CONSEIL
DE L'EUROPE
COUNCIL
OF EUROPE
COUR EUROPÉENNE DES DROITS DE L'HOMME
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF JANOWSKI v. POLAND
(Application no. 25716/94)
JUDGMENT
STRASBOURG
21 January 1999
JANOWSKI v. POLAND JUDGMENT 1
In the case of Janowski v. Poland,
The European Court of Human Rights, sitting, in accordance with
Article 27 of the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention"), as amended by
Protocol No. 111
, and the relevant provisions of the Rules of Court2
, as a
Grand Chamber composed of the following judges:
Mr L. WILDHABER, President,
Mrs E. PALM,
Mr C.L. ROZAKIS,
Sir Nicolas BRATZA,
Mr M. PELLONPÄÄ,
Mr B. CONFORTI,
Mr A. PASTOR RIDRUEJO,
Mr G. BONELLO,
Mr J. MAKARCZYK,
Mr P. KRIS,
Mr R. TÜRMEN,
Mr C. BÎRSAN,
Mr M. FISCHBACH,
Mr J. CASADEVALL,
Mrs H.S. GREVE,
Mr A.B. BAKA,
Mr R. MARUSTE,
and also of Mr M. DE SALVIA, Registrar,
Having deliberated in private on 18 November 1998 and 14 January
1999,
Delivers the following judgment, which was adopted on the lastmentioned
date:
PROCEDURE
1. The case was referred to the Court, as established under former
Article 19 of the Convention3
, by the Polish Government ("the
Government") on 26 February 1998, by a Polish national,
Mr Józef Janowski ("the applicant"), on 27 February 1998 and by the
European Commission of Human Rights ("the Commission") on
16 March 1998, within the three-month period laid down by former
Articles 32 § 1 and 47 of the Convention. It originated in an application
(no. 25716/94) against the Republic of Poland lodged with the Commission
under former Article 25 by the applicant on 25 January 1994.
The Government's application referred to former Article 48; the
applicant's application to the Court referred to former Article 48 as amended
1
Notes by the Registry
-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.
3
. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has
functioned on a permanent basis.
JANOWSKI v. POLAND JUDGMENT 2
by Protocol No. 92
, which Poland had ratified; the Commission's request
referred to former Articles 44 and 48 and to the declaration whereby Poland
recognised the compulsory jurisdiction of the Court (former Article 46). The
object of the applications and of the request was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent State of
its obligations under Article 10 of the Convention.
2. In response to the enquiry made in accordance with Rule 35 § 3 (d) of
former Rules of Court B2
, the applicant stated that he wished to take part in
the proceedings and designated the lawyer who would represent him
(former Rule 31). The lawyer was given leave by Mr R. Bernhardt, the
President of the Court at the time, to use the Polish language (former
Rule 28 § 3).
3. As President of the Chamber which had originally been constituted
(former Article 43 of the Convention and former Rule 21) in order to deal,
in particular, with procedural matters that might arise before the entry into
force of Protocol No. 11, Mr Bernhardt, acting through the Registrar,
consulted the Agent of the Government, the applicant's lawyer and the
Delegate of the Commission on the organisation of the written procedure.
Pursuant to the order made in consequence, the Registrar received the
applicant's and the Government's memorials on 13 July and 7 August 1998
respectively. On 15 September 1998 the Delegate of the Commission
submitted written observations.
4. After the entry into force of Protocol No. 11 on 1 November 1998 and
in accordance with the provisions of Article 5 § 5 thereof, the case was
referred to the Grand Chamber of the Court. The Grand Chamber included
ex officio Mr J. Makarczyk, the judge elected in respect of Poland
(Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court),
Mr L. Wildhaber, the President of the Court, Mrs E. Palm and
Mr C.L. Rozakis, the Vice-Presidents of the Court, and Sir Nicolas Bratza
and Mr M. Pellonpää, Presidents of Sections (Article 27 § 3 of the
Convention and Rule 24 § 3). The other members appointed to complete the
Grand Chamber were Mr B. Conforti, Mr A. Pastor Ridruejo,
Mr G. Bonello, Mr P. Kris, Mrs V. Strážnická, Mr C. Bîrsan,
Mr M. Fischbach, Mr J. Casadevall, Mrs H.S. Greve, Mr A.B. Baka and
Mr R. Maruste (Rule 24 § 3 and Rule 100 § 4). Subsequently
Mr R. Türmen, substitute judge, replaced Mrs Strážnická who was unable to
take part in the further consideration of the case (Rule 24 § 5 (b)).
