CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 novembre 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 25716/94                       by Józef Michal JANOWSKI                       against Poland           The European Commission of Human Rights (Second Chamber) sitting in private on 27 November 1996, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 25 January 1994 by Józef Michal JANOWSKI against Poland and registered on 18 November 1994 under file No. 25716/94;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       26 January 1996 and the observations in reply submitted by the       applicant on 13 March 1996;         Having deliberated;         Decides as follows:     THE FACTS           The applicant, a Polish citizen born in 1937, is a journalist residing at Zdunska Wola.         The facts of the case, as submitted by the parties, may be summarised as follows:     Particular circumstances of the case         On 2 September 1992 the applicant observed two municipal guards who ordered sellers of fruits and vegetables to leave a place where selling was not authorised by the municipal authorities and to move their improvised stands to a marketplace nearby.   They also imposed high fines on them.   The applicant intervened, pointing out to the guards that their actions were devoid of any legal basis and infringed the economic freedom guaranteed by the Economic Freedom Act.   He indicated that the municipal authorities had failed to pass any resolution, which would allow the guards to vacate the place concerned and to impose fines on sellers.   He stressed that the guards were acting only upon an oral authorisation of the town mayor.   The applicant had called them "ignorant" and "criminals, who breach applicable laws".   The applicant urged the sellers to stay.   A large group of passers-by gathered, listening to the animated exchange between the applicant and the guards.         On 5 January 1993 the Zdunska Wola Public Prosecutor transmitted an indictment against the applicant to the Zdunska Wola District Court (S*d Rejonowy).   The applicant was charged with having verbally abused municipal guards during and in connection with their carrying out their official obligations and of acting with a flagrant contempt for legal order, i.e. an offence specified in Article 236 of the Criminal Code read together with Article 59 para. 1.         On 7 January 1993 the indictment was served on the applicant. The first hearing was held on 25 January 1993.   The applicant requested rectification of the minutes.   The next hearing was held on 15 April 1993.   On 22 April 1993 the applicant requested that the minutes of this hearing be rectified.         On 29 April 1993 the applicant requested the Zdunska Wola District Court to be granted legal aid as the proceedings against him had been conducted in an unfair manner.   He was unemployed and he had ceased to receive unemployment benefits since 1 March 1993.   At the hearing on the same date the Zdunska Wola District Court refused to grant legal aid to the applicant, considering that he had not sufficiently substantiated his difficult financial situation.   The Court further refused to rectify the minutes of the hearing of 15 April 1993.   Thereupon the applicant left the courtroom.   The Court continued the hearing and heard further witnesses in the applicant's absence.   On the same day the Court convicted the applicant of verbal abuse of two municipal guards within the meaning of Section 236 of the Criminal Code read in conjunction with Article 59 para. 1 of the Code.         The Court found that on 2 September 1992 the applicant had challenged two municipal guards, who had ordered sellers of fruit and flowers to leave an unauthorised place and imposed fines on them.   The applicant had indicated that the actions of the guards were contrary to the Economic Freedom Act.   He had pointed out that there was no resolution of the local municipal council which would allocate certain places in town for selling purposes and prohibit selling in other places.   He had suggested to the sellers that they should disobey the orders as they lacked any legal basis.   He had also verbally abused the guards.         The Court considered that the applicant's offence was "of a hooligan character" ("o charakterze chuliganskim") within the meaning of Section 59 para. 1 of the Criminal Code and sentenced him to eight months' imprisonment (suspended) and a fine of 1.900.000 zlotys.   He was ordered to pay the court costs.         The applicant appealed against this judgment.   He submitted that his conviction was based on insufficient evidence as the Zdunska Wola Court had failed to establish what actual defamatory words had been used.   The Court had found only that the applicant 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 Court had wrongly applied the law.   Thus, it was evident that his acts were not "of a hooligan character" as he had only intended to protect poor people against illegal acts of the municipal police.   The impugned judgment was thus manifestly inequitable and the applicant should have been acquitted.         At a hearing on 29 September 1993 the Sieradz Regional Court (S*d Wojewódzki), in the presence of the applicant and his lawyer, whom he had retained in the meantime, quashed the contested judgment in its part relating to the prison sentence and upheld it in its remainder. The Court considered that the lower court was obviously wrong in having established that the offence at issue had been "of a hooligan character" as the applicant's genuine motives were to defend sellers against the, in his opinion, wrongful and illegal acts of the municipal guards.   Thus the applicant had not acted without any justifiable motive, which was a prerequisite for finding that the offence was "of a hooligan character".   The applicant had correctly considered that there had been no resolution of the municipal council prohibiting selling merchandise on the streets and that there was no notice for the public to this effect at the material place and time.   