Communicated on 18 June 2018

FIRST SECTION

Application no. 5420/16 Rafa Å‚ ROGALSKI against Poland lodged on 16 January 2016

STATEMENT OF FACTS

The applicant, Mr Rafał Rogalski , is a Polish national who was born in 1976 and lives in Warsaw.

A. The circumstances of the case

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

1. Background

The applicant is a barrister ( adwokat ).

On 9 April 2010 he reported a case of forgery to the police on behalf of his client ’ s company. On 29 December 2010 the Warsaw- Żoliborz District Prosecutor, M.P. ( Prokurator Rejonowy ), discontinued the investigation on the grounds that no offence had been committed. On 8 March 2011 the Warsaw District Court ( Sąd Rejonowy ) quashed that decision on the grounds that the investigation had not been carried out thoroughly.

On 25 January 2011 the applicant, acting on behalf of his client, lodged a formal criminal complaint alleging that passive bribery had been committed by the district prosecutor in connection with the above-mentioned investigation.

It appears that the applicant submitted that the district prosecutor had been investigating allegations of various offences committed to the detriment of his client ’ s company. Requests for evidence which he had filed in the course of these investigations had not been examined promptly, important elements of the inquiry had been discontinued without any expert reports being obtained, and other shortcomings had been committed. The applicant ’ s client was of the view that the only explanation for such professional misconduct was that the prosecutor in charge of the investigation had been bribed. In this context, the applicant made the following statements in his complaint:

“I am filing a [complaint concerning] the existence of information [which] sufficiently justifies the suspicion [that M.P.], the Warsaw- Żoliborz District Prosecutor, committed the offence of bribery by accepting financial gain from unknown persons.”

“[This calls for the conclusion] that the reason for the discontinuation [of the investigation into forgery] results exclusively from external factors of a criminal nature.”

“There is nothing left [to do] but to file the present [complaint] in view of the existence of a justified suspicion of venality ( sprzedajności ) [on the part] of the [above-mentioned] prosecutor.”

On 28 January 2011 the Warsaw-Centre District Prosecutor refused to open an inquiry into the above allegations on the grounds that there was insufficient information to justify the suspicion in question. No interlocutory appeal was lodged against that decision.

2. Disciplinary proceedings against the applicant

On 13 November 2013 the Disciplinary Court of the Warsaw Bar Chamber ( SÄ…d Dyscyplinarny Izby Adwokackiej ), referring to the above ‑ mentioned complaint, found the applicant guilty of making, in his professional capacity, a criminal complaint without justified suspicion, which was in breach of the Lawyer ’ s Code of Professional Ethics. In particular, the disciplinary court observed that, by making his complaint on 25 January 2011, the applicant had suggested, without sufficient suspicion ( nie maj Ä… c ku temu uzasadnionych podejrzeÅ„ ), that the prosecutor had committed a criminal offence. That fell within the scope of section 80 of the Bar Act in conjunction with paragraphs 14, 16 and 17 of the Lawyer ’ s Code of Professional Ethics (see Relevant domestic law and practice below). The disciplinary court took note of the applicant ’ s submissions describing the context of his complaint (as above); the assurances which his client was to receive from certain agents of the Central Anti-corruption Bureau; his explanations that it had been impossible, in view of the nature of the offence alleged, to obtain material evidence to support his complaint; and that his suspicions could further be corroborated by his employer. The applicant ’ s client, when heard by the disciplinary court, denied having any knowledge of the act of bribe-taking or any clear recollection that he had discussed that particular matter when he had met with anti-corruption agents or that he had explicitly instructed the applicant to file the criminal complaint in question.

Overall, having analysed the content and context of the complaint, the disciplinary court considered that the applicant had not presented any evidence which could corroborate his suspicion of bribe-taking by the prosecutor. It further observed that a lawyer ’ s freedom of expression was distinct from the constitutional understanding of that right in that it was restricted in order to protect third parties from unjustified, excessive and unnecessary attacks on their own rights. The applicant had been undoubtedly responsible for filing the complaint in question and thus had been under a professional duty to act with moderation ( umiar ), proportionality ( współmierność ) and prudence ( oględność ) within the meaning of paragraph 17 of the Lawyer ’ s Code of Professional Ethics. Accordingly, lawyers had to avoid making unsubstantiated complaints, indicate any sources of information relied on, and use the conditional tense. The court considered that the language used by the applicant in his complaint had clearly been contrary to those principles and derogatory to the dignity of M.P. and the prosecutor ’ s office as a whole.

