Communicated on 18 September 2017

FIRST SECTION

Application no. 74409/16 Grzegorz DOLATA against Poland lodged on 30 November 2016

STATEMENT OF FACTS

The applicant, Mr Grzegorz Dolata , is a Polish national who was born in 1965 and lives in Mińsk Mazowiecki.

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 owns a plot of land, no. 49/12, in Borów . Several wooden electric poles run across his land and that of his neighbour. The part of the electric grid in question is owned by ENEA, a State-controlled energy company.

On 23 December 2010 the Świebodzin District Inspector of Construction Supervision ( Powiatowy Inspektor Nadzoru Budowlanego , “the district inspector”) ordered the energy company to replace the old electric poles in question with new ones.

The new poles were installed on the applicant ’ s land between 17 and 24 May 2012.

On 4 June, and 1 and 2 August 2012 the applicant asked the district inspector to order the removal of the new poles, arguing that their installation without a building permit had amounted to an illicit construction ( samowola budowlana ).

On 6 August 2012 the district inspector refused to open administrative proceedings into the allegations of illicit construction.

On 7 September 2012 the Lubuski Regional Inspector of Construction Supervision ( Wojewódzki Inspektor Nadzoru Budowlanego , “the regional inspector”) upheld that decision.

On 13 December 2012 the Regional Administrative Court ( Wojewódzki Sąd Administracyjny ) quashed both inspectors ’ decisions on the grounds that the case should have been examined on the merits.

On 18 June 2013 the district inspector held that the applicant ’ s application to have the new poles removed was groundless because the impugned construction had been ordered expressly by the decision of 23 December 2010.

On an unspecified date the regional inspector upheld that decision. The second-instance authority referred to the well-established case-law of administrative courts and observed that the installation of the new electric poles was not considered a “construction” requiring a building permit but as “repair works” or the “replacement” of the old poles, as expressly authorised by the 2010 decision. The decision also stated that the civil courts could deal with issues related to any damage caused by the work in question.

On 6 October 2013 the regional inspector informed his district counterpart that the wooden poles which had replaced the original ones on the applicant ’ s land did not comply with a number of certification requirements.

The applicant appealed against the regional inspector ’ s decision, arguing that the new poles had been installed without a building permit and were not certified at all.

On 24 April 2014 the Gorzów Wlkp . Regional Administrative Court dismissed the applicant ’ s appeal. The court observed that the allegation of missing certification for the new poles went beyond the scope of the case which, from the beginning, had only concerned the issue of the lack of a construction permit. That issue had been properly examined by the inspectors. The decision affirmed that the replacement of the wooden electric poles on the applicant ’ s land had constituted repair works which had been authorised by a binding decision by an inspector and which had not required a building permit.

On 4 August 2015 the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) dismissed a cassation appeal by the applicant, confirming the lower court ’ s legal analysis.

2. The applicant ’ s actions in respect of the District Inspector of Construction Supervision

The following information has been taken from domestic court decisions issued in the course of the applicant ’ s defamation case.

On 9 June 2012 the applicant wrote a letter to the Åšwiebodzin District Council ( Rada Powiatu ) entitled: “Notice of criminal activity by the District Inspector of Construction Supervision, W.R., and petition-appeal for a reaction from the District Council to those offences” (“ Powiadomienie o dziaÅ‚alnoÅ›ci kryminalnej [PINB W.R.] i wniosek-skarga o reakcjÄ™ rady Powiatu na te przestÄ™pstwa ”). The applicant wrote that W.R. had carried out “criminal activity” ( dopuÅ›ciÅ‚ siÄ™ dziaÅ‚alnoÅ›ci kryminalnej ) and had committed “criminal acts” and “other offences” (“ inne przestÄ™pstwa ”). The applicant submitted that W.R. had taken no action in relation to the illicit construction, had issued “illegal construction permits”, obstructed administrative proceedings, had failed to act in response to danger to life and limb, had shown no reaction to fraudulent documents, had been arrogant towards claimants and had committed “other criminal offences”. The applicant added that he would gradually send evidence of the above ‑ mentioned offences, which was otherwise to be found in the files of the cases pending before administrative authorities. The applicant called on the authorities to examine his complaint under the provisions of administrative procedure in order to “clear the district of a criminal element” (“ oczyszczenie powiatu z elementu kryminalnego ”).

On 11 June 2012 the applicant wrote a similar letter to the Świebodzin mayor ( Starosta ). The letter was entitled: “Complaint about criminal activities by the head of the District Inspectorate of Construction Supervision and petition to have those activities stopped” (“ Skarga na czyny kryminalne kierownika PINB i wniosek o spowodowanie zaniechania tych czynów ”). Among other things, the applicant wrote that W.R. had abused his powers and had committed “serious criminal offences” ( poważne przestępstwa ).

On 26 February 2013 the applicant made a public statement at a session of the district council that W.R had “disobeyed” a decision of the mayor, had breached public order and caused “an avalanche of criminal offences” ( lawina przestępstw ).

