Communicated on 9 January 2019

FIRST SECTION

Application no. 36775/14 Zofia SIŁKOWSKA against Poland lodged on 28 April 2014

STATEMENT OF FACTS

The applicant, Ms Zofia Siłkowska , is a Polish national who was born in 1950 and lives in Wadowice .

A. The circumstances of the case

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

The applicant was a local activist in Wadowice . In 2013 she served as a representative for the committee of citizens called “Initiative Free Wadowice ” ( Inicjatywa Wolne Wadowice ) which demanded a local referendum on whether the Wadowice Mayor and the members of the City Council should be recalled before the end of their term in office. The local referendum was planned for 27 October 2013.

The committee of citizens prepared a leaflet encouraging the inhabitants of the city to take part in the referendum. The leaflet criticised the city authorities as being a group of privileged individuals who abused their power by benefiting from high salaries and employing their families. It also contained the following passage:

“Many among us feel deceived and intimidated by the local authorities. Those authorities resort to slurs or even fisticuffs on a daily basis. It is high time this changed .” (“ Wielu z nas czuje się oszukiwanych i zastraszanych przez lokalną władzę. Władza ta (...) na co dzień posuwa się do oszczerstw, a nawet rękoczynów. Najwyższy czas to zmienić ” ).

The leaflet was dated 17 October 2013, but its distribution started on 22 October 2013. On the same day E.F. – the Wadowice Mayor – lodged a civil action against the applicant under section 35 of the Local Referendum Act which provided for a summary procedure for adjudicating disputes arising in a referendum campaign. She demanded that the domestic court issue an injunction prohibiting the applicant from distributing the leaflet in question. She also wished the applicant to publish a retraction to the effect that the statement that E.F. resorted to slurs or even fisticuffs was untrue.

The applicant was unaware of the civil action against her until 23 October 2013, when – at approximately 3.30 p.m. – she was summoned to appear at a hearing before the Cracow Regional Court scheduled for 24 October 2013 at 8.30 a.m. The applicant alleges that, due to the fact that she had recently had health issues resulting in her restricted mobility, she was unable to organise transport to Cracow at such short notice. She had no car and no public transport suitable for her needs was available that early in the morning. She had tried to call the Cracow Regional Court and inform it of those circumstances, but the office of the court had already closed (the opening hours were from 8:30 a.m. to 2.30 p.m.). The applicant had prepared a written application asking the court to postpone the hearing until the next day so that she would have time to organise her transport. She also indicated that she wished to take an active part in the proceedings, especially in the examination of witnesses. In addition to that, she asked the court to appoint her a lawyer under the legal aid scheme. The applicant entrusted this application to one of the witnesses summoned to the hearing.

On 24 October 2013 8.30 a.m. the Cracow Regional Court ( S Ä…d Okregowy ) held a hearing and issued a temporary injunction prohibiting the applicant from distributing the leaflet in question until such time when the proceedings were concluded. The court stated that the criminal proceedings concerning allegations of slander and fisticuffs against E.F. were pending, but at the time there had been no conclusive evidence that she had committed those acts. At the same time the domestic court stressed that it was probable that the proceedings would conclude shortly before the planned referendum and that it was crucial to ensure that the campaign was conducted without disseminating untrue information. After having issued the injunction, the Cracow Regional Court postponed the hearing until 25 October 2013 at 9 a.m.

On 25 October 2013 the Cracow Regional Court held a second hearing in the case and issued a decision (case no. I Ns 33/13). The applicant was present. The domestic court prohibited the applicant from distributing the leaflet in question and ordered her to publish the following retraction on the www.wadowice24.pl website and in the newspaper Gazeta Krakowska (“Cracow Newspaper”):

“I declare that the statement made in the leaflet of 17 October 2013 prepared by the Initiative Free Wadowice , that the Wadowice local authorities resort to slurs and fisticuffs on a daily basis, is not true with respect to the Wadowice Mayor – E.F.” (“ Oświadczam, że zawarte w ulotce z dnia 17 października 2013 r. przygotowanej przez Inicjatywę Wolne Wadowice stwierdzenie, że władze samorządowe Wadowic na co dzień posuwają się do oszczerstw i rękoczynów, nie jest prawdziwe w odniesieniu do Burmistrza Wadowic – E.F. ”)

The domestic court stated that the leaflet in question contained not only statements encouraging the inhabitants of the city to take part in the referendum, but included also critical assessment of the current authorities. It held that the assertion that the local authorities resorted to slurs and fisticuffs was not a value judgment, but a statement of fact. It examined a number of statements made by E.F. and took into consideration the fact that, although she had once been charged with slander, she had been acquitted. It also found no instances in which E.F. had taken part in or incited to fisticuffs. As a consequence, it held that the statement in question was false. The court also underlined that the sole fact that the statement in question referred to the wider group of individuals (the local authorities) did not deprive E.F. of the possibility to seek protection of her rights before the domestic court, as she – as Mayor – clearly was part of this group. The first ‑ instance court stated that the publication of a retraction both on the website and in a local newspaper could at least partially limit the impact that the statements contained in the leaflet had had on the referendum campaign.

The decision was pronounced at approximately 1.55 p.m. According to the applicant, the office of the court accepted submissions only until 2.30 p.m. and was closed on the following day (as it was Saturday). As the statutory time ‑ limit to submit an appeal against the decision issued under section 35 of the Local Referendum Act was 24 hours, the applicant had to prepare her appeal within half an hour. She submitted an appeal before the office closed.

