In the case of Janowski v. Poland,
The European Court of Human Rights, sitting, in accordance with
Article 27 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”), as amended by
Protocol No. 11,
and the relevant provisions of the Rules of Court2, as a Grand
Chamber composed of the following judges:
Mr L. Wildhaber,
President,
Mrs E. Palm,
Mr C.L. Rozakis,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr B. Conforti,
Mr A. Pastor Ridruejo,
Mr G. Bonello,
Mr J. Makarczyk,
Mr P. Kūris,
Mr R. Türmen,
Mr C. Bîrsan,
Mr M. Fischbach,
Mr J. Casadevall,
Mrs H.S. Greve,
Mr A.B. Baka,
Mr R. Maruste,
and also of Mr M. de Salvia, Registrar,
Having deliberated in private on 18 November 1998 and 14
January 1999,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court, as
established under former Article 19 of the Convention, by the
Polish Government (“the Government”) on 26 February 1998, by a Polish national,
Mr Józef Janowski (“the applicant”), on 27 February 1998 and by the
European Commission of Human Rights (“the Commission”) on
16 March 1998, within the three-month period laid down by former
Articles 32 § 1 and 47 of the Convention. It originated in an
application (no. 25716/94) against the Republic of Poland lodged with the
Commission under former Article 25 by the applicant on 25 January 1994.
The Government’s application referred to former Article 48; the
applicant’s application to the Court referred to former Article 48 as amended
by Protocol No. 9,
which Poland had ratified; the Commission’s request referred to former
Articles 44 and 48 and to the declaration whereby Poland recognised the
compulsory jurisdiction of the Court (former Article 46). The object of
the applications and of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its obligations
under Article 10 of the Convention.
2. In response to the enquiry made in accordance
with Rule 35 § 3 (d) of former Rules of Court B,
the applicant stated that he wished to take part in the proceedings and
designated the lawyer who would represent him (former Rule 31). The lawyer
was given leave by Mr R. Bernhardt, the President of the Court at the time, to
use the Polish language (former Rule 28 § 3).
3. As President of the Chamber which had originally
been constituted (former Article 43 of the Convention and former Rule 21) in
order to deal, in particular, with procedural matters that might arise before
the entry into force of Protocol No. 11, Mr Bernhardt, acting through the
Registrar, consulted the Agent of the Government, the applicant’s lawyer and
the Delegate of the Commission on the organisation of the written procedure.
Pursuant to the order made in consequence, the Registrar received the
applicant’s and the Government’s memorials on 13 July and 7 August 1998
respectively. On 15 September 1998 the Delegate of the Commission
submitted written observations.
4. After the entry into force of
Protocol No. 11 on 1 November 1998 and in accordance with
the provisions of Article 5 § 5 thereof, the case was referred to the Grand
Chamber of the Court. The Grand Chamber included ex officio
Mr J. Makarczyk, the judge elected in respect of Poland
(Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court),
Mr L. Wildhaber, the President of the Court, Mrs E. Palm and
Mr C.L. Rozakis, the Vice-Presidents of the Court, and
Sir Nicolas Bratza and Mr M. Pellonpää, Presidents of Sections (Article 27 §
3 of the Convention and Rule 24 § 3). The other members appointed to complete
the Grand Chamber were Mr B. Conforti, Mr A. Pastor Ridruejo,
Mr G. Bonello, Mr P. Kūris, Mrs V. Strážnická,
Mr C. Bîrsan, Mr M. Fischbach, Mr J. Casadevall, Mrs H.S.
Greve, Mr A.B. Baka and Mr R. Maruste (Rule 24 § 3 and Rule
100 § 4). Subsequently Mr R. Türmen, substitute judge, replaced
Mrs Strážnická who was unable to take part in the further consideration of
the case (Rule 24 § 5 (b)).
5. At the Court’s invitation (Rule 99), the
Commission delegated one of its members, Mr M.A. Nowicki, to take part in the
proceedings before the Grand Chamber.
6. In accordance with the President’s decision, a
hearing, at which the applicant was present, took place in public in the Human
Rights Building, Strasbourg, on 18 November 1998.
