justified belief that her allegations concerning Mr Kern had been true and that she had been ‘defending a socially justified interest’”. In this connection, the Ombudsman stated in his appeal that:

“Furthermore, the courts’ view that the defendant was not defending a socially justified interest because she was participating in her own election campaign and aiming in the first place to achieve her own private objective is not supported by the evidence which was collected and disclosed at the hearing.

The participation in one’s own election campaign cannot be an obstacle to speaking on the subject of respecting the law by institutions and public personalities. What is more – an election campaign constitutes always a period of public statements on important social issues, which certainly include the respect of the law, especially by the institutions and persons particularly obliged to it.

It is therefore difficult to consider that it was the defendant’s intention to promote herself and not – by using the opportunity to speak publicly – pointing, on the basis of her own experiences, to the danger of breaking the law by the public institution as a result of yielding to the pressure of public personalities.”

The Ombudsman further submitted that prosecutors E.S. and E.C. had breached the law. He relied on the files concerning disciplinary proceedings against both prosecutors.

Finally, the Ombudsman challenged the courts’ assessment of part of the evidence.

(e) The Supreme Court’s decision

On 1 December 2000 the Criminal Section of the Supreme Court dismissed the cassation appeal. Its reasoning ended with the following conclusion:

“The irresistible conclusion is that the submissions made in the cassation appeal, formally of a procedural nature, concern in fact the allegation of an error in the assessment of facts taken as the basis for the decision and the assessment of evidence, which is not allowed in cassation proceedings.

Cassation proceedings cannot be transformed into third-instance proceedings dedicated to further consideration of all aspects of the submissions made in the appeal, which have already been analysed by the appellate court. (...)”

B. Relevant domestic law

The Criminal Code 1969

The relevant provisions of the Criminal Code 1969 read as follows:

Article 178:

Ҥ 1. Anyone who imputes to another person, a group of persons or an institution such behaviour or characteristics, which may debase them in the public opinion or expose to loss of the trust necessary for a certain position, occupation or a type of activity, shall be liable to imprisonment not exceeding 2 years, a restriction of liberty or a fine.

§ 2. Anyone who raises or makes public untrue allegation about behaviour or characteristics of another person, a group of persons or institutions in order to debase them in the public opinion or expose to loss of the trust necessary for a certain position, occupation or a type of activity, shall be liable to imprisonment not exceeding 3 years.

(...)

§ 4. The prosecution takes place under a private bill of indictment.”

Article 179:

“§ 2. There is no offence described in Article 178 § 1 if:

1) an allegation made publicly is true and the offender acts in the defence of a socially justified interest or has a conviction based on a well-founded basis that he defends such an interest, or

2) the offender makes an allegation publicly and has a conviction based on a well-founded basis that the allegation is true and that he defends a socially justified interest.

§ 3. Non-existence of an offence resulting from the reasons described in §§ 1 and 2 does not exclude the offender’s liability for defamation because of the form in which an allegation was raised or made public.”

COMPLAINTS

1. With respect to the prosecution on charges of kidnapping, the applicants complained under Article 5 of the Convention about their detention. In addition, they submitted that the actions of the domestic authorities, such as the search of their flat and cottage, the tapping of their telephone and the control of their correspondence were in breach of Article 8 of the Convention.

2. With respect to the prosecution on charges of defamation, the first applicant complained under Article 6 of the Convention about the assessment of evidence by the Skierniewice District Court.

3. The first applicant also complained about a breach of Article 10 of the Convention. In this connection, she submitted that her statements about the abuse of power by Mr Kern were justified by her experience in the criminal proceedings concerning the charges of kidnapping. Moreover, taking into account the circumstances of that case, the first applicant’s statements were made in “a cultural and delicate manner”.

THE LAW

1. The applicants complained about a breach of Article 5 (right to liberty and security) and Article 8 (right to respect for private and family life).

However, the Court notes that these complaints relate to a period prior to 1 May 1993, when Poland recognised the right of individual petition. Accordingly, this part of the application is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3.

2. The first applicant also complained under Article 6 (right to fair trial) about the assessment of evidence by the Skierniewice District Court.

According to Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the Contracting States 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 in so far as they may have infringed rights and freedoms protected by the Convention (see, among other authorities, Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 29, § 45). However, the Court is of the view that the first applicant did not submit any prima facie evidence pointing towards a violation of Article 6 of the Convention.

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

3. Finally, the first applicant complained about a breach of Article 10 of the Convention (freedom of expression).

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the first applicant’s complaint about a breach of Article 10 of the Convention;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President

[1] The Polish Parliament consists of two chambers: Sejm and Senate