JOINT DISSENTING OPINION OF JUDGE S WOJTYCZEK AND KŪRIS

1. With all due respect, we cannot accept the majority ’ s finding that there has been a violation of Article 10 of the Convention in the present case. It is our firm belief that, on the contrary, this Article has not been breached.

I

2. We agree that “[t]he use of sarcasm and irony is perfectly compatible with the exercise of journalistic freedom of expression” (see paragraph 45 of the judgment). Indeed, it is not illegitimate for a journalist (and not only a journalist) to use harsh words, particularly when depicting pathologies in the functioning of public institutions. This, however, does not mean that any harsh words can be used, no matter what. Freedom of expression, as clearly transpires from Article 10 § 2, is not unlimited. This freedom should not be used as a cover for insulting other individuals, whatever the gravity of the acts that may be (subjectively) imputed to them by a journalist.

3. In Poland, the litigation focused on the four expressions used by the applicant: “ pozer ”, “ nierozgarnięci szefowie ”, “ palant ” and “ przygłupawy urzędnik ”. In the judgment, these expressions are translated into English as “poser”, “dull bosses”, “numbskull” and “dim-witted official” respectively; however, these word-for-word renderings do not in all cases (and certainly not in the cases of “ palant ” and “ przygłupawy urzędnik ”) convey the equivalent of the emotional poundage carried by the Polish “originals”. We suggest that the English terms “braggart”, “dim-witted bosses”, “jerk/moron” and “dumb clerk/official” would be closer in tone to the Polish text. The insulting nature of these Polish expressions was established by the domestic courts. The latter made their assessment on the basis of their knowledge of the factual situation surrounding the dispute under examination and of the quality of public discourse in the country, but also – and no less importantly! – of the semantics of Polish vocabulary and phraseology. Moreover, the Polish courts provided extensive reasoning to substantiate their findings.

An international court should be extremely cautious in deciding to dismiss such findings by the domestic courts, whereby certain words or phrases are authoritatively held to be beyond the limits of acceptability in a particular society, on the ground that an international instrument (such as the Convention) allegedly allows for the use of certain language. After all, this is a question not only of legal, but also of linguistic and cultural expertise. No international court can have all these competences. It would be false pride to claim so.

4. It is evident that the expressions used by the applicant vary as to the degree of their linguistic intensity and, consequently, as to the punch of the emotional message. This circumstance gives a basis for assessing whether the Convention requires a departure from the findings of the domestic courts. This departure is precisely what the Court resorts to here. It gives precedence not to the meaning of the expressions but to the context in which they were used. We must emphasise this point: the Court ’ s examination of the impugned expressions was not complemented but instead replaced by that of the context, if “examination” of the latter there was at all, which the disquisition below may lead the reader to doubt.

Nevertheless, we do accept that, as a matter of principle, a certain concession as to the admissibility of the expressions used by the applicant can be made by this Court in view, inter alia , of the context in which they were used and the genre of the publication (compare paragraph 44). But (and this goes without saying!) any departure from the findings of the domestic courts as to the inadmissibility of the use of certain expressions must, in order not to be arbitrary, be argued thoroughly, and as a minimum no less thoroughly than by the domestic courts .

5. Proceeding now to the assessment of the expressions which gave rise to the present dispute, we acknowledge that two of them, namely “ pozer ” and “ nierozgarnięci szefowie ”, although harsh and unpleasant when taken in isolation from their context, may fall within the limits of freedom of speech protected by Article 10.

At the same time, in Polish, “ palant ” and “ przygłupawy urzędnik ” are insulting expressions. A Pole , if described as a “ palant ” or “ przygłupawy urzędnik ”, would feel scorched, affronted, piqued. The Polish courts have authority to rule that, under domestic law, the use of these expressions is not justified even in the context of the most critical political message and irrespective of the genre in which the message is clothed. If authority to decide on these matters does not lie with the domestic courts, then with whom can it lie at all? The Strasbourg Court ’ s role is but to respect the judicious judgment of the domestic courts in such cases. In terms of the margin of appreciation, the margin enjoyed by this Court is incomparably narrower than that enjoyed by the domestic courts. After all, the national courts are, and always will be, peerlessly better equipped than this Court to judge what is insulting to a native speaker .

