Communicated on 18 January 2018<\/p>\n
FIRST SECTION
\nApplication no. 20422\/15
\nJan STANISZEWSKI
\nagainst Poland
\nlodged on 22 April 2015
\nSTATEMENT OF FACTS<\/p>\n
1.\u00a0\u00a0The applicant, Mr Jan Staniszewski, is a Polish national who was born in 1956 and lives in Bulkowo.<\/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 1.\u00a0\u00a0The newsletter<\/em><\/p>\n 3.\u00a0\u00a0Since 2010 the applicant has been the sole editor and distributor of a free newsletter \u201cThe Voice of Bulkowo Municipality\u201d (Gazeta G\u0142os z\u00a0Gminy Bulkowo). In 2014 ten editions of the monthly newsletter were distributed, each numbering 2,000 copies. The newsletter consisted of one double-sided page and dealt with issues which were of importance for people living in that district. In several editions the applicant described the actions of G.G., the mayor of Bulkowo (w\u00f3jt gminy).<\/p>\n 4.\u00a0\u00a0In edition no.\u00a09\/2014, published on 10\u00a0September 2014, the applicant wrote, inter alia, about:<\/p>\n –\u00a0\u00a0the harvest festival in Blich\u00f3w;<\/p>\n –\u00a0\u00a0the construction of a wind farm in the municipality;<\/p>\n –\u00a0\u00a0acharity called Association N.P., in which G.G.\u2019s wife was treasurer;<\/p>\n –\u00a0\u00a0the amount of allowances received by councillors (radni) and local mayors (so\u0142tysi);<\/p>\n –\u00a0\u00a0the payment of a loan of 2,622,466 Polish zlotys (PLN), that is over 655,000 euros (EUR). He concluded that article with the statement:<\/p>\n \u201cWell, let\u2019s keep our pockets tight because G.G. wishes to reach deeper into them,\u201d (\u201cNo to trzymajmy si\u0119 za kieszenie, do kt\u00f3rych G.G. chce nam si\u0119 dobra\u0107 g\u0142\u0119biej\u201d).<\/p>\n 5.\u00a0\u00a0In edition no.\u00a010\/2014, published on 10\u00a0October 2014, the applicant wrote:<\/p>\n –\u00a0\u00a0about the municipality\u2019s debt, taxes and charges;<\/p>\n –\u00a0\u00a0that G.G. had more than forty hectares of farming land and that during his term of office as mayor he had taken on odd jobs (fuchy).<\/p>\n –\u00a0\u00a0about the Association N.P.<\/p>\n 6.\u00a0\u00a0The applicant states that his newsletter has also in the past criticised S.S., G.G.\u2019s opponent in elections, for his actions when in office.<\/p>\n 2.\u00a0\u00a0The electoral campaign<\/em><\/p>\n 7.\u00a0\u00a0On 27 August 2014 the campaign for municipal elections started. The applicant asked two party election committees if they would accept him as a candidate for the official Electoral Commission of Bulkowo municipality (hereafter, \u201cthe Commission\u201d). The Election Committee of the Polish People\u2019s Party (Komitet WyborczyPolskiego Stronnictwa Ludowego, hereafter \u201cthe KW PSL\u201d) agreed first and by its recommendation the applicant became a member of the Commission on 22\u00a0September 2014. The applicant underlines that he was not a member of that party or of its election committee.<\/p>\n 8.\u00a0\u00a0On 4 September 2014 the Election Committee of Voters for G.G. \u201cTogether for Bulkowo\u201d (Komitet Wyborczy Wyborc\u00f3w G.G. \u201cRazem\u00a0dla Bulkowa\u201d) was registered. On 7\u00a0October 2014 G.G. was registered as a candidate for the mayor\u2019s office. On the same day S.S., who was the candidate of the KW PSL, was registered as well.<\/p>\n 3.\u00a0\u00a0The proceedings against the applicant<\/em><\/p>\n 9.\u00a0\u00a0On 21 October 2014 at about 10.45 a.m. the applicant received a call from a clerk of the P\u0142ock Regional Court (S\u0105d Okr\u0119gowy), telling him that G.G. had lodged a claim under the Election Code and that a hearing was going to take place the next day at 9\u00a0a.m. He was asked to provide his e\u2011mail address, to which the clerk sent the claim with attachments at 12.09\u00a0p.m. The applicant was only able to read the email in the evening when he got back home.<\/p>\n 10.\u00a0\u00a0G.G. was represented by a lawyer. The applicant was unable to find a professional legal representative at such short notice.<\/p>\n 11.