THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43425/98 
by Edward SKAŁKA 
against Poland

The European Court of Human Rights (Third Section), sitting on 3 October 2002 as a Chamber composed of

Mr I. Cabral Barreto, President
 Mr L. Caflisch
 Mr P. Kūris,  

Mr J. Hedigan
 Mrs M. Tsatsa-Nikolovska
 Mrs H.S. Greve
 Mr L. Garlicki, judges
and  Mr  M. Villiger, Deputy Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 17 October 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 12 June 2001,

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 FACTS

The applicant,  Edward Skałka, is a Polish national, who was born in 1941. He was represented before the Court by Mr Adam Bezucha, a lawyer practising in Kłodzko.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 16 December 1993 the Nowy Targ District Court convicted the applicant of aggravated theft and sentenced him to imprisonment.

While in prison, on an unspecified date the applicant wrote a letter to the Penitentiary Division of the Katowice Regional Court and he received a reply. Obviously dissatisfied with that reply, on 15 November 1994 the applicant sent a letter to the President of the Katowice Regional Court, complaining about the judge who had replied to his letter. The relevant passages of the applicant’s letter read:

“(...) It cannot be excluded that further acts of that kind of the Penitentiary Division of the Regional Court would entail submission of a complaint to the judicial supervision about the irresponsible clowns placed in that Division.

I will start by saying that any little cretin, whether he wears a gown or not, should vent his need to intimidate others by making allusions to legal responsibility [for their acts] on his lover, if he has one, or on his dog, but hands off me. I am not going to be afraid of such clown who wants to intimidate me, but the truth is that my request of 18 August 1994 had been addressed to the court, and not to some fool.

I expect that the President of the Katowice Regional Court sill somehow convey the contents of my request to that bully and that he will, at the same time, read out his reply to me, making it clear to that “judge” that bicycle and barrow are two different things.

Not only that [the judge] writes rubbish about my alleged request for pardon, which my request absolutely was not, but he also intimidates me. If he is such a brilliant lawyer that he is able to reply to questions that were not asked- and his legal skills can be seen if the contents of my letter is compared with the reply - he should find a relevant legal provision against me. It would not change the fact that such a limited individual, such a ... cretin should not take the post of a reliable lawyer who know how to reply to a letter. A cretin he will remain and I see no reason to be afraid of legal consequences. “You know, you understand, you shut up” - that is all his education, as a fool does not need any better. “

Subsequently, on an unspecified date, the Sosnowiec District Prosecutor instituted criminal proceedings against the applicant. On 31 January 1994 the prosecuting authorities lodged a bill of indictment against the applicant with the Sosnowiec District Court. He was charged with proffering insults against a State authority at its headquarters or in public, an offence under Article 237 of the Criminal Code 1969, committed by sending a letter to the President of the Katowice Regional Court. In this letter the applicant had insulted an unidentified judge of the court’s Penitentiary Division and all judges of that court in general. The applicant had been questioned in connection with the offence. He had stated that he had not meant the court as a whole, but only one judge, and this in his personal not professional capacity. He maintained that the letter could only be regarded as an insult against a private person, not a State institution.

On 6 September 1995 the Sosnowiec District Court convicted the applicant of insulting a State authority and sentenced him to eight months’ imprisonment. The court found that on 15 November 1994 the applicant had addressed a letter to the President of the Regional Court in which he referred to all judges of the Regional Court’s Penitentiary Division in an insulting and abusive manner as “irresponsible clowns”. Moreover, further on in the same letter, he referred in a particularly insulting manner (“w sposob szczególnie obraźliwy”) to an unidentified judge of the same Division, to whom he had allegedly written certain letters which remained unanswered. The prison administration transmitted this letter without opening it to the court.

The court had regard to the results of the applicant’s examination by psychiatrists who found that he could be held criminally responsible. 

The court took into consideration the questioning of the applicant during the investigations when he had denied committing a criminal offence. He had stated that the charge against him did not correspond to the facts of the case as in his letter he referred to a particular person, not to the court as a whole, and that the phrases construed as insults concerned the judge in his personal capacity only. When later heard by the court, the applicant had stated that he had written this letter with a specific person in mind, namely a judge who had previously examined his various complaints. He maintained that had not given a name as the letter from the Penitentiary Division in reply to these complaints, which had provoked him to write his impugned reply, had not been signed by anyone. The applicant had also stated that he was of the view that the opinions formulated in his letter were, in the circumstances of the case, correct.

