European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2011/2314.html
Cite as: [2011] ECHR 2314
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FOURTH SECTION
DECISION
Application no.
38005/03
by Czesław GAZDA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 13 December 2011 as a Chamber composed of:
David
Thór Björgvinsson, President,
Lech
Garlicki,
Päivi
Hirvelä,
George
Nicolaou,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
Vincent
A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having regard to the above application lodged on 6 November 2003,
Having regard to the declaration submitted by the respondent Government on 23 February 2011 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Czesław Gazda, is a Polish national who was born in 1938 and lives in Wadowice. He was represented before the Court by Mr W. Ostrowski, and later Ms E. Sołtowska, lawyers practising in Krakow. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a journalist. At the material time he was the publisher of a local newspaper, Nad Skawą, with a circulation of 800 copies. Since 1997 the applicant had been publishing articles unveiling the unacceptable conduct of the mayor of Tomice and his office alleging, most importantly, nepotism, corruption and blackmail.
On 30 November 1999 he published in his newspaper an article entitled “About a certain kind of people – follow-up to the drunken session [of the Council] in Tomice”. On 2 May 2000 the applicant published an “open letter to the President of the Republic of Poland” in which he criticised the decision of the local council to recommend the mayor for the Order of Polonia Restituta, one of Poland’s highest Orders (Krzyż Kawalerski Orderu Odrodzenia Polski).
On 3 June 2000 Mr A.G., the mayor of Tomice, instituted a private bill of indictment against the applicant charging him with defamation as a result of both above-mentioned articles.
On 28 June 2002 the Wadowice District Court (Sąd Rejonowy) found the applicant guilty of defamation under Article 212 § 2 of the Criminal Code and sentenced him to pay in total 4,300 Polish zlotys (PLN) (as a fine, payment to a charity, and reimbursement in favour of the other party of the costs of the proceedings).
The applicant lodged an appeal against the judgment.
On 1 October 2003 the Cracow Regional Court (Sąd Okręgowy) dismissed the appeal and upheld the judgment.
COMPLAINT
The applicant complained under Article 10 of the Convention of a breach of his right to freedom of expression.
THE LAW
The applicant alleged 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 which, in so far as relevant, provides 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. 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.”
By letter dated 23 February 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“[T]he Government hereby wish to express – by way of unilateral declaration – their acknowledgement of the fact that there has been a violation of the applicant’s right to freedom of expression contrary to Article 10 of the Convention.
Consequently, the Government are prepared to pay to the applicant PLN 20,000 which they consider to be reasonable in the light of the Court’s case-law (...). The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.
The Government would respectfully suggest that the above declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention. ”
On 7 April 2011 the applicant rejected the Government’s proposal.
The Court observes that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) in particular enables the Court to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic (see, among other authorities, Długołęcki v. Poland, cited above, §§ 44 47, 24 February 2009; Sokołowski v. Poland, no. 75955/01, §§ 46 51, 29 March 2005; Kwiecień v. Poland, no. 51744/99, §§ 52 56, ECHR 2007 I; and Piontek v. Poland, (dec.), no. 21307/07, 14 December 2010), the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 10 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Lawrence Early David Thór Björgvinsson
Registrar President