Communicated on 4 September 2017

FIRST SECTION

Application no. 62360/13 S Å‚ awomir SIWY against Poland lodged on 30 August 2013

STATEMENT OF FACTS

The applicant, Mr S Å‚ awomir Siwy , is a Polish national, who was born in 1971 and lives in Nysa .

He is represented before the Court by Mr R. Szymczykiewicz , 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.

The applicant is a customs officer. At the material time he was head of the customs officers ’ trade union ( Związek Zawodowy Celnicy PL ).

On 1 December 2008 the Minister of Finance issued a regulation which limited the import quota concerning numbers of packets of cigarettes to be taken daily through the State border to two packets daily per person.

People whose main economic activity and source of income consisted in carrying lawful numbers of packets throughout the border, sometimes several times a day ( mrówki ), organized a protest against this regulation and blocked the Medyka border cross ing during the night of from 30 November 2008. They protested against the restrictions which undermined their main source of income. The protesters were aggressive. Stones, bricks and bottles were thrown at the customs buildings. The police were called and tried to disperse the gathering. The protest made it difficult for the customs officers to carry out their work as protesters were aggressive towards them.

On 2 December 2008 the applicant in his capacity of Head of the Customs Officers Trade Union gave an interview to a local radio station Radio Rzeszów . He criticized the manner in which the regulation had been issued, claiming that it was illegal. He was of the view that the subject matter should have been regulated by way of a statute.

Parts of this interview were broadcast twice.

First on 2 December 2008 where he stated that reference to the European Union as a source of the restriction was wrong; the UE left considerable leeway to Member States as to the actual number of packets to be allowed to be taken daily through the border. He further said:

“The Ministry introduced this regulation so it is now for the Ministry to see to it in some way that the officers report to work. Being in their shoes, I would not have come.”

On 3 December 2008 another part of the interview was broadcast. It read as follows:

“Q: [The applicant] appealed to the protesters and to the customs officers, but at the same time he had challenged the lawfulness of the amendment in the customs laws.

A: I would like to appeal to persons crossing the border [...] that customs officers bear no responsibility whatsoever for the new regulations, they only carry out their legal duties; which were not always introduced in a lawful way; I will not make any statement as to the well foundedness of the new provisions.

Q: But still you are in favour of the cigarette-carriers.

A: I only challenge the manner in which these provisions were introduced. Article 217 of the Constitution says expressly that all taxes should by introduced by way of a statute.

Q: But not by way of a ministerial regulation, am I right?

A: Yes, but it is not my only point. The public opinion should not be misled that it was ordered by European Union.

Q: We have heard indeed that this was the EU directive.

A: If we want to talk about the directive, it makes a distinction; it gives an alternative, 200 [cigarettes] or 40; it is the state ’ s choice.

Q: May be the State was right, because these carriers did create a problem at the border crossing? Or they didn ’ t?

A: I do not take any stand absolutely about whether these provisions are well-founded or not. My only point is the manner in which they had been introduced; as to the generation of budgetary income, the state should look somewhere else as regards the excise tax.

Q: If you say that these regulations were introduced in an unlawful manner, it means, whatever you say, that you support the carriers.

A: I support principles of the democratic rule of law state, realising social justice principles; I have just quoted the Constitution.”

On the same day, the same station broadcast an official statement prepared by the Customs Officers ’ Trade Union concerning the events. It stated that the union did not support the carriers ’ protest but reiterated the argument that the restrictions had not been introduced using an appropriate procedure.

As certain press publications suggested that the customs officers supported the protest, the applicant sent an email to the radio station asking that such suggestions not be made and that a rectification be broadcast.

On 21 April 2009 the disciplinary spokesman instituted the proceedings against the applicant to clarify whether he had committed a disciplinary offence of neglecting his duties and proper behaviour as a public officer.

On 12 May 2009 the Head of Opole Customs Office instituted disciplinary proceedings against the applicant for public incitement of the customs officers not to report to work and for publicly challenging the Polish legal system and the lawfulness of the regulations concerned.

On 16 February 2010 the Head of Customs Service found the applicant guilty and imposed on him a reprimand with a warning.

The applicant appealed, arguing that he had acted as a head of a customs trade union. He had represented the position of the trade union while giving the interview. He stressed that he had not challenged the legal system but only commented on the procedure in which the regulation had been adopted.

On 11 March 2011 the Head of Customs Service upheld the contested decision.

The applicant appealed.

On 8 December 2011 the Warsaw Regional Administrative Court dismissed the applicant ’ s appeal. The court noted that the 1999 Customs Service Act ( ustawa o Służbie Celnej ) regulated the customs officers ’ duties. Specific regulations concerning the activity of the customs service, the importance of their tasks and their professional responsibility justified the institution of disciplinary proceedings in situations when they failed to execute their duties.

The court pointed out that the applicant ’ s statements had not only concerned the lawfulness of the regulations but also assessed that lawfulness. He had no mandate to do that.

The applicant had at that time been acting in a double role of a customs officer and head of the trade union. This double role did not authorise him to present in public his views on the alleged unlawfulness of the provisions of law concerned and on the alleged unlawfulness of acts of public powers. He could have addressed these concerns to his superiors through official channels which was required also by the principle of loyalty.

The legislator had restricted the rights of customs officers, such as the right to strike and to publicly manifest their political views having regard to their role. Challenging the legal basis of the customs services ’ acts in public was capable of negatively affecting the image of that service. The fact that the applicant, as he had said, had been reacting, when giving the interview, to the requests and concerns of the customs officers scared by the aggressive protest at the Medyka border crossing, did not change the court ’ s assessment. The situation of protest, albeit possibly very difficult, had not justified making a negative public statement by the agent of public services. The penalty imposed on the applicant was therefore fully justified.

The applicant appealed. He relied, inter alia , on Article 10 of the Convention and on Article 54 of the Constitution which guaranteed freedom of expression.

On 15 March 2013 the Supreme Administrative Court dismissed the applicant ’ s appeal, holding that the contested judgment was lawful. It essentially shared the views expressed by the lower court.

It was of the view that the essential legal issue to be examined was whether the applicant ’ s public statement fell within the notion of the exercise of rights that legislation conferred on the trade union. As the head of the trade union, when exercising his right to criticise he had to remain within the limits laid down by law. Under the applicable laws, trade unions had a right to express publicly opinions on bills concerning the tasks of trade unions. However, the trade unions had no right to criticise legal provisions applicable to the general public.

The trade union ’ s task was to represent the professional and social interests of customs officers relating to their service. No legal provision conferred on trade union officials a right to comment on tax legislation concerning all citizens or on issues of public interest. Furthermore, the applicant should have realised that the interview would have a big impact as it was to be broadcast to the general public. Freedom of expression was a fundamental value to the rule of law, but not an absolute value. The criticism expressed by the applicant had no legal basis and could not therefore be accepted.

COMPLAINT

The applicant complains under Article 10 of the Convention that the imposition of the reprimand with warning on him breached his right to the freedom of expression.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention?

2. In particular, to what extent are the duties and responsibilities inherent in the applicant ’ s double role as customs officer and head of the trade union relevant to his complaint and the State ’ s margin of appreciation in this field?