CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 22 juin 2004

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Pellonpää ,   Mrs   V. Strážnická ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Mr   J. Borrego Borrego, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 12 February 2002, Having deliberated, decides as follows: THE FACTS The applicant, Mr Zbigniew Pachla, is a Polish national, who was born in 1953 and lives in Dobromierz, Poland. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The first conviction for defamation On 25 March 1999 the Kamienna Góra District Court convicted the applicant of defamation and sentenced him to a fine. In particular, the trial court considered that “Zbigniew Pachla is guilty in that in his letter of 22   July 1997 (...) addressed to the Wrocław Appellate Prosecutor he alleged that Stanisław Sieńczak was compromised because of his relations with criminal elements and for that reason had been dismissed from his post as prosecutor, whereas this information could have lowered Stanisław Sieńczak in public opinion and undermined public confidence in his capacity to perform the duties of a prosecutor (...).” On 15 September 1999 the Jelenia Góra Regional Court dismissed the applicant’s appeal against his conviction. 2.     The criminal proceedings concerning extortion On 26 August 1998 the applicant was arrested by the police. On 27 August 1998 the Świdnica District Court remanded him in custody on a charge of attempted extortion. On 23 November 1998 the applicant was released from detention. On 29 December 1998 the Świdnica District Prosecutor stayed the criminal proceedings against the applicant as his co-accused, a certain Mr   J.J., had gone into hiding. On 11 June 1999 the prosecution service resumed the proceedings in order to prepare an extradition request in respect of J.J., who had been arrested in Belgium. On the same date the proceedings were stayed again. The applicant submits that the proceedings are still pending. 3.     The second conviction for defamation (a) The publication In August 1999 the applicant published the following bulletin: “INFORMATION BULLETIN of the Citizens’ Anticorruption Association OSA No. 1 Wałbrzych, August 1999 Concerned about the existence and the future of our country, human dignity and citizens’ constitutional rights, having the duty of solidarity with others, following the provisions and ideas of the Constitution of the Republic of Poland, aiming at ensuring the respect for freedom and justice – we have registered an association called “The Citizens’ Anticorruption Associations – OSA”. We are guided by the principles of integrity in order to intervene to have the law obeyed and to intervene in cases of persecution of citizens opposing corruption and breach of the law; to demand prosecution of persons guilty of the abuse of public trust, of theft, or of wasting public property; and to call on the appropriate authorities to punish such persons. We hand over to you the first issue of the bulletin “OSA”, in which we would like you to get acquainted with prosecutor Stanisław Sieńczak, who takes advantage of his network and connections, and who has been a prosecutor at different levels in Wałbrzych since 1975. At the beginning of the 1990s he had to leave the prosecutor’s office for a short period of time [because] he did not pass the vetting procedure[;] recently he held a managerial post in the Wałbrzych District Prosecutor’s Office. Presently, he is a member of the permanent commission of the Council for Law Enforcement and Public Security, elected by Wałbrzych City Council, as a commission member not participating in the Council. The prosecutor’s son breaks the law Three years ago, on New Year’s Eve, or rather in the early hours of 1 January 1997, a collision of two passenger cars took place on Długa street in Wałbrzych. As it turned out the driver improperly overtaking the other car was the prosecutor’s son, Piotr Sieńczak. An Opel Omega with German number plates driven by him collided head-on with a taxi from Wałbrzych which was being driven correctly. The taxi driver, Dariusz Dutkiewicz, was injured (required medical care for a month) and even more injured was the passenger, Henryk Czępkowski (treated for over three months). The taxi was destroyed, whereas the damage to the car which caused the accident was estimated by an expert at 5,000 zlotys. The perpetrator and the owner of the car sustained lighter injuries. All of them were taken from the site of the accident by an ambulance and the case went to the Wałbrzych traffic police officer Mr Zbigniew Rudziks . An insurance agent Wasley Lapec , from the Victoria Vers. AG company, which insured the car driven by P. Sieńczak, writes in his letter, that the case was transferred to the prosecutor’s office in Legnica, as the flagrantly reckless culprit is the son of a well-known prosecutor from Wałbrzych. In his letter the representative of the insurance company writes: “In Poland, the legally permitted blood alcohol level is 2 parts per thousand. Unofficially, according to a secretary at the police station in Wałbrzych, Mr Piotr Sieńczak’s blood contained more alcohol than had previously been recorded. (...) His guilt will be probably proven in the court’s judgment, a sentence may be given and maybe something surprising will also arise.” Of course the case was not transferred to the Prosecutor’s Office in Legnica but to the Regional Prosecutor’s Office in Świdnica, where Mr S. Sieńczak had worked as a prosecutor a few years after he had been dismissed from the post of Chief of the District Prosecutor’s Office in Wałbrzych. At the beginning of the 1990s he worked for three months as a legal adviser [because] he had not passed the vetting procedure. Following complaints to the Minister of Justice filed by the former Świdnica Regional Prosecutor and by a group of advocates from the Wałbrzych Law Office No. 1 (that was not done gratuitously, but we will write about that in future issues of the bulletin), he came back to his profession and was nominated for the post of an ordinary prosecutor. To silence public opinion, he worked in various prosecutor’s offices in the former Wałbrzych province, among others in the Dzierżoniowo District