FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44320/02 
by Barbara WIESZCZEK

and Stowarzyszenie Mieszkańców Domów Komunalnych

against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 October 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr M. Pellonpää
 Mr K. Traja
 Mr L. Garlicki
 Mr J. Borrego Borrego, 
 Ms L. Mijović, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 12 December 2002,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Ms Barbara Wieszczek, a Polish national, is also a statutory representative of the second applicant, an Association of Inhabitants of Municipal Housing (Stowarzyszenie Mieszkańców Domów Komunalnych) with headquarters in Stalowa Wola. She also represents the second applicant before the Court.

A.  The circumstances of the case

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

At a meeting held on 8 September 2002 the applicant association distributed among its members 90 copies of an election leaflet of which it had printed 100 copies. The leaflet exhorted the members of the association to vote in the municipal elections scheduled for October 2002. It was further stressed that no votes should be cast in favour of these representatives of the local parties who had been using their position in various municipal authorities to enrich themselves by being involved in dubious business deals, to the detriment of the public interest and municipal finances.

In this context name of one of the local councillors, J.P., who also was a candidate to the council in the coming elections, was mentioned. It was alleged that she had, contrary to applicable laws regulating the status of local councillors, been combining her function of councillor with a paid post on the governing board of one of public companies owned by the municipality, obtaining a “nice salary” (“pensyjka”).

Subsequently J.P. instituted proceedings on the basis of the 1998 Act on Elections to Municipality, District Councils and Regional Assemblies. This Act made it possible for the election candidates to institute proceedings in which to claim that untrue information published about them during the election campaign be rectified and that apologies be published (see Relevant domestic law). The plaintiff argued that she had indeed been a member of the governing board of one company owned by the municipality, but only from June 1997 until December 1997, before she had become a councillor. Afterwards, she had stepped down. As it transpired from the leaflet concerned that she remained on the board, contrary to the applicable anti-corruption provisions of the 1998 Local Government (County) Act, the leaflet was disseminating false information, detrimental to her reputation and to her prospects of being elected.

On 19 September 2002 the Tarnobrzeg Regional Court held a hearing during which it questioned the parties. It had also regard to the evidence submitted by the plaintiff, including a letter of the Municipal Office dated 16 September 2002, from which it transpired that J.P. had been on the board of M.K.Z. company owned by the Stalowa Wola Municipality from 4 June to 29 December 1997. It further took evidence from the documents of the company, from which it transpired that J.P. had ceased to be on its governing board on that date.

On the same day the court gave a ruling, in which it ordered the applicant association and the applicant to cease dissemination of information concerning J.P.’s alleged involvement in the governing board of that company. It also ordered forfeiture of the remaining copies of the leaflet, ordered the applicant association to publish apologies in a local newspaper and to pay the plaintiff’s costs in the amount of PLN 2,045. The court dismissed the plaintiff’s request that the association be ordered to pay PLN 5,000 to the local children’s home.

The court established that it was not in dispute that the leaflet had been authored and distributed by the bodies of the applicant association and that it contained an allegation that J.P. had at the time of its distribution been a member of the governing board of M.Z.K. company, owned by the municipality of Stalowa Wola. The court noted that if this had been true, it would have been in breach of the anticorruption provisions of the 1998 Local Government (County) Act.

Having regard to the documents of the company and to the letter of the Municipal Office of Stalowa Wola submitted by J.P., the court found that it indeed had been the case, but only from June until December 1997. On 29 December 1997 she had ceased to serve on the board, Hence, the allegations that she retained this post afterwards and continued to receive a salary were untrue. Therefore, under Article 72 of the Law of 16 July 1998 on Elections to Municipality, District Councils and Regional Assemblies, this information had to be rectified. Consequently, the court ordered that the remaining copies of the leaflet should be forfeited and that the applicant association should publish in a local newspaper apologies for disseminating untrue information during the election campaign.

As for the plaintiff’s demand of payment of PLN 5,000 by the association, the court found that such payment would constitute a serious blow to its finances, which in any event were in a quite precarious position, given the relative newness of the association. The association had had no time in which to find any serious source of income, other than the membership fees. The court further observed that if it had ordered the association to make this payment, this might seriously impair its ability to act and also constitute an interference in the democratic process of election, unduly improving the plaintiff’s chances to be elected.

The court further noted that such an order would not serve any useful purpose for the protection of the plaintiff’s interests and reputation, which were sufficiently ensured by the forfeiture of the remaining copies of the leaflet and by the order to publish apologies by the association.

The applicant association appealed, arguing essentially that in the light of document it had at its disposal, the information contained in the leaflet was true and that the judgment was generally wrong.

On 8 October 2002 the Rzeszów Court of Appeal dismissed the appeal, considering that the findings of fact made by the lower court that J.P. had ceased to be on the governing board of the company in 1997 were correct. The use of the present tense in the impugned leaflet clearly suggested that, in contravention of laws governing the status and obligations of municipal councillors, she still remained on the board and had been obtaining emoluments for her work. This was obviously untrue, and therefore the first-instance judgment was correct.

B.  Relevant domestic law

  Article 72 of the Law of 16 July 1998 on Elections to Municipality, District Councils and Regional Assemblies provided, in so far as relevant:

 “§  1. If posters, slogans, leaflets, statements or other forms of propaganda and campaigning contain untrue data and information, a candidate standing for local election or a representative of an electoral committee has the right to make an application asking the Regional Court to:

1)  order the confiscation of such materials,

2)  issue an injunction restraining [the defendant] from publishing such data and information,

3)  order rectification of the information,

4)  order [the defendant] to apologise to the aggrieved party,

5)  order [the defendant] to pay to a charity up to PLN 10,000,

6)  order [the defendant] to pay to the claimant up to PLN 10,000 in damages.

