FIRST SECTION

DECISION

Application no. 8341/20 Mariusz WOŁOSZ against Poland

The European Court of Human Rights (First Section), sitting on 7 November 2023 as a Committee composed of:

Ivana Jelić , President , Krzysztof Wojtyczek, Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 8341/20) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 January 2020 by a Polish national, Mr Mariusz Wołosz, who was born in 1977 and lives in Bytom (“the applicant”), who was represented by Mr P. Łabno , a lawyer practising in Katowice;

the decision to give notice of the application to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the criminal conviction of the applicant, a member of Bytom City Council and of the Civic Platform political party. In 2016 and 2017 he published on his Facebook page several entries criticising the then Mayor of Bytom, D.B., who lodged against the applicant a private bill of indictment containing ten different charges, corresponding to the entries published by the applicant.

2. On 21 January 2019 the Bytom District Court acquitted the applicant of eight charges and found him liable for defamation of D.B. on account of two entries he had made on his Facebook page on 7 January and 15 April 2017. The court considered that the entries contained statements of fact rather than value judgments and that their veracity had not been proved by the applicant.

3. It further analysed in detail all the impugned entries and found that eight of them were protected by the applicant’s freedom of expression. It heard witnesses and analysed the relevant documents to which the applicant’s entries referred. It further made references to this Court’s case-law and performed a balancing exercise weighing the applicant’s freedom of expression against the other person’s respect for his good name and privacy.

4 . On 30 July 2019, following the applicant’s appeal, the Katowice Regional Court amended the challenged judgment and acquitted the applicant of the charge concerning the entry he had published on 7 January 2017. The court upheld the judgment as regards the entry of 15 April 2017. Consequently, it reduced the penalty imposed on the applicant by half. He was finally sentenced to a fine of 900 Polish Zlotys (PLN – approximately 225 euros (EUR)) and PLN 500 (approximately EUR 125) to be paid to the Polish Red Cross as a form of punitive damages.

5 . The entry of 15 April 2017 entitled “ Themis is blind, but are the prosecutors and the police blind too ?” contained references to an arrangement ( układ ) between D.B. and the local police and prosecution service. The court considered that the applicant had not only indicated that there was an arrangement and some negligence on the part of the local authorities but had combined these two elements with a causal link, that is, according to the published entry, the negligence existed because of the arrangement in which D.B. was involved. The court classified that entry as a statement of fact which was not proved by the applicant and therefore amounted to insinuation, which was defamatory to D.B. It held that the publication of untrue information was not protected by the applicant’s freedom of expression and did not serve any public interest.

6. The applicant complained, under Article 10 of the Convention, that his right to freedom of expression had been violated.

THE COURT’S ASSESSMENT

7. The Court notes from the outset that the parties agree that the domestic courts’ judgments convicting the applicant amounted to an interference with the exercise of his right to freedom of expression. The Court sees no reason to conclude otherwise. Moreover, the interference was “prescribed by law” since it was based on Article 212 of the Criminal Code, and pursued a legitimate aim, namely the protection of the reputation or rights of others. It remains to be established whether the interference complained of was necessary in a democratic society.

8. The applicant, a member of Bytom City Council, was charged with a private bill of indictment lodged by D.B., the Mayor of Bytom, with ten different counts of defamation for ten entries, allegedly defamatory to D.B., that he had published on his Facebook page.

9. The applicant was finally acquitted of nine charges and convicted of only one charge of defamation for the entry he had published on 15 April 2017. The courts classified that entry as a statement of fact which the applicant had failed to prove was true.

10. Admittedly, it may sometimes be difficult to distinguish between assertions of fact and value judgments. However, in the present case, the Court agrees with the domestic courts and considers that the applicant’s entry of 15 April 2017, which contained references to an arrangement between D.B. and the local police and prosecution service (see paragraph 5 above), amounted to specific allegations of fact, which as such were susceptible to proof (see McVicar v. the United Kingdom , no. 46311/99, § 83, ECHR 2002 ‑ III). Those allegations therefore required substantial justification which the applicant was unable to provide.

11. The domestic courts held that the publication of untrue information was not protected by the applicant’s freedom of expression and did not serve any public interest (see paragraph 5 above). The Court considers that the reasons given by the domestic courts were “relevant” and “sufficient” to justify the interference.

12. The Court further reiterates that, in view of the margin of appreciation left to Contracting States, a criminal measure as a response to defamation cannot as such be considered disproportionate to the legitimate aim pursued (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, §59, ECHR 2007 ‑ IV, and Długołęcki v. Poland , no. 23806/03, § 47, 24 February 2009).

13. Lastly, the nature and severity of the penalty imposed are factors to be taken into account when assessing the proportionality of the interference (see, for example, Sürek v. Turkey (no. 1 ) [GC], no. 26682/95, § 64, ECHR 1999 ‑ IV, and Chauvy and Others v. France , no. 64915/01, § 78, ECHR 2004 ‑ VI). In the present case the applicant was ordered to pay a moderate fine and some punitive damages (see paragraph 4 above). Moreover, the criminal proceedings against the applicant had their origin in a bill of indictment lodged by the local politician himself and not by a public prosecutor (compare and contrast Długołęcki , cited above, § 45).

14. In view of the above, the Court finds that the domestic courts properly balanced the various interests concerned. Consequently, they did not overstep their margin of appreciation and there was a reasonable relationship of proportionality between the measures applied by them and the legitimate aim pursued.

15. It follows that the present application is manifestly ill ‑ founded within the meaning of Article 35§ 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 November 2023.

Liv Tigerstedt Ivana Jelić Deputy Registrar President