CASE OF JANOWSKI v. POLAND

1. The case was referred to the Court, as established under former Article 19 of the Convention [3], 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. 9 [2], 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.
2. In response to the enquiry made in accordance with Rule 35 § 3 (d) of former Rules of Court B [3], 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).
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.
4. 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)).
5. 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.
6. 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 GovernmentMr 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 applicantMrs B. Banasik, of the Łódź Bar, Counsel;
(c) for the CommissionMr M.A. Nowicki, Delegate, Ms M.-T. Schoepfer, Secretary to the Commission.
The Court heard addresses by Mr Nowicki, Mrs Banasik and Mr Drzewicki.
I. the CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1937. He is a journalist and lives in Zduńska Wola, Poland.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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
16. 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.
17. 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 [4].
18. 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.
19. In his memorial to the Court the applicant raised several complaints under Articles 3, 6, 7 § 1 and 10 of the Convention. The Court observes that only the applicant’s complaint under Article 10 that his conviction violated his right to freedom of expression was declared admissible by the Commission (see paragraphs 16-17 above).
20. The Court is therefore required to examine only the applicant’s complaint under Article 10 (see, mutatis mutandis, the McGinley and Egan v. the United Kingdom judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, pp. 1354-55, §§ 68-70).
ii. alleged violation of article 10 of the convention
21. Mr Janowski submitted that his conviction for insulting the municipal guards had infringed his right to freedom of expression as guaranteed by Article 10 of the Convention, which provides:
“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 Commission agreed with the applicant’s arguments, whereas the Government contended that the facts of the case disclosed no breach of Article 10.
22. The participants in the proceedings were agreed that the applicant’s conviction amounted to an interference with the exercise of his right to freedom of expression. The Court sees no cause to conclude otherwise.
23. An interference contravenes Article 10 unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10 and is “necessary in a democratic society” for achieving such an aim or aims.
24. The Court considers, and indeed this was not disputed before it, that the interference was “prescribed by law”, the applicant’s conviction having been based on Article 236 of the Criminal Code (see paragraphs 14 and 15 above).
25. The Commission, referring to the judgment of the appeal court, which explained that the purpose of the applicant’s conviction was to ensure that civil servants were not hindered in carrying out their duties, considered that the interference pursued the legitimate aim of the prevention of disorder (see paragraph 14 above). The Government agreed that the prevention of disorder was one of the legitimate aims pursued by the national authorities, but in addition pleaded the protection of the reputation and the rights of the municipal guards as the second legitimate aim.
26. Having regard to the particular circumstances of the case and to the reasoning of the appeal court’s judgment, the Court considers that the conviction of the applicant was intended to pursue the legitimate aim of the prevention of disorder. The interference complained of therefore pursued a legitimate aim under Article 10 § 2.
D. “Necessary in a democratic society”
27. The applicant submitted that his conviction for insulting the municipal guards did not constitute a necessary interference under paragraph 2 of Article 10. He pointed out that he had not intended to insult the guards but merely wanted to convey a message concerning the unlawfulness of their actions. Although the form of his message was strongly disapproving of the guards, the words he used should be considered appropriate. Furthermore, as the guards had acted unlawfully, they could not enjoy any special protection against criticism.
Finally, the applicant claimed that, since he was a journalist, his conviction was widely considered as an attempt by the authorities to restore censorship and constituted discouragement of the expression of criticism in future.
28. The Commission considered that civil servants acting in an official capacity were, like politicians, subject to the wider limits of acceptable criticism. If they acted without a legal basis they should expect criticism from citizens and must accept that it may sometimes be harsh or expressed in a strong form. The applicant might have offended the guards by calling them “oafs” and “dumb”. However, in the particular circumstances of the case, namely the fact that he had spontaneously reacted to unjustified actions by the guards out of genuine civic considerations and expressed his criticism in the course of a heated exchange, he had not overstepped the limits of acceptable criticism. Furthermore, the Commission pointed out that the national authorities had convicted the applicant solely on the basis of the insulting meaning of the two words used by him without taking into account the situation which had provoked his reaction. It concluded that, as the applicant’s conviction was not proportionate to the legitimate aim pursued and was not necessary in a democratic society, there had been a violation of Article 10.
The Delegate of the Commission added that in a democratic society citizens should be allowed to react to the conduct of civil servants even if their reactions were not justified and took controversial forms. Moreover, law-enforcement officers should be indifferent to offensive verbal responses to their actions since they constituted a part of their professional risk.