\u00a0\u00a0In the claim, G.G. requested that the applicant and the Contact National Trade Union (Og\u00f3lnopolski Zwi\u0105zek Zawodowy \u201eKontakt\u201d, the publisher of the newsletter; hereafter \u201cthe Union\u201d) be forbidden from disseminating such untrue information:<\/p>\n –\u00a0\u00a0that the harvest festival in Blich\u00f3w had been organised in connection with the campaign for the mayor\u2019s office;<\/p>\n –\u00a0\u00a0that G.G. and the councillors of Bulkowo Municipality who had been in office from 2011 to 2014 were the only ones responsible for the construction of the wind farm there;<\/p>\n –\u00a0\u00a0that the Association N.P. had taken part in G.G.\u2019s campaign by giving food to those who needed it;<\/p>\n –\u00a0\u00a0that G.G. had been responsible for the amount of councillors\u2019 and local mayors\u2019 allowances;<\/p>\n –\u00a0\u00a0that G.G. had taken the decision that a long-term loan of PLN 2,622,466 (EUR 655,000), taken under the name of Bulkowo Municipality, would be paid back with money from the inhabitants of the commune;<\/p>\n –\u00a0\u00a0that that money would come from higher taxes and charges;<\/p>\n –\u00a0\u00a0that the municipal debt at the end of June 2014 had amounted to PLN 10,138,000 (EUR 2,534,500);<\/p>\n –\u00a0\u00a0that in 2015 the property tax (podatek od nieruchomo\u015bci) would rise by 80 percent;<\/p>\n –\u00a0\u00a0that G.G. was exhausted and had not taken a holiday, which had affected his duties as mayor;<\/p>\n –\u00a0\u00a0that G.G. owned more than forty hectares of farming land;<\/p>\n –\u00a0\u00a0that during his term of office as mayor, G.G. had taken on additional employment;<\/p>\n –\u00a0\u00a0that the Association N.P., in which G.G.\u2019s wife was treasurer, had taken money from the investor in the wind farm.<\/p>\n He asked that the newsletters be confiscated and that the applicant and the Union be ordered to publish an announcement in a regional weekly magazine that the impugned statements were untrue and that they apologised for them. He also wanted a handwritten apology (spisane w\u0142asnor\u0119cznie I podpisane o\u015bwiadczenie), and requested that they pay PLN 10,000 (approximately EUR 2,500) to a charity and cover the costs of the proceedings.<\/p>\n The statement of claim comprised eight pages.<\/p>\n 12.\u00a0\u00a0During the hearing G.G.\u2019s lawyer supported the claim.<\/p>\n 13.\u00a0\u00a0The applicant argued that it should be rejected because:<\/p>\n –\u00a0\u00a0the newsletters could not be considered as campaign material because they had been published legally and the topics raised in them had constituted the continuation of previous articles;<\/p>\n –\u00a0\u00a0the articles had criticised G.G. as mayor, not as a candidate for mayor, and the fact that an election campaign was taking place could not preclude negative comments;<\/p>\n –\u00a0\u00a0the fact that the applicant had been nominated as a candidate for the Commission by the KW PSL did not mean that his newsletter was in favour of S.S., especially as he had also criticised S.S. during his term in office;<\/p>\n –\u00a0\u00a0it was wrong to say he was a member of the KW PSL;<\/p>\n –\u00a0\u00a0issue no.\u00a09\/2014 had been published almost a month before G.G. had been registered as a candidate and before the applicant had become a member of the Commission so its contents should not be examined at all;<\/p>\n –\u00a0\u00a0many of the impugned statements were related to his opinions, conclusions, questions and even suppositions, which were connected to various factual situations.<\/p>\n 14.\u00a0\u00a0The applicant states that the presiding judge in the P\u0142ock Regional Court asked him selectively about various issues. Moreover, at the beginning of the hearing he asked the judge to admit ten issues of the newsletter (all from 2014) in evidence, also stating that he would hand them over at the end of the hearing because he needed them to present his statement. The judge agreed, but after the parties\u2019 submissions she closed the hearing and did not accept the newsletters from the applicant.<\/p>\n 15.