II

6. We could stop here, because if the domestic courts have found that a certain expression in the language of that country contaminates public discourse to an extent that is intolerable, that ’ s it . No further discussion is required. Nonetheless, in order to be fully consistent in our own reasoning, we cannot ignore those arguments which point to the opposite conclusion and which others may find important and convincing. Having conceded that the use of two of the expressions under consideration may, in the specific context of the case, be protected by Article 10, we must, accordingly, deal also with the use of the remaining two – not only by “declaring” them inadmissible (as we have already done, relying on the Polish courts ’ authoritative expertise), but also by looking into whether any weighty arguments were put forward by the majority to justify the departure from the domestic courts ’ findings regarding the use of these two other expressions and to substantiate the finding of a violation of Article 10 in this case.

So let us go all the way. Let us follow the reasoning of the majority. Its reasoning is grounded not only in the presumption that the impugned expressions must be analysed in the context of the whole text (as already mentioned in paragraph 2 above), but also in the (related) presumption that even expressions that are seemingly intolerable per se may enjoy the protection of Article 10 on account of the context in which they were used and/or the genre of the publication. The majority suggests ( inter alia , in paragraph 44) that the general sharp tone of the article waters down the personality ‑ debasing impact of the impugned expressions.

Let us verify whether this has been proven in the present case.

7. The impugned utterances were part and parcel of an article published in the local press. The entire article was written in very sharp terms and in a sarcastic tone. The majority finds the article to be permeated with irony and, without even a semblance of analytical consideration, equates it with satire (see paragraphs 40, 44 and 45). They emphasise this feature of the article to such an extent that it seems as though it were in itself a legitimate excuse for all the words and phrases used in the publication. We shall come back to this “excuse” argument a bit later. But before we do so, however, we must admit that, in our opinion, the article in question really does contain some irony, even a considerable amount. Its classification as satire, however, is far from equally obvious. Not every emotional text bulging with sarcasm and angry irony is a satire, just as not every text written in verse amounts to poetry. Although, of course, it is not for legal professionals (not excluding us judges) to have the final say on whether this article (or any other publication) may be correctly qualified as satire, we nonetheless doubt that many literary critics would easily agree with such a classification, so abruptly pronounced by the majority. But even if the article can be described as satirical, as the majority suggests, the fact of being satire cannot represent such a privilege that it can, in itself, absolve the author of any responsibility for the words and phrases employed in the publication. The fact of being satire is not absolution . There are satires that can be tolerated and satires that simply cannot be tolerated. This applies equally to a joke, a comedy, a grotesque, a lampoon, a parody, a caricature, an internet meme... the list can be extended. True, the limits of admissibility of language (and images) in these genres are very broad, even exceptionally broad, but they are by no means non-existent .

8. After all, the legal issue brought before the domestic courts and also before this Court is not only the article as a whole, but – first and foremost ! – the specific expressions employed in that article. The courts, not excluding this Court, are sometimes criticised for failing to see the forest for the trees. But when attempting to see the forest, courts, including this Court, should also not lose sight of the trees which make up the forest. Freedom of expression – fine; but in every specific case the Court has to deal with specific expressions.

9. What is important from the perspective of judicial reasoning is that the majority ’ s reasoning which has led to the finding of a violation of Article 10 is clearly flawed .

This entire reasoning, or at least the heart of it, is contained in one single paragraph (no. 45) and consists of only three quotes from the Court ’ s case ‑ law (references to the relevant cases are omitted in this opinion) and – as we will describe it – a “conclusion as to the admissibility of the expressions used”. The latter precedes the arguments, which ex post substantiate that conclusion, but this structural technicality is not in itself a flaw.

