AS TO THE ADMISSIBILITY OF
Application no. 18235/02
by Olgierd DĄBROWSKI
The European Court of Human Rights (Fourth Section), sitting on 25 August 2005 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 18 April 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Olgierd Dąbrowski, is a Polish national who was born in 1952 and lives in Lubajny, Poland.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The press articles
On 15 September 1998 the applicant published in a daily newspaper, Dziennik Pojezierza, the following article:
“Turtle speed of the Ostróda judiciary.
The governor just a witness.
Tomorrow, on Wednesday 16 September, at 9 o’clock another hearing will begin before the Ostróda District Court in a criminal case against Tadeusz L., deputy mayor of Ostróda and Lech K., legal adviser. The bill of indictment includes charges against them that three years ago, on 28 September 1995, they carried out a burglary in the office of TVK Vectra, a private company which legally worked and leased the office from the Housing Co-operative Jedność.
The case has already been pending for two and a half years. For several months, the court has been unable to take evidence from governor Zbigniew Babalski, at that time mayor of Ostróda, the most important witness. On numerous occasions, he was unsuccessfully summoned before Themis. Babalski was sending excuses to the court or did not attend hearings without any explanation.
For the first time, and so far the only time, the governor appeared before the court on 28 May. However, he could not be heard because the accused Tadeusz L. was absent, not for the first time, as he was quietly present at that time in the town hall situated ... 100 metres away. It was – according to the observers of the case – another instance of dodging the proceedings in order to delay the date of delivery of a judgment. Protracting the case leads to the likelihood that the case will be discontinued or the accused will be acquitted. A judgment convicting Tadeusz L. would mean an interruption of his very lucrative career in local government.
In addition, it is a very annoying and dangerous case for governor Zbigniew Babalski. The evidence taken so far from witnesses clearly shows that the burglary in Vectra took place with his knowledge and approval. On the day of the attempt to take over the TV cable operator he telephoned police and asked for ‘assistance with eviction’ – misleading the law enforcement officers. The day after the burglary he informed the people of Ostróda – through the TV cable operator he had taken over – that the action was lawful and served the interests of the TV audience.
It is not known whether the court will ask the governor to explain these disturbing facts. It is also not known whether the court will finally decide to clarify the role played in the burglary by Grzegorz Kierozalski, at that time the town secretary and today the governor’s chef de cabinet. It appears from the evidence given by Henryk K., a locksmith employed by the Municipal Housing Administration, that Kierozalski instructed him to take tools and to force open a door to the Vectra’s office. In the view of many former Ostróda councillors, the list of accused in this case is too short by at least half. However, it is not known whether governor Babalski will allow the court to finish this unusual case.”1
On 17 September 1998 the applicant published in the same daily the following article:
“A gypsy did it, but they are going to hang the blacksmith.
A case concerning the burglary in Vectra approaches the end.
Yesterday, on 16 September, the Ostróda District Court finished the taking of evidence in the case concerning the burglary in the office of the Vectra Cable Television in which the accused are Tadeusz L., deputy mayor of Ostróda and Lech K., legal adviser. The proceedings lasted two and a half years. A judgment will be delivered on 22 September.
The Ostróda court, after several months of waiting for the busy governor of Olsztyn, Zbigniew Babalski, was able at last to take evidence from him. The main witness in the case was hiding behind his lack of memory and the fact that on 28 September 1995, the day of the burglary, he had been for the whole day in Olsztyn attending a meeting with governor Janusz Lorenz. He called a local government team – which forced open a door and used violence against the employees of Vectra – an inventory commission established by the municipal management. Babalski did not remember who exactly was entrusted with that task. The court did not try to clarify the role played in this criminal event by the then mayor, Zbigniew Babalski. It did not ask him why he had publicly, on television, supported an attempt to take over the television operator or why he had asked the police to ‘assist in the eviction of Vectra’. In the view of many Ostróda councillors Babalski knew about the burglary and agreed to it. This is also shown by the fact that he did not punish the burglars – his subordinates – but systematically promoted them in local government.
The accused Tadeusz L. filed three additional requests, which would have delayed the proceedings. The court dismissed them.
Counsel for Vectra suggested that Tadeusz L. had broken into the offices of the cable operator to take revenge for the termination of a contract allowing him to provide television equipment maintenance services. Tadeusz L. claimed that Vectra was taking revenge because he had discovered its ‘swindles’.
It is widely felt that only ‘small fry’ appeared before the Ostróda court. The real instigators of the burglary remain unpunished.” 2
On 23 September 1998 the applicant published the following article:
“The end of a career of a mayor-burglar?
The end of Ostróda series.
Yesterday, on 22 September, the Ostróda District Court, after three years of considering a case concerning a burglary in [the premises of] the Vectra Cable Television, gave judgment. [The court] found Tadeusz L., deputy mayor and Lech K., legal adviser, guilty of an attempt by local government officials to take over a private company – unprecedented in this country. The criminal proceedings against both accused were conditionally discontinued for a year.
The court sentenced each of them to a fine of 150 zlotys, which will go to a nursing home in Szyldak. They were each also ordered to pay a 50 zlotys’ fee and 50 percent of the costs of the proceedings.