The court considered that the facts of the case were established by the applicant’s acknowledgement that he had written the impugned letter. The analysis of its contents and form led to the conclusion that he had acted with the firm intention of insulting the Regional Court as a judicial authority. He had first addressed himself to the judges of that court as a group, and then focused on one unidentified judge. Accordingly, one could deduce that the applicant had insulted the court as the State authority, and the unidentified judge could be regarded as a symbol of that court. The court further observed that the applicant, as a citizen, had a constitutional right to criticise State authorities. However, the impugned letter had largely exceeded the limits of acceptable criticism and was directly aimed at lowering the public’s esteem of the organ concerned.

The court further observed that the sentence was commensurate with the applicant’s degree of guilt and with the seriousness of the offence. The assessment of its seriousness had been made having regard to the nature and importance of the interests protected by the criminal law provision applied in the case.

The applicant and his officially assigned lawyer lodged appeals against this judgment.

On 19 June 1996 the Katowice Court of Appeal, following a request from all of the judges of the Katowice Regional Court to be allowed to recuse themselves, considered that, in view of fact that the offence had been directed against the judges of that court, it was in the interests of the good administration of justice and the impartiality of the court that the appeal be transferred to the Bielsko-Biała Regional Court.

On 10 September 1996 the Bielsko-Biała Regional Court upheld the contested judgment, having examined both the appeal lodged by the applicant himself and that of his lawyer.

The court first noted that the first-instance court had accurately established the facts of the case. The court went on to state that it shared the conclusions of the first-instance court, namely that the contents and form of the letter allowed the conclusion that the applicant had acted with the firm intention of insulting the Regional Court as a State authority. The legal assessment of the facts of the case was correct, and the sentence imposed corresponded to the degree of the applicant’s guilt. The applicant had a long criminal record, even though he had been assessed positively by the penitentiary services, and could be held criminally responsible. The applicant’s lawyer had argued that the applicant had intended to insult a specific person, not an institution. However, in the light of the court’s other findings, this analysis was rejected.

The applicant’s lawyer lodged a cassation appeal with the Supreme Court.

On 2 June 1997 the Supreme Court dismissed the appeal and confirmed the contested judgment. The court referred to the grounds of appeal in which it had been argued that the conviction had been in flagrant breach of Article 237 of the Criminal Code in that the applicant’s acts, in the light of his submissions as to his motives, did not amount to a punishable criminal offence.

The Supreme Court first noted that the grounds of the applicant’s cassation appeal had been laconic and limited in their reasoning.  Moreover, it clearly transpired from the arguments that in fact the applicant’s lawyer contested the assessment of evidence and the factual findings made by the lower courts, whereas the purpose of the cassation appeal was to bring procedural complaints to the attention of the Supreme Court. This in itself constituted a sufficient basis for dismissing the appeal as not being in compliance with the requirements laid down by the applicable procedural provisions.

However, the court emphasised, it was worth noting that the Regional Court in its judgment had examined all complaints submitted in the appeal against the first-instance judgment, including these concerning the assessment of evidence and the factual findings of the first-instance court. No new arguments had been submitted to the Supreme Court to show that there had been any procedural shortcomings in the proceedings. Certainly the argument that the applicant’s acts could not be regareded as a criminal offence could not be regarded as such procedural complaints.

The applicant’s abusive letter, referred to and quoted by the Regional Court, had clearly exceeded the limits of acceptable criticism. Even if it were acknowledged that in its second part the applicant had focused on one judge, it had to be recognised that at the beginning he had attacked all the judges of the Regional Court. The appellate court had correctly had regard thereto. It had also indicated why it considered that the applicant’s attitude could be qualified as an offence under Article 237 of the Criminal Code 1969. The Supreme Court therefore dismissed the cassation appeal as unfounded.

B. Relevant domestic law

Article 237 of the Criminal Code 1969, applicable at the relevant time, read as follows:

“Anyone who insults a State authority at the place where it carries out its duties or in public, is liable to up to two years’ imprisonment, to a restriction of personal liberty or a fine.”

COMPLAINTS

The applicant complains, in essence, under Article 10 of the Convention that he was convicted of acts which should not have been construed as amounting to a criminal offence, as he should have been allowed to express his views.

THE LAW

The applicant complains, in essence, under Article 10 of the Convention that he was convicted of acts which should not have been construed as amounting to a criminal offence, as he should have been allowed to express his views.

Article 10 of the Convention reads:

“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.”

a) The Government first argue that the applicant failed to exhaust relevant domestic remedies.

They recall that under the Court’s case-law, the complaints intended to be made subsequently to Strasbourg should have been made to the same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (Ahmet Sadik v. Greece judgment).

They emphasise that the applicant has not alleged at any stage of the criminal proceedings conducted against him before the Sosnowiec District Court, the Bielsko-Biała Regional Court and the Supreme Court, even indirectly, any infringement whatsoever of his right to freedom of expression. The Government contend that they consulted the file of the applicant’s case and did not find therein any complaints, requests or even suggestions that his conviction was regarded by him as a violation of his freedom of expression. They refer to the cassation appeal lodged with the Supreme Court in which the applicant’s lawyer did not raise any complaints which would have even indirectly invoked a violation of the applicant’s freedom of expression. The cassation appeal advanced arguments which were based solely on domestic law and did not concern the applicant’s freedom of expression.

