PROCEDURE

The case was referred to the Court, as established under former Article 19 of the Convention, by the Polish Government (“the Government”) on 26 February 1998, by a Polish national, Mr Józef Janowski (“the applicant”), on 27 February 1998 and by the European Commission of Human Rights (“the Commission”) on 16 March 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 25716/94) against the Republic of Poland lodged with the Commission under former Article 25 by the applicant on 25 January 1994. The Government’s application referred to former Article 48; the applicant’s application to the Court referred to former Article 48 as amended by Protocol No. 90, which Poland had ratified; the Commission’s request referred to former Articles 44 and 48 and to the declaration whereby Poland recognised the compulsory jurisdiction of the Court (former Article 46). The object of the applications and of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 of the Convention.

In response to the enquiry made in accordance with Rule 35 § 3 (d) of former Rules of Court B0, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (former Rule 31). The lawyer was given leave by Mr R. Bernhardt, the President of the Court at the time, to use the Polish language (former Rule 28 § 3).

As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No. 11, Mr Bernhardt, acting through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the written procedure. Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 13 July and 7 August 1998 respectively. On 15 September 1998 the Delegate of the Commission submitted written observations.

After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The Grand Chamber included ex officio Mr J. Makarczyk, the judge elected in respect of Poland (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), Mr L. Wildhaber, the President of the Court, Mrs E. Palm and Mr C.L. Rozakis, the Vice-Presidents of the Court, and Sir Nicolas Bratza and Mr M. Pellonpää, Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 § 3). The other members appointed to complete the Grand Chamber were Mr B. Conforti, Mr A. Pastor Ridruejo, Mr G. Bonello, Mr P. Kūris, Mrs V. Strážnická, Mr C. Bîrsan, Mr M. Fischbach, Mr J. Casadevall, Mrs H.S. Greve, Mr A.B. Baka and Mr R. Maruste (Rule 24 § 3 and Rule 100 § 4). Subsequently Mr R. Türmen, substitute judge, replaced Mrs Strážnická who was unable to take part in the further consideration of the case (Rule 24 § 5 (b)).

At the Court’s invitation (Rule 99), the Commission delegated one of its members, Mr M.A. Nowicki, to take part in the proceedings before the Grand Chamber.

In accordance with the President’s decision, a hearing, at which the applicant was present, took place in public in the Human Rights Building, Strasbourg, on 18 November 1998. There appeared before the Court:

(a) for the Government

Mr K. Drzewicki, Professor of Public International Law, Agent, Ms E. Chałubińska, Judge on secondment to the Ministry of Justice, Counsel, Mr A. Kaliński, Office of the Agent, Mr M. Łuczka, Deputy to the Permanent Representative of Poland to the Council of Europe, Ms M. Dębska, Office of the Agent, Advisers;

(b) for the applicant

Mrs B. Banasik, of the Łódź Bar, Counsel;

(c) for the Commission

Mr M.A. Nowicki, Delegate, Ms M.-T. Schoepfer, Secretary to the Commission. The Court heard addresses by Mr Nowicki, Mrs Banasik and Mr Drzewicki.

THE FACTS

I. the CIRCUMSTANCES OF THE CASE

The applicant was born in 1937. He is a journalist and lives in Zduńska Wola, Poland.

According to the applicant, on 2 September 1992 he noticed two municipal guards who were ordering street vendors to leave a square in Zduńska Wola where selling was allegedly not authorised by the municipal authorities and to move their makeshift stands to a nearby market-place. The Government maintain however that the guards, who were acting on sanitary and traffic considerations, merely requested the vendors to move to a nearby market-place. The applicant further submits that he intervened, informing the guards that their actions had no legal basis and infringed the laws guaranteeing freedom in the economic field. He pointed out that the municipal authorities had not passed any resolution which would allow the guards to clear the square. The applicant observed that the guards were apparently acting only on the basis of verbal instructions from the mayor and urged the vendors to stay. The exchange between the applicant and the guards was witnessed by a group of bystanders.

Subsequently, on an unspecified date, the Zduńska Wola district prosecutor (Prokurator Rejonowy) instituted criminal proceedings against the applicant. On 5 January 1993 the district prosecutor lodged a bill of indictment with the Zduńska Wola District Court (Sąd Rejonowy). The applicant was charged with having insulted municipal guards while they were carrying out their duties and with having acted with flagrant contempt for legal order, an offence specified in Article 236 of the Criminal Code read together with Article 59 § 1.