Counsel for auxiliary prosecutor Mirosław Gąsiewski, who represented Vectra, declared that he would appeal, as he considered that the sentence was blatantly lenient. In his oral statement made before the judgment, he said that on 28 September 1995 ‘the municipal authorities had lynched Vectra’. In doing that, they showed a ‘lack of basic legal culture’ and ‘by using bandit tactics’ they wanted to resolve a dispute with a cable company. People like Tadeusz L. – underlined the counsel – should not hold prominent posts in the town hall. The action of both accused deprived Vectra of the ability to operate a network for a period of three months, which led to a loss of at least 1.5 billion old zlotys.
The advocate of the deputy mayor of Ostróda said that the list of accused was too short. He suggested that it should include also Zbigniew Babalski, mayor at that time and today governor of Olsztyn, and Grzegorz Kierozalski, a former town secretary and today the governor’s chef de cabinet, since a burglary in Vectra had been committed with their knowledge and approval. He defended his client by claiming that he had only wanted to make an inventory in Vectra.
The accused Lech K. asked to be acquitted. Tadeusz L. in his last statement attacked the counsel of Vectra, claiming that he had been so active because he had expected from that company ‘a financial bonus in the future’.
Tadeusz L. stands in the next elections to the municipal council. If the Olsztyn Regional Court upholds the sentence or increases it, the deputy mayor of Ostróda – even if he wins a seat – will lose it by virtue of the law. That will mean the end of his eight-year long, stormy and lucrative career in local government.” 3
2. The prosecution on charges of defamation
(a) The private bill of indictment
On unspecified date Tadeusz Lubaczewski lodged with the Olsztyn District Court a private bill of indictment. He charged the applicant with defamation. In particular, Tadeusz Lubaczewski submitted that in the articles published on 15 and 23 September 1998 the applicant made the following “untrue allegations”:
“1. called him ‘a mayor-burglar’;
2. described his career in local government as ‘stormy’ and ‘very lucrative’;
3. stated that ‘the action of both accused deprived Vectra of the ability to operate a network for a period of three months, which led to a loss of at least 1.5 billion old zlotys’;
4. considered that ‘[the court] found deputy mayor Tadeusz L., guilty of an attempt by local government officials to take over a private company – unprecedented in this country’; and
5. disseminated untrue information that he ‘was absent, not for the first time, as he was quietly present at that time in the town hall’.” 4
(b) The trial
The applicant was tried by the Olsztyn District Court between 29 May and 7 November 2000. On 7 November 2000 he was convicted of defamation under Article 212 § 1 of the Criminal Code. The criminal proceedings against him were then conditionally discontinued and he was ordered to pay 1,000 zlotys to a charity. Furthermore, the applicant was ordered to reimburse the prosecutor 300 zlotys for the costs of the proceedings. The trial court gave, in particular, the following reasons for its decision:
“... the accused did not show in a convincing manner that the allegations made by him were true.
Making a reference to ‘a mayor-burglar’ in the title of the article published on 23.09.1998 could be ambiguous and susceptible to various interpretations only because there was a question mark at the end of the title [sic].
In the court’s view that [question] mark refers to the whole title and not only, as claimed by the accused, the words ‘the end of career’ because coming to such a conclusion would be unjustified [sic].
However, the court is of the view that although in the light of the court proceedings before the Ostróda court the description of T. Lubaczewski’s career in local government as ‘stormy’ [was justified], the use of the adjective ‘lucrative’ with respect to that career cannot be considered as true. At the time of publication of that article, the private prosecutor was a mayor but his remuneration did not justify the use by the author of the article of such a term. In view of the evidence ... one cannot consider as truthful the accused’s claims that T. Lubaszewski was receiving a kind of special profit [. The] amount of remuneration of a deputy mayor and the amount of councillors’ allowances is usually decided by the local government authorities chosen in democratic elections and even against the background of the generally bad economic situation of the majority of Ostróda population cannot be considered as exceptionally lucrative. Moreover, in view of the declaration made by T. Lubaczewski it cannot be accepted that [his] participation in two foreign trips during his work in local government was a sort of special bonus.
With respect to the third charge, the accused’s defence that it was in fact a quotation from counsel for TVK Vectra is bound to give rise to doubts in view of the fact that it was not put in quotation marks, especially as the other statements made by that counsel were clearly put in such marks.
In addition, the accused was unable to prove the losses of the cable television given in that paragraph by pointing to or submitting a document containing the calculation of those losses.
It also cannot be accepted as entirely true ‘that [the court] found deputy mayor Tadeusz L., guilty of an attempt by local government officials to take over a private company – unprecedented in this country’.
Firstly, because at the time of delivery of a judgment the statement was not legally valid and the use of such a term could have been misleading and also because a conditional discontinuation of the proceedings is not identical to the conviction of an accused, but this is precisely how this part of the article could be understood.
As far as the last charge is concerned, it should be underlined that the accused also did not prove [his] allegation that at the time when a hearing was held on 28.05.1998 before the Ostróda court T. Lubaszewski was present in the town hall. ... The evidence shows that the private prosecutor on that day was in Elbląg on a business trip. ...