There appeared before the Court:
(a) for
the Government
Mr K. Drzewicki, Professor of Public
International Law, Agent,
Ms E. Chałubińska, Judge on
secondment
to the Ministry of Justice, Counsel,
Mr A. Kaliński, Office of
the Agent,
Mr M. Łuczka, Deputy to the
Permanent Representative
of Poland to the Council of Europe,
Ms M. Dębska, Office of the
Agent, Advisers;
(b) for
the applicant
Mrs B. Banasik, of the Łódź Bar, Counsel;
(c) for
the Commission
Mr M.A. Nowicki, Delegate,
Ms M.-T. Schoepfer, Secretary
to the Commission.
The Court heard addresses by Mr Nowicki, Mrs Banasik and
Mr Drzewicki.
THE FACTS
I. the CIRCUMSTANCES OF THE CASE
7. The applicant was born
in 1937. He is a journalist and lives in Zduńska Wola, Poland.
8. According to the
applicant, on 2 September 1992 he noticed two municipal guards who were
ordering street vendors to leave a square in Zduńska Wola where selling was
allegedly not authorised by the municipal authorities and to move their
makeshift stands to a nearby market-place. The Government maintain however that
the guards, who were acting on sanitary and traffic considerations, merely
requested the vendors to move to a nearby market-place. The applicant further
submits that he intervened, informing the guards that their actions had no
legal basis and infringed the laws
guaranteeing freedom in the economic field. He pointed out that the municipal
authorities had not passed any resolution which would allow the guards to clear
the square. The applicant observed that the guards were apparently acting only
on the basis of verbal instructions from the mayor and urged the vendors to
stay. The exchange between the applicant and the guards was witnessed by a
group of bystanders.
9. Subsequently, on an unspecified date, the Zduńska
Wola district prosecutor (Prokurator Rejonowy) instituted criminal
proceedings against the applicant. On 5 January 1993 the district
prosecutor lodged a bill of indictment with the Zduńska Wola District Court (Sąd
Rejonowy). The applicant was charged with having insulted municipal guards
while they were carrying out their duties and with having acted with flagrant
contempt for legal order, an offence specified in Article 236 of the Criminal
Code read together with Article 59 § 1.
10. On 29 April 1993 the District Court convicted
the applicant under Article 236 of the Criminal Code of verbally insulting
two municipal guards. It held that the offence was an act of hooliganism within
the meaning of Article 59 § 1 of the Criminal Code. The
applicant was sentenced to eight months’ imprisonment suspended for two years
and a fine of 1,500,000 old zlotys (PLZ). He was also ordered to pay the sum of
PLZ 400,000 to charitable institutions and court costs of
PLZ 346,000.
11. On an unspecified date the applicant filed an
appeal against this judgment, submitting that his conviction was based on
insufficient evidence. He pointed out that the District Court had failed to
establish precisely what defamatory words had been used and had only found that
the applicant had called the guards “ignorant”. This word should not have been
regarded as an insult but as an acceptable criticism of public servants. The
applicant further contended that the trial court had wrongly applied the law
since, contrary to its findings, it was evident that his acts had not involved
any act of hooliganism as he had only intended to protect street vendors from
illegal actions of the municipal guards.
12. On 29 September 1993 the Sieradz Regional Court
(Sąd Wojewódzki) quashed the part of the contested judgment relating to
the sentence of imprisonment and the order to pay PLZ 400,000 to charitable
institutions. However, it upheld the fine of PLZ 1,500,000 and reduced the
court costs to the sum of PLZ 150,000. The Regional Court was of the opinion
that the trial court had wrongly considered that the offence at issue had been
hooligan in nature as the applicant’s motive had been to defend street vendors
against the acts of the municipal guards which he had considered illegal.
Therefore the applicant had not acted as he did without any justifiable motive,
which was a prerequisite for finding that the offence was an act of
hooliganism.
13. Furthermore, the Regional Court agreed with the
applicant that the Zduńska Wola municipal council had not passed any resolution
prohibiting
the sale of merchandise on the streets and that no public notice to this effect
had been posted at the material place and time. Therefore, there were no
grounds for the trial court’s finding that the applicant had demonstrated
flagrant contempt for legal order.
