Communicated on 12 July 2018

FIRST SECTION

Application no. 57746/16 Szymon SIMIŃSKI against Poland lodged on 25 October 2016

STATEMENT OF FACTS

The applicant, Mr Szymon Simiński , is a Polish national who was born in 1967 and lives in Babiak .

The circumstances of the case

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

1. Background to the case

Since 2006 the applicant has been a local councillor ( radny ) on the Babiak Municipal Council ( Rada Gminy – hereinafter “the Council”).

On 12 December 2014, during a session of the Council, the applicant read a statement that he had prepared earlier.

In particular, with respect to the mayor of Babiak Municipality ( wójt gminy ), W.C., the applicant stated:

“It must be stressed that the mayor is good at manipulating people; and he also must be a good merchant, since for a few pieces of silver he has bought Judas Mark and his flock of sheep. [ Należy podkreślić, że sam wójt jest dobry w manipulowaniu ludźmi, no i musi by ć niezłym kupcem, bo za parę srebrników kupił Judasza Marka i jego stado owieczek .]

How many of the mayor ’ s pieces of silver do you have left? [ Ile ci zostało srebrników wójtowych? ]”

As regards a certain M.T., the principal of a school in B. and the chairman of the District Council in K. ( Rada Powiatu ) the applicant stated:

“As for M.T., I have a question for him: Mr Chairman of the District Council, how many of the mayor ’ s pieces of silver do you have left? Because as far as I know , you have also bought the parish priest from L. [ Co do M.T. mam do niego pytanie, Panie Przewodniczący Rady Powiatu, ile ci zostało srebrników wójtowych bo z tego co wiem to i proboszcza z L. kupiłes ]

You do it for sick deals and money, thus you start resembling the oldest profession in the world. [ Robicie to dla chorych układów i pieniędzy, tym samym upodabniacie się do najstarszego zawodu świata. ];

For a few pieces of silver he bought Judas Mark and his flock of sheep. [ Za parę srebników kupił Judasza Marka i jego stado owieczek. ]”

The statement was later discussed during the session. The applicant also distributed it together with his Christmas wishes to the residents of his electoral constituency between 12 and 24 December 2014.

2. Criminal proceedings for defamation

On the unspecified date W.C. and M.T. brought a private prosecution against the applicant accusing him of defamation. They alleged that the applicant ’ s statement had denigrated them and had lowered them in the public esteem.

During the proceedings before the Koło District Court ( Sąd Rejonowy ) the applicant did not plead guilty. He explained that he had not wanted to offend W.C. and M.T. The expression “ pieces of silver” that he had used related not to financial gain but the alleged betrayal by W.C and M.T. of a certain H.K., who had been a candidate for mayor of Babiak Municipality. In his statement, the applicant was trying to prove that W.C. and M.W. had put together an informal coalition against H.K., who had then lost the elections for mayor. Consequently, when W.C. had won the elections he had divided up the positions on the District Council. He had done that together with M.T., who, on the other hand, should have supported H.K. as they had been members of the same party. The applicant pointed to the specific actions of M.T. which in his opinion proved his betrayal.

On 30 November 2015 the Koło District Court convicted the applicant of defamation under Article 212 § 1 of the Criminal Code. The court conditionally discontinued the proceedings for one year, and sentenced the applicant to pay 500 Polish zlotys (PLN – approximately 125 euros (EUR)) to charity and PLN 864 (approximately EUR 216) in costs. It also ordered that an apology be published in Przegl ąd Kolski , a weekly newspaper.

The court established that M.T. had not been in favour of the idea that a local party would put up its own candidate in the elections. For that reason, M.T. had not engaged in H.K. ’ s electoral campaign. However, in the court ’ s view, the applicant ’ s version of a secret pre-election coalition had not been credible. The court noted that M.T. ’ s behaviour could have been caused by him adopting a cautious approach: as a principal of a local school he had not wanted to displease W.C., in case the latter had won the elections.

The court analysed the negative aspects of the terms explicitly used in the statement, which it considered to be untrue. Given that it had been distributed during the local elections, the court found it to be offensive and insulting as it had indicated some financial benefit for W.C and M.T. Therefore the statement was considered to be in breach of the so ‑ called legitimate criticism ( dozwolona krytyka ) principle and that it had the aim of lowering W.C and M.W. in the public esteem necessary for their functions.

The applicant appealed.

On 28 April 2016 the Konin Regional Court ( Sąd Okręgowy ) amended the judgment by quashing the orders to publish an apology and to pay money to the charity. The court ordered the applicant to pay PLN 1,068 (approximately EUR 267) in respect of the costs of the proceedings.

The court agreed with the reasoning presented by the District Court. It held that the applicant ’ s statement had directly indicated that W.C. had manipulated other persons and in return for some unspecified benefits had ensured M.T. ’ s support. At the same time, it had indicated that M.T. had ensured the support of the parish priest of L., also in exchange for certain benefits.

In the court ’ s view the right to legitimate criticism could not be identified with the right to defamation. Critical opinions should be presented in an appropriate way. In particular, when such opinions were not spontaneous but were planned, as had been the case with the applicant ’ s statement. In conclusion, the court noted that the actions of W.C. and M.T. had not required such a firm response from the applicant. Moreover, the manner in which he had presented his objections had not been appropriate.

The court partially quashed the sentence. It observed that the applicant ’ s behaviour had only been part of a long-running conflict between the parties. Therefore, the original punishment would have been too rigorous.

COMPLAINT

The applicant complains that his conviction for defamation had constituted an unjustified and disproportionate interference with his freedom of expression under Article 10 of the Convention.

QUESTION TO THE PARTIES

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 alleged interference “prescribed by law” and did it pursue a legitimate aim?