2
Notes by the Registry
1. Protocol No. 9 came into force on 1 October 1994 and was repealed by Protocol No. 11.
2
. Rules of Court B, which came into force on 2 October 1994, applied until
31 October 1998 to all cases concerning States bound by Protocol No. 9.
JANOWSKI v. POLAND JUDGMENT 3
5. At the Court's invitation (Rule 99), the Commission delegated one of
its members, Mr M.A. Nowicki, to take part in the proceedings before the
Grand Chamber.
6. In accordance with the President's decision, a hearing, at which the
applicant was present, took place in public in the Human Rights Building,
Strasbourg, on 18 November 1998.
There appeared before the Court:
(a) for the Government
Mr K. DRZEWICKI, Professor of Public International Law, Agent,
Ms E. CHAŁUBIŃSKA, Judge on secondment
to the Ministry of Justice, Counsel,
Mr A. KALIŃSKI, Office of the Agent,
Mr M. ŁUCZKA, Deputy to the Permanent Representative
of Poland to the Council of Europe,
Ms M. DĘBSKA, Office of the Agent, Advisers;
(b) for the applicant
Mrs B. BANASIK, of the Łódź Bar, Counsel;
(c) for the Commission
Mr M.A. NOWICKI, Delegate,
Ms M.-T. SCHOEPFER, Secretary to the Commission.
The Court heard addresses by Mr Nowicki, Mrs Banasik and
Mr Drzewicki.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1937. He is a journalist and lives in
Zduńska Wola, Poland.
8. According to the applicant, on 2 September 1992 he noticed two
municipal guards who were ordering street vendors to leave a square in
Zduńska Wola where selling was allegedly not authorised by the municipal
authorities and to move their makeshift stands to a nearby market-place. The
Government maintain however that the guards, who were acting on sanitary
and traffic considerations, merely requested the vendors to move to a nearby
market-place. The applicant further submits that he intervened, informing
the guards that their actions had no legal basis and infringed the laws
JANOWSKI v. POLAND JUDGMENT 4
guaranteeing freedom in the economic field. He pointed out that the
municipal authorities had not passed any resolution which would allow the
guards to clear the square. The applicant observed that the guards were
apparently acting only on the basis of verbal instructions from the mayor
and urged the vendors to stay. The exchange between the applicant and the
guards was witnessed by a group of bystanders.
9. Subsequently, on an unspecified date, the Zduńska Wola district
prosecutor (Prokurator Rejonowy) instituted criminal proceedings against
the applicant. On 5 January 1993 the district prosecutor lodged a bill of
indictment with the Zduńska Wola District Court (Sąd Rejonowy). The
applicant was charged with having insulted municipal guards while they
were carrying out their duties and with having acted with flagrant contempt
for legal order, an offence specified in Article 236 of the Criminal Code read
together with Article 59 § 1.
10. On 29 April 1993 the District Court convicted the applicant under
Article 236 of the Criminal Code of verbally insulting two municipal
guards. It held that the offence was an act of hooliganism within the
meaning of Article 59 § 1 of the Criminal Code. The applicant was
sentenced to eight months' imprisonment suspended for two years and a fine
of 1,500,000 old zlotys (PLZ). He was also ordered to pay the sum of
PLZ 400,000 to charitable institutions and court costs of PLZ 346,000.
11. On an unspecified date the applicant filed an appeal against this
judgment, submitting that his conviction was based on insufficient evidence.
He pointed out that the District Court had failed to establish precisely what
defamatory words had been used and had only found that the applicant had
called the guards "ignorant". This word should not have been regarded as an
insult but as an acceptable criticism of public servants. The applicant further
contended that the trial court had wrongly applied the law since, contrary to
its findings, it was evident that his acts had not involved any act of
hooliganism as he had only intended to protect street vendors from illegal
actions of the municipal guards.