14. Finally, the Regional Court observed that the
judgment had not mentioned the abusive words used by the applicant. Nevertheless,
it considered that there was sufficient evidence in the case file to conclude
that the applicant had in fact insulted the guards by calling them “oafs” and
“dumb” (“ćwoki” and “głupki”). These words were widely considered
to be offensive and by using them the applicant had exceeded the limits of
freedom of expression. The court found that the resulting conviction was
rightly imposed under Article 236 of the Criminal Code whose object was to
ensure that civil servants were not hindered in carrying out their duties.
ii. relevant domestic law
15. At the relevant time the legislation provided as
follows:
Article 236 of the Criminal Code:
“Anyone who insults a civil servant ... during and in
connection with the carrying out of his official duties is liable to up to two
years’ imprisonment, to restriction of personal liberty or to a fine.”
“Kto znieważa funkcjonariusza publicznego … podczas i w
związku z pełnieniem obowiązków służbowych, podlega karze pozbawienia wolności
do lat 2, ograniczenia wolności albo grzywny.”
Article 59 § 1 of the Criminal Code:
“If a perpetrator has committed a premeditated offence of a
hooligan nature, the court shall impose a sentence of imprisonment not lower
than one and a half times the minimum sentence provided ...”
“Jeżeli sprawca dopuścił się umyślnego występku o
charakterze chuligańskim, sąd wymierza karę pozbawienia wolności nie niższą od
dolnego zagrożenia zwiększonego o połowę …”
Article 120 § 14 of the Criminal Code provided that an offence
should be regarded as being of a hooligan nature if the perpetrator acted in
public, without any justifiable motive or with an obviously unjustified one,
thus demonstrating flagrant contempt for legal order.
PROCEEDINGS BEFORE THE COMMISSION
16. Mr Janowski applied to the Commission on 25
January 1994. He relied on Article 6 of the Convention, complaining that the
Zduńska Wola District Court had refused to grant him legal aid and hear two
defence witnesses and had produced minutes which did not reflect statements
made by witnesses and the applicant during the hearing. He also complained
under Article 10 that his conviction violated his right to freedom of
expression.
17. The Commission declared the application (no.
25716/94) admissible on 27 November 1996 with the exception of the applicant’s
complaints under Article 6. In its report of 3 December 1997 (former
Article 31 of the Convention), it expressed by eight votes to seven the
opinion that there had been a violation of Article 10. The full text of the
Commission’s opinion and of the dissenting opinion contained in the report is
reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
18. The applicant in his memorial requested the
Court to find that the facts of the case disclosed violations of Articles 3, 6,
7 § 1 and 10 of the Convention and to award him just satisfaction under former
Article 50 (now Article 41).
The Government for their part requested the Court to find that
Article 10 had not been violated in the present case.
THE LAW
i. scope of the case
19. In his memorial to the Court the applicant
raised several complaints under Articles 3, 6, 7 § 1 and 10 of the
Convention. The Court observes that only the applicant’s complaint under
Article 10 that his conviction violated his right to freedom of expression was
declared admissible by the Commission (see paragraphs 16-17 above).
20. The Court is therefore required to examine only
the applicant’s complaint under Article 10 (see, mutatis mutandis, the
McGinley and Egan v. the United Kingdom judgment of 9 June 1998, Reports of
Judgments and Decisions 1998-III, pp. 1354-55, §§ 68-70).
ii. alleged violation of article 10 of the convention
21. Mr Janowski submitted that his conviction for
insulting the municipal guards had infringed his right to freedom of expression
as guaranteed by Article 10 of the Convention, which provides:
“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.”
The Commission agreed with the applicant’s arguments, whereas
the Government contended that the facts of the case disclosed no breach of
Article 10.
A.Existence of
an interference
22. The participants in the proceedings were agreed
that the applicant’s conviction amounted to an interference with the exercise
of his right to freedom of expression. The Court sees no cause to conclude
otherwise.
23. An interference contravenes Article 10 unless it
is “prescribed by law”, pursues one or more of the legitimate aims referred to
in paragraph 2 of Article 10 and is “necessary in a democratic society” for
achieving such an aim or aims.
B. “Prescribed
by law”
24. The Court considers, and indeed this was not
disputed before it, that the interference was “prescribed by law”, the
applicant’s conviction having been based on Article 236 of the Criminal Code
(see paragraphs 14 and 15 above).
C.Legitimate aim
25. The Commission,
referring to the judgment of the appeal court, which explained that the purpose
of the applicant’s conviction was to ensure that civil servants were not
hindered in carrying out their duties, considered that the interference pursued
the legitimate aim of the prevention of disorder (see paragraph 14 above). The
Government agreed that the prevention of disorder was one of the legitimate
aims pursued by the national authorities, but in addition pleaded the
protection of the reputation and the rights of the municipal guards as the
second legitimate aim.
