DISSENTING OPINION OF JUDGES FELICI AND KTISTAKIS

We regret that we are unable to agree with the majority of the Court that the applicant’s criminal conviction, which resulted in the imposition of a fine, was compatible with Article 10 of the Convention, for the reasons stated below.

1. The applicant denounced, by means of private letters (see paragraph 6 of the judgment) sent exclusively to competent State authorities (the Tax Office, the Supreme Audit Office, the Regional Prosecutor and the President’s Office), matters relating to financial and employment shortcomings on the part of his employer, a State museum, and the director of that museum. Thus, the objective conditions of the criminal offence of defamation are not fulfilled, in that the impugned statements could not, if only because of their private character, “lower the standing ... in the public’s opinion or undermine public confidence ...” (Article 212 § 1 of the 1997 Polish Criminal Code; see § 31 of the judgment). It follows that the restriction on the applicant’s freedom of expression was not provided for in the national criminal law.

2. Further, the restriction did not serve a legitimate aim. First, the aim of “ensuring the proper functioning of public institutions” (see paragraph 77 of the judgment) is not, as such, one of the legitimate aims exhaustively listed in Article 10 § 2 of the Convention (see Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, § 140, ECHR 2012 (extracts)). Furthermore, the aim of preserving the “good name of the Museum of Hunting and Equestrianism” (see paragraphs 77 and 93 of the judgment) cannot be considered as part of “the protection of the reputation or rights of others”, when issues of financial and employment transparency within the public-law legal entity in question were raised exclusively and privately before the competent State authorities. The present case differs from the Court’s relevant case-law about universities, where the issues of concern concerned exclusively academic professional standards and were raised in public (see Kharlamov v. Russia , no. 27447/07, § 29, 8 October 2015; Sorguç v. Turkey , no. 17089/03, § 35, 23 June 2009; and Kula v. Turkey , no. 20233/06, § 38, 19 June 2018). Finally, the aim of “protection of [the] rights of others – namely, the good name of the director of the museum and of the other members of the management” (see paragraphs 77 and 93 of the judgment) is not fulfilled in the present case, because the director and the other members of the management board were not a party to the impugned criminal proceedings and they never brought any civil action against the applicant (see paragraph 11).

3. Finally, with regard to the proportionality of the restriction on the applicant’s freedom of expression, the Court’s case-law attaches considerable importance to the audience targeted by the impugned statements (see, for example, Grigoriades v. Greece , 25 November 1997, § 47, Reports of Judgments and Decisions 1997 ‑ VII; Kazakov v. Russia , no. 1758/02, § 29, 18 December 2008; and Sofranschi v. Moldova , no. 34690/05, § 33, 21 December 2010). As mentioned at the beginning of our opinion, the applicant addressed his complaints by way of private correspondence only to the competent State officials and did not make them known to the general public. We consider that this element is crucial in assessing the proportionality of the interference. In our view, citizens should be able to notify, at least privately, competent State officials about the conduct of civil servants which to them appears irregular or unlawful, because this is one of the precepts of the rule of law (see Zakharov v. Russia , no. 14881/03, § 26, 5 October 2006; Bezymyannyy v. Russia , no. 10941/03, §§ 40-41, 8 April 2010; and LeÅ¡ník v. Slovakia , no. 35640/97, § 60, ECHR 2003 ‑ IV)). In consequence, we conclude that the restriction on the applicant’s freedom of expression was not necessary in a democratic society.