3. Criminal proceedings for defamation

On 19 January 2016 the Åšwiebodzin District Court ( SÄ…d Rejonowy ) convicted the applicant of defamation, a misdemeanour under Article 212 of the Criminal Code. The domestic court found the applicant guilty of making statements that had defamed W.R. between 9 June 2012 and 26 February 2013 and sentenced him to make a payment to the Red Cross of 5,000 Polish zlotys (PLN, approximately 1,200 euros (EUR)). The applicant was also ordered to pay PLN 370 (approximately EUR 92) in various court fees and costs.

In written submissions to the domestic court and at the hearing, the applicant pleaded not guilty. He argued firstly that he could not be indicted by means of a private prosecution since his statements had been made in official complaints and at a working session of a self-government body; secondly, that he had used the word “criminal” in an non-injurious sense of “relating to an offence” and not within the meaning of “heinous” or “felonious” (“ zbrodniczy ”); thirdly, that he had only meant to severely criticise an authority in defence of a higher interest, which was the protection of his property; and fourthly, that what he had imputed to W.R. was true.

In its reasoning, the domestic court referred to various definitions of the word “criminal” and observed that it clearly related to a criminal offence and had a pejorative meaning. The domestic court held that the applicant had libelled W.R. by imputing criminal acts and other criminal offences to him, by stating that he had carried out criminal activities, had caused an avalanche of criminal offences and had breached public order.

The domestic court also found that the applicant ’ s statements had humiliated W.R. in the eyes of the public and exposed him to a risk of losing the public trust which was necessary for his public functions.

Furthermore, the domestic court considered that the applicant had failed to prove that the actions which he had imputed to W.R. were objectively true. In particular, there was no proof that W.R. had ever been criminally charged or convicted.

As for the specific allegation that W.R. had sanctioned an illicit construction of electric poles on the applicant ’ s land, the domestic court examined the course and outcome of the administrative proceedings in question extensively and made the following conclusions. In light of the final and binding judgment of the Supreme Administrative Court of 4 August 2015, no breach of administrative law had occurred because the construction in question had been authorised by the inspector ’ s decision of 2010 and, consequently, had not required a separate building permit.

As for the allegation that W.R. had sanctioned the use of uncertified material, the domestic court analysed the administrative decisions which had been issued in relation to the case of the applicant ’ s neighbour, which was similar. The domestic court observed that the issue of certification was unresolved as the impugned proceedings were still pending, however, R.W. had by that point not been found to have breached the law.

Lastly, the domestic court observed that the applicant had crossed the line of acceptable criticism because the impugned statements, irrespective of their being disseminated by means of formal complaints, had been personal and offensive and had been made without due diligence.

The applicant appealed, essentially repeating the arguments he had raised before the first-instance court. He also emphasised that his subjective belief that W.R. had breached the law made his statements truthful.

On 30 May 2016 the Zielona Góra Regional Court ( Sąd Okręgowy ) upheld the first-instance judgment as being based on an accurate and thorough analysis of the evidence, well-reasoned and not marked by any errors of fact or law. The appellate court ordered the applicant to pay PLN 320 (approximately EUR 80) in costs.

B. Relevant domestic law and practice

Article 212 provides in so far as relevant:

Ҥ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics as may lower that person, group or entity in public opinion or undermine public confidence in their capacity necessary for a given position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year.

§ 2. If the perpetrator commits the act described in paragraph 1 through the mass media he shall be liable to a fine, a restriction of liberty or imprisonment not exceeding two years.

§ 3. When sentencing for an offence specified in §1 or 2, the court may adjudge a supplementary payment in favour of the injured person or the Polish Red Cross, or of another social purpose designated by the injured person ( nawiązka ).

§ 4. The prosecution of the offence specified in § 1 or 2 shall occur upon a private charge.”

Article 213 reads as follows:

“§ 1. The offence specified in Article 212 § 1 is not committed if an allegation made in public is true.

§ 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2; if the allegation regards private or family life evidence of truthfulness shall be admitted only when it serves to prevent a danger to someone ’ s life or to prevent the undermining of the morals of a minor.”

On 30 October 2006 the Constitutional Court, ruling on a legal question referred to it by the Gdańsk District Court, declared Article 212 §§ 1 and 2 of the Polish Criminal Code to be compatible with Articles 14 and 54 § 1 of the Constitution read in conjunction with Article 31 § 3. The Constitutional Court held that in some circumstances the protection of rights and freedoms such as dignity, a person ’ s good name and privacy might prevail over the protection of freedom of expression. The Constitutional Court further found that there was no basis to assume that the protection of personal rights through the civil law alone was as efficient as acting through criminal law. The protection of personal rights by means of criminal law did not by itself infringe the relevant provisions of the Constitution.

COMPLAINTS

The applicant complains in essence that his conviction for 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?