On 29 April 1993 the District Court convicted the applicant under Article 236 of the Criminal Code of verbally insulting two municipal guards. It held that the offence was an act of hooliganism within the meaning of Article 59 § 1 of the Criminal Code. The applicant was sentenced to eight months’ imprisonment suspended for two years and a fine of 1,500,000 old zlotys (PLZ). He was also ordered to pay the sum of PLZ 400,000 to charitable institutions and court costs of PLZ 346,000.

On an unspecified date the applicant filed an appeal against this judgment, submitting that his conviction was based on insufficient evidence. He pointed out that the District Court had failed to establish precisely what defamatory words had been used and had only found that the applicant had 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 trial court had wrongly applied the law since, contrary to its findings, it was evident that his acts had not involved any act of hooliganism as he had only intended to protect street vendors from illegal actions of the municipal guards.

On 29 September 1993 the Sieradz Regional Court (Sąd Wojewódzki) quashed the part of the contested judgment relating to the sentence of imprisonment and the order to pay PLZ 400,000 to charitable institutions. However, it upheld the fine of PLZ 1,500,000 and reduced the court costs to the sum of PLZ 150,000. The Regional Court was of the opinion that the trial court had wrongly considered that the offence at issue had been hooligan in nature as the applicant’s motive had been to defend street vendors against the acts of the municipal guards which he had considered illegal. Therefore the applicant had not acted as he did without any justifiable motive, which was a prerequisite for finding that the offence was an act of hooliganism.

Furthermore, the Regional Court agreed with the applicant that the Zduńska Wola municipal council had not passed any resolution prohibiting the sale of merchandise on the streets and that no public notice to this effect had been posted at the material place and time. Therefore, there were no grounds for the trial court’s finding that the applicant had demonstrated flagrant contempt for legal order.

Finally, the Regional Court observed that the judgment had not mentioned the abusive words used by the applicant. Nevertheless, it considered that there was sufficient evidence in the case file to conclude that the applicant had in fact insulted the guards by calling them “oafs” and “dumb” (“ćwoki” and “głupki”). These words were widely considered to be offensive and by using them the applicant had exceeded the limits of freedom of expression. The court found that the resulting conviction was rightly imposed under Article 236 of the Criminal Code whose object was to ensure that civil servants were not hindered in carrying out their duties. ii. relevant domestic law

At the relevant time the legislation provided as follows: Article 236 of the Criminal Code: “Anyone who insults a civil servant ... during and in connection with the carrying out of his official duties is liable to up to two years’ imprisonment, to restriction of personal liberty or to a fine.” “Kto znieważa funkcjonariusza publicznego … podczas i w związku z pełnieniem obowiązków służbowych, podlega karze pozbawienia wolności do lat 2, ograniczenia wolności albo grzywny.” Article 59 § 1 of the Criminal Code: “If a perpetrator has committed a premeditated offence of a hooligan nature, the court shall impose a sentence of imprisonment not lower than one and a half times the minimum sentence provided ...” “Jeżeli sprawca dopuścił się umyślnego występku o charakterze chuligańskim, sąd wymierza karę pozbawienia wolności nie niższą od dolnego zagrożenia zwiększonego o połowę …” Article 120 § 14 of the Criminal Code provided that an offence should be regarded as being of a hooligan nature if the perpetrator acted in public, without any justifiable motive or with an obviously unjustified one, thus demonstrating flagrant contempt for legal order. PROCEEDINGS BEFORE THE COMMISSION

Mr Janowski applied to the Commission on 25 January 1994. He relied on Article 6 of the Convention, complaining that the Zduńska Wola District Court had refused to grant him legal aid and hear two defence witnesses and had produced minutes which did not reflect statements made by witnesses and the applicant during the hearing. He also complained under Article 10 that his conviction violated his right to freedom of expression.

The Commission declared the application (no. 25716/94) admissible on 27 November 1996 with the exception of the applicant’s complaints under Article 6. In its report of 3 December 1997 (former Article 31 of the Convention), it expressed by eight votes to seven the opinion that there had been a violation of Article 10. The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment. FINAL SUBMISSIONS TO THE COURT

The applicant in his memorial requested the Court to find that the facts of the case disclosed violations of Articles 3, 6, 7 § 1 and 10 of the Convention and to award him just satisfaction under former Article 50 (now Article 41). The Government for their part requested the Court to find that Article 10 had not been violated in the present case.