THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43425/98 by Edward SKAŁKA against Poland

The European Court of Human Rights (Third Section), sitting on 12 June 2001 as a Chamber composed of

Mr J.-P. Costa , President,

Mr W. Fuhrmann ,

Mr J. Makarczyk ,

Mr P. KÅ«ris ,

Mrs F. Tulkens ,

Mr K. Jungwiert ,

Sir Nicolas Bratza , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 17 October 1997 and registered on 10 September 1998,

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

A. The particular circumstances of the case

The applicant is a Polish citizen, born in 1929.

On 16 December 1993 the Nowy Targ District Court convicted the applicant of aggravated theft and sentenced him to imprisonment. While in prison, on 15 November 1994 the applicant sent a letter to the President of the Katowice Regional Court, complaining about some judges of the Penitentiary Division of that court.

Subsequently, on an unspecified date, the Sosnowiec District Prosecutor instituted criminal proceedings against the applicant. On 31 January 1994 the prosecuting authorities lodged a bill of indictment against the applicant with the Sosnowiec District Court. He was charged with proffering insults against a State authority at its headquarters or in public, an offence under Article 237 of the Criminal Code 1969, committed by sending a letter to the President of the Katowice Regional Court. In this letter the applicant had insulted an unidentified judge of the court’s Penitentiary Division and all judges of that court in general. The applicant had been questioned in connection with the offence. He had stated that he had not meant the court as a whole, but only one judge, and this in his personal not professional capacity. He maintained that the letter could only be regarded as an insult against a private person, not a State institution.

On 6 September 1995 the Sosnowiec District Court convicted the applicant of insulting a State authority. The court found that on 15 November 1994 the applicant had addressed a letter to the President of the Regional Court in which he referred to all judges of the Regional Court’s Penitentiary Division in an insulting and abusive manner as “irresponsible clowns”. Moreover, further on in the same letter, he referred in a particularly insulting manner (“ w sposób szczególnie obraźliwy ”) to an unidentified judge of the same Division, to whom he had allegedly written certain letters which remained unanswered. The prison administration transmitted this letter without opening it to the court.

The court had regard to the results of the applicant’s examination by psychiatrists who found that he could be held criminally responsible.

The court took into consideration the questioning of the applicant during the investigations when he had denied committing a criminal offence. He had stated that the charge against him did not correspond to the facts of the case as in his letter he referred to a particular person, not to the court as a whole, and that the phrases construed as insults concerned the judge in his personal capacity only. When later heard by the court, the applicant had stated that he had written this letter with a specific person in mind, namely a judge who had previously examined his various complaints. He maintained that had not given a name as the letter from the Penitentiary Division in reply to these complaints, which had provoked him to write his impugned reply, had not been signed by anyone. The applicant had also stated that he was of the view that the opinions formulated in his letter were, in the circumstances of the case, correct.

The court considered that the facts of the case were established by the applicant’s acknowledgement that he had written the impugned letter. The analysis of its contents and form led to the conclusion that he had acted with the firm intention of insulting the Regional Court as a judicial authority. He had first addressed himself to the judges of that court as a group, and then focused on one unidentified judge. Accordingly, one could deduce that the applicant had insulted the court as the State authority, and the unidentified judge could be regarded as a symbol of that court. The court further observed that the applicant, as a citizen, had a constitutional right to criticise State authorities. However, the impugned letter had largely exceeded the limits of acceptable criticism and was directly aimed at lowering the public’s esteem of the organ concerned.

The court further observed that the sentence was commensurate with the applicant’s degree of guilt and with the seriousness of the offence. The assessment of its seriousness had been made having regard to the nature and importance of the interests protected by the criminal law provision applied in the case.

The applicant and his officially assigned lawyer lodged appeals against this judgment.

On 19 June 1996 the Katowice Court of Appeal, following a request from all of the judges of the Katowice Regional Court to be allowed to recuse themselves, considered that, in view of fact that the offence had been directed against the judges of that court, it was in the interests of the good administration of justice and the impartiality of the court that the appeal be transferred to the Bielsko-Biała Regional Court.

On 10 September 1996 the Bielsko-Biała Regional Court upheld the contested judgment, having examined both the appeal lodged by the applicant himself and that of his lawyer.

