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KURLOWICZ v. POLAND - 41029/06 [2010] ECHR 959 (22 June 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/959.html
Cite as:
[2010] ECHR 959
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FOURTH
SECTION
CASE OF KURŁOWICZ v. POLAND
(Application
no. 41029/06)
JUDGMENT
STRASBOURG
22 June
2010
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 Kurłowicz v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 1 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 41029/06) 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”) by a Polish national, Mr Zbigniew Kurłowicz
(“the applicant”), on 6 October 2006.
The
applicant was represented by Ms Z. Daniszewska-Dek, a lawyer
practising in Białystok. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
The
applicant alleged, in particular, that the proceedings brought
against him under the relevant provisions of the Criminal Code had
infringed his right to freedom of expression under Article 10 of the
Convention.
On
5 February 2009 the President of the Fourth Section of the Court
decided to give notice of the application to the Government. It was
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1957 and lives in Knyszyn.
A. Session of the City Council and criminal proceedings
against the applicant
At
the material time the applicant was the President of the City Council
in Knyszyn (Przewodniczący Rady Miasta).
On
30 December 2004 a session of the City Council took place. One of the
points on the agenda was a vote on whether to adopt a resolution
requesting the Education Inspector (Kurator Oświaty) to
give a positive report on the continued operation of the Knyszyn
School Complex (Zespół Szkół
Ogólnokształcących w Knyszynie). Since 1998, the
manager of the school complex had been K. Ch.
During
the session on 30 December 2004 the applicant, together with other
representatives, voted against the planned resolution. The City
Council adopted another resolution and decided that they would not
request from the Education Inspector a positive report referred to
above.
At
the next session of the City Council, on 28 February 2005, further
discussion about the future of the school complex was held. During
the session the applicant took the floor and presented some arguments
which in his view supported the resolution adopted on 30 December
2004. The applicant accused K. Ch of:
- adopting
an inappropriate timetable, unjustified division of students into
groups, increasing overtime, which caused additional costs;
- ismanagement
of the school complex finances, increase of heating costs;
- reating
the school complex as private property, the lease of school premises
without remuneration;
- poor
organisation of the students' free time during the school holidays;
- spending
money on teachers' training which was not appropriate or objective
and which did not correspond to the school's needs;
- lack
of discipline at school;
- irresponsibility
– organising a disco above a room in which a mock exam was
being held;
- failure
to appoint the school council;
- failure
to adopt clear and transparent rules for granting awards to teachers;
awards were granted publicly to some and in private to others;
- failure
to provide reliable information on granting “incentive bonuses”
to teachers;
- granting
overtime work only to certain teachers;
- failure
to advertise the school complex;
- failure
to cooperate with the municipality;
- disorder
in the teachers' personal files;
- intimidating
teachers with threats that they would be fired or deprived of bonus
payments, and so on;
- inadequate
educational standards; only ten out of twenty-six students passed
their final exams.
K.
Ch., the school manager, found the accusations defamatory and untrue.
He demanded that the applicant provide the participants at the
session with evidence substantiating his allegations.
The
events that took place during the session of the City Council on
28 February 2005 were subsequently described in an article
published in the local edition and on the internet site of Gazeta
Współczesna and on the internet site of the Mońki
Municipality.
B. Criminal proceedings against the applicant
On
4 April 2005 K. Ch. lodged a private bill of indictment against the
applicant with the Białystok District Court (Sąd
Rejonowy), complaining that the applicant's statements of 28
February 2005 were defamatory.
On
2 December 2005 the Białystok District Court found the applicant
guilty of presenting untrue statements during the session of the City
Council as regards the performance of K. Ch. in his professional
duties, which amounted to defamation which could impact negatively on
the necessary public respect and esteem required by K. Ch. in the
execution of his duties as headmaster of a public school and as a
teacher. Relying on Article 212 § 1 of the Criminal Code (Kodeks
Karny), the court sentenced the applicant to a fine in the amount
of PLN 750 and ordered that the judgment of conviction be published.
The court also ordered the applicant to apologise for all his
accusations.
