Last Updated on October 3, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 27560/15
Łukasz Miłosz WYSOCZAŃSKI
against Poland
The European Court of Human Rights (First Section), sitting on 26 March 2019 as a Committee composed of:
Aleš Pejchal, President,
Tim Eicke,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 30 May 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Łukasz Miłosz Wysoczański, is a Polish national who was born in 1985 and lives in Wołów. He was represented before the Court by Mr O. Pankiewicz, a lawyer practising in Wrocław.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 22 June 2013 the applicant with a group of about 100 people ‑ members of an organisation called National Rebirth of Poland (Narodowe Odrodzenie Polski – hereinafter “NOP”), came to a Wrocław University auditorium where a lecture of Mr Zygmunt Bauman, an internationally known sociologist, was about to be held. The meeting began with a speech by the Mayor of Wrocław, who welcomed Mr Bauman and other people coming to the lecture. In response, members of NOP rose from their seats, unfolded a huge banner saying “NOP/Silesia Wrocław”, and began howling, yelling, chanting and vilifying the guest speaker, organisers and the Mayor. They chanted, inter alia, “Get the fuck out!”; “Both the hammer, and the sickle for the red horde”; “Poland is us”; “Nuremberg for communists”; and “On the trees, instead of leaves, communists will be hanging”. The demonstrators’ conduct made it impossible to start the lecture. They ignored the Mayor’s request to calm down. Eventually, they were removed from the auditorium by the police.
4. The applicant was arrested and detained for six hours by the police and his identity was checked. He appealed against his arrest to the courts.
5. On 5 August 2013 the Wrocław-Śródmieście District Court issued a decision in which it confirmed the lawfulness of the applicant’s arrest.
6. On 19 May 2014 the District Court found the applicant guilty of disturbing public order in a public place and sentenced him to pay a fine of 5,000 Polish zlotys (“PLN” – approximately 1,250 euros (EUR)). The court established that the applicant had been the first one to rise from his seat to chant anti-communist slogans to obstruct the lecture. He was wearing a black T-shirt with an anti-communist emblem. He had left the university’s auditorium only after intervention of police officers. The court established these facts mainly on the basis of a video recorded during the lecture in the auditorium. It held that the applicant’s behaviour had caused distress to other people who had come to listen to lecture. The court agreed with the statement of a witness who had described the atmosphere of auditorium as resembling a football match.
7. The applicant appealed. He challenged the court’s assessment of evidence and alleged that the court’s sentence had been influenced by Judge P.C.’s personal opinion. He alleged that the court had failed to take into account circumstances regarding the applicant’s personal motivation in respect of the infringed right, assuming that his act had constituted a danger to society. The applicant further challenged the appropriateness of the evidence of the police video recording made during the intervention. Moreover, he challenged the court’s refusal to hear evidence from the commanding officers of the police who had participated in securing the meeting and removal of the demonstrators from the auditorium and alleged its failure to establish who had asked the police to intervene.
8. On 2 December 2014 the Wrocław Regional Court amended the first‑instance court’s judgment and lowered the fine to PLN 1,000 (approximately EUR 250). The appellate court agreed with the facts established by the lower court and with its conclusions in respect of the offensive character of the applicant’s conduct. However, it found the fine disproportionate.
9. The appellate court emphasised that the demonstrators had not been found guilty of expressing their opposition to the invitation of Mr Bauman or their disapprobation of him, but they had been convicted for disturbing public order. Regarding the applicant’s allegation of Judge P.C.’s lack of impartiality, the appellate court stated that it had not found any evidence in support of that. It found that the first-instance court had thoroughly examined the conduct of each of the demonstrators during the meeting and had reasoned each conviction. It had also taken into account all mitigating circumstances and had acquitted four of the demonstrators owing to lack of evidence.
10. The appellate court found no reasons to question the evidential value of the security recording or the police video. It also found irrelevant the questions regarding the motive and timing of the police officers’ intervention and agreed with the lower court’s refusal to examine witnesses in this connection.
B. Relevant domestic law
11. Article 51 § 1 of the Code of Minor Offences (Kodeks wykroczeń) reads as follows:
“Whoever disturbs the peace, public order or night rest with shouts, noise or other extravagance or causes scandal in a public place, shall be subject to the penalty of a detention, restriction of liberty or a fine”.
COMPLAINTS
12. The applicant complained under Article 10 of the Convention of a violation of his right to freedom of expression of his political opinions.
13. Under Article 10 in conjunction with Article 14 of the Convention, he alleged that he had been removed from the lecture and arrested because of an anti-communist emblem on his T-shirt.
14. He further complained, under Article 6 of the Convention, of partiality on the part of the first-instance court, inappropriateness of the admitted evidence and breach of the principle of presumption of innocence.
