Communicated on 27 September 2017

FIRST SECTION

Application no. 40152/16 Jarosław KOWALSKI against Poland lodged on 4 July 2016

STATEMENT OF FACTS

The applicant, Mr Jarosław Kowalski, is a Polish national who was born in 1963 and lives in Dobre Miasto . He is repres ented before the Court by Mr K.P. Jurczewski , a lawyer practising in Warsaw.

The circumstances of the case

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

1. Background

The applicant, who was a local councillor ( Radny ) on the Municipal Council ( Rada Miejska ) of Dobre Miasto entered into a political dispute with M.L., who was the leader of this Municipal Council ( PrzewodniczÄ…ca Rady Miejskiej ) .

In November 2012 M.L. made some suggestions concerning a financial analysis of the Mayor ’ s ( Burmistrz ) activity in respect of the Municipal Housing Board ( Zakład Budynków Komunalnych ) in 2011 and 2012. She suggested who should prepare this analysis and what would be the scope thereof, although she was not a member of the Board of Auditors ( Komisja Rewizyjna ) .

In September 2013, during a joint sitting of the Municipal Council ’ s Committee ( Komisja Rady Miejskiej ) , M.L. stated that the perpetrators of crimes against children should be “shot or sent to the gas chamber, like Hitler did” ( odstrzelić albo jak Hitler do gazu ) . She made this statement in the context of recent media reports concerning child homicides.

Subsequently, in December 2013, M.L. gained sight of a written statement that had been prepared by the candidate selected to take over the post of director of the local Centre for Sport and Recreation ( Ośrodek Sportu i Rekreacji ) . In this statement − which the candidate wanted to have circulated to local councillors − he described the circumstances of his decision to renounce the position. However, M.L. failed to present this statement to the local councillors during the Municipal Council ’ s session that took place in December 2013 and did not do so until the session held in February 2014.

2. The applicant ’ s actions in respect of leader of the Municipal Council

From 17 to 24 March 2014 the local television broadcast an announcement ( ogłoszenie ) by the applicant with the following content:

“I call on the leader of the Municipal Council of Dobre Miasto [M.L.] to resign immediately from her post for concealing documents from local councillors, manipulating the work of the Board of Auditors − of which she is not a member − and saying about a certain group of inhabitants that ‘ they should be shot or sent to the gas chamber like Hitler did ’ . Local councillor , Jarosław Kowalski” (Wzywam do natychmiastowej dymisji Przewodniczącą Rady Miasta w Dobrym Mieście Panią Małgorzatę Łańko za: ukrywanie dokumentacji przed radnymi, manipulowanie pracą komisji rewizyjnej, której nie jest członkiem, za użycie słów wobec pewnej grupy mieszkańców: ‘ należy ich odstrzelić albo jak Hitler do gazu ’ . Radny Jarosław Kowalski) .

3. Criminal proceedings for defamation

Following the broadcast of the applicant ’ s announcement M.L. brought a private prosecution, accusing him of defamation. In particular, M.L. submitted that the announcement had resulted in the loss of public trust which was essential for her political career. She admitted that while referring to Hitler, she had used very unfortunate language. However, in the announcement, which was broadcast on television from 17 to 24 March 2014, the applicant had − in her view − wrongly alleged that she had used Nazi language when referring to a certain group of inhabitants.

During the trial, the applicant argued that he had not exceeded the limits of fair criticism in respect of M.L., who was his political opponent. He stated that he had merely conveyed to the local community knowledge about events which had actually occurred within the framework of M.L ’ s professional activity.

On 30 March 2015 the Olsztyn District Court ( Sąd Rejonowy ) convicted the applicant of defamation under Article 212 § 1 and 2 of the Criminal Code, conditionally discontinued the proceedings, and sentenced the applicant to pay 2,000 Polish zlotys ( PLN) (approximately EUR 500) to charity and PLN 100 (approximately EUR 25) in costs.

The first-instance court heard several witnesses. It found that during one Municipal Council session, M.L. had indeed said that mothers who killed their babies “should be shot or sent to the gas chamber, like Hitler did”. However, it did not mean that M.L. was a supporter of Nazi ideas. The first ‑ instance court explicitly stated that that the words used by the applicant in the announcement were not true but rather represented his personal opinion about M.L., which had no objective justification in the facts of the case. The applicant ’ s announcement had therefore aimed at humiliating M.L. and discrediting her in the eyes of the local community. The trial court observed that the content of the announcement could have resulted in M.L. losing the public trust necessary for her political career.

The applicant appealed, essentially repeating the arguments he had raised before the first-instance court. He also emphasised that the impugned judgment was not in accordance with the jurisprudence of the Supreme Court and of the European Court of Human Rights.

On 31 July 2015 the Olsztyn Regional Court ( Sąd Okręgowy ) upheld the first-instance court ’ s findings of fact and law. It referred to the reasons given by the Olsztyn District Court and opined that the applicant ’ s allegations were not true and the applicant had been aware of that. Furthermore, he had not acted in the public interest but had presented his personal negative opinion of M.L. The appellate court ordered the applicant to pay PLN 520 (approximately EUR 130) in costs of the proceedings (including the cost of the representation of M.L.).

COMPLAINT

The applicant complains that his conviction of defamation 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?