Prosecutor’s Office... For the longest period of time he worked in the Świdnica District Office, where his son’s case has been transferred. Now, as was the case in the previous years, the chief prosecutor in Świdnica is Mr Leopold Lewandowski . All this procedure was conceived in order to show that the prosecutor’s office in Wałbrzych, which presently employs the culprit’s father, has “clean hands”. On the orders of a superior from Świdnica, the case of Piotr Sieńczak was taken by junior prosecutor Mrs Maria Calińska, who did not find any breach of the law, in spite of the fact that the victims injured in the accident were hospitalized for over seven days..., and that Mr   Czępkowski needed physiotherapy for several months after the accident and was diagnosed as having a 25% loss of health. The Criminal Code (in force until last September) states that the perpetrator of such an offence can receive a sentence ranging from 6 months to 8 years... Anybody without connections in so-called “criminal justice” would be liable to such a sentence, but this case was not even listed for trial. Case no. Ds 204/97 was quietly dropped and six months later, i.e. on 23 June 1997 it was conditionally discontinued. The perpetrator of the accident was “punished” by a decision of the prosecutor (without a trial), with 1 year of probation and a 50 (fifty) zloty fine, and the obligation to compensate the damage - in full or in part? (This was not specified, what for..., when for Mr S. Sieńczak money is not a problem, as he has his good friend, Mr Andrzej Głapisz, in the Wałbrzych branch of the PZU insurance company). In future editions of our bulletin we will write about corruption in our city and other cities of the former Wałbrzych province. Moreover, we invite you to read our monthly magazine OSA, in which we will write more broadly about dishonesty, fraud, lies, arrogance, corruption and other similar behaviour of agents and employees of the State and local government institutions, and functionaries. President of the OSA Zbigniew Pachla Anybody who has been harmed is encouraged to inform us about such upsetting cases and to cooperate with our Association Address: The Anticorruption Association “OSA” 58-160 Świebodzice, PO Box 373 This bulletin is sent for information to: 1. regional newspapers 2. the Wrocław Appellate Prosecutor’s Office.” (b) The bill of indictment In 2000 Stanisław Sieńczak lodged with the Świdnica District Court a private bill of indictment. He charged the applicant with defamation under Article 212 § 1 of the Criminal Code. In particular, Mr   Sieńczak alleged that in the bulletin the applicant imputed to him “unlawful behaviour in order to lower [District Prosecutor Stanisław Sieńczak] in public opinion and undermine public confidence in his capacity to perform the duties of a prosecutor”. Subsequently, the Świdnica District Prosecutor joined the criminal proceedings against the applicant and the prosecution was conducted by the prosecution service. (c) The trial The applicant was tried by the Świdnica District Court on 7 November 2000 and 19 January 2001. On the latter date he was convicted as charged and sentenced to ten months’ imprisonment suspended for three years. The court gave the following reasons for its decision: “The court considers that the commission of the crime by the accused and his guilt do not raise any doubts. The evidence gathered shows that the accused imputed to Stanisław Sieńczak behaviour which could lower him in the public’s estimation and undermine public confidence in his capacity to perform the duties of the prosecutor. The evidence in the case clearly shows that the allegations made by the accused in an article “The prosecutor’s son breaks the law” that Stanisław Sieńczak unlawfully tried to “keep quiet” and “fix” the case are not true. The law was not broken in the course of the criminal proceedings against Stanisław Sieńczak’s son and the decision to conditionally discontinue the proceedings, which is final and was not the subject of an appeal, was made on the basis of factual and legal grounds justifying such a decision. The court is of the view that the accused’s allegation that Stanisław Sieńczak had contacts in the Wałbrzych branch of the PZU insurance company and used them to pay for damage caused by the accident is not true. The testimony of Dariusz Dutkiewicz, who was the victim of the accident of 1 January 1997 and who received compensation from the insurance company, refutes that allegation. The court did not believe the accused’s explanations submitted in order to show that the allegations about Stanisław Sieńczak made in the information bulletin were true. These explanations are incoherent and have not been proved. As the accused has failed to prove that the allegations about Stanisław Sieńczak made in the bulletin were true, the accused’s statement about Stanisław Sieńczak amounts to defamation. In deciding whether the accused held Stanisław Sieńczak up to public opprobrium and exposed him to loss of the public confidence by making allegations of unlawfully “silencing” and “fixing” the case concerning his son and abusing his contacts in PZU, the court took into account in particular the nature of the post held by the defamed prosecutor. It is obvious that statements about a person who holds the post of prosecutor which suggest that such a person took unlawful actions, exposed that person to public obloquy and undermined public confidence in him as a prosecutor. Contrary to the accused’s submissions, the fact that the statements about Stanisław Sieńczak published in the bulletin were only quotations from court files, from an opinion issued by a German company and from his interviews, does not make him innocent. It has been accepted by legal writers and jurisprudence that for defamation to be committed it is not necessary that the perpetrator is himself the source of the communicated information, and repetition of such information does not exclude punishment for defamation. Furthermore, in its assessment of the charge against the accused the court took into account the fact that the article in which the accused made the allegations about Stanisław Sieńczak was published in an information bulletin, to which the Press Act should apply. The