(Application no. 23806/03)
24 February 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Długołęcki v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 3 February 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. The article in Kolbudzkie ABC
“The Peter Principle [the title is repeated six times]
The Peter Principle: During his career in administration a civil servant aims to rise to a position in which he will be totally incompetent.
Several years ago Mr A.W. took over and swiftly left the office of mayor. At that time this matter was widely commented upon. The surprise of the ABC editors was thus great when we saw the name of the former mayor of the commune (wójt) on the list of the candidates for the council (radny).
This is not a candidate like any other, as he became famous for the scandal of disposing of the rights to an excellent water source in Pręgów, for half price, to the Gdańsk company Saur...
We were shocked when we discovered the name of the unfortunate negotiator forester on the list of candidates for the council. It can only mean that the failed would-be councillor thinks that the inhabitants of Kolbudy and the surrounding area have forgotten about the Saur blunder.
This confirms the Peter Principle – the former mayor reached his level of incompetence a few years ago. That blunder (wpadka) did not put him off and he is crawling up (wczołguje się) again to another level... a Polish speciality....”
2. The prosecution on charges of defamation and insult
“In the court's opinion, both the form and the content of the article 'The Peter Principle' clearly show that [the applicant's] purpose was to defame the private prosecutor in alleging abuses when signing the contract with the Saur company, so that the day before the elections to the Kolbudy Municipal Council he would lose the public confidence necessary for him to hold public office”.
“The statement about A.W., in the article 'The Peter Principle', that he '[had] as mayor reached his level of incompetence a few years ago, but this blunder [had] not put him off and he [was] crawling up again to another level' amount to proffering insult because the use of those words, particularly the word 'crawling' are undoubtedly pejorative and the fact of publishing those words in the newsletter Kolbudzkie ABC qualifies that act as an insult proffered through the mass media.
At the same time the court has established... that this statement objectively violated the good name of the person against whom it was directed.
There is thus no doubt that in the present case the conditions for the offence of proffering insult through the media, under Article 216 §§1 and 2 of the Criminal Code, have been fulfilled....
...against the background of the collected evidence, [the applicant] should be considered guilty... However, [while] the social danger of the act committed by [the applicant] is not significant, it is undoubtedly not unimportant (znikoma). In the light of the above the court finds that the circumstances in which the applicant had committed the offence of insulting [Mr A.W.] in the newsletter Kolbudzkie ABC were established beyond any doubt. ...the court has thus decided to conditionally discontinue the proceedings for a probationary period of one year...
The court also has regard to the fact that the insult related only to the public activity of the private prosecutor and it is commonly known that a person who undertakes such activity should be prepared to accept attacks against himself, relating to the assessment of his work or allegations made during an election campaign, more often than other people in society. At the same time, it is known that for the proper functioning of democracy it is necessary to secure the right to unrestrained criticism of actions taken by elected representatives.
The [payment to the charity in the amount of PLN 50] is intended to cause real detriment to the accused, against whom the criminal proceedings have been conditionally discontinued. In setting the amount of the fine the court took into consideration the rather difficult financial situation of the accused and the insignificant danger to society of the offence attributed to him....”
“...taking into account reading of the whole of [the applicant's] article, and in particular the negative and contemptuous-sounding expression “to crawl up to another level”, there is no doubt as to the fact that we are dealing with an insult. ...
According to the court [the applicant] wrongly interprets the boundaries of acceptable criticism. Insult or abusive language should by no means be included in the definition of criticism. Criticism consists of a negative or positive assessment of someone's action or attitude; it is however restricted to the purpose of denouncing negative attitudes. To reach this objective it is not necessary to use statements that insult the person in question and for this reason exceed the boundaries of acceptable criticism. The concept of acceptable criticism applies to the offence of defamation and only in so far as it concerns a charge raised against such person. To cover by this principle a statement that was not a charge against this person, but an expression of contempt and disrespect, would be against the [law]. All criticism should be limited by fairness and the above-mentioned purpose of public interest. In the present case these boundaries were overstepped and it was not necessary, for the purpose of the protection of a public interest, to commit an insult. To sum up, the applicant's action for the purpose of a socially justified interest could not influence [his] responsibility for acting in a debasing manner and, in consequence, for the insult committed by him...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
“Article 212 § 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics as may lower this person, group or entity in public opinion or undermine public confidence in their capacity necessary for a given position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year.
§ 2. If the perpetrator commits the act described in paragraph 1 through the mass media he shall be liable to a fine, a restriction of liberty or imprisonment not exceeding two years.”
“Article 216 § 1. Anyone who insults another person in his presence, or, although in his absence, in public, or with the intention that the insult shall reach such a person, shall be subject to a fine or the penalty of restriction of liberty.
§ 2. Anyone who insults another person through the mass media shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 5. Prosecution takes place under a private bill of indictment.”
Article 66 reads, in so far as relevant:
“§ 1. The court may conditionally discontinue the criminal proceedings if the guilt and social danger of the act are not significant and the circumstances of its commission do not raise doubts, and that the attitude of the perpetrator not previously punished for an intentional offence, his personal characteristics and his way of life to date provide reasonable grounds for the assumption that, even in the event of the discontinuance of the proceedings, he will observe the legal order and in particular will not commit an offence.”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Therefore the Court considers that the constitutional complaint cannot be regarded with a sufficient degree of certainty as an effective remedy in the applicant's case.
For these reasons, the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.
1. Arguments of the parties
2. The Court's assessment
(a) General principles
(b) Application of the general principles to the present case
At the same time the domestic court acquitted the applicant of defamation in particular as regards the statements in which the applicant alleged that Mr A.W. as a mayor had been guilty of mismanagement when selling a water source to a private company. The court considered that this allegation had been sufficiently confirmed by the facts as to fall within the scope of permissible criticism and the freedom of press.
The Court also notes that the impugned article 'The Peter Principle' was based on a theory developed in a 1968 book by Laurence J. Peter, which expounds the principle of hierarchiology, namely “in a hierarchy every individual tends to rise to his level of incompetence.”
Finally, the Court observes that the applicant expressed his opinion in an eight-page-long free newsletter, self-edited and distributed, which was addressed to the inhabitants of Kolbudy commune. Its range and impact were thus very limited.
Consequently, the Court finds that the domestic authorities failed to take into consideration the crucial importance of free political debate in a democratic society particularly in the context of free elections (see Malisiewicz-Gąsior v. Poland, no. 43797/98, § 67, 6 April 2006). Regard being had to the nature of the statements, and the fact that they had been made in the context of local elections, the Court is of the opinion that the reasons adduced by the domestic courts cannot be regarded as relevant and sufficient to justify the interference at issue.
There has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 24 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Bratza is annexed to this judgment.
CONCURRING OPINION OF JUDGE BRATZA