FIRST SECTION
\nDECISION<\/p>\n
Application no. 27560\/15
\n\u0141ukasz Mi\u0142osz WYSOCZA\u0143SKI
\nagainst Poland<\/p>\n
The European Court of Human Rights (First Section), sitting on 26\u00a0March\u00a02019 as a Committee composed of:<\/p>\n
Ale\u0161 Pejchal, President,
\nTim Eicke,
\nJovan Ilievski, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 30 May 2015,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr \u0141ukasz Mi\u0142osz Wysocza\u0144ski, is a Polish national who was born in 1985 and lives in Wo\u0142\u00f3w. He was represented before the Court by Mr O. Pankiewicz, a lawyer practising in Wroc\u0142aw.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 2.\u00a0\u00a0The facts of the case, as submitted by the applicant, may be summarised as follows.<\/p>\n 3.\u00a0\u00a0On 22 June 2013 the applicant with a group of about 100\u00a0people \u2011 members of an organisation called National Rebirth of Poland (Narodowe Odrodzenie Polski \u2013 hereinafter \u201cNOP\u201d), came to a Wroc\u0142aw 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 Wroc\u0142aw, 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 \u201cNOP\/Silesia Wroc\u0142aw\u201d, and began howling, yelling, chanting and vilifying the guest speaker, organisers and the Mayor. They chanted, inter alia, \u201cGet the fuck out!\u201d; \u201cBoth the hammer, and the sickle for the red horde\u201d; \u201cPoland is us\u201d; \u201cNuremberg for communists\u201d; and \u201cOn the trees, instead of leaves, communists will be hanging\u201d. The demonstrators\u2019 conduct made it impossible to start the lecture. They ignored the Mayor\u2019s request to calm down. Eventually, they were removed from the auditorium by the police.<\/p>\n 4.\u00a0\u00a0The applicant was arrested and detained for six hours by the police and his identity was checked. He appealed against his arrest to the courts.<\/p>\n 5.\u00a0\u00a0On 5 August 2013 the Wroc\u0142aw-\u015ar\u00f3dmie\u015bcie District Court issued a\u00a0decision in which it confirmed the lawfulness of the applicant\u2019s arrest.<\/p>\n 6.\u00a0\u00a0On 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\u00a0Polish zlotys (\u201cPLN\u201d \u2013 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\u2019s 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\u2019s 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.<\/p>\n 7.\u00a0\u00a0The applicant appealed. He challenged the court\u2019s assessment of evidence and alleged that the court\u2019s sentence had been influenced by Judge P.C.\u2019s personal opinion. He alleged that the court had failed to take into account circumstances regarding the applicant\u2019s 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\u2019s 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.<\/p>\n 8.\u00a0\u00a0On 2 December 2014 the Wroc\u0142aw Regional Court amended the first\u2011instance court\u2019s 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\u2019s conduct. However, it found the fine disproportionate.<\/p>\n 9.\u00a0\u00a0The 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\u2019s allegation of Judge P.C.\u2019s 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.<\/p>\n 10.\u00a0\u00a0The 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\u2019 intervention and agreed with the lower court\u2019s refusal to examine witnesses in this connection.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 11.\u00a0\u00a0Article 51 \u00a7 1 of the Code of Minor Offences (Kodeks wykrocze\u0144) reads as follows:<\/p>\n \u201cWhoever 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\u201d.<\/p>\n COMPLAINTS<\/strong><\/p>\n 12.\u00a0\u00a0The applicant complained under Article 10 of the Convention of a violation of his right to freedom of expression of his political opinions.<\/p>\n 13.\u00a0\u00a0Under 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.<\/p>\n 14.\u00a0\u00a0He 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.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Alleged violation of Article 10 of the Convention<\/strong><\/p>\n 15.\u00a0\u00a0The 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:<\/p>\n \u201c1.\u00a0\u00a0Everyone 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….<\/p>\n 2.\u00a0\u00a0The 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.\u201d<\/p>\n 16.\u00a0\u00a0The 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\u00a010\u00a0\u00a7\u00a01 of the Convention. In principle, an interference with the applicant\u2019s rights under Article 10 \u00a7 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 Cump\u01cen\u01ce and Maz\u01cerev. Romania [GC], no.\u00a033348\/96, \u00a7 85, ECHR 2004\u2011XI).<\/p>\n 17.\u00a0\u00a0The interference referred to above was \u201cprescribed by law\u201d; it was based on the relevant provisions of the Code of Minor Offences providing for the protection of public order, namely Article 51\u00a0\u00a7\u00a01 (see paragraph\u00a011\u00a0above).<\/p>\n 18.\u00a0\u00a0The Court accepts that the interference with the applicant\u2019s freedom of expression pursued a legitimate aim, namely the protection of public order during the lecture of Mr Bauman.<\/p>\n 19.\u00a0\u00a0It remains to be ascertained whether the interference complained of was necessary in a democratic society.<\/p>\n 20.\u00a0\u00a0Freedom 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\u2019s self-fulfilment. Subject to Article 10 \u00a7 2, it is applicable not only to \u201cinformation\u201d or \u201cideas\u201d 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 \u201cdemocratic society\u201d (see Handyside v. the United Kingdom, 7 December 1976, \u00a7 49, Series A no.\u00a024; Donaldson v. the United Kingdom (dec.), no.56975\/09, \u00a7 27, 25 January 2011; and Animal Defenders International v. the United Kingdom [GC], no.\u00a048876\/08, \u00a7 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 Mam\u00e8re v. France, no.\u00a012697\/03, \u00a7\u00a025, ECHR 2006\u2013XIII, and Lindon, Otchakovsky\u2011Laurens and July v.