On
30 December 2005 the applicant's lawyer appealed against the
first-instance judgment. She argued that the Białystok District
Court had wrongly assessed the evidence, in that it had considered
that the applicant's intention had been to insult K.Ch., while he had
been motivated solely by concern for the local community. In
consequence, according to the applicant's lawyer, the applicant
should not have been sentenced on the basis of having committed
defamation. The lawyer also referred to a violation of Article 10 of
the Convention.
On
30 March 2006 the Białystok Regional Court (Sąd
Okręgowy) partly amended the first-instance judgment. It
found that taking into consideration the social consequences of the
prohibited act and the conduct of the applicant, as well as his
personal and family situation, it was unnecessary to sentence the
applicant. The Regional Court amended the first-instance judgment in
that it conditionally discontinued the proceedings for a probationary
term of one year, ordered the applicant to pay PLN 750 to charity and
rescinded the publication of the applicant's conviction. The court
also ordered that during a session of the Knyszyn City Council the
applicant should make a statement that his accusations had been
untrue and apologise to K.Ch.
At
the same time however the Regional Court confirmed the District
Court's finding that the applicant's statements had been untrue and
that the applicant had been acting on his own behalf rather than out
of concern for the interests of the municipality. The court further
dismissed the argument of a violation of Article 10 of the Convention
as manifestly ill-founded, holding that that provision did not
guarantee unlimited freedom of expression.
On
26 May 2006 the applicant's lawyer requested the Ombudsman to lodge a
cassation appeal on the applicant's behalf.
On
9 August 2006 the Ombudsman refused her request, finding that the
arguments contained in the judgments of the first and second-instance
courts had not raised any doubts.
On
11 October 2006 at the session of the Knyszyn City Council the
applicant read out the statement required by the Regional Court's
judgment and apologised to K.Ch.
C. The applicant's constitutional complaint
On
16 August 2006 the applicant's lawyer lodged a constitutional
complaint with the Constitutional Court (Trybunał
Konstytucyjny), arguing that Article 212 of the Criminal Code was
incompatible with the relevant provisions of the Constitution.
On
17 October 2007 the Constitutional Court refused to hear the
constitutional complaint (odmówił nadania dalszego
biegu skardze), holding that a similar matter had already been
examined by the court in its judgment of 30 October 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional provisions concerning freedom of
expression
Article
14 provides as follows:
“The Republic of Poland shall ensure freedom of
the press and other means of social communication.”
Article
31 § 3 of the Constitution, which lays down a general
prohibition on disproportionate limitations on constitutional rights
and freedoms (the principle of proportionality) provides:
“Any limitation upon the exercise of
constitutional freedoms and rights may be imposed only by statute,
and only when necessary in a democratic State for the protection of
its security or public order, or to protect the natural environment,
health or public morals, or the freedoms and rights of other persons.
Such limitations shall not violate the essence of freedoms and
rights.”
Article
54 § 1 of the Constitution guarantees freedom of expression. It
states, in so far as relevant:
“The freedom to express opinions, to acquire and
to disseminate information shall be ensured to everyone.”
B. Relevant provisions of the Criminal Code
Article
212 of the Criminal Code 1997 provides as follows:
Ҥ 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 the
public's opinion or undermine public confidence in their capacity
necessary for a certain position, occupation or type of activity,
shall be liable to a fine, a restriction on their liberty or
imprisonment not exceeding one year.
§ 2. If the perpetrator commits the
act described in paragraph 1 through a means of mass communication,
he shall be liable to a fine, restriction of liberty or imprisonment
not exceeding two years.
§ 3. When sentencing for an offence
specified in §1 or 2, the court may adjudge a supplementary
payment in favour of the injured person or the Polish Red Cross, or
of another social purpose designated by the injured person
(nawiązka).
§ 4. The prosecution of the offence
specified in § 1 or 2 shall occur upon a private charge.”
Article
213 provides as follows:
Ҥ 1. The offence specified
in Article 212 § 1 is not committed if the allegation not made
in public is true.