THE LAW
A. Alleged violation of Article 10 of the Convention
15. The applicant considered that his removal from the lecture and his conviction for disturbing public order had violated his right to freedom of expression. He relied on Article 10 of the Convention, which reads as follows:
“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….
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.”
16. The Court holds that the domestic judgment given in the course of the criminal proceedings against the applicant amounted to an interference with his right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. In principle, an interference with the applicant’s rights under Article 10 § 1 will infringe the Convention if it does not meet the requirements of paragraph 2 of that Article. It should therefore be determined whether the interference complained of was prescribed by law, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was necessary in a democratic society in order to achieve those aims (see Cumpǎnǎ and Mazǎrev. Romania [GC], no. 33348/96, § 85, ECHR 2004‑XI).
17. The interference referred to above was “prescribed by law”; it was based on the relevant provisions of the Code of Minor Offences providing for the protection of public order, namely Article 51 § 1 (see paragraph 11 above).
18. The Court accepts that the interference with the applicant’s freedom of expression pursued a legitimate aim, namely the protection of public order during the lecture of Mr Bauman.
19. It remains to be ascertained whether the interference complained of was necessary in a democratic society.
20. 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 Article 10 § 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 pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Donaldson v. the United Kingdom (dec.), no.56975/09, § 27, 25 January 2011; and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013 (extracts)). An individual taking part in a public debate on a matter of general concern is allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements (see Mamère v. France, no. 12697/03, § 25, ECHR 2006–XIII, and Lindon, Otchakovsky‑Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 56, ECHR 2007‑IV).
21. However, it must be borne in mind that, by virtue of the express terms of paragraph 2 of Article 10, whoever exercises his or her freedom of expression undertakes duties and responsibilities, the scope of which depends on his or her situation and the technical means he or she uses. These duties and responsibilities must be taken into account in the Court’s assessment of the necessity of the measure (see Handyside, cited above, § 49, and Hachette Filipacchi Associés v. France, no. 71111/01, § 42, 14 June 2007).
22. As regards the test of “necessity in the democratic society”, the relevant general principles are set out in the Court’s judgment in the case Łopuch v. Poland, no. 43587/09, §§ 54-58, 24 July 2012. The Court reiterates that the adjective “necessary” within the meaning of Article 10 § 2 implies the existence of a “pressing social need”. The Contracting States enjoy a certain margin of appreciation in determining whether such a need exists, but this goes hand in hand with a European supervision, the extent of which depends upon the circumstances. The review under the Convention is confined to the question whether the measures taken on the national level are, in the light of the case as a whole, justifiable in principle and proportionate and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999‑I, and MGN Limited v. the United Kingdom, no. 39401/04, § 139, 18 January 2011).
23. The Court notes that for some people Mr Bauman was a controversial figure because of his service in the Stalin-era Internal Security Corps, and his lecture could have provoked a strong reaction from his opponents. The applicant expressed his views on this subject in a manner which the domestic courts found to be offensive and likely to cause distress to others. However, the fact that the applicant’s actions were deliberately provocative does not of itself justify his arrest and his conviction for breach of public order. The Court must satisfy itself that the restrictions imposed on applicant were proportionate and met a pressing social need.
24. The Court, having regard to the facts as presented by the applicant and established by the domestic courts, notes that the behaviour of the applicant and other demonstrators cannot be considered spontaneous or provoked by the subject of the lecture. Their action was organised and prepared and from the very beginning aimed to obstruct the lecture. They brought loudspeakers and banners. They acted in a provocative way chanting anti-communist slogans and insults in regard to Mr Bauman, showing in this way a lack of respect for his dignity as well as for others present at the lecture. The expressions used by the applicant during the meeting were gratuitously offensive to others, and did not contribute to any form of public debate. As noted by the domestic court the applicant and other demonstrators had a right to express their disapprobation for the invitation of Mr Bauman, but they could have done so in a way which would not have disturbed public order.
25. It is also important to underline that the applicant was not convicted for expressing his views or even for expressing them in strong language. The conviction expressly referred to the disturbance of public order (see paragraph9above).
26. Taking into consideration the foregoing the Court, balancing the applicant’s interest in exercising his right to freedom of expression and the public interest in protecting the undisturbed performance of the public lecture in question, finds that the applicant’s conviction in the circumstances of the present case did not overstep the margin of appreciation left to the national authorities. The interference can, therefore, be regarded as “necessary in a democratic society” for the prevention of disorder and the protection of the rights of others.
27. In assessing the proportionality of the interference, the nature and severity of the sanctions imposed are also factors to be taken into account (see, inter alia, Cumpǎnǎ and Mazǎre v. Romania cited above, § 111, and Lewandowska-Malec v. Poland, no. 39660/07, § 69, 18 September 2012). It is noteworthy that while a breach of public order can attract a custodial sentence (see paragraph 11 above), in the applicant’s case no custodial sentence was imposed. The second-instance court decreased the fine imposed by the lower court to PLN 1,000 (see paragraph 8 above), which does not seem to be excessive in the circumstances of the case.