26. Having regard to the
particular circumstances of the case and to the reasoning of the appeal court’s
judgment, the Court considers that the conviction of the applicant was intended
to pursue the legitimate aim of the prevention of disorder. The interference
complained of therefore pursued a legitimate aim under Article 10 § 2.
D. “Necessary in a democratic society”
1. Arguments before the Court
27. The applicant submitted that his conviction for
insulting the municipal guards did not constitute a necessary interference
under paragraph 2 of Article 10. He pointed out that he had not intended to
insult the guards but merely wanted to convey a message concerning the
unlawfulness of their actions. Although the form of his message was strongly
disapproving of the guards, the words he used should be considered appropriate.
Furthermore, as the guards had acted unlawfully, they could not enjoy any special
protection against criticism.
Finally, the applicant claimed that, since he was a journalist,
his conviction was widely considered as an attempt by the authorities to
restore censorship and constituted discouragement of the expression of
criticism in future.
28. The Commission considered that civil servants
acting in an official capacity were, like politicians, subject to the wider
limits of acceptable criticism. If they acted without a legal basis they should
expect criticism from citizens and must accept that it may sometimes be harsh
or expressed in a strong form. The applicant might have offended the guards by
calling them “oafs” and “dumb”. However, in the particular circumstances of the
case, namely the fact that he had spontaneously reacted to unjustified actions
by the guards out of genuine civic considerations and expressed his criticism
in the course of a heated exchange, he had not overstepped the limits of
acceptable criticism. Furthermore, the Commission pointed out that the national
authorities had convicted the applicant solely on the basis of the insulting
meaning of the two words used by him without taking into account the situation
which had provoked his reaction. It concluded that, as the applicant’s conviction
was not proportionate to the legitimate aim pursued and was not necessary in a
democratic society, there had been a violation of Article 10.
The Delegate of the Commission added that in a democratic
society citizens should be allowed to react to the conduct of civil servants
even if their reactions were not justified and took controversial forms.
Moreover, law-enforcement officers should be indifferent to offensive verbal
responses to their actions since they constituted a part of their professional
risk.
29. The Government disagreed with the Commission’s
opinion that civil servants acting in an official capacity were, like
politicians, subject to the wider limits of acceptable criticism. Although they
should be open to close scrutiny and criticism, they should at the same time
enjoy protection against destructive attacks in order to be able to carry out
their duties effectively. The Government further contested the Commission’s
conclusion concerning the unlawfulness of the actions of the municipal guards,
claiming that the latter had a right to instruct the street vendors to leave a
square since they had acted on sanitary and traffic considerations (see
paragraph 8 above). The criticism expressed by the applicant could not enjoy
wider limits for it was not articulated through the media and was not a part of
public debate on important issues. As the penalty imposed on the applicant had
been proportionate to the aims pursued, the Government concluded by requesting
the Court to find that there had been no violation of Article 10.
2. The Court’s assessment
(a) General principles
30. The Court reiterates
the fundamental principles which emerge from its judgments relating to
Article 10:
(i) 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 the following judgments: Handyside v. the
United Kingdom, 7 December 1976, Series A no. 24, p. 23,
§ 49; Lingens v. Austria, 8 July 1986, Series A no. 103,
p. 26, § 41; and Jersild v. Denmark, 23 September 1994,
Series A no. 298, p. 23, § 31).
(ii) The adjective “necessary”,
within the meaning of Article 10 § 2, implies the existence of 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 a European supervision, embracing both the legislation and the decisions
applying it, even those given 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 the
above-mentioned Lingens judgment, p. 25, § 39).
(iii) 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 of the remarks held against the
applicant and the context in which he made them. In particular, it must determine
whether the interference in issue was “proportionate to the legitimate aims
pursued” and whether the reasons adduced by the national authorities to justify
it are “relevant and sufficient” (see the above-mentioned Lingens judgment,
pp. 25-26, § 40, and the Barfod v. Denmark judgment of
22 February 1989, Series A no. 149, p. 12, § 28). In
doing so, the Court has to satisfy itself that the national authorities applied
standards which were in conformity with the principles embodied in
Article 10 and, moreover, that they based themselves on an acceptable
assessment of the relevant facts (see the above-mentioned Jersild judgment,
p. 24, § 31).