\u00a0\u00a0By a decision of 22\u00a0October 2014, the P\u0142ock Regional Court allowed almost all points of the claim by:<\/p>\n –\u00a0\u00a0forbidding the applicant and the Union from disseminating the information requested by G.G., with the exception of that related to the Association N.P., in which G.G.\u2019s wife was treasurer, had taken money from the wind farm investor; and that G.G. had been exhausted and had not taken a holiday, which had affected his work as mayor;<\/p>\n –\u00a0\u00a0ordering the confiscation of the 9\/2014 and 10\/2014 editions of the newsletter;<\/p>\n –\u00a0\u00a0ordering the applicant and the Union to publish an announcement in the regional magazine Tygodnik P\u0142ocki (\u201cP\u0142ock Weekly\u201d) with a declaration that the impugned statements were untrue, including an apology;<\/p>\n –\u00a0\u00a0ordering the applicant to prepare a handwritten apology for the untrue statements (wr\u0119czenie spisanego w\u0142asnor\u0119cznie i\u00a0podpisanego o\u015bwiadczenia);<\/p>\n –\u00a0\u00a0ordering the applicant and the Union to pay PLN\u00a010,000 (approximately EUR\u00a02,500) to a charity;<\/p>\n –\u00a0\u00a0dismissing the rest of the action;,<\/p>\n –\u00a0\u00a0ordering the applicant and the Union to pay PLN\u00a0377 (approximately EUR 94) in costs.<\/p>\n 16.\u00a0\u00a0The Regional Court held as follows:<\/p>\n \u201cIt has to be acknowledged that the time of publication of the campaign material (September, October 2014), the office held by [G.G.] (the mayor of Bulkowo Muncipality) and by Jan Staniszewski (the author of the newsletter, its publisher, a member of the election committee who supports the claimant\u2019s opponent from another political group), the circulation of the publication (the high number of issues of the newsletter), as well as the form and content of the statements unequivocally show that the participants [the applicant and the Union] instigated and conducted a so\u2011called \u2018negative campaign\u2019, based, as the claimant has proven, on gossip, insinuation, speculation, sensation, emotions and press statements of a kind that were equivalent to the level of statements by tabloids.<\/p>\n [G.G.] is taking part in the campaign (he was registered on 7\u00a0October 2014). Jan\u00a0Staniszewski is a member of the Election Commission, nominated by the PSL. He is a writer for the \u2018The Voice of Bulkowo Municipality Newsletter\u2019, its publisher and editor-in-chief, so he is wholly responsible for the statements made in it. They are malicious, full of subjective dislike of the claimant. The author speculates about why the harvest festival took place in one place rather than in another, analyses how S.S.\u2019s victory in some constituencies in 2010 angered the claimant and how he aims to win over various followers and states that the harvest festival is a sign from G., \u2018Follow me\u2019. He comments \u2018Will the nation be fooled and buy all that?\u2019(\u2018Czy nar\u00f3d da si\u0119 og\u0142upi\u0107 i zechce to kupi\u0107?\u2019).<\/p>\n The respondent is cross with [G.G.] on the issue of the wind farm \u2013 that he did not withdraw from his predecessor\u2019s decision, that he does not \u2018boast\u2019 about them. The editor threatens the inhabitants with wind turbine syndrome, names the symptoms of a poor disposition, states that [G.] has concocted an \u2018uncertain future\u2019 for the people. … The respondent\u2019s arguments about the differences in the remuneration of the mayors and local mayors and their \u2018disparity and unfairness\u2019 are totally incomprehensible while the allegation that the loan taken by the municipality will be paid by its inhabitants (!), and that this is the fault of [G.G.], who will force them to do it (\u2018will reach into their pockets\u2019) is totally groundless. The claimant indicated the sources of the debt repayment.<\/p>\n In edition no.