CASE OF LEWANDOWSKA-MALEC v. POLAND
(Application no. 39660/07)
18 September 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 Lewandowska-Malec v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David ThórBjörgvinsson, President,
andFatoş Aracı, DeputySection Registrar,
Having deliberated in private on 28 August 2012,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“1. The Świątniki Górne Municipal Council strongly objects to using the Kraków‑Podgórze District Prosecutor’s Office for the personal and political goals of the prosecutor M.J.
2. The Świątniki Górne Municipal Council strongly objects to the political agitation against the democratically elected authorities of the local government ...carried out by K.P., the officer of the Kraków Regional Police Headquarters.
Both the above-mentioned state officials in the course of their work, in the pending proceedings, violated the principle of impartiality and political neutrality binding on state services, transgressing their professional competences.
Thus they infringed the very principle of the rule of law in a manifest breach of Article 2 of the Constitution ...
In those circumstances the municipal council strongly objects to the extralegal activities (pozaprawnej działalności) of the above-mentioned state officials and demands from their superiors that these destructive activities be immediately put to a halt and that disciplinary measures be taken against them.”
The statement of the municipal council was reported in the local media.
“As a local councillor for Świątniki Górne I observe with indignation the actions undertaken by the mayor J.B. They serve not to promote, but to embarrass our municipality.
The methods of the mayor have been the same for years. In 2001, when he was charged with fraud ..., which amounted to misappropriation of a subsidy from the Agency for Restructuring and Modernisation of Agriculture, he was the author of a resolution [adopted] by the municipal council, which ruthlessly attacked the prosecutor conducting the proceedings and the police officer.
In the text of the resolution we found, among others, the following expressions: “both the above-mentioned state officials in the course of their work, in the pending proceedings, violated the principle of impartiality and political neutrality binding on state services, transgressing their professional competences. Thus they infringed the very principle of the rule of law. The actions of both officials directed against the local government of Świątniki Górne destabilise the functioning of Polish democracy and undermine the citizens’ confidence in state authorities.” There are more expressions of this kind in the resolution.
The reading of that text fills me, at least, with fear. Thus, the question should be asked how could such a resolution have been adopted?
The answer is simple. The mayor has a majority in the council. The councillors support him unconditionally and without any reflection.
So what happened in the end with that case? The prosecutor conducting the proceedings was soon replaced, and the case was discontinued on account of the insignificant degree of social danger (sic!), although in the reasons for the discontinuation decision the act was considered to have been clearly committed.
The fact that the State authorities went on the defensive, instead of taking appropriate measures against the person who had clearly broken the law and defamed state officials, may come as a great surprise. Thus, it is not surprising that after his first ‘success’ the mayor attacked another state authority which had established irregularities in his activities.
The irregularities established by the report of the Regional Audit Chamber are currently being examined by the prosecution service. The investigation concerning the purchase of the official car is pending. There is also a pending case concerning fraud in respect of the documents of the official car, because when the mayor was on business trips in Poland or abroad, he certified with his own signature that he had travelled a few times a day between Kraków and Świątniki Górne. It is likely that those are fake trips, and he needed to account for them in order to claim allowances for the use of his private car. It was common knowledge that he did not use it.
These proceedings conducted by the prosecution service have been artificially prolonged, which prompts me to say that the mayor is putting extralegal pressure on that authority (postępowanie to w prokuraturze jest sztucznie przedłużane, co skłania mnie do poglądu, że burmistrz czyni na ten organ pozaprawne naciski).
I have the impression that the State authorities are simply afraid of the mayor. This means that our State cannot counteract such sort of actions. ...”
“In the present case there is no doubt that Izabela Lewandowska-Malec acted intentionally with a view to defaming the mayor J.B. She was certainly aware that the statement that he puts extralegal pressure on the prosecution service would amount to defamation in the eyes of the public. The long conflict between Izabela Lewandowska-Malec and the private prosecutor [the mayor] which manifested itself, among others, in the previous critical statements of the accused or in her press articles about the mayor of Świątniki Górne also indicates that she acted deliberately.
Article 212 §§ 1 and 2 of the Criminal Code protects reputation or the good name of a person who was defamed. ...
The statement that somebody puts extralegal pressure on the prosecution service clearly suggests that such person acts illegally and resorts, for example, to bribery or threats, etc. The word “extralegal” was important in the accused’s statement as it carried negative associationsreferred to above. It should be underlined that sui generis attempts to put pressure or influence the prosecution service and the proceedings conducted by it can be lawfully undertaken by means provided for by law, such as complaints to hierarchical prosecutors or appeals against decisions given in the proceedings. Such actions, whether they would be justified on the merits or not, are legal. On the other hand, the term “extralegal” refers to undertaking actions contrary to the law, which could be perceived by the public opinion only negatively. Thus, there could be no doubt that the statement included in the accused’s letter was to be considered defamation....
The evidence obtained in the case does not leave any doubts that the act of Izabela Lewandowska-Malec amounted to defamation of the mayor of Świątniki Górne, J.B., committed through the mass media, thus making out the elements of the offences specified in Article 212 § 2 of the Criminal Code ...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
“§ 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.”
“§ 1. The offence specified in Article 212 § 1 is not committed, if the allegation 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 evidence of truthfulness shall be admitted only when it serves to prevent a danger to someone’s life or to prevent the demoralisation of a minor.”
B. The Constitutional Court’s judgment of 30 October 2006, case no. P 10/06
36. 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 of the Constitution read in conjunction with Article 31 § 3.
The Constitutional Court found that in some circumstances the protection of rights and freedoms like dignity, good name and privacy might prevail over the protection of freedom of expression. The Court further found that there was no basis to assume that protection of personal rights through the civil law alone would be equally efficient as criminal law. Protection of personal rights by means of the criminal law did not by itself infringe the relevant provisions of the Constitution.
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.”
1. The applicant’s submissions
2. The Government’s submissions
3. The Court’s assessment
(a) The test of “necessity in a democratic society” requires the Court to determine whether the interference 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 independent courts. 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.
(b) 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. 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 statements held against the applicant and the context in which he or she has made them.
(c) 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 measure taken was proportionate to the legitimate aims pursued. 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.
(d) The Court must also ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations have been made, a right which, as an aspect of private life, is protected by Article 8 of the Convention.
The Court considers that it was legitimate for the applicant in the context of a public debate to point out that the mayor had acted in an unorthodox manner by proposing to the council to adopt a statement virulently criticising the authorities which had conducted the investigation against him. It was equally justified to call into question the mayor’s reaction to the negativeassessment of his financial management made by the Regional Audit Chamber. However, the domestic courts, when examining the charge against the applicant, failed to have regard to this wider context.
The domestic courts found that the applicant’s assertion of “putting extralegal pressure on the prosecution authorities” was to be understood as a statement that an offence had been committed. For them such an assertion could only be associated with the criminal offence of bribery or unlawful threats (see paragraphs20 and 23 in fine above). However, having regard to the overall context, the Court doesnot accept that interpretation. It was shown by the applicant in her letter that “the extralegal pressure” had a broader meaning, including attempts to influence the prosecutors by other means – not necessarily criminal acts – such as by the statement of the municipal council.
II. OTHER ALLEGED VIOLATION OF THE CONVENTION
III. 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.”
A. Pecuniary damage
B. Non-pecuniary damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning Article 10 of the Conventionadmissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 10 of the Convention;
(a) that the respondent State is to pay the applicant, within three monthsfrom the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement:
(i) EUR 2,600 (two thousand six hundred 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 100 (one hundred 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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 September 2012, pursuant to Rule77§§2 and3 of the Rules of Court.
Deputy Registrar President