29. The Government disagreed with the Commission’s opinion that civil servants acting in an official capacity were, like politicians, subject to the wider limits of acceptable criticism. Although they should be open to close scrutiny and criticism, they should at the same time enjoy protection against destructive attacks in order to be able to carry out their duties effectively. The Government further contested the Commission’s conclusion concerning the unlawfulness of the actions of the municipal guards, claiming that the latter had a right to instruct the street vendors to leave a square since they had acted on sanitary and traffic considerations (see paragraph 8 above). The criticism expressed by the applicant could not enjoy wider limits for it was not articulated through the media and was not a part of public debate on important issues. As the penalty imposed on the applicant had been proportionate to the aims pursued, the Government concluded by requesting the Court to find that there had been no violation of Article 10.
30. The Court reiterates the fundamental principles which emerge from its judgments relating to Article 10:
(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see the following judgments: Handyside v. theUnited Kingdom, 7 December 1976, Series A no. 24, p. 23, § 49; Lingens v. Austria, 8 July 1986, Series A no. 103, p. 26, § 41; and Jersild v. Denmark, 23 September 1994, Series A no. 298, p. 23, § 31).
(ii) The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see the above-mentioned Lingens judgment, p. 25, § 39).
(iii) In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see the above-mentioned Lingens judgment, pp. 25-26, § 40, and the Barfod v. Denmark judgment of 22 February 1989, Series A no. 149, p. 12, § 28). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see the above-mentioned Jersild judgment, p. 24, § 31).
(b) Application of the above principles to the instant case
31. Turning to the facts of the present case, the Court’s task is to determine whether, in all the circumstances, the restriction on Mr Janowski’s freedom of expression answered a “pressing social need” and was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities in justification of it were “relevant and sufficient”.
32. In this connection the Court notes that the applicant was convicted of insulting the municipal guards by calling them “oafs” and “dumb” during an incident which took place in a square. It was witnessed by bystanders and concerned the actions of municipal guards who insisted that street vendors trading in the square move to another venue (see paragraph 8 above). The applicant’s remarks did not therefore form part of an open discussion of matters of public concern; neither did they involve the issue of freedom of the press since the applicant, although a journalist by profession, clearly acted as a private individual on this occasion. The Court further observesthat the applicant’s conviction was based on his utterance of the two words which were judged to be insulting by both trial and appeal courts, not the fact that he had expressed opinions critical of the guards or alleged that their actions were unlawful (see paragraphs 10 and 14 above).
In these circumstances the Court is not persuaded by the applicant’s contention that his conviction was widely considered as an attempt by the authorities to restore censorship and constituted discouragement of the expression of criticism in future (see paragraph 27 above).
33. The Court also notes the Commission’s reasoning that civil servants acting in an official capacity are, like politicians, subject to the wider limits of acceptable criticism (see paragraph 28 above). Admittedly those limits may in some circumstances be wider with regard to civil servants exercising their powers than in relation to private individuals. However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to the criticism of their actions (cf. the Oberschlick v. Austria (no. 2) judgment of 1 July 1997, Reports 1997-IV, p. 1275, § 29).
What is more, civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks and it may therefore prove necessary to protect them from offensive and abusive verbal attacks when on duty. In the present case the requirements of such protection do not have to be weighed in relation to the interests of the freedom of the press or of open discussion of matters of public concern since the applicant’s remarks were not uttered in such a context (see paragraph 32 above; and cf. the above-mentioned Lingens judgment, p. 26, § 42 in fine ).
34. In the Court’s view, the reasons prompting the applicant’s conviction were relevant ones in terms of the legitimate aim pursued. It is true that the applicant resorted to abusive language out of genuine concern for the well-being of fellow citizens in the course of a heated discussion. This language was directed at law-enforcement officers who were trained how to respond to it. However, he insulted the guards in a public place, in front of a group of bystanders, while they were carrying out their duties. The actions of the guards, even though they were not based on the explicit regulations of the municipal council but on sanitary and traffic considerations, did not warrant resort to offensive and abusive verbal attacks (see paragraph 8 above). Consequently, even if there were some circumstances arguing the other way, sufficient grounds existed for the decision ultimately arrived at by the national courts.
35. Having regard to the foregoing, the Court is satisfied that the reasons adduced by the national authorities were “relevant and sufficient” for the purposes of paragraph 2 of Article 10. The Court further finds that, in the particular circumstances of the instant case, the resultant interference was proportionate to the legitimate aim pursued. In this connection, it is noteworthy that the applicant’s sentence was substantially reduced on appeal and, most significantly, his prison sentence was quashed by the Sieradz Regional Court (see paragraph 12 above). In sum, it cannot be said that the national authorities overstepped the margin of appreciation available to them in assessing the necessity of the contested measure.
There has consequently been no breach of Article 10 of the Convention.
Holds by twelve votes to five that there has been no breach of Article 10 of the Convention.