JOINT DISSENTING OPINION OF JUDGES WOJTYCZEK AND POLÁČKOVÁ

1. With all due respect to the majority we do not share their view that Article 10 has been violated in the instant case.

2. In this case, the applicant, acting as “advocate” (one of the regulated legal professions in Poland) for a client, lodged a criminal complaint alleging corruption. The primary basis for the allegation was the irrationality of measures taken by the prosecuting authorities in a criminal case. The public prosecutor and later the relevant disciplinary tribunals concluded that the complaint lacked supporting evidence. The public prosecutor refused to open an inquiry, a decision which the applicant’s client appears to have accepted in so far as no appeal was lodged against the refusal. The lodging of the unsubstantiated complaint was subsequently held to be a breach of professional ethics. As a result, the applicant was sanctioned by the Disciplinary Court of the Warsaw Bar Association (that is to say, by the members of his own profession) for professional misconduct.

We note in this context that the “authorities” to which the judgment refers and which it holds responsible for a violation of the Convention are professional bodies independent of the State. Specifically, the violation of the Convention is said to have been committed by the professional bodies of the Polish Bar.

We also observe that the prosecuting authorities reacted in a very predictable manner to the complaint received, given that it was based solely on the subjective belief of the applicant’s client. On top of that, the document sent by the applicant increased the prosecuting authorities’ workload, whereas it is difficult to see any real benefit that he obtained for his client by sending it.

3. The applicant complained to the Court of a breach of Article 10. Of particular note in this regard is that the speech at issue was that of an advocate acting for his client. The protection which Article 10 extends to advocates acting on behalf of their clients exists first and foremost to serve the interests of those clients. Advocates’ freedom of speech is therefore limited in that they are bound by the interests of their clients and by the instructions those clients give. An advocate representing a client is speaking on behalf of that client and for the purpose of effectively defending the client’s – not his or her own – interests. Moreover, advocates’ clients are entitled to legal services of a certain quality and may reasonably expect the statements contained in documents lodged on their behalf to be supported by a modicum of evidence or argument. The fact that advocates provide services in the form of speech does not exempt them from scrutiny to ensure their compliance with professional standards. The balancing of values under Article 10, as it applies to advocates’ speech, must take these considerations into account and must be tailored accordingly.

4. The instant case also concerns the right of certain qualified independent service professions, known in some jurisdictions as the “liberal professions”, to self ‑ government and self-regulation. Such professions are entitled to regulate their members’ conduct and the quality of the services they provide. In particular, the liberal professions are in principle entitled to determine what amounts to proper professional conduct and what does not. They have the task of ensuring the adequate quality of the services provided. Even if the right of such professions to self-government is not itself protected by the Convention, the various public values underlying it have to be taken into account in the assessment of the Convention compatibility of measures interfering with Convention rights.

This case reveals the diversity of traditions and approaches which subsists in the domain of professional self-regulation. The majority’s conclusion implies that an advocate who reports a criminal offence without adducing a modicum of evidence to substantiate his allegations is acting within the rules, so to speak, of the legal game. The bodies of the Polish Bar, conversely, regarded such behaviour as foul play and hence as a breach of professional ethics. In our view, this diversity of traditions and approaches in Europe is a source of enrichment and should be taken into account in the application of the Convention.

5. Any criminal complaint must be based on a modicum of evidence that the offence reported was actually committed. In the case of Wojczuk v. Poland (no. 52969/13, 9 December 2021) the Court expressed the following view, to which we fully subscribe:

“97. The Court does not lose from sight the fact that calumnious denunciations to the competent authorities may result in investigating measures and may have very serious detrimental effects for the persons concerned, causing unnecessary stress and anxiety. Moreover, calumnious denunciations mean that the competent investigating or audit authorities can use more limited resources for the purposes of investigating or auditing other irregularities in the functioning of public authorities.”

Similarly, criminal complaints which are not sufficiently substantiated may have detrimental effects for the persons concerned and may put needless strain on the already limited resources available to prosecuting authorities.

The majority express the following views at paragraphs 47 and 50:

“... The Court observes that where, as in the present case, the allegations are contained in a formal notification addressed to the competent superior public official (district prosecutor), it is only in the most exceptional circumstances that recourse to criminal or disciplinary proceedings against the person filing such a notification can be justified within the meaning of Article 10 of the Convention (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; Zakharov , cited above, § 23; and Sofranschi v. Moldova , no. 34690/05, § 33, 21 December 2010). ...

... it cannot be said that the applicant failed to substantiate, to the extent permitted by the circumstances, that the information he disclosed was accurate and reliable (contrast, mutatis mutandis , Gawlik , cited above, § 78).”

We observe in this regard that the phrase “the most exceptional circumstances” does not appear in any of the previous judgments referred to by the majority. To put a finer point on it, the existing case-law neither applies nor implies a “the most exceptional circumstances” test. This is a new standard created ad hoc and unsupported by the existing case-law. The approach adopted departs from existing case ‑ law and considerably lowers the evidential threshold to be met by a professional legal representative seeking to report a criminal offence on behalf of his or her client. Such an approach may contribute to the development of a culture of suspicion and distrust, typical of undemocratic regimes.

Moreover, in asking whether the applicant “failed to substantiate, to the extent permitted by the circumstances, that the information he disclosed was accurate and reliable”, the majority devise a disclosure ‑ based test which does not seem germane to the reporting of a criminal offence – a completely different situation. The applicant did not disclose any information.

6. The majority rightly observe at paragraph 50 that “under Polish law everyone who has learnt that a criminal offence prosecuted ex officio has been committed, has a civic duty to report such an offence”. We would like to stress that, under the letter of Article 304, paragraph 1, of the Code of Criminal Procedure, this civic duty arises in a situation where a person “knows” that a criminal offence has been committed, not in a situation where a person only vaguely suspects that a criminal offence may have been committed. A degree of subjective knowledge of facts and circumstances which make out a criminal offence is, in our opinion, a pre-condition. The applicant in the present case did not “learn” or “know” that an offence had been committed.

7. Our conclusion, for the reasons explained above, is that the legal professional bodies in Poland did not overstep the margin of appreciation afforded to them under Article 10 in the instant case.