court would point out that the constitutional right of an individual to obtain information about public affairs and the freedom of expression and the press guaranteed to realise that right are subject to certain restrictions. The Supreme Court in the resolution of 1997 (OSNKW 44/97) stated that under the Press Act 1984 journalists were not criminally responsible for publication of the announcements of the Polish Press Agency, official communiqués, court decisions, announcements of courts and other public institutions or announcements and advertisements but for other publications, the fact that it was a quotation of another person’s remarks did not exclude responsibility for defamation. Therefore, the accused’s submission that he only quoted statements made by other people does not constitute a ground for excluding conviction. In view of the above, the court holds the accused guilty of the offence with which he was charged, which qualifies as a misdemeanour under Article 212   §   2 of the Criminal Code. The court has changed the legal qualification of the charge from Article 212 § 1 to Article 212 § 2 of the Criminal Code because the accused made the allegations in an article published in an information bulletin. The bulletin was a periodical /No. 1/, had a circulation of 1000 copies and was distributed to the public. It should therefore be considered a means of mass communication. (...)” (d) The appeal The applicant appealed against his conviction but his appeal was dismissed on 4 September 2001 by the Świdnica Regional Court. The appellate court gave the following reasons for its decision: “The District Court properly established the facts and the guilt of the accused. Contrary to the accused’s claims, the fact that his allegations about Stanisław Sieńczak published in the bulletin were only quotations from court files, from an opinion issued by a German company and from interviews, does not make him innocent of the offence committed. It is unquestionable that the source of the communicated information is irrelevant for the notion of defamation. Therefore, [it is irrelevant] whether the perpetrator communicates information as coming from him or as overheard from third persons. Communication of defaming information received from others while naming the source is a crime under Article 212 § 2 of the Criminal Code. Even requesting confidentiality of the defamatory information at the time of its communication does not deprive this act of the characteristics of defamation. Furthermore, it is irrelevant for the existence of defamation whether the perpetrator communicated certain information as a statement of fact or as a conclusion drawn from that fact. Taking the above into consideration together with the justified opinion of the District Court that the accused did not prove the allegations about Stanisław Sieńczak published in the bulletin [the court comes to] the conclusion that the allegations about Stanisław Sieńczak made by the accused amount to defamation. [The gist of defamation] in the present case was exposing the victim to loss of the public confidence necessary to perform the duties of a prosecutor and lowering him in public opinion. The sentence cannot be considered too severe in view of the fact that the accused had a criminal record including a conviction under Article 178 § 2 of the former Criminal Code.” B.     Relevant domestic law Article 212 §§ 1 and 2 of the Criminal Code 1997 provides as follows: “§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 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 of liberty or imprisonment not exceeding 1 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 2 years.” COMPLAINTS The applicant complained under Article 6 of the Convention about the unreasonable length of the criminal proceedings against him concerning the charge of extortion. He further submitted that the Kamienna Góra District Court’s judgment of 25   March 1999 breached Article 7 of the Convention. With respect to his conviction received on 19 January 2001, the applicant complained under Articles 7 and 10 that he was punished for publicly expressed criticism. In this connection, he also complained that the prosecution service took over the charges lodged against him by a private prosecutor. Finally, the applicant submitted that for many years he had been persecuted in breach of Articles 3, 6 § 1, 7, 10 and 14 of the Convention. THE LAW 1. The applicant complained under Article 6 of the Convention about the unreasonable length of the criminal proceedings against him concerning the charge of extortion. The Court considers that at the present stage it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule   54 §   3   (b) of the Rules of Court, to give notice of this complaint to the respondent Government.   2. With respect to his conviction received on 19 January 2001, the applicant complained about a violation of Article 10 of the Convention. The Court considers that at the present stage it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule   54 §   3   (b) of the Rules of Court, to give notice of this complaint to the respondent Government.   3. The applicant averred that the judgments of 25 March 1999 and 19   January 2001 had resulted in a breach of Article 7. He further submitted that for many years he had been persecuted in breach of the following Articles of the Convention: Article 3 (prohibition of torture), Article 6 § 1 (the right to a fair hearing), Article 6 § 2 (the presumption of innocence), Article 7 (no punishment without law), Article 10 (freedom of expression) and Article   14 (prohibition of discrimination). However, the Court finds that the applicant’s assertions about the violations of the above provisions of the Convention are wholly unsubstantiated. It follows that these complaints are inadmissible as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaints about the unreasonable length of the criminal proceedings against him concerning the charge of extortion (Article 6 § 1) and the breach of his right to freedom of expression in the criminal proceeding in which he was convicted on 19 January 2001 (Article 10); Declares the remainder of the application inadmissible.   Michael O’Boyle   Nicolas Bratza   Registrar   President