 §  2. The Regional Court, sitting as a single judge, shall examine the application referred to in § 1 within 24 hours in [civil] non-contentious proceedings. [...]. The court shall serve on the interested party referred to in § 1, the relevant regional electoral commissioner and the person obligated to execute the court’s decision, without undue delay, a decision terminating the proceedings in the case.

 §  3. The decision of the Regional Court may be appealed to the Court of Appeal within 24 hours from the moment it was pronounced. The Court of Appeal, sitting as a panel of three judges, shall examine the appeal in [civil] non-contentious proceedings, according to the same procedure and within the time-limit referred to in § 2. No appeal shall lie against the decision of the Court of Appeal and such decision shall be enforceable with immediate effect.”

COMPLAINT

The applicants complain that the judgments given in the case amount to a breach of Article 10 of the Convention.

THE LAW

The applicants complain that the judgments given in the case amount to a breach of Article 10 of the Convention, which 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.”

The Court first recalls that, pursuant to Article 35 § 1 of the Convention, it can only deal with the matter after all domestic remedies have been exhausted.

The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of a violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (see Azinas v. Cyprus [GC], no. 56679/00, § 40, ECHR 2004-...). If the complaint presented before the Court (for example, unjustified interference with the right of property) has not been put, either explicitly or in substance, to the national courts when it could have been put in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it.

The Court observes that in the domestic proceedings the applicants did not make an express reference to Article 10 of the Convention. Nor have they shown that they relied in substance on freedom of expression as an essential condition of the unhindered process of democratic election of candidates to local authorities.

However, the Court will leave open the question whether the applicants exhausted domestic remedies, for the application is in any event inadmissible for the following reasons.

The Court first observes that the judgments complained of constituted an interference with the applicants’ freedom of expression in that the courts ordered forfeiture of the remaining copies of the impugned leaflet, and ordered them to pay the plaintiff’s costs and to apologise publicly for inaccurate information contained in that leaflet.

The courts gave these judgments on the basis of Article 78 of the Law on Election to Municipal Authorities, which prohibited the inclusion of untrue information in election material used in the context of municipal election campaigns and provided for a judicial forum for settling relevant disputes. The interference complained of was therefore “prescribed by law” within the meaning of paragraph 2 of Article 10 of the Convention.

The Court further observes that the judgments complained of served the legitimate interest of “protection of the reputation [...] of others”.

As to whether the interference complained of was necessary in a democratic society, the Court first reiterates that the test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III, and Cumpana and Mazare v. Romania [GC], judgment of 17 December 2004, no. 33348/95, § 88).

In this context, the Court notes that the leaflet published by the applicant association clearly suggested that J.P. was, contrary to applicable laws, on the board of a public company owned by the Stalowa Wola Municipality at the time when the leaflet was published and that she was in receipt of a salary for this post. However, in the course of the proceedings the courts established, relying on the company’s documents, that this has not been the case. J.P. had indeed been on the board of the company concerned, but from June until December 1997. The applicants failed to submit arguments, either in the proceedings before the domestic courts or before the Court, which would support their assertion that J.P. was indeed on the governing board when the leaflet was published, or even that at the time of its publication they had been in possession of such evidence as would legitimately lead them to believe that this was indeed the case. Hence, they had not shown that the impugned information was correct.

Under the provisions of the Law of 16 July 1998 on Elections to Municipality, District Councils and Regional Assemblies, the legal assessment of the case hinged on the veracity of this information. This was so because under Article 72 of this Law, the court was competent to order forfeiture of election material containing incorrect information about the candidates for election and to order the publisher to publicly apologise.

Moreover, the Court notes that the first-instance court had particular regard to the applicant association’s financial situation. It dismissed the plaintiff’s request for the order of payment of PLN 5,000, referring to the association’s precarious financial position and to the needs of unimpeded process of democratic election to the municipal authorities. Thus, the interference complained of was not excessive, the court having carefully weighed the interests which were at stake, these interests being, on the one hand, the protection of the plaintiff’s reputation, and, on the other hand, the association’s ability to have sufficient financial means to remain able to continue its activities.

The Court is aware of the particular importance that must be attached to the freedom of expression in the context of democratic elections. It further notes that the issues involved in the case related to the principles which should govern the conduct of elected local representatives, and in particular whether it was appropriate that they should use their – paid - public office as an opportunity to enrich themselves by seizing other posts in the public service. In the Court’s opinion, these are important issues which may give rise to a serious public discussion concerning the rules of conduct applicable to elected representatives of the local community, and the applicant associations addressed these issues in the leaflet.

However, the Court considers that the fact that the domestic law created a judicial mechanism serving to rectify untrue information about the candidates made available to the public in such election does not by itself appear an unreasonable restriction on the public debate. The Court is further of the view that in the present case it was obvious that the information published by the applicants was a mere statement of fact, not a value judgment. As such, its accuracy could be established. The courts examined the veracity of this information and, in the light of the up-to-date company’s documents, found it untrue. There is nothing in the case-file that would disclose any arbitrariness in the reasoning which led the courts to this conclusion.

Having regard to the circumstances of the case as a whole, the interference complained of can be said to be necessary in a democratic society.

It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

WIESZCZEK AND STOWARZYSZENIE MIESZKANCOW v. POLAND DECISION


WIESZCZEK AND STOWARZYSZENIE MIESZKANCOW v. POLAND DECISION