Published on 12 July 2021

FIRST SECTION

Application no. 56310/15 K.P. against Poland lodged on 5 November 2015 c ommunicated on 24 June 2021

STATEMENT OF FACTS

1 . The applicant, Mr K . P. , is a Polish national, who was born in 1980 and lives in Koszalin. He is represented before the Court by Ms A. Stach, a lawyer practising in Szczecin.

The circumstances of the case

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

3 . The applicant is a qualified teacher of Polish and English.

4 . From 1 September 2007 until 16 December 2013 he worked as a teacher and a form tutor in a secondary school in Koszalin.

5 . Each year from 2008 to 2012 the school principle awarded the applicant with the prize for the best teacher. In 2010 and 2013 the applicant also won national competitions for the best form tutor.

6 . The applicant did not receive any reprimands and no complaints were filed about him.

7 . The school principle stated in the disciplinary proceedings described below that since 2010 she had suspected that the applicant was homosexual. She stated that she had not taken issue with the applicant ’ s sexual orientation. She considered him to be a very good teacher.

8 . During an unspecified period, the applicant wrote posts on Facebook in which he criticised his colleagues, for example by implying that they were lazy or not as diligent as they should be. The applicant ’ s Facebook posts did not contain any obscenities.

9 . From 2012 until 2013 the applicant wrote frequent posts on a public internet blog on a website destined for homosexual men. In order to access the website a prospective user had to declare to be adult. The applicant wrote under a pseudonym. He wrote in the first person, at times, he referred to himself in the text by his real first name.

10 . The content of his blog posts comprised photographs and text in the style of a diary. The photographs depicted men – dressed, half-nude or nude – in various situations (i.e. mowing a lawn; urinating in a men ’ s toilet, repairing a car). Other photographs depicted the applicant – either alone or hugging or kissing another man.

11 . The applicant ’ s writings mainly described his daily life; his feelings of love or loneliness; or his intimate thoughts or desires in respect of his partner. Some passages had clear erotic connotations or described sexual acts. On a few rare occasions, the applicant employed obscene words. Overall, the language of his posts was not graphic.

12 . In several of his blog posts, the applicant expressed his frustration with his job as a junior teacher or employed swear words with respect to his superiors. He also described his students.

13 . The applicant ’ s blog registered 39,000 entries.

14 . The applicant claims to have kept the blog a secret from his colleagues and students. However, it appears that the applicant ’ s Facebook posts and his blog were read and commented on by the school staff. There is no information that the students or their parents knew about the applicant ’ s internet activity.

15 . The school principal, who had been informed about the applicant ’ s blog, criticised the applicant ’ s activity and asked him to delete his blog. The applicant did so on the same day, on 1 July 2013.

16 . As part of his job, the applicant occasionally took his students on school excursions. Pursuant to the school ’ s well-established practice, third parties could not be invited to attend such activities. This rule was expressly stated in the file of each school trip. It is undisputed that the applicant knew about the rule.

17 . In June 2013 the applicant oversaw two school trips. His partner accompanied the applicant to a ceremony at the Presidential Palace in Warsaw. He left immediately after the ceremony and was not present throughout the rest of the trip. The applicant ’ s partner also accompanied the applicant during a school camping trip. The applicant explained that he had asked his partner to keep him company as he had suffered from sunburn to his feet. On both occasions, the applicant introduced his partner to everyone as his cousin. The applicant stressed that, during both trips, he had done his night shifts and he had diligently watched over his students.

18 . On 4 July 2013 the school principal asked the disciplinary officer for teachers ( rzecznik dyscyplinarny ) to open disciplinary proceedings against the applicant on the grounds that the latter had breached his duties prescribed in the 1982 Teacher ’ s Charter ( Karta Nauczyciela ). It was denounced that the applicant had a third party (his partner) attend two school trips without informing the school principal or asking for her authorisation. The applicant had thus treated both school events as private and had failed to ensure adequate care and supervision of his students. It was also denounced that the applicant had been running a public blog which contained text and images of an erotic and obscene character. The principal feared that the applicant was not fit to provide adequate moral education to his students.

19 . The disciplinary officer instituted proceedings and filed a motion to have the applicant reprimanded.

