Communicated on 19 January 2015

FOURTH SECTION

Application no. 34598/12 Jarosław KOŚĆ against Poland lodged on 28 May 2012

STATEMENT OF FACTS

The applicant, Mr Jarosław Kość , is a Polish national, who was born in 1942 and lives in Tomaszów Mazowiecki.

A. The circumstances of the case

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

On 29 September 2010 at a village meeting in Jadwigów the residents voted in favour of holding the previous local mayor ( s ołtys ), Mr Z.M., to account for his management of public funds. They appointed the applicant to be in charge of further actions to this effect.

On 7 October 2010 the applicant sent a document to the Mayor of the Tomaszów Mazowiecki District ( Starosta Powiatowy ) titled “Petition” ( “ Wniosek ” ). The text was signed by the applicant and by three other residents of Jadwigów who confirmed their agreement with the petition.

The text read as follows:

“On 27 September in the village Jadwigów a legally valid village meeting took place, during which residents of the village decided by vast majority to appoint me in charge of investigating the doubts detailed below. It took me over one week to figure out a solution to this problem. I came to the realisation that the best way to approach this problem would be to file a petition to the Mayor of the District in order to clarify the issue, even though I had already informed the current local mayor and the Mayor of the Tomaszów Mazowiecki Commune ( wójt ) of the allegations.

The facts and circumstances are as follows.

The local mayor of Jadwigów , Z.M., whose term in office was concluded on the election of the current local mayor, Ms. Jadwiga Giersz , received grants for the benefit of the village from the Commune and accepted payments from the lease of the village shop.

During his term in office, he never asked the residents or the local council for what purpose to use the money. He managed the funds arbitrarily and, I reckon, used them for the purposes of building works- namely, the renovation of the common room ( świetlica – dom ludowy ).

However, he never settled the accounts with the residents of the village; in particular how much money there was and for what it was spent.

There are many rumours going around in the village, which out of respect to your office I will not be repeating. I will only add one more thing, namely that the common room was not accessible to the residents and their children for 10 years.

I consider, therefore, that the petition and the request are both valid.

[ signatures of three residents]

Myself , other signatories of this petition-request, and all the residents believe that, thanks to the Mayor of the District, they will receive a f ull and credible explanation of the circumstances described above.”

The complaint was sent just before the elections to the Commune Council. Z.M. lost the elections by one vote.

The Tomaszów Mazowiecki Commune Council Audit Committee considered the complaint and decided that there were no grounds for the allegations.

On 14 December 2010 Z.M. lodged a civil action with the Piotrków Trybunalski Regional Court against the applicant for infringement of his personal rights. He requested that the court order that the applicant publish an apology in the local weekly newspaper and pay 4,000 Polish zlotys (PLN) to the Voluntary Fire Brigade ( Ochotnicza Straż Pożarna – “OSP”).

On 31 May 2011 the Piotrków Trybunalski Regional Court decided that the applicant had violated Z.M. ’ s personal rights. The court ordered that the applicant send a statement by post to the Mayor of the Tomaszów Mazowiecki District, the Tomaszów Mazowiecki Commune Office ( Urząd Gminy w Tomaszowie Mazowieckim ) and Z.M. stating that:

“I, Jarsosław Kość , apologise to [Mr. Z.M.] for violating his reputation by forwarding to the Mayor of Tomaszów District a document on 7.10.2010 titled Petition , which contained false allegations that the local mayor, Z.M., arbitrarily managed funds for the benefit of the village; that he took, as local mayor, the payments under the lease of the village shop; and the statement that the common room was not available to the residents for the past 10 years.”

In the course of the proceedings the court examined a statement made at the village meeting on 10 February 2011 at which six residents of Jadwigów confirmed that they had all been instigators of the enquiry in October 2010 and which resulted in the applicant ’ s letter to the district authorities. The residents explained that their intention had been to clarify the questions raised, given Z.M. ’ s involvement in the matters of common room ’ s refurbishment and running of the OSP.

The court considered that the applicant ’ s letter from 7 October 2010 contained false information, which supported the finding of a violation of Z.M ’ s personal rights. False information included statements claiming that Z.M., acting as the local mayor, had taken the rent from the lease of the village shop for his personal use. Even if he took any payments he did that as a chairman of the OSP. The court also found that the village shop was located in the building of the OSP and leasehold rent was paid to the OSP through an intermediary (the OSP ’ s Treasurer). Mr Z.M., as Chairman of the OSP, merely set the amount of rent to be paid each year. The court also found that during Z.M. ’ s time in office, the common room was open to the public for use; in that respect it dismissed the testimonies of some witnesses stating the opposite. During that time, there were also building works being carried out in the same building. It was established that nobody, and this included Z.M., received any money in cash for the work. It was also established that the village did not receive any funds directly from the commune. The OPS only received reimbursements from the commune for the renovations.

The court considered that since the applicant had failed to prove the veracity of his accusations and due to their adverse effect on Z.M., this amounted to a violation of the personal rights of Z.M.

On 12 July 2011 the applicant lodged an appeal to the Łódź Court of Appeal. The applicant alleged that the court had not considered that the relevant text was published in the public interest.

On 4 November 2011 the Łódź Court of Appeal dismissed the applicant ’ s appeal. The court underlined that the publishing of false information would result in the violation of a person ’ s personal rights and rejected the applicant ’ s claim that the Petition was merely an expression of doubt concerning the lawfulness of Z.M. ’ s actions when he was a local mayor. The applicant was notified of this judgment on 15 December 2011.

On 1 March 2012 the Piotrków Trybunalski Regional Court issued a writ of enforcement in respect of the final judgment the Regional Court of 31 May 2011. Afterwards the applicant instituted proceedings to quash the enforcement order on the ground of his pending case before the European Court of Human Rights. On 21 September 2012 the Piotrków Trybunalski Regional Court dismissed the applicant ’ s claim. It is not clear if the applicant successfully appealed against this judgment.

In 2011 the applicant, as a newly elected mayor of Jadwigów , continued to transmit residents ’ queries to district authorities regarding the management of public funds.

B. Relevant domestic law and practice

1. Relevant constitutional provisions

Article 14 of the Constitution provides as follows:

“The Republic of Poland shall ensure freedom of the press and other means of social communication.”

Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitu tional rights and freedoms (the principle of proportionality), provides:

“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”

Article 54 § 1 of the Constitution guara ntees freedom of expression. It states, in so far as relevant:

“Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.”

2. Relevant administrative provisions

Article 222 of the Code of Administrative Procedure ( Kodeks postępowania administracyjnego ) provides the criteria for the qualification of a text as a complaint or a petition:

“The deciding factor in determining whether a text is a complaint ( skarga ) or a petition ( wniosek ) is the substance of the text and not its form.”

3. The Civil Code

Article 23 of the Civil Code co ntains a non-exhaustive list of “personal rights” ( dobra osobiste ). The provision states:

“The personal rights of an individual, such as, in particular, health, liberty, honour , freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”

Article 24 § 1 of the Civil Code provides:

“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”

COMPLAINT

The applicant complains under Artic le 10 of the Convention about a breach of his right to freedom of expression. He submits that his letter did not contain any defamatory statements against Z.M. He claims that the letter should have been treated rather as a petition voicing common concerns of the residents of the village.

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?