§ 2. Whoever raises or publicises a
true allegation in defence of a justifiable public interest shall be
deemed not to have committed the offence specified in Article 212 § 1
or 2; if the allegation regards private or family life the evidence
of truth shall only be carried out when it serves to prevent a danger
to someone's life or to prevent demoralisation of a minor.”
Article
214 provides as follows:
“The absence of an offence resulting from a reason
specified in Article 213 does not exclude the liability of a
perpetrator for the insult, by reason of the manner of announcing or
publicising the allegation.”
Article
215 provides as follows:
“On the motion of the injured person the court may
order the judgment of conviction to be punished.”
C. The Constitutional Court's judgment declaring
Article 212 of the Polish Criminal Code compatible with the
Constitution
On
30 October 2006 the Constitutional Court, ruling on a legal question
referred to it by the Gdańsk District Court, declared Article
212 §§ 1 and 2 of the Polish Criminal Code compatible with
Articles 14 and 54 § 1 read in conjunction with Article 31 §
3 of the Constitution.
The
court found that in some circumstances the protection of rights and
freedoms such as dignity, good name and privacy may prevail over the
protection of freedom of expression. The court further found that
there was no basis to assume that protection of freedom of expression
merely by means of civil law (provisions on personal rights) would be
as efficient as criminal law. Protection of freedom of expression by
means of criminal law did not of itself infringe the relevant
provisions of the Constitution.
Three
judges expressed their dissenting opinions to the Constitutional
Court's judgment of 30 October 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The applicant alleged a breach
of Article 10 of the Convention, which reads as follows:
“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. ...
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 ... for the
protection of the reputation or rights of others ...”
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
(a) The applicant
The
applicant's lawyer submitted that the interference with the
applicant's freedom of expression had been in breach of Article 10 §
2 of the Convention. She considered that the domestic courts had
failed to take into account that the impugned statements had been
made at a session of the City Council, in the course of public debate
devoted to the future functioning of the Knyszyn School Complex. The
applicant's lawyer considered that, by holding the applicant
criminally responsible for his statements, the domestic courts had
failed to strike a fair balance in weighing the interests of K.Ch.'s
right to respect for his private life and the right to freedom of
expression as guaranteed by Article 10 of the Convention. In this
respect she considered that in the present case there had been no
element of “pressing social need”. Finally, she
criticised the provisions which provide for criminal sanction for
defamation without leaving any room for exceptions for matters of
public debate; in her view such a construction of responsibility for
defamation deprived the public debate of any sense.
(b) The Government
The
Government decided not to comment on the merits of the application.
However, in their comments on the applicant's
just-satisfaction claims they expressed the opinion that there had
been no violation of Article 10 in the present case.
2. The Court's assessment
It
was not disputed that the courts' decisions against the applicant and
the sanctions imposed on him amounted to “interference”
with his right to freedom of expression, as guaranteed by Article 10
§ 1 of the Convention. The interference was undoubtedly
prescribed by law, namely Article 212 of the Criminal Code. The Court
further accepts that the interference pursued the legitimate aim of
protecting the reputation or rights of others – Mr K. Ch., the
manager of the Knyszyn School Complex, in this instance, within the
meaning of Article 10 § 2 of the Convention.
Accordingly,
the only outstanding issue is whether the interference with the
applicant's right to freedom of expression was “necessary in a
democratic society”.
(a) The general principles
According
to the Court's case-law, freedom of expression constitutes one of the
essential foundations of a democratic society and one of the basic
conditions for its progress and for each individual's
self-fulfilment. Subject to paragraph 2, it is applicable not
only to “information” or “ideas” that are
favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. Such
are the demands of that pluralism, tolerance and broadmindedness
without which there is no “democratic society”. As set
forth in Article 10, this freedom is subject to exceptions, which
must, however, be construed strictly, and the need for any
restrictions must be established convincingly (see, among many other
authorities, Janowski v. Poland [GC], no. 25716/94, § 30,
ECHR 1999-I; Nilsen and Johnsen v. Norway [GC], no.
23118/93, § 43, ECHR 1999-VIII; and Lingens v.
Austria, 8 July 1986, § 41, Series A no. 103).
