CASE OF ŁOPUCH v. POLAND
(Application no. 43587/09)
24 July 2012
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 Łopuch v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson, President,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 3 July 2012,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
“§ 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. Prosecution of an offence specified in § 1 or 2 shall occur upon a private charge.”
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.”
1. The parties’ submissions
2. The Court’s assessment
(a) Whether the interference pursued a legitimate aim
In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content in which the remarks by the applicant were made.
The courts, as with all other public institutions, are not immune from criticism and scrutiny (see Skałka, cited above, § 34). Therefore, while parties are certainly entitled to comment on the administration of justice in order to protect their rights, their criticism must not overstep certain bounds (see Saday v. Turkey, no. 32458/96, § 43, 30 March 2006). In particular, a clear distinction must be made between criticism and insult. If the sole intent of any form of expression is to insult a court, or members of that court, an appropriate sanction would not, in principle, constitute a violation of Article 10 of the Convention (see Skałka, loc.cit.).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been no violation of Article 10 of the Convention.
Done in English, and notified in writing on 24 July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı David
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge David Thór Björgvinsson is annexed to this judgment.
CONCURRING OPINION OF
JUDGE DAVID THóR BJöRGVINSSON
I have voted with the majority with some hesitation.
The defamation proceedings against the applicant were born out of the applicant ’s statements made in her pleadings before the Szczecin District Court. Apparently the president of the Court, J.S., saw fit to forward the issue to the supervising judge of the Szczecin Regional Court who informed the Szczecin‑Şródmieście Prosecutor of the applicant’s pleadings with the result that a public bill of indictment was issued against the applicant. She was later found guilty of defamation.
The reasons for my hesitations are the following.
Firstly, it is questionable whether it was at all appropriate for the president of the Szczecin District Court to take the initiative to have public defamation proceedings brought against a party to a dispute before his court for statements made in court pleadings. Interestingly, the case was only investigated as a defamation case. However, no investigation was conducted into the veracity of the allegations made by the applicant in her pleadings, which can only mean that nobody took them seriously enough to even suggest such an investigation. I do not imply that there was any basis for them whatsoever, but only that nobody took them seriously, and thus they would seem to be, in practical terms and albeit being intemperate, at least harmless to J.S.’s reputation.
Secondly, I do not agree that the statements were made in public, as they were made in civil court proceedings. Although such proceedings are public within the meaning of procedural law the overall effect of it for J.S. ’s reputation certainly cannot be equated with material published in the media. Their possible harmful effect for J.S., if any, must be assessed in light of that fact.
Thirdly, the case raises the question as to whether defamation proceedings are at all the right tool to address inappropriate statements made in the context of court proceedings. I believe that these kinds of “procedural irregularities” are more appropriately dealt with within the framework of procedural rules on contempt of court and such, rather than resorting to independent defamation proceedings where Article 8 and Article 10 rights become the central issue. In any case, as reflected in the judgment, there seems to be ample support in the case‑law of this Court for the position taken in the judgment. This has for me, with some hesitation, tilted the balance in favour of finding no violation of Article 10 of the Convention.