12. On 29 September 1993 the Sieradz Regional Court (Sąd
Wojewódzki) quashed the part of the contested judgment relating to the
sentence of imprisonment and the order to pay PLZ 400,000 to charitable
institutions. However, it upheld the fine of PLZ 1,500,000 and reduced the
court costs to the sum of PLZ 150,000. The Regional Court was of the
opinion that the trial court had wrongly considered that the offence at issue
had been hooligan in nature as the applicant's motive had been to defend
street vendors against the acts of the municipal guards which he had
considered illegal. Therefore the applicant had not acted as he did without
any justifiable motive, which was a prerequisite for finding that the offence
was an act of hooliganism.
13. Furthermore, the Regional Court agreed with the applicant that the
Zduńska Wola municipal council had not passed any resolution prohibiting
JANOWSKI v. POLAND JUDGMENT 5
the sale of merchandise on the streets and that no public notice to this
effect had been posted at the material place and time. Therefore, there were
no grounds for the trial court's finding that the applicant had demonstrated
flagrant contempt for legal order.
14. Finally, the Regional Court observed that the judgment had not
mentioned the abusive words used by the applicant. Nevertheless, it
considered that there was sufficient evidence in the case file to conclude that
the applicant had in fact insulted the guards by calling them "oafs" and
"dumb" ("ćwoki" and "głupki"). These words were widely considered to be
offensive and by using them the applicant had exceeded the limits of
freedom of expression. The court found that the resulting conviction was
rightly imposed under Article 236 of the Criminal Code whose object was to
ensure that civil servants were not hindered in carrying out their duties.
II. RELEVANT DOMESTIC LAW
15. At the relevant time the legislation provided as follows:
Article 236 of the Criminal Code:
"Anyone who insults a civil servant ... during and in connection with the carrying
out of his official duties is liable to up to two years' imprisonment, to restriction of
personal liberty or to a fine."
"Kto znieważa funkcjonariusza publicznego ... podczas i w związku z pełnieniem
obowiązków służbowych, podlega karze pozbawienia wolności do lat 2, ograniczenia
wolności albo grzywny."
Article 59 § 1 of the Criminal Code:
"If a perpetrator has committed a premeditated offence of a hooligan nature, the
court shall impose a sentence of imprisonment not lower than one and a half times the
minimum sentence provided ..."
"Jeżeli sprawca dopuścił się umyślnego występku o charakterze chuligańskim, sąd
wymierza karę pozbawienia wolności nie niższą od dolnego zagrożenia zwiększonego
o połowę ..."
Article 120 § 14 of the Criminal Code provided that an offence should be
regarded as being of a hooligan nature if the perpetrator acted in public,
without any justifiable motive or with an obviously unjustified one, thus
demonstrating flagrant contempt for legal order.
JANOWSKI v. POLAND JUDGMENT 6
PROCEEDINGS BEFORE THE COMMISSION
16. Mr Janowski applied to the Commission on 25 January 1994. He
relied on Article 6 of the Convention, complaining that the Zduńska Wola
District Court had refused to grant him legal aid and hear two defence
witnesses and had produced minutes which did not reflect statements made
by witnesses and the applicant during the hearing. He also complained
under Article 10 that his conviction violated his right to freedom of
expression.
17. The Commission declared the application (no. 25716/94) admissible
on 27 November 1996 with the exception of the applicant's complaints
under Article 6. In its report of 3 December 1997 (former Article 31 of the
Convention), it expressed by eight votes to seven the opinion that there had
been a violation of Article 10. The full text of the Commission's opinion and
of the dissenting opinion contained in the report is reproduced as an annex
to this judgment1
.
FINAL SUBMISSIONS TO THE COURT
18. The applicant in his memorial requested the Court to find that the
facts of the case disclosed violations of Articles 3, 6, 7 § 1 and 10 of the
Convention and to award him just satisfaction under former Article 50 (now
Article 41).
The Government for their part requested the Court to find that Article 10
had not been violated in the present case.
THE LAW
I. SCOPE OF THE CASE
19. In his memorial to the Court the applicant raised several complaints
under Articles 3, 6, 7 § 1 and 10 of the Convention. The Court observes that
only the applicant's complaint under Article 10 that his conviction violated
his right to freedom of expression was declared admissible by the
Commission (see paragraphs 16-17 above).
20. The Court is therefore required to examine only the applicant's
complaint under Article 10 (see, mutatis mutandis, the McGinley and Egan
1
. Note by the Registry. For practical reasons this annex will appear only with the final
printed version of the judgment (in the official reports of selected judgments and decisions
of the Court), but a copy of the Commission's report is obtainable from the Registry.