Therefore there had been no grounds for the lower court's finding that the applicant had demonstrated a flagrant contempt for legal order.   As regards the complaint concerning insufficient evidence, the Court admitted that the grounds of the judgment did not mention the actual abusive words used by the applicant.   However, the Court found that there was sufficient evidence in the case-file to consider that the applicant had in fact abused the guards.   The abuse consisted of calling the guards "dumb" and "oafish" ("cwoki" and "glupki"), which were words commonly considered to be offensive.   Thus the applicant had overstepped the limits of freedom of expression and had correctly been found to be in breach of the relevant provision of the Criminal Code.   The Court observed that the purpose of this provision was not to protect personal dignity of civil servants, but to ensure that they were not hindered in carrying out their tasks.   The Regional Court further considered that the first instance court had sufficiently demonstrated which evidence it had considered credible and given sound reasons therefore.   Relevant domestic law           Article 236 of the Criminal Code reads:         "Anyone who insults a civil servant (...) during and in       connection with carrying out his/her official duties, is liable       to an imprisonment up to two years, to restriction of his       personal liberty or to a fine."         Article 59 of the Criminal Code provides:         "If a perpetrator committed a premeditated offence of a hooligan       character, the court shall impose a prison sentence not lower       than its lower limit increased by half (...)"         Article 120 para. 14 of the Criminal Code provides that an       offence shall be regarded as being of a hooligan character if the       perpetrator acts in public, without any justifiable motive or       with an obviously unjustified one, thus demonstrating flagrant       contempt for legal order.     COMPLAINTS         The applicant complains under Article 6 para. 3 of the Convention that the Zdunska Wola District Court refused to hear two witnesses for the defence and to grant him legal aid.         He complains under Article 6 para. 1 of the Convention that the Court was biased against him in that it dictated the minutes of the hearing in a way which did not reflect the actual statements made by witnesses and the applicant during the hearing.   He submits that he twice requested the Court to rectify the minutes.         The applicant further complains that his conviction breached his right to freedom of expression as his acts were only acceptable criticism of public servants.   He submits that the acts of the municipal guards were unlawful and he was right in criticising them.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 25 January 1994 and registered on 18 November 1994.         On 28 June 1995 the Commission decided to communicate the applicant's complaint concerning the alleged violation of Article 10 of the Convention and invited the parties to submit written observations on the admissibility and merits before 10 October 1995. Upon the Government's request of 5 October 1995, an extension of the time-limit was granted until 15 December 1995.   In view of the length of the extended time-limit, the Government were further requested to submit the translation of the observations into one of the official languages by the same date.         By a letter of 22 January 1996 the Government were informed that the case was being considered for inclusion in the list of cases for examination at the Commission's session beginning on 26 February 1996. The Government's written observations were submitted on 26 January 1996.   The applicant replied on 13 March 1996.         By letter of 28 June 1996 the Government were reminded that the time-limit for the submission of the translation of the Government's observations had expired.   The Government were informed that if the Commission did not receive the translation before 2 September 1996, it would examine the application without the benefit of the translation.   THE LAW   1.     The Government first submit that the application, insofar as it relates to events prior to 1 May 1993, i.e. the date of recognition of the right of individual petition by Poland, is outside the competence ratione temporis of the Commission.   They further submit that events prior to this date should be taken into account merely as a background to the issues before the Commission (Eur. Court HR, Hokkanen v. Finland judgment, Series A vol. 299, p. 19, para. 53).   As regards the complaints relating to events after that date, the Commission is competent ratione temporis to examine them.         The Commission recalls that Poland recognised the competence of the Commission to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993".   It follows that the Commission is not competent to examine complaints relating to violations of the Convention by acts, decisions or events that have occurred prior to this date.         It follows that the Commission is competent ratione temporis to examine the application insofar as it relates to the events after 30 April 1993, including the applicant's criminal conviction of 29 September 1993.   2.     Insofar as the applicant complains about the alleged unfairness of the proceedings before the Zdunska Wola District Court, the Commission recalls that these proceedings ended by a first instance judgment of 29 April 1993, the date being prior to the recognition of the right of individual petition against Poland.   However, the Commission leaves open whether this part of the application is compatible ratione temporis with the provisions of the Convention as it observes that, in any event, the applicant did not raise these complaints in his appeal to the Regional Court.   Therefore he has not exhausted the remedies available under Polish law.         It follows that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.     The applicant further complains that his conviction breached his right to freedom of expression as his acts constituted an acceptable criticism of public servants.   