Let us reiterate the arguments of the majority in a somewhat schematic – but adequate – form:

Argument no. 1 : “[S]atire is a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate”.

Our questions: Must satire “naturally”, necessarily, be also insulting ? Must that exaggeration, distortion, provocation or agitation “naturally” be personality-debasing ? And regarding the “satire” under consideration in this case: had the expressions “ palant ” or “ przygłupawy urzędnik ” been kept in storage, would this have deprived the article of its property of “satire”?

Argument no. 2 : “[A]ccordingly, any interference with the right to use this means of expression should be examined with particular care”.

Our questions: Does this requirement apply only to domestic courts, or to this Court, too ? Does it apply to this Court ’ s reasoning in this particular case? If not, on what legitimate ground does this Court enjoy such a franchise?

Argument no. 3 : “The use of sarcasm and irony is perfectly compatible with the exercise of a journalist ’ s freedom of expression”.

Our questions: Must sarcasm (like satire) necessarily be insulting? And can the mere fact that an insulting expression is sarcastic in and of itself tone down the personality-debasing impact of that expression?

These three highly general arguments, completely detached from the specific circumstances of the case, allow the majority to reach the “conclusion” that the specific expressions in question were admissible. That “conclusion” is phrased in the following way: “In the Court ’ s view, without taking a stand on each specific remark made by the applicant, there is no doubt that the remarks in question, used in the particular context of the article, remain within the limits of admissible exaggeration.”

10. What is most striking in this sequence of legal reasoning is that the majority, having itself stated that “ any interference with the right to use this means of expression should be examined with particular care” (Argument no. 2; see paragraph 9 above), stops right there . The majority itself does not examine the impugned expressions “with particular care”. It does not examine them with at least some care . It does not examine them at all . To use the term employed in the “particular care” clause which constitutes the essential part of Argument no. 2, the majority does not care .

Moreover, it explicitly refuses to examine the impugned expressions and the interference with the freedom to use them. It does this by announcing that it is not “taking a stand on each specific remark made by the applicant”. However, this careful and sleek wording fails to convey the actual “methodology of examination” of the expressions in question: it is not “each specific remark” on which the majority fails to take a stand, but on all of the remarks, because none of them is examined. For the majority, examination of any of the impugned remarks is not necessary, notwithstanding the requirement, set out immediately before, that these issues have to be examined “with particular care” .

This conclusion is reached after the Court has reminded itself of its obligation to “ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations were made, a right which, as an aspect of private life, is protected by Article 8 of the Convention” (see paragraph 39). How any balancing of rights, let alone a fair one, can be struck without “taking a stand on each specific remark made by the applicant” remains a mystery.

11. To be very precise, the “conclusion” dealt with here also includes an argument. It would make little sense to categorise it as an “autonomous” “Argument no. 4”, because it is the culmination of the three arguments mentioned (see paragraph 9 above). That argument is: “there is no doubt”.

We shall not expand on the dubious force of this argument, a masterwork of uncritical perspective: when, for the Court, “there is no doubt” even “without taking a stand” on the matter, legal reasoning is in deep trouble. As are personality rights.

12. Thus, the entire reasoning leading to the finding that the use of the impugned expressions was admissible under the Convention boils down to one simple argument . That purified real argument is the following: the published text is “satirical” (because the majority has labelled it so), and for this sole reason the use in that text of virtually any harsh language is a priori admissible. This is what the principal and only argument of the majority looks like, once it has been sifted out from the description of the facts of the case and the “general principles” which ought to have been (but were not) applied to it, as well as from some other textual ornaments.