Even if one accepts that the accused really saw the prosecutor’s car in the early morning and subsequently the prosecutor himself, approximately one hour after the end of the hearing, this did not entitle the author of the article to use the terms contained in the article.
In conclusion, it should be observed that, in the view of the court, the evidence did not give grounds for accepting that the allegations made by the accused were true, especially as the legislator added another condition for accepting the impunity of the offence of defamation, namely that ... the allegation was made to defend a socially justified interest.
After analysing the degree of guilt and the danger to society of a continuous act committed by the accused, the court concluded that it could be described as insignificant. This conclusion was obviously influenced by the clearly visible antagonism between the accused and the private prosecutor.
The parties have been and are involved in at least several defamation cases, in which they play different roles. Those cases arise from the different political opinions of the parties and it is regrettable that they chose a courtroom as their arena for political disputes.
Contrary to the private prosecutor’s claim, one cannot find motives of private vengeance in the press articles containing the defamatory allegations. The accused undoubtedly acted within the framework of acceptable press criticism [. H]owever, in the court’s opinion he overstepped its limits and did not convincingly display journalistic diligence as he made allegations which were not properly verified.
Furthermore, taking into account the fact that the accused has no criminal record and his character and personal circumstances, the court has concluded that the measure of discontinuation of the criminal proceedings should be used in respect of him and his acts.
The court is of the view that the fact of finding that the accused has committed the act with which he was charged will in itself be first of all a lesson for him for the future.
In order to increase the educational effects of that measure, the court has ordered the accused to make a payment to a charity in an amount proportional to his financial standing. ...”5
(c) The appellate proceedings
The applicant appealed against his conviction but on 18 October 2001 the Olsztyn Regional Court dismissed his appeal.
B. Relevant domestic law
Article 66 et seq. of the 1997 Criminal Code concern the conditional discontinuation of criminal proceedings.
Article 66 reads, in so far as relevant:
“§ 1. The court may conditionally discontinue the criminal proceedings if the guilt and social danger of the act are not significant and the circumstances of its commission do not raise doubts, and that the attitude of the perpetrator not previously punished for an intentional offence, his personal characteristics and his way of life to date provide reasonable grounds for the assumption that, even in the event of the discontinuance of the proceedings, he will observe the legal order and in particular will not commit an offence.”
Article 67 provides, in so far as relevant:
“§ 1. The conditional discontinuance shall apply for a probationary term between one and two years, which shall run from the date the judgment becomes valid and final.
§ 3. In discontinuing conditionally the criminal proceedings, the court shall require the perpetrator to redress in whole or in part the damage...”
“§ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics, as may lower this person, group or entity in the public opinion or undermine public confidence in their capacity necessary for a certain position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding 1 year.
§ 2. If the perpetrator commits the act described in paragraph 1 through a means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment not exceeding 2 years.
§ 4. The prosecution takes place under a private bill of indictment.”
Article 213 § 2 reads in so far as relevant:
“Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2.”
The applicant complained under Article 10 of the Convention about his conviction of defamation.
The applicant complained about a breach of 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. 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 applicant submitted that his statements about a local politician were true. He reported on the criminal proceedings against the deputy mayor of Ostóda and presented his opinions about the politician. The applicant complained that he had been found guilty for statements like “stormy and lucrative career in local government” that were value judgments in respect of which the requirement of proving the truth had not been possible to fulfil. He argued that under Article 10 of the Convention he had the right to give his opinions. The applicant felt that unfortunately the Polish judiciary did not understand the Convention standards as regards the right to freedom of expression.
The applicant argued that he had acted in the public interest with the aim of informing the local community about the actions of a politician and issues important for that community. His statements were not defamatory. The applicant concluded that as a citizen and a journalist he had a duty to express his views, including critical ones.
The Government admitted that the applicant’s conviction for defamation amounted to an “interference” with his right to freedom of expression. However, they submitted that the interference was “prescribed by law” and pursued the legitimate aim as it was intended to protect the reputation and rights of others.
Furthermore, the Government pointed out that the domestic courts had found that the applicant’s allegations had been untrue and defamatory. They submitted that all European legal systems provided for defamation as a criminal offence. The Government agreed that the limits of acceptable criticism were wider with regard to a politician, but they asserted that the applicant had overstepped this limit.
The Government further pointed out that the case originated in a private bill of indictment lodged by T.L. Moreover, the courts chose a “more lenient measure than conviction and conditionally discontinued the proceedings for a period of one year and ordered the applicant to pay PLN 1,000 to the charity ... and PLN 300 for the costs of the proceedings”. That, in the Government’s opinion, should be taken into account when assessing the proportionality of the measure. The Government submitted that the “penal reaction to the applicant’s defamatory allegations” was justified by a “pressing social need” and was proportionate to the legitimate aim pursued.
The Government concluded that the application was manifestly ill-founded. Alternatively they submitted that there had been no violation of Article 10 of the Convention.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Michael O’Boyle Nicolas Bratza
DĄBROWSKI v. POLAND DECISION
DĄBROWSKI v. POLAND DECISION