The court fined the applicant 5,000 Polish zlotys (approximately 1,250 euros) and banned him from being a professional tutor for one year.

On 27 September 2014 the Higher Disciplinary Court of the Bar ( Wyższy Sąd Dyscyplinarny Adwokatury ) upheld that decision.

On 8 July 2015 the Supreme Court ( SÄ…d Najwyższy ) dismissed a cassation appeal lodged by the applicant as manifestly ill ‑ founded.

B. Relevant domestic law and practice

The professional responsibility of practisin g lawyers is set out in section 80 of the Bar Act of 26 May 1982 ( Prawo o adwokaturze ), which provides, inter alia :

“Barristers and their apprentices shall be subject to disciplinary action for conduct in breach of the law, [professional] ethics or dignity of the profession, or for breaching [their] professional duties ...”

Section 81 lists the disciplinary sanctions which may be imposed as a result of such proceedings. They include: a warning, reprimand, fine , suspension of professional activities for three months to five years or disbarment. A reprimand and fine may be accompanied by a ban on acting as a professional tutor from one to five years.

The conduct of lawyers is regulated by the Lawyer ’ s Code of Professional Ethics ( Zbiór Zasad Etyki Adwokackiej i Godności Zawodu ( Kodeks Etyki Adwokackiej ) ), which was adopted on 10 October 1998 by the Supreme Bar Council ( Naczelna Rada Adwokacka ) and entered into force on 1 December 1998. Its principles derive from ethical values adapted for the legal profession (paragraph 1). It places lawyers under a duty to respect ethical values and protect the dignity of the profession (paragraph 3). A breach of the dignity of the legal profession is defined as conduct which could humiliate lawyers in the eyes of public opinion or undermine confidence in the profession (paragraph 2).

Paragraph 14 provides that lawyers are responsible for the form and content of the pleadings ( pisma procesowe ) which they have prepared. Under paragraph 15, they are not responsible for the veracity of the facts which have been submitted by their clients. Lawyers must nevertheless formulate drastic or unlikely circumstances with moderation. Paragraph 17 provides that lawyers, while having their freedom of expression guaranteed while conducting their professional activities, must maintain moderation and prudence in their statements.

COMPLAINTS

The applicant complains under Article 10 of the Convention that his right to freedom of expression was restricted in that the domestic courts found him at fault for filing what they considered to be an unsubstantiated criminal complaint. To this end, the applicant makes the following arguments:

( i ) The requirement for lawyers to act with moderation, proportionality and prudence while carrying out their professional activities derives from the Lawyer ’ s Code of Professional Ethics, which does not have legislative status.

(ii) The content of the statements made in the impugned complaint was intrinsically linked to the nature of the act of denouncing a criminal offence.

(iii) The criticism of the prosecutor was limited to his professional activities in the course of the case in which the applicant represented his client. It thus did not concern the prosecutor ’ s general professional skills. This criticism was not made public and as such had a limited effect on his professional reputation.

(iv) The impugned complaint was made with the knowledge, consent and in the interests of the applicant ’ s client.

(v) It is in the nature of the allegations of passive bribery that lawyers or, more generally, private individuals do not have access to evidence of the offence unless they tried to offer the bribe or did not witness such an event.

(vi) A criminal complaint must be made on the basis of a justified suspicion of the commission of an offence, which should exist at the time the complaint is lodged. The applicant also submits that, as a result of the disciplinary proceedings, his professional reputation has suffered greatly; he has lost his commitment to work as a lawyer, and his legal practice has been constrained as its resources were diverted towards the disciplinary proceedings.

The applicant also complains under Article 6 of the Convention that his right to a fair trial has been breached in that two of the judges of the second ‑ instance court could have been biased and his requests for evidence were unfairly rejected.

QUESTIONS TO THE PARTIES

1. Was there been an interference with the applicant ’ s freedom of expression, in particular his right to impart information, within the meaning of Article 10 § 1 of the Convention? If so, was the interference with the applicant ’ s right to freedom of expression because of his filing of the crime notice of 25 January 2011 in accordance with the law and justified under Article 10 § 2 of the Convention (see Steur v. the Netherlands (no. 39657/98, § 38, ECHR 2003 ‑ XI and mutatis mutandis Kyprianou v. Cyprus [GC], no. 73797/01, ECHR 2005 ‑ XIII and Morice v. France [GC], no. 29369/10, ECHR 2015 )?

2. The parties are requested to submit copies of all documents relating to the impugned disciplinary and court proceedings.