In order to ensure that the formula “virtually any harsh language is a priori admissible” is not misunderstood as being too absolutist and, therefore, baselessly accusatory, we must stipulate that we do expect that the majority would allow such exceptions from the all-permissibility of “satirical” language as a form of persecution for instances of hate speech or incitement to violence and for other abusive attacks of that sort, which would not be prevented by the “satirical” nature of the message. But this caveat is immaterial to this particular case and to our considerations, and thus we shall not repeat it on every occasion further in this opinion.

13. True, the judgment also contains, passim (paragraphs 40, 42–44), some other considerations, but they do little (if anything) more than merely repeat and extend the arguments mentioned above, in § 9. The additional considerations pertaining to “the nature and severity of the penalty imposed” on the applicant (see paragraph 46) are of a somewhat different content. Still, even these penalty-related considerations are clearly not decisive for the outcome of the case. They are secondary, because the severity of the penalty simply cannot be considered in any meaningful way if the offence for which that penalty was imposed is not considered .

14. Time and again in the Court ’ s case-law (but, most fortunately, not all of its case-law!), the principal argument described above (see paragraph 12) stems from the conviction that Article 10 is the “star Article”. This conviction, which, to our regret, emerges time and again in Article 10 cases, is never openly acknowledged, but even a very simple analysis will unveil it from the canopy of simulated argumentation and divulge the mindset behind it. That this is the underlying conviction is clear from the “there is no doubt” argument (see paragraph 11 above). When confronted with freedom of expression, and in particular freedom of the press, all other values become subordinate, if they remain at all. (On this approach, with which we could not disagree more, we refer to our joint dissenting opinion in Fürst-Pfeifer v. Austria (nos. 33677/10 and 52340/10, 17 May 2016)). The majority states that an “individual who takes part in a public debate of general concern ... must not overstep certain limits, particularly with regard to respect for the reputation and rights of others” (see paragraph 44). Correct words! But there is not a single hint indicating these limits to be found in the judgment; instead, the majority is satisfied that “a degree of exaggeration or even provocation is permitted” and that “a degree of immoderation is allowed” (see paragraph 44). What degree?

For the majority, it is not necessary to address this issue, b ecause the “ satirical article [dealt with] the exercise of the local officials ’ functions, [which was] a matter of legitimate public interest”, and thus “concerned a sphere in which restrictions on freedom of expression are to be strictly construed” (see paragraph 40), as if dealing with a matter of legitimate interest is yet another ground for absolution (like being satirical in nature; compare § 7 above) from any responsibility for the words and phrases employed in the article. In reality, this “strictly construed”, in the context of the majority ’ s entire reasoning as examined above, means “not allowed”.

15. The bottom line of our approach is that neither the context of the expressions, nor the genre chosen by the author, can by itself whitewash personality-debasing nature of the expressions used in the article.

16. The context of a publication may justify the use of even the harshest expressions, but only on condition that the expressions themselves are analysed and assessed . The requirement to look into the context does not mean that the obligation to look into the content of the text disappears. Even the loveliest forest (when regarded from a distance) may have warped or even disease-infested trees. There are spots even on the Sun. The Court is never absolved from the obligation to look into the specific circumstances of the case, and cannot be satisfied with only “the picture in general”. We repeat (compare paragraph 4 above): in order to justify the use, in a publication, of expressions recognised by the domestic courts as insulting, a thorough argumentation as to the meaning and weight of these expressions is indispensable. The Court itself has unequivocally recognised such an approach (see paragraph 35 below). Otherwise the judgment will be based on a fiat , and a fiat is not a legal argument . What is more, it is not an argument at all – it is permission, authorisation, approval, endorsement, and nothing more.

One may also ask whether the Court really considers that the context of a publication can only serve to justify the use of harsh expressions. Isn ’ t the opposite possible too? We believe that it is. Still, our reading of this judgment is that, in the view of the majority, only one-way traffic is allowed in such cases. However, analysis of the article in question and its context , as provided by the domestic courts (see paragraphs 19–26 below), allows for the conclusion that, in the circumstances of the case, the wider background does not reduce the personality-debasing impact of the impugned expressions, but rather amplifies it.