The
test of “necessity in a democratic society” requires the
Court to determine whether the interference complained of
corresponded to a “pressing social need”. The Contracting
States have a certain margin of appreciation in assessing whether
such a need exists, but it goes hand in hand with European
supervision, embracing both the legislation and the decisions
applying it, even those delivered by an independent court. The Court
is therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see, among many other authorities, Perna
v. Italy [GC], no. 48898/99, § 39, ECHR
2003-V, and Cumpǎnǎ and Mazǎre v. Romania
[GC], no. 33348/96, § 88, ECHR 2004-XI).
The
Court's task in exercising its supervisory function is not to take
the place of the competent domestic courts, but rather to review
under Article 10 the decisions they have taken pursuant to their
power of appreciation (see Fressoz and Roire v. France [GC],
no. 29183/95, § 45, ECHR 1999-I). This does not mean
that the supervision is limited to ascertaining whether the
respondent State exercised its discretion reasonably, carefully or in
good faith; what the Court has to do is to look at the interference
complained of in the light of the case as a whole, including the
content of the comments held against the applicant and the context in
which he made them (see News Verlags GmbH & Co. KG v. Austria,
no. 31457/96, § 52, ECHR 2000-I).
In
particular, the Court must determine whether the reasons adduced by
the national authorities to justify the interference were “relevant
and sufficient” and whether the measures taken were
“proportionate to the legitimate aims pursued” (see
Chauvy and Others v. France, no. 64915/01, § 70,
ECHR 2004-VI). In doing so, the Court has to satisfy itself that the
national authorities, basing themselves on an acceptable assessment
of the relevant facts, applied standards which were in conformity
with the principles embodied in Article 10 (see, among many other
authorities, Zana v. Turkey, judgment of 25 November
1997, Reports of Judgments and Decisions 1997-VII, pp.
2547-48, § 51). In addition, the fairness of the proceedings,
the procedural guarantees afforded (see, mutatis mutandis,
Steel and Morris v. the United Kingdom, no. 68416/01,
§ 95, ECHR 2005-...) and the nature and severity of
the penalties imposed (see Ceylan v. Turkey [GC],
no. 23556/94, § 37, ECHR 1999-IV, and Skałka v.
Poland, no. 43425/98, §§ 41-42, 27 May
2003) are factors to be taken into account when assessing the
proportionality of an interference with the freedom of expression
guaranteed by Article 10 (see Kyprianou v. Cyprus [GC],
no. 73797/01, § 171, ECHR 2005-...).
The
Court further observes that there is little scope under Article 10
§ 2 of the Convention for restrictions on political speech
or on debate on questions of public interest (see Sürek v.
Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR
1999-IV).
(b) Application of the principles
The
Court has to examine whether, taking into consideration all the
relevant circumstances of the present case, the domestic court's
judgment, by which the criminal proceedings were conditionally
discontinued and the applicant ordered to pay damages and to make an
apology to K. Ch. at the session of the Municipal Council, amounted
to a disproportionate interference with the applicant's right to
freedom of expression. In other words, the Court has to assess
whether the sanction applied to the applicant answered a “pressing
social need” and was “proportionate to the legitimate aim
pursued”, as well as whether the reasons adduced by the
national authorities in justification thereof were “relevant”
and “sufficient”.
The
Court notes at the outset that the second-instance court partly
amended the first-instance court's judgment in that it reduced the
applicant's sentence to a fine and rescinded the compulsory
publication of the applicant's conviction.
The Court also notes that in
spite of the second-instance court's judgment the applicant still has
a criminal record since the criminal proceedings against him were
only conditionally discontinued.
At the relevant time the
applicant was a member of the City Council and his speech was made in
that capacity during the session of the City Council. The session was
devoted partly to the adoption of a resolution requesting the
Education Inspector to give a positive report on the continued
operation of the city school complex, the manager of which was K.Ch.
The Court considers that this was the best time and place to discuss
any financial or organisational irregularities in the functioning of
the school complex. In this respect the Court reiterates that while
freedom of expression is important for everybody, it is especially so
for elected representatives of the people. They represent the
electorate, draw attention to their preoccupations and defend their
interests. Accordingly, interference with their freedom of expression
calls for the closest scrutiny on the part of the Court (see Castells
v. Spain, judgment of 23 April 1992,
Series A no.236, pp.22-23, § 42).
