CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 janvier 2004

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Rozakis , President ,   Mr   P. Lorenzen ,   Mr   G. Bonello ,   Mrs   N. Vajić ,   Mr   E. Levits ,   Mrs   S. Botoucharova ,   Mr   L. Garlicki, judges , and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged with the European Commission of Human Rights on 20 October 1997, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the Court’s partial decision of 30   January 2003, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Izabela Malisiewicz-Gąsior, is a Polish [Note1] national, who was born in 1950. She is a choreographer and lives in Łódź, Poland. The respondent Government are represented by their Agent, Mr   Jakub   Wołąsiewicz. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The prosecution of the applicant on charges of kidnapping (a)     Events of 10 and 11 June 1992 On 10 June 1992 at 11 p.m. Mr Andrzej Kern, at that time the Deputy Chairman of the Sejm, complained to the Łódź Regional Prosecutor, E.S., alleging that the applicant and her husband had kidnapped his 17-year-old daughter, M.K. The applicant submitted that the allegation was false as M.K. had in fact run away from home and had only been accompanied by the applicant’s son who had been her boyfriend for a long time. M.K. had previously run away from home on many occasions because of conflicts with her parents. Prosecutor E.S., who – according to the applicant – was a friend of Mr   Kern, immediately instructed the Łódź Deputy Regional Prosecutor E.C. to take charge of the case. On the same day, i.e. 10 June 1992 prosecutor E.C. signed a warrant authorising the search of the applicant’s flat. The warrant was intended to search the flat for M.K. and drugs. On 11 June 1992 prosecutor E.C. signed an order allowing the tapping of the applicant’s telephone. On 11 June 1992 at 1 a.m. the applicant’s husband went to his cottage situated in the suburbs of Łódź. He was arrested by police officers who then searched the cottage. Prosecutor E.S. and Mr Kern were present at the scene. Subsequently, the applicant’s husband was taken to the Łódź Regional Police Station, where he was detained overnight. On 11 June 1992 at 4 a.m. police officers searched the applicant’s flat in her presence. However, they did not find either M.K. or drugs. The police officers advised the applicant that her husband had been detained and served her with a summons to report on the same day at 12   noon to the Regional Police Station for questioning. In the morning of 11 June 1992 the applicant’s husband was taken handcuffed to the premises of the regional prosecution service. He was questioned by prosecutors E.S. and E.C. Mr Kern was present during questioning. The applicant’s husband was released when the questioning ended. (b)     The detention of the applicant The applicant failed to report for questioning on 11 June 1992. She submitted to the police a letter explaining that she had to care for her daughter who was ill. Subsequently, the applicant failed to report for questioning on 15 and 17 June 1992. On 23 and 24 June 1992 police officers tried to serve a summons on the applicant, but could not find her at her place of residence. On 25 June 1992 prosecutor E.C. charged the applicant with kidnapping and signed an arrest warrant for her. Prosecutor E.C. also charged the applicant’s son with kidnapping. On 29 June 1992 the applicant was taken into custody. She was detained in the Łódź prison hospital. On 1 and 2 July 1992 the applicant was questioned by prosecutor   E.C. She was also confronted with Mr Kern. In the afternoon of 2 July 1992 the applicant was released from detention. (c)     The end of the criminal proceedings against the applicant On 30 June 1992 the applicant applied for a transfer of her case to a prosecutor who worked outside the Łódź region. On 4   August 1992 the Ministry of Justice advised her that the application had been allowed and that her case had been taken over by the Poznań Regional Prosecutor R.G. On 16 September 1992 prosecutor R.G. decided to discontinue the criminal proceedings against the applicant and her son. He considered that they had not kidnapped M.K. The prosecutor referred to the statement taken from M.K. who testified that it had been her decision to run away from home and that she had asked the applicant’s son to accompany her. Mr Kern and his wife lodged appeals against the decision to discontinue the criminal proceedings against the applicant and her son, but on 15   February 1993 prosecutor B.M. of the Ministry of Justice dismissed them. The prosecutor considered that the allegations of kidnapping were groundless. (d)     The publicity surrounding the case The case concerning the alleged kidnapping of M.K. received wide coverage in the media. 2.     The applicant’s campaign in the parliamentary elections In 1993 the applicant stood as an independent candidate in the parliamentary elections. On 22 August 1993 she published an article in the weekly newspaper “Angora”. The first half of the article, which was published in a section entitled “Pre ‑ election Pranks”, read as follows: “WHY? I am an independent candidate for the Senate, not connected to any ‘networks’, relations or obligations. The fact that I am described in the press and television as ‘a   mother-in-law of M (...) K (...)’ probably shows that the authors cannot mention names since they use such a euphemism. It is not my achievement and it was not a result of my efforts that we have become a family with Mr Kern. It can be explained by my son and his wife, if it is important (...). In order to explain the origin of the idea of standing in the elections to the Senate I   have to go back to the events which took place a year ago. At that time, I learned at my cost what the abuse of power meant! The Deputy Chairman of the Sejm at that time, directed by emotions and personal animosities, made the persons responsible for respecting the law – the Regional Prosecutor and his Deputy, and even the Minister of Justice – breach the law because of ‘the solidarity of colleagues’. I was arrested, detained in a psychiatric cell, my flat was provocatively searched for ‘drugs’, my telephone calls were tapped, a car damaged. After such compromising events, a politician of such a calibre in the West would have had to leave. But here he still felt good – and the Sejm decided not to dismiss him! I can imagine what sort of arrangements must have existed in the Sejm to make such a decision! I was so shocked by this that I was ready to go abroad as nothing could be changed. A turning point came when the President dissolved the Parliament. People started to telephone and write letters asking me to stand in the elections. They were saying that the events which had taken place a year ago showed that I could fight. I am convinced that I am not the only one touched by the breaches of the law committed by the representatives of ‘the new democracy’. However, the law is the same for everybody, regardless of whether somebody is in power or is ‘an ordinary man’. This fundamental rule of democracy must be respected!” The second half of the article described the applicant’s ideas about working in the Senate. On 5 September 1993 the applicant published in the same weekly the following article: “ABOUT ME The first years of my professional life were dedicated to art. As a dancer and a choreographer I worked with numerous theatres and cultural centres – both in Poland (among others the Łódź Grand Theatre), and abroad. I also worked as a pedagogue with children and young people. In 1981 I started to run a private business and presently I am a co-owner of a company ‘AVATAR’. I have two children: a 22 ‑ year ‑ old son (...) and a 6-year-old daughter (...), my husband – Jan – is an actor. I did not belong to any political party.   I did not participate actively in politics ... In the summer of 1992 events took place which changed my attitude to the world. The abuse of authority, which I experienced, has made it impossible for me to stand idly on the sideline and watch people who should be the guardians of the law, breaking it ruthlessly for the sake of their private interests. After all, precisely that was done to me by the former Deputy Chairman of the Sejm, the former Minister of Justice, the former Regional Prosecutor and his former deputy. It is not by chance that today for some malicious people it is not important that I am an independent candidate for the Senate but only that I can be called the mother-in-law of M (...) K (...). They are not interested in the fact that a year ago I was arrested groundlessly and imprisoned – purposely! – in a psychiatric cell, that my home was searched   on the pretext of ‘looking for drugs’, that after my release I was followed, my telephone calls were tapped and my car damaged, causing me constant mental pressure! All this happened in a country in which a western-style democracy had just set in! Today the Vice Minister of Justice sees ‘clear pressure brought by the Deputy Chairman Kern on the Łódź prosecution service’, and there are criminal proceedings pending against its former employees. I am a strong person. I have endured... However, I do not want any other innocent person to suffer similar harassment. There must be justice and equality before the law – regardless of whether somebody is ‘the man in the street’ or the Deputy Chairman of the Sejm! I know that I can fight and win! I have remained independent! That is why I have decided to enter the political arena!” In election broadcasts on the Łódź local radio station on 6, 9 and 15   September 1993 the applicant made the following statement: “A turning-point came last year. You remember that story, it was well-known in the whole of Poland, although I did not cause it. At that time, I realised to my cost what the abuse of power meant. The Deputy Chairman of the Sejm at that time, directed by emotions, made the Regional Prosecutor, his Deputy, and even the Minister of Justice breach the law because of the solidarity of colleagues. I was arrested, detained in a psychiatric cell, my flat was provocatively searched for drugs, my telephone calls were tapped, a car damaged. All this because the daughter of Mister Deputy Chairman decided to spend holidays with my son without her daddy’s permission. Until then I had thought that such behaviour had been possible only in the Stalinist era.” In election broadcasts on the Łódź local television station on 13 and 16   September   1993 the applicant made the following statement: “The abuse of authority, which I experienced, has made it impossible for me to stand on the sideline and idly watch people, who should be the guardians of the law, breaking it ruthlessly for the sake of their private interests. Precisely that was done to me by the former Deputy Chairman of the Sejm, the former Regional Prosecutor and his deputy. Today, there are criminal proceedings pending against them. I am a strong, enduring person, however I do not want any other innocent person to suffer similar harassment.” 3.     The prosecution on charges of defamation (a)     The private bill of indictment On 27 September 1993 Mr Kern lodged with the Łódź District Court a private bill of indictment. He charged the applicant with seven counts of defamation under Article 178 § 2 of the Criminal Code. In particular, Mr   Kern alleged that the applicant had published the above articles and had broadcast the above election statements “in order to debase in the public opinion the Deputy Chairman Andrzej Kern and to expose him to loss of the trust necessary to perform his public and political functions.” (b)     The trial The applicant was tried by the Skierniewice District Court between 22   May 1995 and 18 March 1996. On 19 March 1996 she was convicted on all seven counts. However, the court considered that her publications and statements constituted a single continuous offence under Article   178 §   1 of the Criminal Code. By making them, the   applicant “defamed Andrzej Kern and made allegations – untrue – which could have debased the victim in the public opinion and exposed him to loss of the trust necessary to perform the functions of Deputy Chairman of the Sejm of the Republic of Poland and other public functions as well as to work as a lawyer-advocate”.   