(b) Application of the above principles to the instant case
31. Turning to the facts of
the present case, the Court’s task is to determine whether, in all the
circumstances, the restriction on Mr Janowski’s freedom of expression
answered a “pressing social need” and was “proportionate to the legitimate aim
pursued” and whether the reasons adduced by the national authorities in
justification of it were “relevant and sufficient”.
32. In this connection
the Court notes that the applicant was convicted of insulting the municipal
guards by calling them “oafs” and “dumb” during an incident which took place in
a square. It was witnessed by bystanders and concerned the actions of municipal
guards who insisted that street vendors trading in the square move to another
venue (see paragraph 8 above). The applicant’s remarks did not therefore form
part of an open discussion of matters of public concern; neither did they
involve the issue of freedom of the press since the applicant, although a
journalist by profession, clearly acted as a private individual on this
occasion. The Court further observes
that the applicant’s conviction was based on his utterance of the two words
which were judged to be insulting by both trial and appeal courts, not the fact
that he had expressed opinions critical of the guards or alleged that their actions
were unlawful (see paragraphs 10 and 14 above).
In these circumstances the Court is
not persuaded by the applicant’s contention that his conviction was widely
considered as an attempt by the authorities to restore censorship and
constituted discouragement of the expression of criticism in future (see
paragraph 27 above).
33. The Court also notes
the Commission’s reasoning that civil servants acting in an official capacity
are, like politicians, subject to the wider limits of acceptable criticism (see
paragraph 28 above). Admittedly those limits may in some circumstances be wider
with regard to civil servants exercising their powers than in relation to
private individuals. However, it cannot be said that civil servants knowingly
lay themselves open to close scrutiny of their every word and deed to the
extent to which politicians do and should therefore be treated on an equal
footing with the latter when it comes to the criticism of their actions (cf.
the Oberschlick v. Austria (no. 2) judgment of 1 July 1997, Reports
1997-IV, p. 1275, § 29).
What is more, civil servants must
enjoy public confidence in conditions free of undue perturbation if they are to
be successful in performing their tasks and it may therefore prove necessary to
protect them from offensive and abusive verbal attacks when on duty. In the
present case the requirements of such protection do not have to be weighed in
relation to the interests of the freedom of the press or of open discussion of
matters of public concern since the applicant’s remarks were not uttered in
such a context (see paragraph 32 above; and cf. the above-mentioned Lingens
judgment, p. 26, § 42 in fine).
34. In the Court’s view,
the reasons prompting the applicant’s conviction were relevant ones in terms of
the legitimate aim pursued. It is true that the applicant resorted to abusive
language out of genuine concern for the well-being of fellow citizens in the
course of a heated discussion. This language was directed at law-enforcement
officers who were trained how to respond to it. However, he insulted the guards
in a public place, in front of a group of bystanders, while they were carrying
out their duties. The actions of the guards, even though they were not based on
the explicit regulations of the municipal council but on sanitary and traffic
considerations, did not warrant resort to offensive and abusive verbal attacks
(see paragraph 8 above). Consequently, even if there were some circumstances
arguing the other way, sufficient grounds existed for the decision ultimately
arrived at by the national courts.
(c) Conclusion
35. Having regard to the
foregoing, the Court is satisfied that the reasons adduced by the national
authorities were “relevant and sufficient” for the purposes of paragraph 2 of
Article 10. The Court further finds that, in the particular circumstances of
the instant case, the resultant interference was proportionate to the
legitimate aim pursued. In this connection, it is noteworthy that the
applicant’s sentence was substantially reduced on appeal and, most
significantly, his prison sentence was quashed by the Sieradz Regional Court
(see paragraph 12 above). In sum, it cannot be said that the national
authorities overstepped the margin of appreciation available to them in
assessing the necessity of the contested measure.
There has consequently been no
breach of Article 10 of the Convention.
for these reasons, the court
Holds by twelve votes to five that there has been
no breach of Article 10 of the Convention.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 21 January 1999.
Luzius Wildhaber
President
Michele de Salvia
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following dissenting opinions are annexed to
this judgment:
(a) dissenting
opinion of Mr Wildhaber;
(b) dissenting
opinion of Sir Nicolas Bratza joined by Mr Rozakis;
(c) dissenting
opinion of Mr Bonello;
(d) dissenting
opinion of Mr Casadevall.
L.W.
M.
de S.
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