On 26 October 2013 (a Saturday) the applicant tried to deliver an additional submission amending her appeal, but the court building was closed and the security guards did not allow her to submit the document.

On 27 October 2013 the local referendum took place in Wadowice . Its results were invalid due to the fact that not enough inhabitants took part in the voting.

On 28 October 2013 the Cracow Court of Appeal ( S Ä…d Apelacyjny ) amended the decision of the Cracow Regional Court by holding that the applicant was obliged to publish a retraction only at the website www.wadowice24.pl and not in Gazeta Krakowska . It upheld the remainder of the decision (case no. I ACz 2105/13).

The second-instance court held that, even though it was deciding on the applicant ’ s appeal after the referendum had taken place, it was still possible to proceed according to section 35 of the Local Referendum Act. It agreed with the court of first instance that the statement in question was a statement of facts which – in the context of the whole leaflet – had to be interpreted as referring to, among others, E.F. and that this statement was untrue. The Court of Appeal also noted that the applicant could not effectively invoke her freedom of expression as this freedom could be limited so as not to allow untrue statements. The court indicated that the prohibition on disseminating untrue information during the referendum campaign contributed to the realisation of the general public ’ s right to receive reliable information. It also held that the fact that the first-instance court had not appointed a lawyer for the applicant was justified by the specifics of the proceedings under section 35 of the Local Referendum Act. Furthermore, the applicant had been able to represent herself as she had adequately conducted her defence. In addition to that, the second-instance court established that, since that the publication of the retraction would take place after the referendum, it would be sufficient to have it published on the local internet site.

On 31 January 2014 the applicant lodged a constitutional complaint in which she alleged that section 35 of the Local Referendum Act was incompatible with the provisions of the Constitution guaranteeing, among others, the right to a fair trial and the right to appeal against a first-instance judgment.

In its judgment of 11 May 2016 (case no. SK 16/14) the Constitutional Court declared that section 35 (2) and (3) was compatible with the provisions of the Constitution guaranteeing the right to a fair trial and to appeal against a decision issued at first instance. The Constitutional Court underlined that the introduction of a special procedure for adjudicating disputes arising in the referendum campaign contributed to ensuring a fair campaign, which allowed citizens to have access to true information on the basis of which they could formulate their opinions on matters of public interest. At the same time, it stressed that regard for the speediness of the proceedings could not impinge upon the rights of the parties to the proceedings to defend their interests and upon the principle of material truth. The Constitutional Court held that that such a speedy procedure was not as such contrary to the Constitution, especially as it provided for the possibility to present the parties ’ arguments during the hearing and to lodge an appeal against the decision issued at first instance.

B. Relevant domestic law

1. Relevant constitutional provisions

Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides:

“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”

Article 45 § 1 of the Constitution reads:

“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”

Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:

“Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.”

Article 78 of the Constitution reads:

“Each party shall have the right to appeal against judgments and decisions made at first instance. Exceptions to this principle and the procedure for such appeals shall be specified by statute.”

2. The Local Referendum Act

Section 35 of the Local Referendum Act regulates the special procedure for adjudicating disputes arising during the referendum campaign. It provides, in so far as relevant:

Ҥ 1. If posters, slogans, leaflets, statements or other forms of publicity or agitation contain untrue data or information, every interested party shall be entitled to lodge an application to the Regional Court for:

(1) ordering the confiscation of such materials;

(2) restraining [the defendant] from publishing such materials;

(3) requiring the correction of the information;

(4) requiring [the defendant] to apologise to the aggrieved party;

(5) requiring [the defendant] to pay up to PLN 10,000 to a charity;

(6) requiring [the defendant] to pay to the claimant up to PLN 10,000 in damages.

§ 2. The Regional Court shall examine the application referred to in § 1 within 24 hours in non-contentious [civil] proceedings. The court can hear the motion in case of justified absence of the claimant or the defendant, provided that they were properly informed of the date of the hearing. The court shall, without undue delay, serve on the interested party referred to in § 1 and the person required to execute the court ’ s decision a decision which will bring the proceedings in the case to an end.

§ 3. An appeal to the Court of Appeal shall lie against the decision of the Regional Court provided it is lodged within 24 hours from the moment the decision was delivered. The Court of Appeal, sitting as a panel of three judges, shall examine the appeal in non-contentious [civil] proceedings, under the same procedure and within the time-limit referred to in § 2. No appeal shall lie against the decision of the Court of Appeal and its decision shall be enforceable with immediate effect.”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the short time-limits prescribed in the Local Referendum Act for hearing her case made it impossible for her to represent properly her interests in the proceedings and to prepare for the hearing. She indicates that no lawyer was appointed to her under the legal aid scheme and that she was unable to attend the first hearing in her case. She also states that she had only 30 minutes to lodge an appeal against a decision issued by the first-instance court. Thus, she was deprived of her right to a fair trial.

Under Article 10 the applicant complains that her freedom to impart information and opinions was violated as the publication in question contained general criticism of the local authorities and not a statement of facts. As a consequence, suppressing those statements violated her freedom to criticise public authorities.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Reference is made to the applicant ’ s allegations that the time-limits established in the Local Referendum Act made it difficult for her to appoint a lawyer, prepare for the hearing, appear at the first hearing in the case and to lodge an appeal, as well as to her allegations that in practice she had only 30 minutes to lodge an appeal against the decision of 25 October 2013.

2. Has there been a violation of the applicant ’ s right to freedom of expression, in particular her right to impart information and ideas, contrary to Article 10 of the Convention?