With respect to the statement broadcast on 13 and 16 September 1993 the court observed that: “Between 22 August and 16 September 1993 there were no criminal proceedings against Andrzej Kern. In fact, criminal proceedings against him were initiated only on 22 December 1993. On that date he was charged with a crime described in Article 168 of the Criminal Code against M (...) K (...). The victim filed written information about that crime on 11 October 1993 (...).” The court considered that prosecutors E.S. and E.C. acted independently when they made their decisions concerning the applicant’s case. The applicant was sentenced to eighteen months’ imprisonment suspended for five years. Moreover, the court ordered the applicant to pay for the publication of the judgment in two national dailies and a local newspaper. She was also ordered to make at her own expense public announcements in the newspaper “Angora” and on the Łódź radio and television stations apologising to Mr Kern and declaring that “allegations about pending criminal proceedings and making the Regional Prosecutor, his Deputy and the Minister of Justice breach the law, made in respect of Andrzej Kern between 22 August 1993 and 16 September 1993 in those media during her election campaign, were untrue.” Finally, the applicant was ordered to reimburse the private prosecutor 800 Polish zlotys (PLN) for the costs of the proceedings and to pay a PLN   75 fee to the State Treasury. (c)     The appellate proceedings The applicant appealed to the Skierniewice Regional Court against her conviction. On 18 November 1997 the court delivered a judgment in which it upheld her conviction but changed the sentence. The applicant’s prison term was lowered to one year suspended for three years. She was ordered to pay for the publication of the judgment in one national daily and the announcement containing her apologies in the weekly “Angora”. Moreover, the applicant was ordered to reimburse the private prosecutor PLN   480 for the costs of the appellate proceedings and to pay a PLN   90 fee to the State Treasury. The appellate court considered that the trial court’s assessment of facts and legal reasoning were correct. It also agreed with the first-instance court that “the action of I. Malisiewicz-Gąsior directed against A. Kern was an element of her election campaign, aiming at ‘promoting’ (...) her own person, in order to obtain a positive election result.” Therefore, the applicant could not be said to have been defending a socially justified interest, as she had been trying to achieve her private objective. (d)     The cassation appeal The applicant could not afford to hire a lawyer to lodge a cassation appeal and therefore she applied to the Minister of Justice and the Ombudsman to lodge a cassation appeal against her conviction. On 15   December 1998 the Ombudsman allowed her application and filed with the Supreme Court a cassation appeal against the judgment of the Skierniewice Regional Court. The Ombudsman submitted that the courts had failed to take into account evidence pointing to the fact that “the inadequacy of the actions of the police and the prosecution service in respect of herself and her family in the case concerning the kidnapping of M (...) K (...) could have led [the applicant] to the justified belief that her allegations concerning Mr   Kern had been true and that she had been ‘defending a socially justified interest’”. In this connection, the Ombudsman stated in his appeal that: “Furthermore, the courts’ view that the defendant was not defending a socially justified interest because she was participating in her own election campaign and aiming in the first place to achieve her own private objective is not supported by the evidence which was collected and disclosed at the hearing. The participation in one’s own election campaign cannot be an obstacle to speaking on the subject of ensuring respect for the law by institutions and public personalities. What is more – an election campaign invariably constitutes a period of public statements on important social issues, which certainly include the respect for the law, especially by institutions and persons especially obliged to do so. It is therefore difficult to consider that it was the defendant’s intention to promote herself and not – by using the opportunity to speak publicly – pointing, on the basis of her own experiences, to the danger of breaking the law by a public institution as a result of yielding to the pressure of public personalities.” The Ombudsman further submitted that prosecutors E.S. and E.C. had broken the law. He relied on the files on the disciplinary proceedings taken against both prosecutors. Finally, the Ombudsman challenged the courts’ assessment of part of the evidence. (e)     The Supreme Court’s decision On 1 December 2000 the Criminal Section of the Supreme Court dismissed the cassation appeal. Its reasoning ended with the following conclusion: “The irresistible conclusion is that the submissions made in the cassation appeal, formally of a procedural nature, concern in fact the allegation of an error in the assessment of facts taken as the basis for the decision and the assessment of evidence, which is not allowed in cassation proceedings. Cassation proceedings cannot be transformed into third-instance proceedings dedicated to further consideration of all aspects of the submissions made in the appeal, which have already been analysed by the appellate court. (...)” (f) The enforcement of the sentence In the meantime, on 24 August and 28 September 2000 the Skierniewice District Court held hearings on the enforcement of the applicant’s prison sentence as she had failed to apologise to Mr Kern. The applicant did not attend the hearings. On 23 October 2000 the Skierniewice District Court decided not to enforce the suspended prison sentence imposed on the applicant. B.     