The court first noted that the first-instance court had accurately established the facts of the case. The court went on to state that it shared the conclusions of the first-instance court, namely that the contents and form of the letter allowed the conclusion that the applicant had acted with the firm intention of insulting the Regional Court as a State authority. The legal assessment of the facts of the case was correct, and the sentence imposed corresponded to the degree of the applicant’s guilt. The applicant had a long criminal record, even though he had been assessed positively by the penitentiary services, and could be held criminally responsible. The applicant’s lawyer had argued that the applicant had intended to insult a specific person, not an institution. However, in the light of the court’s other findings, this analysis was rejected.

The applicant’s lawyer lodged a cassation appeal with the Supreme Court.

On 2 June 1997 the Supreme Court dismissed the appeal and confirmed the contested judgment. The court referred to the grounds of appeal in which it had been argued that the conviction had been in flagrant breach of Article 237 of the Criminal Code in that the applicant’s acts, in the light of his submissions as to his motives, did not amount to a punishable criminal offence.

The Supreme Court first noted that the grounds of the applicant’s cassation appeal had been laconic and limited in their reasoning.  Moreover, it clearly transpired from the arguments that in fact the applicant’s lawyer contested the assessment of evidence and the factual findings made by the lower courts, whereas the purpose of the cassation appeal was to bring procedural complaints to the attention of the Supreme Court. This in itself constituted a sufficient basis for dismissing the appeal as not being in compliance with the requirements laid down by the applicable procedural provisions.

However, the court emphasised, it was worth noting that the Regional Court in its judgment had examined all complaints submitted in the appeal against the first-instance judgment, including these concerning the assessment of evidence and the factual findings of the first-instance court. No new arguments had been submitted to the Supreme Court to show that there had been any procedural shortcomings in the proceedings. Certainly the argument that the applicant’s acts could not be regarded as a criminal offence could not be regarded as such procedural complaints.

The applicant’s abusive letter, referred to and quoted by the Regional Court, had clearly exceeded the limits of acceptable criticism. Even if it were acknowledged that in its second part the applicant had focused on one judge, it had to be recognised that at the beginning he had attacked all the judges of the Regional Court. The appellate court had correctly had regard thereto. It had also indicated why it considered that the applicant’s attitude could be qualified as an offence under Article 237 of the Criminal Code 1969. The Supreme Court therefore dismissed the cassation appeal as unfounded.

B. Relevant domestic law

Article 237 of the Criminal Code 1969, applicable at the relevant time, read as follows:

“Anyone who insults a State authority at the place where it carries out its duties or in public, is liable to up to two years’ imprisonment, to a restriction of personal liberty or a fine.”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the proceedings in his case were conducted by courts which lacked impartiality. He points out that the first-instance proceedings were conducted by the Sosnowiec District Court, whereas the insults with which he had been charged had been directed against the judges of the Katowice Regional Court, to which the District Court was directly answerable.

He alleges that the Katowice Regional Court, when deciding that the case be transmitted to the Bielsko-Biala Regional Court for the purpose of the appellate proceedings, was not acting in an impartial manner, given that the offence concerned was directed against its judges. The Katowice Regional Court should not have taken any decisions in his case.

The applicant further complains, in essence, under Article 10 of the Convention that he was convicted of acts which should not have been construed as amounting to a criminal offence, as he should have been allowed to express his views.

THE LAW

1. The applicant complains under Article 6 of the Convention that the proceedings in his case were conducted by courts which lacked impartiality.

Under Article 35 § 1 of the Convention the Court the may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

The Court notes that the applicant failed to raise this complaint either in the appellate proceedings before the Bielsko-Biała Regional Court or in the cassation appeal to the Supreme Court. He has not therefore exhausted relevant domestic remedies and this part of the application must be declared inadmissible pursuant to Article 35 § 4 of the Convention.

2. The applicant further complains in essence under Article 10 of the Convention that he was convicted of acts which should not have been construed as amounting to a criminal offence.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint, and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules Of the Court, to give notice of this complaint to the respondent Government.

For these reasons, the Court unanimously,

Decides to adjourn the examination of the complaint that the applicant’s criminal conviction was in breach of his freedom of expression;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President