JANOWSKI v. POLAND JUDGMENT 7
v. the United Kingdom judgment of 9 June 1998, Reports of Judgments and
Decisions 1998-III, pp. 1354-55, §§ 68-70).
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
21. Mr Janowski submitted that his conviction for insulting the
municipal guards had infringed his right to freedom of expression as
guaranteed by Article 10 of the Convention, which provides:
"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 Commission agreed with the applicant's arguments, whereas the
Government contended that the facts of the case disclosed no breach of
Article 10.
A. Existence of an interference
22. The participants in the proceedings were agreed that the applicant's
conviction amounted to an interference with the exercise of his right to
freedom of expression. The Court sees no cause to conclude otherwise.
23. An interference contravenes Article 10 unless it is "prescribed by
law", pursues one or more of the legitimate aims referred to in paragraph 2
of Article 10 and is "necessary in a democratic society" for achieving such
an aim or aims.
B. "Prescribed by law"
24. The Court considers, and indeed this was not disputed before it, that
the interference was "prescribed by law", the applicant's conviction having
been based on Article 236 of the Criminal Code (see paragraphs 14 and 15
above).
JANOWSKI v. POLAND JUDGMENT 8
C. Legitimate aim
25. The Commission, referring to the judgment of the appeal court,
which explained that the purpose of the applicant's conviction was to ensure
that civil servants were not hindered in carrying out their duties, considered
that the interference pursued the legitimate aim of the prevention of disorder
(see paragraph 14 above). The Government agreed that the prevention of
disorder was one of the legitimate aims pursued by the national authorities,
but in addition pleaded the protection of the reputation and the rights of the
municipal guards as the second legitimate aim.
26. Having regard to the particular circumstances of the case and to the
reasoning of the appeal court's judgment, the Court considers that the
conviction of the applicant was intended to pursue the legitimate aim of the
prevention of disorder. The interference complained of therefore pursued a
legitimate aim under Article 10 § 2.
D. "Necessary in a democratic society"
1. Arguments before the Court
27. The applicant submitted that his conviction for insulting the
municipal guards did not constitute a necessary interference under
paragraph 2 of Article 10. He pointed out that he had not intended to insult
the guards but merely wanted to convey a message concerning the
unlawfulness of their actions. Although the form of his message was
strongly disapproving of the guards, the words he used should be considered
appropriate. Furthermore, as the guards had acted unlawfully, they could not
enjoy any special protection against criticism.
Finally, the applicant claimed that, since he was a journalist, his
conviction was widely considered as an attempt by the authorities to restore
censorship and constituted discouragement of the expression of criticism in
future.
28. The Commission considered that civil servants acting in an official
capacity were, like politicians, subject to the wider limits of acceptable
criticism. If they acted without a legal basis they should expect criticism
from citizens and must accept that it may sometimes be harsh or expressed
in a strong form. The applicant might have offended the guards by calling
them "oafs" and "dumb". However, in the particular circumstances of the
case, namely the fact that he had spontaneously reacted to unjustified
actions by the guards out of genuine civic considerations and expressed his
criticism in the course of a heated exchange, he had not overstepped the
limits of acceptable criticism. Furthermore, the Commission pointed out that
the national authorities had convicted the applicant solely on the basis of the
insulting meaning of the two words used by him without taking into account
the situation which had provoked his reaction. It concluded that, as the
applicant's conviction was not proportionate to the legitimate aim pursued
and was not necessary in a democratic society, there had been a violation of
Article 10.
JANOWSKI v. POLAND JUDGMENT 9
The Delegate of the Commission added that in a democratic society
citizens should be allowed to react to the conduct of civil servants even if
their reactions were not justified and took controversial forms. Moreover,
law-enforcement officers should be indifferent to offensive verbal responses
to their actions since they constituted a part of their professional risk.
29. The Government disagreed with the Commission's opinion that civil
servants acting in an official capacity were, like politicians, subject to the
wider limits of acceptable criticism. Although they should be open to close
scrutiny and criticism, they should at the same time enjoy protection against
destructive attacks in order to be able to carry out their duties effectively.
The Government further contested the Commission's conclusion concerning
the unlawfulness of the actions of the municipal guards, claiming that the
latter had a right to instruct the street vendors to leave a square since they
had acted on sanitary and traffic considerations (see paragraph 8 above).