\u00a010\/2014 the respondent [the applicant] suggests that the Association N.P. gave away bad food for free just to gain followers for [G.] amongst the poorest people; he makes an untrue statement about the size of the municipality\u2019s debt and about how much (80%) the property tax will rise in 2015, oblivious to the fact that it is the council of the municipality, not the mayor himself, which establishes the rates of property tax and other local taxes, which stems from Section\u00a05 of the Act on local taxes and charges. Accusing [G.G.] of \u2018having two occupations\u2019 (dwuzawodowstwo) and \u2018odd jobs\u2019 (fuchy) without specifying of what that consists \u2013 while asking when and where [G.] takes a rest because it is difficult to believe that he performs all his duties well \u2013 is completely incomprehensible. The standard of these statements and their unequivocally negative, sensational context, their conciseness (has\u0142owo\u015b\u0107), and the lack of detail and information about their source, breaches journalistic ethics and without a doubt infringes the claimant\u2019s personal rights (dobra osobiste). It creates in in the mind of the average reader a feeling of dislike for the mayor, which he actually encounters at the present time, and about his past actions. It suggests that he has questionable dealings, and performs \u2018odd jobs\u2019 (an unequivocally pejorative term). The publication does not make it clear if and which duties the mayor neglected, while the manner in which he takes a rest is not a public fact that requires evaluation or comment. It is also not true that the claimant has a farm of 40 hectares. In any case, all the facts concerning the mayor (and even his wife), the decisions he has made, and the property he owns are commented on by the participants in an unfavourable manner, with a hint of a suspicion of dishonesty and swindling (w\u00a0tonie podejrze\u0144 o\u00a0nieuczciwo\u015b\u0107 i\u00a0machlojki). Such public and widely broadcast statements, which the respondent has personally tried to distribute, disparage the claimant, who has a public function, and unfavourably affect his general electoral profile.<\/p>\n The claimant has proved that these allegations are false by means of the documents attached to the claim; their content leaves no doubt. They refute the respondents\u2019 statements and result in the recognition of the claim as justified almost in full, also in the context of the remedies to remove the effects of the infringement.\u201d<\/p>\n 17.\u00a0\u00a0On 24\u00a0October 2014 the P\u0142ock Regional Court allowed an application by G.G. to supplement the decision of 22\u00a0October 2014 by adding a requirement that the correction of the false statements and the apology be published by 28\u00a0October 2014.<\/p>\n 18.\u00a0\u00a0The applicant appealed against the original court decision.<\/p>\n 19.\u00a0\u00a0On 27\u00a0October 2014 the \u0141\u00f3d\u017a Court of Appeal (S\u0105d Apelacyjny) dismissed his appeal. It held:<\/p>\n \u201cUltimately it has to be stated that Jan Staniszewski\u2019s ethics arouse serious doubts because as author of the articles and editor-in-chief of the newsletter \u2018The Voice of Bulkowo Municipality\u2019 he engaged actively in electoral agitation (agitacja wyborcza) against one of the candidates for mayor of Bulkowo Municipality while he was a member of the Election Commission of Bulkowo Municipality. Paragraph\u00a03 of Article\u00a0153 of the Election Code includes a prohibition on members of election commissions from conducting electoral agitation for specific candidates and for lists of candidates. That provision requires that members of electoral commissions refrain from electoral agitation for (or against) any candidate and, obviously, from imparting private opinions about candidates or political parties. Jan Staniszewski\u2019s behaviour is in obvious conflict with that provision.\u201d<\/p>\n 20.\u00a0\u00a0The P\u0142ock Election Commissioner (komisarz wyborczy) did not revoke the applicant\u2019s membership of the Commission.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 1.\u00a0\u00a0Relevant constitutional provisions<\/em><\/p>\n 21.\u00a0\u00a0Article\u00a014 provides as follows:<\/p>\n \u201cThe Republic of Poland shall ensure freedom of the press and other means of social communication.