17. Now, to the genre of the publication. The same message, including that of political criticism, can be transmitted to the public using various genres. One of them is satire. It is a matter of choice of strategy as to which genre, in the message sender ’ s opinion, is most suitable for making the message more resonant for the addressee, and thus more effective. In other words, it is a matter of choosing the means towards the end. The choice of genre is the means, and transmitting a message with a particular content is the end.

We wish nevertheless to maintain that in the European civilisation of the XXI century it is an incontestable truth, both of political morality and legal justice, that the means do not justify the end . It appears that the present judgment is based on the opposite methodology: everything is forgiven if the “correct” strategy is chosen by an author, that is, the strategy which provides a priori absolution for whatever language is employed. Thus, the choice of the “correct” genre of an article is to adopt the genre which, in the author ’ s opinion, will not only can make that article more effective, but also can absolve the author from any responsibility for the words and phrases employed in it. In this respect, satire becomes the genre of genres. Form rules over content.

18. The above considerations, especially those pertaining to the absence of arguments on the most important merits of this particular case and the majority ’ s refusal to examine the impugned expressions, in particular “ palant ” and “ przygłupawy urzędnik ”, allow us to conclude that it is proven that the majority ’ s finding of a violation of Article 10 is not proven .

III

19. But there is more to it than that. In sharpest contrast to the real argument on which the finding of a violation of Article 10 is based (see paragraph 12 above) and the sequence of reasoning in this case, one finds the majority ’ s reproaches to the Polish courts. These reproaches are pronounced three times in the judgment:

Reproach no. 1 : “ With regard to the classification of the statements in issue, the Court notes that the domestic courts did not take a clear position in this respect” (paragraph 43).

Reproach no. 2 : “[I]t appears that the domestic courts did not take sufficient account of these features [i.e. “the satirical nature of the text and the irony underlying it”] (paragraph 44).

Reproach no. 3 : “[T]he domestic courts did not give “relevant and sufficient” reasons to justify the applicant ’ s conviction and sentence for insult” (paragraph 47).

20. Reproaches nos. 1 and 2 could be taken as serious, legitimate and even weighty, had the Court itself taken “relevant account” of all the elements of the case and had it itself given “relevant and sufficient reasons” to justify its own finding.

As we have seen, it has even refused to look into the matter . How, in such a case, can these reproaches convince anyone?

Moreover, Reproach no. 2 speaks of the “features”, but the reference provided is not to the circumstances of the case under consideration, but to a different case against Poland, decided as long ago as 2005 and pertaining to something which occurred as far back as 1995. Has the Court assessed the possible changes in the quality of public discourse in that country, which are also an important aspect of the context of the publication? No. There is a quote, imitating analysis, and that solves everything.

As to the domestic courts ’ alleged lack of a “clear position ... [w] ith regard to the classification of the statements in issue”, we believe that it was as clear as it could be: the applicant ’ s “statements” were found to be insulting and personality-debasing, and this is why he was convicted. But what is most important, and even shocking, is that this reproach is flung at the domestic courts by the Court, which has declared that it itself is not even going to “ tak[e] a stand on each specific remark made by the applicant”.

This is what some would call a double standard .

21. But perhaps the reproaches are not baseless in themselves , even if the Court failed itself to abide by the requirements it addresses to the domestic courts, and thus does not comply with its own standards?

22. For our part, we note that although the domestic courts did not elaborate in very great detail on the context of the impugned expressions, they nonetheless referred to the text as a whole and to the tone of the entire publication .

23. Moreover, the impugned expressions should be analysed not only in the context of the text as a whole, but also in the broader social context in which the article was published. The trial court, unlike this Court, took account of this aspect of the case. In particular, it established that the article in issue had been part of a broader campaign conducted by the newspaper against the officials-turned-private-prosecutors (see paragraph 15).