28. In the light of the foregoing, the Court considers that the reasons advanced by the domestic courts in support of their decisions were relevant and sufficient and that the interference was not disproportionate to the legitimate aim pursued, namely the prevention of disorder. Therefore, the Court finds that the interference with the applicant’s freedom of expression was necessary in a democratic society.
29. Having regard to the above, the Court finds that the complaint under Article 10 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
B. Alleged violation of Article 6 of the Convention
30. The applicant complained that there had been a violation of his rights under Article 6 §§ 1, 2 and 3 (d), which reads, in so far as relevant, as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
…
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; …”
31. The applicant alleged that the first-instance court’s Judge P.C. had lacked impartiality and had breached the principle of presumption of innocence. He argued that in the written grounds of the judgment Judge P.C. had reflected his personal opinion and had failed to refer to established facts.
32. Impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. The Court has thus distinguished between a subjective approach, that is to say endeavouring to ascertain the personal conviction or interest of a given judge in a particular case, and an objective approach, that is to say determining whether he or she offered sufficient guarantees to exclude any legitimate doubt in this connection (see Piersack v. Belgium, 1 October 1982, § 30, Series A no. 53, and Grieves v. the United Kingdom [GC], no. 57067/00, § 69, 16 December 2003). As to the second test, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this regard even appearances may be of some importance (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports of Judgments and Decisions 1998‑VIII, and Morel v. France, no. 34130/96, § 42, ECHR 2000‑VI). When it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005‑XIII; Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports 1996‑III; and Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000‑XII).
33. In applying the subjective test, the Court has consistently held that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark, 24 May 1989, § 47, Series A no. 154). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will or has arranged to have a case assigned to himself for personal reasons (see De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86). The principle that a tribunal shall be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court (see, for example, Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 58, Series A no. 43).
34. With regard to the subjective impartiality, the Court does not discern any evidence in the case indicating that Judge P.C. displayed personal bias. With regard to the objective impartiality, the applicant alleged that Judge P.C. in the written grounds of the judgment had reflected his personal opinion and had failed to refer to established facts. The second‑instance court found that the circumstances of the case did not call into question the impartiality of Judge P.C. It noted that the first-instance court had thoroughly examined the circumstances of the committed offence and had separately reasoned the conviction or acquittal in respect of each of defendants (see paragraph 9 above). The Court for its part agrees that the circumstances invoked by the applicant did not objectively justify his misgivings as to the lack of impartiality of Judge P.C.
35. Regarding the applicants’ assertions about the alleged violation of Article 6 § 2 of the Convention, the Court finds that they are wholly unsubstantiated. The applicant failed to provide any evidence in support of his allegation that the principle of presumption of innocence had not been respected in this case.
36. The applicant further challenged the courts’ refusal to examine the commanding officers of the police. In this connection the applicant relies on Article 6 § 3.
37. The Court reiterates that as a general rule the admissibility of evidence is a matter for regulation by national law and appreciation by the domestic courts which assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce (see Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 68, Series A no. 146).
38. In Murtazaliyeva v. Russia [GC], no. 36658/05, § 158, 18 December 2018, the Court has clarified that where a request for the examination of a witness on behalf of the accused has been made in accordance with domestic law, the following three-pronged test should be formulated:
1. Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation?
2. Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial?
3. Whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings?
39. In the present case, the Court finds no indication that the courts went beyond the margin of appreciation left to them in respect of the admissibility and assessment of evidence, or that the proceedings were otherwise unfair. The domestic courts cited mainly on the video taken in the auditorium and found irrelevant potential testimony by the commanding officers regarding the motivation or timing of the police intervention.
40. In so far as the applicant alleges unlawfulness of evidence in respect of the video recorded by the police officers during their intervention, the Court notes that the appellate court found no reason to question its appropriateness and the applicant failed to provide the Court with any evidence to the contrary.
41. Having regard to the above, the Court finds that the complaints under Article 6 §§ 1, 2 and 3 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Alleged violation of Article 14 of the Convention taken in conjunction with Article 10
42. The applicant complained that he had been discriminated against. He stated that he had been removed from the auditorium and then arrested because of an anti-communist emblem on his T-shirt.
43. The Court notes that the domestic court’s decision in respect of the applicant’s arrest was taken on 5 August 2013 (see paragraph 5 above), that is to say more than six months before the application was lodged with the Court. It follows that this part of the application was lodged 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 18 April 2019.
Renata Degener Aleš Pejchal
Deputy Registrar President
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