CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 26 septembre 2023

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Migas, a lawyer practising in Wodzisław Śląski; the decision to give notice of the application to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak of the Ministry of Foreign Affairs; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns the criminal conviction of the three applicants (see the appended list), members of the management board of a housing cooperative, for a statement they published on the front page of the cooperative’s newspaper concerning reasons for the disciplinary dismissal of another member of the board, K.W. They stated, among other things, that K.W. had committed a criminal offence and lost the trust of the cooperative. His name was not explicitly stated but his position was indicated, which made him easy to identify. At the time when the statement was published, an investigation against K.W. was pending. The investigation was subsequently discontinued because no evidence was found to confirm that an offence had been committed. 2.     The applicants were found liable for defamation of K.W. but they were not convicted. The court conditionally discontinued the proceedings and ordered the applicants to pay 300 Polish zlotys (75 euros) each to charity, to reimburse expenses to the private prosecutor and to bear the costs of the trial. Upon appeal by the applicants, the second-instance court upheld the challenged judgment. 3.     The applicants complained, relying on Article 10 of the Convention, that their right to freedom of expression had been violated.​ THE COURT’S ASSESSMENT 4.     The Government argued that the application should be found inadmissible since it constituted an abuse of the right of individual petition. They further considered that the applicants had failed to exhaust the available domestic remedies: firstly, because they could have made a constitutional complaint and, secondly, because in their appeal against the first-instance judgment they did not raise the argument of a violation of their freedom of expression and did not rely on Article 10 of the Convention. 5.     The applicants submitted that an appeal against a criminal court judgment was not a remedy where an alleged violation of the Convention should be raised. They based their appeal on the grounds indicated in the relevant domestic provisions and only in their application before the Court did they raise complaints about a violation of the Convention. 6.     The Court has already held that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism: it does not simply require that applications should be made to the appropriate domestic courts and use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally also requires that any complaint intended to be lodged subsequently at the international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time ‑ limits laid down in domestic law (see, among many other authorities, Azinas v. Cyprus [GC], no.   56679/00, §   38, ECHR   2004 ‑ III). 7.     The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address allegations of violations of a Convention right and, where appropriate, to afford redress before such an allegation is submitted to the Court (see Kudła v.   Poland [GC], no.   30210/96, § 152, ECHR 2000-XI). In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, allegations of a violation of a Convention right, it is that remedy which should be used. If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it (...). It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (ibid.). 8.     The Court considers that in their appeal against the first ‑ instance judgment the applicants did indeed fail to raise the issue of the alleged violation of their freedom of expression, even in substance. They submitted in their observations that an appeal to the domestic courts was not a forum to raise Convention complaints. In this connection the Court notes that in similar cases concerning criminal proceedings for defamation applicants have raised a complaint about violation of Article 10 of the Convention at national level, in their appeals against the first-instance courts (see, among many others, Długołęcki v.   Poland , no. 23806/03, § 10, 24 February 2009, and Kurłowicz v.   Poland , no. 41029/06, §   14, 22 June 2010). It appears that in the proceedings before the domestic courts the applicants chose to defend themselves using arguments other than those which they subsequently raised in their application to the Court. 9.     In sum, the applicants did not provide the Polish courts with the opportunity which is in principle intended to be afforded to a Contracting State by Article   35 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see, among other authorities, Sejdovic v.   Italy [GC], no.   56581/00, §   43, ECHR 2006 ‑ II, and Irzyk v. Poland (dec.), no.   58113/09, §   40, 28 February 2017). The objection that the relevant “effective” domestic remedy was not used by the applicants in the instant case is therefore well ‑ founded. 10.     Consequently, the application must be rejected as inadmissible, in accordance with Article 35 §§ 1 and 4   in fine   of the Convention. 11.     Having found the above, the Court considers that it is not necessary to examine the Government’s second plea concerning non ‑ exhaustion of domestic remedies, namely the applicants’ failure to make use of a constitutional complaint, or their further plea concerning the alleged abuse of the right of individual application. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 19 October 2023.     Liv Tigerstedt   Ivana Jelić   Deputy Registrar   President   APPENDIX No. Applicant’s Name Year of birth Nationality Place of residence 1. Gerard WEYCHERT 1972 Polish Jastrzębie Zdrój 2. Radosław PLUTA 1966 Polish Jastrzębie Zdrój 3. Agnieszka CICHOŃ 1971 Polish Jastrzębie Zdrój