Did the majority pay heed to this most important factual circumstance? No. The Polish courts did.

24. One more aspect, which is particularly relevant to the present case but also to other similar cases, must be mentioned (it was briefly touched upon in § 14 above). As rightly held by the majority (although not directly stated in the judgment), the article addressed issues of legitimate public interest and contributed to a debate of general concern (compare, inter alia , paragraphs 40, 44 and 46). At the same time, the attitudes, statements or actions of the individuals attacked by the author of the article have also to be taken into consideration. Nothing in the case file even dimly suggests that the use in the article of not merely critical, harsh or exaggerated, but of insulting and personality-debasing expressions was a reaction to any provocative attitude or statement, or other behaviour by any of the individuals concerned.

Did the majority take this circumstance into account? Again, no – unlike the Polish courts.

25. Lastly, the reasoning in the domestic judgments shows that the Polish courts were well aware of the importance of freedom of expression and the difficulties in adjudicating in cases concerning freedom of speech. The district court unambiguously underlined the sensitivity of those matters. It also referred to various Polish and international documents whereby standards of journalistic ethics are defined, including the 1980 Mexico Declaration, the 1983 Paris Declaration and the 1993 Resolution no. 1003 of the Parliamentary Assembly of the Council of Europe “The Ethics of Journalism”. Against, inter alia , that background, the district court found that the applicant had breached the rules of journalistic ethics .

Did the majority take any position on these issues of journalistic ethics? None at all.

26. To sum up, we see that the Polish courts took into account:

(i) the contents and the weight of the expressions in issue;

(ii) the context (in its different manifestations) in which these expressions were used;

(iii) the international standards of journalistic ethics.

27. To all these considerations, this Court responds by:

(i) the mantra, consisting of three powwows from its case-law, detached from the circumstances of the case (compare paragraph 9 above); and

(ii) the “conclusion” that “there is no doubt that the remarks in question, used in the particular context of the article, remain within the limits of admissible exaggeration” (compare paragraphs 9 and 10 above).

In fact, the Court fails to respond on the merits. It sticks on labels: “ did not take a clear position”, “did not take sufficient account”, did not give “relevant and sufficient” reasons”. An imitation of analysis.

28. Moreover, the quotations from the Court ’ s case-law by which the majority replied to all of the reasoning advanced by the domestic courts, are not only detached from the specific circumstances of the case – they are arbitrarily selective . The representation given of the Court ’ s doctrine in this judgment is categorically and wantonly one-sided , whereas that doctrine is much richer and much more balanced and nuanced than the singling-out and exceptional underlining of the “strict construction” clause (see paragraph 14 above) suggests.

For instance, although Article 10 § 2 explicitly mentions the “duties and responsibilities” of those exercising their freedom of expression, the majority (as in Fürst-Pfeifer v. Austria (cited above)) found no need even to mention the notion of responsible journalism, although this case is, essentially, about responsible v. irresponsible journalism. The majority limited itself, in paragraph 38, to general references to some paragraphs of Pentikäinen v. Finland ([GC], no. 11882/10, ECHR-2015) and Bédat v. Switzerland ([GC], no. 56925/08, 29 March 2016), the judgments in which the Court expanded on this principle. Note that the paragraphs indicated in the references are not the paragraphs in which the principle of responsible journalism is dealt with!

This sparing methodology, by which the “general principles” which ought to be applied to the case are only implicitly embarked upon by referring to the Court ’ s case-law, is not defective in itself. But if some of the tenets, such as the principle of responsible journalism, are ingeniously cold ‑ shouldered, while others, such the “strict construction” clause, are emphasised (compare paragraph 14 above), this is nothing other than a resourceful misrepresentation of the Court ’ s doctrine. We suspect that this misrepresentation has a lot to do with the threatening conviction that all other values must give way to freedom of expression, and in particular freedom of the press (see paragraph 14 above).