Relevant domestic law The Criminal Code 1969 The relevant provisions of the Criminal Code 1969 read as follows:   Article 178: “§ 1. Anyone who imputes to another person, a group of persons or an institution such behaviour or characteristics, which may debase them in the public opinion or expose to loss of the trust necessary for a certain position, occupation or a type of activity, shall be liable to imprisonment not exceeding 2 years, a restriction of liberty or a fine. § 2. Anyone who raises or makes public untrue allegation about behaviour or characteristics of another person, a group of persons or institutions in order to debase them in the public opinion or expose to loss of the trust necessary for a certain position, occupation or a type of activity, shall be liable to imprisonment not exceeding 3 years. (...) § 4. The prosecution takes place under a private bill of indictment.” Article 179: “§ 2. There is no offence described in Article   178   §   1 if: 1) an allegation made publicly is true and the offender acts in the defence of a socially justified interest or has a conviction based on a well-founded basis that he is defending such an interest, or 2) the offender makes an allegation publicly and has a conviction based on a well ‑ founded basis that the allegation is true and that he is defending a socially justified interest. § 3. Non-existence of an offence resulting from the reasons described in §§   1 and   2 does not exclude the offender’s liability for defamation because of the form in which an allegation was made or made public.” COMPLAINTS The applicant complained about a breach of Article   10 of the Convention. THE LAW The applicant complained about a breach of Article 10 of the Convention which reads 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.” The applicant submitted that her statements about the abuse of power committed by Mr Kern were justified in view of her experience of the criminal proceedings initiated against her on charges of kidnapping. Moreover, taking into account the circumstances of that case, the applicant’s statements were made in “a cultural and delicate manner”. She acted in the public interest. Moreover, the fact that the applicant stood as a candidate in the parliamentary elections could not prevent her from speaking on the subject of the lawfulness of the actions of public personalities or institutions. The applicant also criticised the conclusions of the trial and appellate courts. The Government admitted that the applicant’s conviction amounted to an “interference” with her right to freedom of expression. However, they submitted that the interference was “prescribed by law” and pursued a legitimate aim as it was intended to protect the reputation and rights of others. Furthermore, the Government pointed out that the trial court had found that the applicant’s allegations had been untrue. In particular, no criminal proceedings were pending against Mr Kern when the applicant made her statements. Moreover, the trial court considered that the prosecutors in charge of the applicant’s case were independent and did not act under the influence of Mr Kern. The Government further observed that: “The Skierniewice District Court as well as the Skierniewice Regional Court duly examined whether in the case there existed exonerating circumstances as indicated in Article   179 § 2 (2) of the Criminal Code of 1969 (i.e. whether the (...) applicant had a well ‑ founded basis for believing that the statements she made were true and that she was defending a socially justified interest). As was underlined by the second instance court, pursuant to the Polish law the burden of proof with reference to the above circumstances lay with the (...) applicant. However, the (...) applicant did not submit any reliable evidence to show that her defamatory allegations were true and that she had made them in defence of a justified social interest. Moreover, the context and circumstances in which the (...) applicant made the defamatory statements clearly proved that the (...) applicant’s aim was exclusively to promote her own person for the purpose of the election campaign.” Therefore, the applicant’s conviction and sentence were justified by a “pressing social need” and were proportionate to the legitimate aim pursued. With respect to the applicant’s suspended prison sentence, the Government emphasised that it was not enforced and therefore the applicant “did not suffer any negative consequences for her failure to publish apologies to Mr   Kern”. The Government further pointed out that all European legal systems provided for defamation as a criminal offence. Moreover, the untrue allegations that there were pending criminal proceedings against somebody or that “a lawyer ‑ advocate and a person performing public functions broke the law and made the persons responsible for respecting the law breach [it] because of the solidarity of colleagues” were not protected by Article 10. The Government concluded that the reasons given by the Polish courts for the applicant’s conviction were “relevant and sufficient” and that the application was manifestly ill-founded. Alternatively, they submitted that there was no violation of Article 10 in the present case. The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the remainder of the application.   Søren Nielsen   Christos Rozakis   Registrar   President [Note1]   To be checked.