In the light of the
above, the Court finds that the applicant's allegations of financial
and organisational irregularities made at the City Council Session
were a part of a public political debate. It further recalls that,
although an individual taking part in a public debate on a matter of
general concern – like the applicant in the present case –
is required not to overstep certain limits as regards – in
particular – respect for the reputation and rights of others,
he or she is allowed to have recourse to a degree of exaggeration or
even provocation, or in other words to make somewhat immoderate
statements (see Mamère v. France, no. 12697/03,
§ 25, ECHR 2006-...).
Even
if the applicant's statements contained critical words, they were
made in the course of a discussion devoted to the question of whether
the city council should continue to finance the further functioning
of the school complex. It is precisely the task of an elected
representative to ask awkward questions when it comes to public
spending.
Furthermore,
very strong reasons are required to justify restrictions on political
speech. Allowing broad restrictions on political speech in individual
cases would undoubtedly affect respect for the freedom of expression
in general in the State concerned (see, among many other authorities,
Feldek v. Slovakia, no. 29032/95, § 83, ECHR 2001-VIII,
and Sürek, cited above, § 61).
The
Court further notes that, in contrast to cases such as Sanocki v.
Poland, no. 28949/03, § 5, 17 July 2007, or Janowski
v. Poland [GC], no. 25716/94, § 14, ECHR 1999-I,
the statements made by the applicant did not contain any offensive
statements ad personam. They all concerned alleged
irregularities in the management of the school complex in question.
The
statements were made against a particular person, K. Ch. who, at the
relevant time, was the school complex manager. The Court considers
that a person who manages an institution financed from public money
should be prepared to accept hard-hitting criticism particularly in
the course of a public debate where matters of funding the
institution in question are discussed.
As
regards the reasons given by the domestic courts, the Court notes
that the second-instance court examined the applicant's case also
from the standpoint of Article 10 of the Convention. The latter court
found that the right to freedom of expression was not unlimited and
that the Convention did not provide for protection for those who, by
exercising their freedom of expression, breached another's right to
good name and reputation. However, the domestic court did not carry
out a balancing exercise of the competing interests at stake seen in
the context in which the impugned remarks were made.
Secondly,
the Court notes that in its practice it has distinguished between
statements of fact and value judgments. While the existence of facts
can be demonstrated, the truth of value judgments is not susceptible
of proof. Where a statement amounts to a value judgement, the
proportionality of an interference may depend on whether there exists
a sufficient factual basis for the impugned statement, since even a
value judgment may be excessive without any factual basis to support
it (see De Haes and Gijsels v. Belgium, judgment of 24
February 1997, Reports 1997-I, p. 236, § 47, and Feldek
v. Slovakia, no. 29032/95, § 76, ECHR 2001-VIII).
As
regards the categorisation of the applicant's statements, the Court
observes that the Polish courts unreservedly qualified all of them as
statements without a factual basis. It is prepared to accept that
most of the statements, such as the assertion that the claimant
“failed to appoint the school council” or “granted
overtime work only to certain teachers” could be considered as
statements which lacked a sufficient factual basis. However, the
Court considers, contrary to the view taken by the domestic courts,
that the applicant's speech also included statements which could
reasonably be regarded as value judgements, such as the statement
that the claimant “mismanaged the school complex finances”,
“spent money on teachers' training in an inappropriate and
non-objective way not corresponding to the school's needs” or
that the school “lacked discipline”. The Court considers
that these value judgments on a matter of public interest enjoy the
protection of Article 10 of the Convention.
Lastly,
the Court reiterates that 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,
cited above, § 64, and Chauvy and Others, cited
above, § 78). In the present case, although the
second-instance court rescinded the fine imposed on the applicant and
conditionally discontinued the criminal proceedings, the applicant
still has a criminal record (see paragraph 44 above). Although the
Court has found on many occasions that a criminal measure as a
response to defamation cannot, as such, be considered
disproportionate to the aim pursued (see Radio France and Others
v. France, no. 53984/00, § 40, ECHR 2004 II) it
considers that, in cases such as the present one, which concern an
open, candid political debate, recourse to a criminal prosecution
resulting in the applicant's conviction must be seen as a wholly
disproportionate measure (see, mutatis mutandis, Długołęcki
v. Poland, no. 23806/03, § 47, 24 February 2009).