Such an approach, and this judgment in particular, tends to impoverish the Court ’ s doctrine. It also sets a pattern of reasoning which, we believe, the Court would not itself ever openly recommend to the domestic courts, and which it would not approve if the domestic courts, whose decisions this Court has to scrutinise, were to use it.

IV

31. For the reasons set out above, we conclude that the Polish courts did not infringe upon the applicant ’ s rights under Article 10 when they found that certain of the remarks in question, namely “ palant ” and “ przygłupawy urzędnik ”, used in the particular context, infringed upon the rights of third persons and, thus, overstepped the limits of freedom of expression. That infringement is obvious. The criminal conviction of the applicant remained within the limits of margin of appreciation of the member State. Even if the criminal act imputed to the applicant could have been qualified by the Polish courts more narrowly, without reference to the expressions “ pozer ” and “ nierozgarnięci szefowie ”, the domestic law provided sufficient grounds for convicting the applicant of insult. Even if, more often than not, criminal responsibility is not the most desirable or adequate way to counter abusive speech and react to it, its invocation in instances of arrant personality debasement falls within the margin of appreciation of the national authorities. Thus, we are unable to follow the majority in concluding that there has been a violation of Article 10.

32. The present case raises a truly general concern. Abusive speech hurts, and it may even kill. It is necessary to strike the correct balance between freedom of expression and the other fundamental rights and values which may conflict with it, including personality rights. The Court ’ s long ‑ standing case-law has accepted even very harsh utterances in the press, by emphasising the freedom of the press in the event of conflict with other fundamental rights and values, including the right to human dignity. Nonetheless, we would be unable to allege in many of these cases that such acceptance was unfounded, or, as a minimum, that it was not reasoned.

The present judgment , however, is unreasoned . It cannot strike the above-mentioned balance because it does not search for balance . In this respect, it is in stark contrast even with this Court ’ s most far-reaching toleration of harsh language. It assures journalists that, despite the use of insulting, personality-debasing expressions, no legal sanction, even that provided for in the clearest domestic law, may be imposed on them. By the Court ’ s casual decision, foul-mouthed ribalds are encouraged to make use of their freedom of expression in such a way that that freedom knows virtually no limits.

33. What is more, in the Polish context, this judgment is even more sadly ironic and sinister. It sends a clear message to Polish society that insults such as “ palant ” and “ przygłupawy urzędnik ” will be considered, by this Court, as acceptable in public debate in the future. Great achievement.

34. This is a slippery slope. This risks provoking a snowball effect, and the “initial” snowball is being made by this Court. This snowball is doomed to gain mass and momentum, as it rolls down to crush what has been built by civilised people. The majority defends the impugned article as “satire [which] aims to provoke and agitate” (see paragraph 45). In fact, what it itself does is to provoke and agitate, no less than any satire, good or bad, tasteful or tasteless, would do.

This judgment contributes to the brutalisation of political speech in Europe and to the decline in the standard of public debate .

It is absolutely necessary for the Court to revisit its approach to situations such as that assessed above – but not properly examined in the judgment.

35. In this context, let us remind ourselves that the Court ’ s own standard in Article 10 cases is that “[w] here the balancing exercise between [the] rights [under Article 10 and Article 8] has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts” (see, among other authorities, Axel Springer AG v. Germany [GC], no. 39954/08, § 88, 7 February 2012, and the case-law cited therein). This tenet has been repeated, more or less verbatim, in numerous cases, most recently in Bédat v. Switzerland [GC] (no. 56925/08, § 54, 29 March 2016; see also the case-law cited therein).

Where are these “strong reasons” in this judgment? There are none . And there is no balancing of rights, not even a trace of it. Only a fiat , rooted in the a priori conviction of the exceptionality of the rights protected under Article 10 vis-à-vis personality rights and all other values protected by the Convention.

36. To conclude, this judgment is a perfect example of how the Court disregards its own standards .