20 . At the hearing held by the disciplinary commission the applicant admitted to the breach of the rules regulating school trips and to the writing of his blog. He stated that his internet activity had been a form of therapy and a foolish mistake. He reassured everyone that the blog had been deleted and that he was not going to make similar publications again.

21 . On 16 December 2013 the Disciplinary Commission found the applicant responsible of a breach of the dignity of a teacher ’ s profession (section 6 of the 1982 Teacher ’ s Charter) in that on two school trips he had been accompanied by an unauthorised third party and that he had run a public blog with content that was unworthy of a teacher ’ s profession. The commission ordered that the applicant be dismissed from school.

22 . In the decision ’ s reasoning, it was explained among others that a teacher had to act with dignity at school and in his or her private environment. A teacher, while enjoying freedom of expression, had to show restraint because of his or her mission as an educator of a new generation. The applicant, by publicly making obscene statements, had acted indecently and had breached the dignity of the whole teacher ’ s profession.

23 . The applicant appealed, arguing, inter alia , that the Disciplinary Commission had wrongly considered that he lacked morals and posed a threat to the ethical education of his students. He further stated that the Commission ’ s decision was grounded on the information about his “disturbed sexual orientation”. He acknowledged that writing the blog was a reprehensible behaviour. He explained, however, that his conduct was not the result of his depravity but rather his complicated and difficult personal situation and identity issues, as well as traumatic childhood. The applicant concluded that the disproportionate severity of the punishment which had been imposed on him was indicative that the Commission ’ s decision had been based, possibly only subconsciously, on homophobic prejudice and stereotypes.

24 . The applicant was also assigned a legal-aid lawyer to represent him in the proceedings. Before the appellate disciplinary commission, the lawyer argued firstly that the sanction that had been imposed on the applicant was disproportionately severe. The applicant had indeed breached the regulations, but he had not neglected his duties during the school trips in question. Secondly, he claimed that the reason for the disciplinary proceedings had been the discovery of the applicant ’ s homosexual orientation that was revealed in his blog. The disciplinary proceedings and their outcome were therefore discriminatory. The applicant was an excellent teacher who had been teaching his students values such as love for the nation, respect for the Constitution, freedom of conscience and respect for every human being.

25 . On 24 September 2014 the Appellate Disciplinary Commission quashed the decision of 16 December 2013 and discontinued the disciplinary proceedings against the applicant.

26 . The appellate commission took into consideration the applicant ’ s conduct during the proceedings, namely the fact that he had admitted all the imputed acts and had repented, as well as that he had ceased writing the blog and had deleted it on the same day on which the school principal had criticised that activity. The appellate commission also held that there had been no proof that the applicant had in fact neglected his tutor ’ s duties during the trips. Moreover, in the commission ’ s view, the applicant had written the blog for therapeutic purposes as per the recommendation of his psychiatrist to write his feelings down in order to overcome his childhood psychological trauma.

27 . The disciplinary officer of the Ministry of National Education appealed.

28 . On 15 June 2015 the Szczecin Court of Appeal changed the decision of 24 September 2014 and dismissed the applicant ’ s appeal, at the same time validating the Disciplinary Commission ’ s decision, including the applicant ’ s dismissal.

29 . The appellate court held that the applicant, by bringing an unauthorised person on two school trips, had neglected his duties. Moreover, it considered that the fact that the applicant used to write a blog with an erotic and obscene content was unworthy of the teacher ’ s profession.

30 . No further appeal was available under the applicable law.

COMPLAINTS

31 . Invoking Articles 8, 10 and 14 of the Convention the applicant complains that his rights to respect for his private life and freedom of expression were breached on account of his disciplinary dismissal from his position as a teacher for having written an anonymous internet blog, the content of which was considered “unworthy of the teacher ’ s profession”. He further claims that his dismissal was the result of the discriminatory and negative perception of his sexual orientation and his emotional bond with a same sex person and the conclusion that his free literary expression was unethical.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for his private life, contrary to Article 8 of the Convention? In particular, was the sanction imposed on the applicant in the disciplinary proceedings disproportionate to the aim pursued?

2. Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention? In particular, was the sanction imposed on the applicant in the disciplinary proceedings disproportionate to the aim pursued?

3. Has the applicant suffered discrimination on the ground of his sexual orientation, contrary to Article 14 of the Convention, read in conjunction with Articles 8 and/or 10 of the Convention?