CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 3 mars 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s490D418E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .sC3C29E73 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .s13F94BE0 { font-family:Arial; letter-spacing:-0.3pt } .sC8FE61A5 { font-family:Arial; font-style:italic; letter-spacing:-0.3pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFCC17DF1 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s6DD35890 { width:19.77pt; display:inline-block } .sFD36CD5D { width:126.41pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION DECISION Application no. 40152/16 Jarosław KOWALSKI against Poland   The European Court of Human Rights (First Section), sitting on 3   March   2020 as a Committee composed of:   Pere Pastor Vilanova, President,   Krzysztof Wojtyczek,   Pauliine Koskelo, judges, and Renata Degener, Deputy Section Registrar, Having regard to the above application lodged on 4 July 2016, 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 1.     The applicant, Mr Jarosław Kowalski, is a Polish national who was born in 1963 and lives in Dobre Miasto. He was represented before the Court by Mr K.P. Jurczewski, a lawyer practising in Warsaw. 2.     The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently, by Mr J. Sobczak, of the Ministry of Foreign Affairs. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicant, who was a local councillor (Radny) on the Municipal Council (Rada Miejska) of Dobre Miasto, entered into a political dispute with M.L., who was the leader of the Municipal Council (Przewodnicząca Rady Miejskiej) . 5.     From 17 until 24 March 2014 a local television station broadcast an announcement in which the applicant called on M.L. to resign from her post because, according to him, she had concealed documents from local councillors, unduly influenced the work of the Board of Auditors, and had made offensive statements about local residents. 6.     M.L. responded by bringing a private prosecution, accusing the applicant of defamation under Article 212 § 1 and 2 of the Criminal Code. 7.     On 30 March 2015 the Olsztyn District Court (Sąd Rejonowy) conditionally discontinued the criminal proceedings against the applicant, ordering the applicant to pay 2,000 Polish zlotys (PLN – approximately 500   euros (EUR)) to charity. Under the last point of the judgment’s operative part, the applicant was also ordered to pay the “costs of the proceedings borne by the private prosecutor, M.L.” M.L.’s name was spelled correctly. 8.     On 31 July 2015 the Olsztyn Regional Court (Sąd Okręgowy) upheld that judgment on the merits. The appellate court ordered the applicant to pay PLN   520 (approximately EUR 130) to cover the costs of M.L.’s legal representation. That judgement was served on the applicant’s lawyer on 6   August 2015, as confirmed by a copy of the document confirming receipt that was submitted to the Court by the Government. 9.     No possibility of a further appeal was available to the applicant. 10.     On 24 November 2015 M.L. lodged an application with the Olsztyn District Court, requesting that it clarify the wording of the first-instance judgment by indicating the amount that she had actually spent under the head of the costs of the proceedings. It was noted in that application that the impugned judgment in its original form could not be subject to execution by a bailiff. 11.     On 26 November 2015 the Olsztyn District Court clarified the last point of the operative part of its first-instance judgment by ordering the applicant to return to the private prosecutor PLN 2,760 (approximately EUR   690) under the head of the costs incurred by the latter during the proceedings. Neither of the parties has indicated when that decision was served on the applicant or his lawyer. 12.     On 11 December 2015 the Olsztyn Regional Court, ruling on M.L.’s motion of 23 November 2015, rectified a clerical error that appeared on the first page of the appellate judgment, changing one vowel in the misspelled name of the private prosecutor, M.L. That decision was served on the applicant’s lawyer on 4 January 2016. Relevant domestic law and practice 13.     Article 212 of the Criminal Code provides in so far as relevant: “§ 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 that person, group or entity in the public’s opinion or undermine public confidence in their capacity [to hold] a certain position, occupation or type of activity, shall be liable to a fine, a restriction on their liberty or imprisonment not exceeding one year. § 2. If the perpetrator commits an act [such as] described in paragraph 1 through a means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment not exceeding two years. § 3. When imposing a sentence for an offence specified in § 1 or 2, a court may order a supplementary payment in favour of the injured person or the Polish Red Cross, or for another social purpose designated by the injured person ( nawiązka ). § 4. Prosecution of an offence specified in § 1 or 2 shall occur upon the bringing of private charges.” COMPLAINT 14.     The applicant complained that the criminal proceedings brought against him for defamation constituted an unjustified and disproportionate interference with his freedom of expression guaranteed by Article 10 of the Convention. THE LAW 15.     The Government made a preliminary objection, arguing that the case had been lodged outside the six-month time-limit laid down in Article 35 of the Convention. This provision, in so far as relevant, reads: “1.   The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken ...” 16.     The Government submitted that the time-limit should be calculated from the date on which the appellate court’s judgment had been served on the applicant – that is to say from 6 August 2015. 17.     The applicant argued that the judgment of 31 July 2015 had been non-enforceable in its original form. The six-month time-limit had therefore started to run only on 4 January 2016, when the decision rectifying the private prosecutor’s last name had been served on his lawyer. 18.     The Court notes that the criminal proceedings against the applicant that are the subject of this application were terminated by the judgment which was delivered by the Olsztyn Regional Court on 31 July 2015 and served on the applicant’s lawyer on 6 August 2015 (see paragraph 8 above). 19.     It is clear that that judgment – in so far as it upheld the first-instance judgment by which the Olsztyn District Court had conditionally discontinued the criminal proceedings and had ordered the applicant to make a payment to charity – was final, binding and enforceable. Even assuming that the said judgment could not have been enforced in respect of the reimbursement of the costs of the proceedings incurred during the first-instance proceedings by M.L., the Court observes that the latter was merely a residual issue in respect of those proceedings. It must be stressed that the impugned criminal proceedings concerned the applicant’s accountability and punishment for the alleged defamation. Unlike payment to a charity, an order concerning the reimbursement of court expenses borne by a victim ‑ even if inherently linked to the outcome of the proceedings in question – does not constitute a punishment prescribed for the offence of defamation under the Criminal Code (see paragraph 13 above). 20.     It follows that the decision of 26 November 2015 that brought precision to the first-instance judgment in respect of the amount of the costs that M.L. incurred during the proceedings cannot be considered as final for the purpose of an assessment of when the six-month time limit started to run. 21.     Lastly, it is beyond any doubt that the chronologically latest decision – the one which was issued by the appellate court on 11 December 2015 and which was served on the applicant’s lawyer on 4 January 2016 – had no bearing on the merits of the criminal case against the applicant or on the enforceability of any of the judgments, as it merely rectified a trivial clerical error. 22.     Accordingly, the application was introduced out of time and must be rejected, in accordance with Article   35 §§   1 and   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 26 March 2020.   Renata Degener   Pere Pastor Vilanova   Deputy Registrar   President