Taking into account the above considerations the Court
finds that the domestic courts overstepped the narrow margin of
appreciation afforded to member States, and that there was no
reasonable relationship of proportionality between the measures
applied by them and the legitimate aim pursued.
The
authorities therefore failed to strike a fair balance between the
relevant interests of, on the one hand, the protection of the school
complex manager's right to reputation and, on the other, an elected
representative's right to freedom of expression in exercising this
freedom where issues of public interest are concerned.
In
those circumstances the Court finds that the interference with the
applicant's exercise of his right to freedom of expression was not
“necessary in a democratic society” within the meaning of
paragraph 2 of Article 10 of the Convention.
There
has, accordingly, been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The applicant claimed PLN
20,000, equivalent to 5,000 euros (EUR), in respect of pecuniary
damage and PLN 35,000, equivalent to EUR 8,750 in respect of
non-pecuniary damage.
The Government considered that
there was no causal link between the pecuniary damage sought by the
applicant and the alleged violation of Article 10 of the Convention.
The Government did not comment on the applicant's claim for
non-pecuniary damage.
The Court finds that in the circumstances of the case
there is a causal link between the violation found and the alleged
pecuniary damage as long as the applicant referred to the amount
which he was ordered to pay by the domestic courts (see Busuioc v.
Moldova, no. 61513/00, § 101, 21 December 2004,
and Kuliś v. Poland, no. 15601/02, § 59,
18 March 2008). Although the applicant claimed this amount
(PLN 750, equivalent to EUR 185, which he was ordered to pay to
charity) under costs and expenses (see paragraphs 64-66 below), the
Court considers that it should be granted as pecuniary damage and
awards the applicant the sum claimed in part, that is EUR 185
(see paragraph 15 above). The Court does not find the remainder of
the claim in respect of pecuniary damage justified. It therefore
rejects the remainder of the claim.
The
Court also accepts that the applicant suffered non-pecuniary damage
which is not sufficiently compensated by the finding of a violation
of the Convention. Making its assessment on an equitable basis, the
Court awards the applicant EUR 3,000 under this head.
B. Costs and expenses
The
applicant, who was represented by a lawyer, also claimed PLN 14,260,
equivalent to EUR 3,520, for costs and expenses incurred before
the domestic courts and before the Court, which included PLN 3,000,
equivalent to EUR 740, for legal representation before the domestic
courts, PLN 3,000, equivalent to EUR 740, for the costs of his
constitutional complaint and PLN 6,000, equivalent to EUR 1,500, for
his legal representation before the Court, as well as PLN 360,
equivalent to EUR 90, paid by the applicants to the plaintiff as
reimbursement of the costs of the proceedings, PLN 750, equivalent to
EUR 185 paid to a charity, as ordered by the domestic courts,
and the costs of the applicant's transport to and from the courts and
to and from his lawyer.
The
Government submitted that costs and expenses should be awarded
only in so far as they had been necessarily incurred and
in a reasonable amount.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the Court notes that
the applicant sufficiently substantiated that most of these sums had
been actually and necessarily incurred, by submitting relevant
invoices and other evidence. As regards the amount paid by the
applicant to the plaintiff as reimbursement of the costs of the
proceedings and to a charity as ordered by the domestic courts,
these have been granted under the pecuniary damage head
(see paragraph 62, above). The Court does not find it
sufficiently proved that the costs of the applicant's transport had
been necessarily incurred. Regard being had to the information in its
possession and the above criteria, the Court awards the applicant the
sum of EUR 3,070 covering costs under all heads.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
10 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Polish zlotys at the rate applicable on
the date of settlement:
(i) EUR
185 (one hundred and eighty-five euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(iii) EUR
3,070 (three thousand and seventy euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