The Government further argue that the Convention is law which can be directly applied by Polish courts and that it was open to him to rely on its provisions.

The applicant argues that in his appeals he reiterated that he should not have been convicted for what he had said, since his acts should not have been regarded as being punishable by criminal law. Thereby he defended his freedom of expression guaranteed by Article 10 of the Convention, and his right to express his views.

The Court recalls that domestic remedies have not been exhausted when an appeal is not admitted because of a procedural mistake by the appellant.  However, non-exhaustion of domestic remedies cannot be held against the applicant if, in spite of the latter’s failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the appeal (Eur. Comm. HR, 12794/87, dec. 9.7.1988, D.R. 57, p. 251; No. 33979/96, Dec.  21 March 2000,  No. 45701/99, Dec. 7 June 2001).

The Court observes that in the present case the applicant did not expressly raise the complaint about freedom of expression before the domestic courts, invoking Article 10 of the Convention. However, in the grounds of his cassation appeal the applicant argued that the conviction had been in flagrant breach of Article 237 of the Criminal Code in that the impugned acts, in the light of his submissions to the first-instance court as to his motives, did not amount to a punishable criminal offence.

The Court further notes that the domestic courts did examine the case from the freedom of expression angle. Namely, in the first-instance judgment the court observed that the applicant, as a citizen, had a constitutional right to criticise State authorities. However, the impugned letter had largely exceeded the limits of acceptable criticism and was directly aimed at lowering the public’s esteem of the organ concerned. Subsequently, in its judgment given following the applicant’s cassation appeal, the Supreme Court observed that the applicant’s abusive letter, referred to and quoted by the Regional Court, had clearly exceeded the limits of acceptable criticism. In the light of the courts’ reasoning, the Court  considers that the applicant cannot be said to have failed to exhaust domestic remedies.

It follows that the application cannot be declared inadmissible for non-exhaustion of domestic remedies.

b) As to the substance of the case, the Government submits that, in assessing the limits of acceptable criticism towards the judiciary, regard must be had to the special role of the judiciary in society. As a guarantor of justice, a fundamental value in a law-governed State, it must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect such confidence against destructive attacks that are essentially unfounded” (see Prager and Oberschlick v. Austria judgment of 26 April 1995, Series A no. 313, p.17, § 34).

In the present case the applicant criticised the Katowice Regional Court in obviously insulting, abusive manner. In his letter he did not formulate any concrete request and was only suggesting that his previous request remained unanswered. The content of the letter addressed to the President of that court was aimed at insulting an unidentified judge of the Penitentiary Division and all judges of the Katowice Regional Court. The applicant referred to all judges as „irresponsible clowns”. Furthermore, he referred to an unidentified judge of that Court in a particularly insulting manner labelling him several times “a small cretin” (“kretynek”), “a clown” (“błazen”), “an illiterate” (“analfabeta”), “a fool” (“dureń”), “such limited individual” (“tego rodzaju ograniczone indywiduum”), “outstanding cretin” (“spotęgowany kretyn”).

The Government emphasised that the applicant’s conviction was aimed exclusively at the protection of the Katowice Regional Court against an offensive and abusive verbal attack when on duty. Moreover, in the present case the requirements of such protection do not have to be weighed in relation to the interest of open discussion of matters of public concern since the applicant’s remarks were not uttered in such a context (see the Janowski v. Poland [GC], no. 25716/94, ECHR 1999-I, pp. 199-200, § 33).

The applicant submits that in the impugned letter of 15 November 1994 the applicant expressed strong criticism of an unidentified judge of the Katowice Regional Court. The offensive words used in the letter could not amount to an insult to the judiciary, since they had not been addressed against the official acts of the court, but against the person working at the court. Therefore the applicant should not have been convicted of the offence under Article 237 of the 1969 Criminal Code, since an insult directed at a person working for a certain official institution cannot be perceived as an insult to that institution itself, and it was only the latter acts which were punishable under that provision.

It is further argued that expressing criticism against an unidentified employee of a court constitutes exercise of freedom of expression within the meaning of Article 10 of the Convention. The courts convicting the applicant of an offence manifestly breached his rights in a manner incompatible with this provision.

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 remainder of the application admissible, without prejudging the merits of the case.

Mark Villiger Ireneu Cabral Barreto 
 Deputy Registrar President

SKAŁKA v. POLAND DECISION


SKAŁKA v. POLAND DECISION