He submits that the acts of the municipal guards were unlawful and he was right in criticising them.         Article 10 (Art. 10) of the Convention, insofar as relevant, reads:         "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 Government first submit that the applicant complains mostly about the alleged unfairness of the proceedings.   They express doubts as to whether the applicant intended to submit a complaint under Article 10 (Art. 10) of the Convention.   The Government consider that this issue has been raised by the Commission proprio motu as the applicant did not consider himself a victim of a breach of freedom of expression.   However, the Government address the complaints under Article 10 (Art. 10).         The Government further stress the importance of freedom of expression in a democratic society.   The limitations thereof contained in para. 2 of Article 10 (Art. 10-2) of the Convention are but exceptions from the general principle set out in para. 1.   The Government are fully aware that these exceptions must meet the requirements set out in para. 2 of Article 10 (Art. 10-2) of the Convention.         The Government submit that the facts of the case are not in dispute between the parties.   In the proceedings before the domestic courts the applicant stressed that the acts of the municipal guards did not comply with their statutory obligations.   He maintained that the selling on the streets was based on the Economic Freedom Act and the Local Government Act.   The fines imposed on the sellers and the prohibition to sell on the streets were devoid of legal basis.   He stated that he knew that certain complaints to the municipal authorities about the guards' actions in this respect had proven to be ineffective in the past and declared that his acts had been motivated by civic considerations to curb their unlawful and unjustified acts.         The Government observe that the Regional Court recognised that the applicant's motive had been to protect the sellers as he knew that neither a resolution of the municipal authorities prohibiting sales in the streets had been taken, nor a notice to this effect had been available to the public at the scene of the incident.   Accordingly, the Court alleviated the sentence.   The Court considered that the evidence had shown that the applicant had called the guards "dumb" and "oafish" and not "ignorant" as he had stated in his submissions before the District Court.   The Government conclude that the conviction constituted an interference with the applicant's freedom of expression.         The Government maintain that the applicant's action was undoubtedly in breach of Article 236 of the Criminal Code.   They submit that it is not in dispute that the municipal guards enjoyed protection of this Article, accorded to civil servants.    They submit that it is irrelevant for the existence of the offence under Article 236 of the Criminal Code whether the acts of a civil servant are consonant with equity.   Even if they are not, civil servants still enjoy the protection of this provision.   They conclude that the interference was "prescribed by law" as it was covered by Article 236 of the Criminal Code.         The Government further submit that the measure complained of pursued the legitimate aim of the "protection of the reputation or rights of others", i.e. of the municipal guards.         As to whether the interference was "necessary in a democratic society", the Government rely on a wide margin of appreciation of the domestic authorities in assessing the necessity of interference with the freedom of expression.   State authorities are in principle in a better position than the international judge to give an opinion on the exact contents of the concept of morals in a given society as well as on the "necessity" of a "restriction" or "penalty".   This, however, goes hand in hand with the European supervision.   Whoever exercises his freedom of expression undertakes "duties and responsibilities" the scope of which depends on his situation and the technical means he uses (Eur. Court HR, Handyside v. United Kingdom judgment of 29 April 1996, Series A vol. 24, p. 29, paras. 48-49).         The Government further contend that the authorities acted rationally and in good faith.   They did not overstep the margin of appreciation provided for by Article 10 para. 2 (Art. 10-2).   The criticism of public authorities cannot in principle be penalised; on the contrary, in a democratic society it should be approved of; however, certain standards must be observed when voicing such criticism, and the authorities must react in particular when legal regulations as to public order are flagrantly breached.   The applicant's behaviour undoubtedly did not comply with the applicable standards.   Not only had he breached moral principles universally considered to be binding in Poland, but his behaviour was also in violation of criminal law.         The Government conclude that the interference concerned was thus "necessary in a democratic society" and that, consequently, this part of the application should be declared manifestly ill-founded.         The applicant submits that the Government's observations are in fact limited to reiteration of the arguments relied on by the first instance court.   The Government failed to address the applicant's argument that the action of the municipal guards was in breach of applicable laws.         The Commission considers that the applicant's above complaint raises serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits. It follows that this part of the application cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.         For these reasons, the Commission, by a majority,         DECLARES ADMISSIBLE, without prejudging the merits, the       applicant's complaint that his conviction was in breach of his       right to freedom of expression;         DECLARES INADMISSIBLE the remainder of the application.            M.-T. SCHOEPFER                               G.H. THUNE           Secretary                                   President     to the Second Chamber                       of the Second Chamber