\u201d<\/p>\n Article\u00a031 \u00a7\u00a03 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides:<\/p>\n \u201cAny limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.\u201d<\/p>\n Article\u00a054 \u00a7\u00a01 of the Constitution guarantees freedom of expression. It states, in so far as relevant:<\/p>\n \u201cEveryone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.\u201d<\/p>\n 2.\u00a0\u00a0The Election Code<\/em><\/p>\n 22.\u00a0\u00a0The Election Code (Kodeks wyborczy) of 5\u00a0January 2011 came into force on 1\u00a0August 2011.<\/p>\n Article\u00a0105 provides, in so far as relevant:<\/p>\n \u201cPublic incitement or encouragement to vote in a certain manner or to vote for a candidate of a certain electoral committee constitutes electoral agitation.\u201d<\/p>\n Article\u00a0109 provides, in so far as relevant:<\/p>\n \u201cCampaign material is any public and fixed transfer of information that originates from an electoral committee that is connected to an election that has already been called.\u201d<\/p>\n Article\u00a0111 provides, in so far as relevant:<\/p>\n \u201c\u00a7 1. If any campaign material which has been distributed, including via the press within the meaning of the Press Act (Prawo prasowe) of 26\u00a0January 1984, in particular posters, leaflets and slogans, as well as statements or other forms of electoral agitation, contains untrue information, a candidate or an electoral agent of the electoral committee concerned has the right to lodge a claim with a Regional Court to give a decision:<\/p>\n 1) restraining [the defendant] from publishing such information;<\/p>\n 2) on the confiscation of such material;<\/p>\n 3) on correcting the information;<\/p>\n 4) requiring [the defendant] to publish a response to statements that infringe personal rights;<\/p>\n 5) requiring [the defendant] to apologise to the aggrieved party;<\/p>\n 6) requiring [the defendant] to pay up to PLN 100,000 to a charity.<\/p>\n \u00a7 2. A Regional Court shall examine an application of the kind referred to in \u00a7\u00a01 within 24\u00a0hours in non-contentious [civil] proceedings. […] The court shall, without undue delay, serve on the interested party referred to in \u00a7 1 and the person required to execute the court\u2019s ruling a decision which will bring the proceedings in the case to an end.<\/p>\n \u00a7 3. Appeal against the decision of the Regional Court lies with the Court of Appeal, provided it is lodged within 24\u00a0hours of delivery of the decision. The Court of Appeal shall examine the appeal in non-contentious [civil] proceedings, under the same procedure and within the time-limit referred to in \u00a7\u00a02. No appeal shall lie against the decision of the Court of Appeal and its decision shall be enforceable with immediate effect.\u201d<\/p>\n Article\u00a0153 provides, in so far as relevant:<\/p>\n \u201c\u00a7 3. Members of an electoral commission cannot campaign for specific candidates or lists of candidates.\u201d<\/p>\n COMPLAINTS<\/strong><\/p>\n The applicant complains under Article\u00a06 of the Convention that he could not adequately prepare for the hearing and find a lawyer who would represent him owing to the short time he had at his disposal, thus his right to a fair trial within a reasonable time was violated.<\/p>\n Under Article\u00a010 he complains that his freedom to hold and impart opinions was violated as the publications in question related to issues that were of importance to the public. He also complains that the cumulative effect of the sanctions imposed on him constituted a disproportionate interference with his freedom of speech.<\/p>\n QUESTIONS TO THE PARTIES<\/strong><\/p>\n 1.\u00a0\u00a0Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article\u00a06 \u00a7\u00a01 of the Convention? Reference is made in particular to the applicant\u2019s allegations that the time-limits established in the Election Code made it difficult for him to prepare his case and appoint a lawyer.<\/p>\n 2.\u00a0\u00a0Has there been a violation of the applicant\u2019s right to freedom of expression, in particular his right to impart information, contrary to Article\u00a010 of the Convention?<\/p>\n