\u00a0France [GC], nos. 21279\/02 and 36448\/02, \u00a7 56, ECHR 2007\u2011IV).<\/p>\n 21.\u00a0\u00a0However, 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\u2019s assessment of the necessity of the measure (see Handyside, cited above, \u00a7\u00a049, and Hachette Filipacchi Associ\u00e9s v. France, no.\u00a071111\/01, \u00a7\u00a042, 14\u00a0June 2007).<\/p>\n 22.\u00a0\u00a0As regards the test of \u201cnecessity in the democratic society\u201d, the relevant general principles are set out in the Court\u2019s judgment in the case \u0141opuch v. Poland, no. 43587\/09, \u00a7\u00a7 54-58, 24 July 2012. The Court reiterates that the adjective \u201cnecessary\u201d within the meaning of Article\u00a010\u00a0\u00a7\u00a02 implies the existence of a \u201cpressing social need\u201d. 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 \u201crelevant and sufficient\u201d (see Janowski v. Poland [GC], no.\u00a025716\/94, \u00a7 30, ECHR 1999\u2011I, and MGN Limited v. the United Kingdom, no. 39401\/04, \u00a7 139, 18 January 2011).<\/p>\n 23.\u00a0\u00a0The 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\u2019s 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.<\/p>\n 24.\u00a0\u00a0The 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.<\/p>\n 25.\u00a0\u00a0It 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).<\/p>\n 26.\u00a0\u00a0Taking into consideration the foregoing the Court, balancing the applicant\u2019s 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\u2019s 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 \u201cnecessary in a democratic society\u201d for the prevention of disorder and the protection of the rights of others.<\/p>\n 27.\u00a0\u00a0In 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, Cump\u01cen\u01ce and Maz\u01cere v. Romania cited above, \u00a7 111, and Lewandowska-Malec v. Poland, no. 39660\/07, \u00a7 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\u2019s 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.<\/p>\n 28.\u00a0\u00a0In 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\u2019s freedom of expression was necessary in a democratic society.<\/p>\n 29.\u00a0\u00a0Having 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 \u00a7 3 (a) and must be rejected, pursuant to Article 35 \u00a7 4 of the Convention.<\/p>\n B.\u00a0\u00a0Alleged violation of Article 6 of the Convention<\/strong><\/p>\n 30.\u00a0\u00a0The applicant complained that there had been a violation of his rights under Article 6 \u00a7\u00a7 1, 2 and 3 (d), which reads, in so far as relevant, as follows:<\/p>\n \u201c1.\u00a0\u00a0In 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. …<\/p>\n 2.\u00a0\u00a0Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.<\/p>\n 3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (d)\u00a0\u00a0to 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; …\u201d<\/p>\n 31.\u00a0\u00a0The applicant alleged that the first-instance court\u2019s 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.<\/p>\n 32.\u00a0\u00a0Impartiality 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, \u00a7 30, Series A no.\u00a053, and Grieves v. the United Kingdom [GC], no. 57067\/00, \u00a7 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, \u00a7 45, Reports of Judgments and Decisions 1998\u2011VIII, and Morel v. France, no. 34130\/96, \u00a7\u00a042, ECHR 2000\u2011VI). 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, \u00a7\u00a0118, ECHR 2005\u2011XIII; Ferrantelli and Santangelo v. Italy, 7 August 1996, \u00a7\u00a058, Reports 1996\u2011III; and Wettstein v. Switzerland, no. 33958\/96, \u00a7 44, ECHR 2000\u2011XII).<\/p>\n 33.\u00a0\u00a0In 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, \u00a7 47, Series\u00a0A no.\u00a0154). 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\u00a0Cubber v. Belgium, 26 October 1984, \u00a7 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, \u00a7\u00a058, Series A no. 43).<\/p>\n 34.\u00a0\u00a0With 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\u2011instance 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.<\/p>\n 35.\u00a0\u00a0Regarding the applicants\u2019 assertions about the alleged violation of Article 6 \u00a7 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.<\/p>\n 36.\u00a0\u00a0The applicant further challenged the courts\u2019 refusal to examine the commanding officers of the police. In this connection the applicant relies on Article 6 \u00a7 3.<\/p>\n 37.\u00a0\u00a0The 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 Barber\u00e0, Messegu\u00e9 and Jabardo v. Spain, 6 December 1988, \u00a7 68, Series A no. 146).<\/p>\n 38.\u00a0\u00a0In Murtazaliyeva v. Russia [GC], no. 36658\/05, \u00a7 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:<\/p>\n 1.\u00a0\u00a0Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation?<\/p>\n 2.\u00a0\u00a0Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial?<\/p>\n 3.\u00a0\u00a0Whether the domestic courts\u2019 decision not to examine a witness undermined the overall fairness of the proceedings?<\/p>\n 39.\u00a0\u00a0In 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.<\/p>\n 40.\u00a0\u00a0In 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.<\/p>\n 41.\u00a0\u00a0Having regard to the above, the Court finds that the complaints under Article 6 \u00a7\u00a7 1, 2 and 3 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35\u00a0\u00a7\u00a7 3 and 4 of the Convention.<\/p>\n C.\u00a0\u00a0Alleged violation of Article 14 of the Convention taken in conjunction with Article 10<\/strong><\/p>\n 42.\u00a0\u00a0The 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.<\/p>\n 43.\u00a0\u00a0The Court notes that the domestic court\u2019s decision in respect of the applicant\u2019s 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 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 18 April 2019.<\/p>\n Renata Degener\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Ale\u0161 Pejchal
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n