The criticism expressed by the applicant could not enjoy wider limits for it
was not articulated through the media and was not a part of public debate on
important issues. As the penalty imposed on the applicant had been
proportionate to the aims pursued, the Government concluded by requesting
the Court to find that there had been no violation of Article 10.
2. The Court's assessment
(a) General principles
30. The Court reiterates the fundamental principles which emerge from
its judgments relating to Article 10:
(i) Freedom 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's self-fulfilment. Subject to paragraph 2, it is applicable not
only to "information" or "ideas" 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 that pluralism, tolerance and
broadmindedness without which there is no "democratic society". As set
forth in Article 10, this freedom is subject to exceptions, which must,
however, be construed strictly, and the need for any restrictions must be
established convincingly (see the following judgments: Handyside v. the
JANOWSKI v. POLAND JUDGMENT 10
United Kingdom, 7 December 1976, Series A no. 24, p. 23, § 49;
Lingens v. Austria, 8 July 1986, Series A no. 103, p. 26, § 41; and Jersild v.
Denmark, 23 September 1994, Series A no. 298, p. 23, § 31).
(ii) The adjective "necessary", within the meaning of Article 10 § 2,
implies the existence of a "pressing social need". The Contracting States
have a certain margin of appreciation in assessing whether such a need
exists, but it goes hand in hand with a European supervision, embracing
both the legislation and the decisions applying it, even those given by an
independent court. The Court is therefore empowered to give the final ruling
on whether a "restriction" is reconcilable with freedom of expression as
protected by Article 10 (see the above-mentioned Lingens judgment, p. 25,
§ 39).
(iii) In exercising its supervisory jurisdiction, the Court must look at the
impugned interference in the light of the case as a whole, including the
content of the remarks held against the applicant and the context in which
he made them. In particular, it must determine whether the interference in
issue was "proportionate to the legitimate aims pursued" and whether the
reasons adduced by the national authorities to justify it are "relevant and
sufficient" (see the above-mentioned Lingens judgment, pp. 25-26, § 40,
and the Barfod v. Denmark judgment of 22 February 1989, Series A
no. 149, p. 12, § 28). In doing so, the Court has to satisfy itself that the
national authorities applied standards which were in conformity with the
principles embodied in Article 10 and, moreover, that they based themselves
on an acceptable assessment of the relevant facts (see the above-mentioned
Jersild judgment, p. 24, § 31).
(b) Application of the above principles to the instant case
31. Turning to the facts of the present case, the Court's task is to
determine whether, in all the circumstances, the restriction on
Mr Janowski's freedom of expression answered a "pressing social need"
and was "proportionate to the legitimate aim pursued" and whether the
reasons adduced by the national authorities in justification of it were
"relevant and sufficient".
32. In this connection the Court notes that the applicant was convicted of
insulting the municipal guards by calling them "oafs" and "dumb" during an
incident which took place in a square. It was witnessed by bystanders and
concerned the actions of municipal guards who insisted that street vendors
trading in the square move to another venue (see paragraph 8 above). The
applicant's remarks did not therefore form part of an open discussion of
matters of public concern; neither did they involve the issue of freedom of
the press since the applicant, although a journalist by profession, clearly
acted as a private individual on this occasion. The Court further observes
JANOWSKI v. POLAND JUDGMENT 11
that the applicant's conviction was based on his utterance of the two
words which were judged to be insulting by both trial and appeal courts, not
the fact that he had expressed opinions critical of the guards or alleged that
their actions were unlawful (see paragraphs 10 and 14 above).
In these circumstances the Court is not persuaded by the applicant's
contention that his conviction was widely considered as an attempt by the
authorities to restore censorship and constituted discouragement of the
expression of criticism in future (see paragraph 27 above).
33. The Court also notes the Commission's reasoning that civil servants
acting in an official capacity are, like politicians, subject to the wider limits
of acceptable criticism (see paragraph 28 above). Admittedly those limits
may in some circumstances be wider with regard to civil servants exercising
their powers than in relation to private individuals. However, it cannot be
said that civil servants knowingly lay themselves open to close scrutiny of
their every word and deed to the extent to which politicians do and should
therefore be treated on an equal footing with the latter when it comes to the
criticism of their actions (cf. the Oberschlick v. Austria (no. 2) judgment of
1 July 1997, Reports 1997-IV, p. 1275, § 29).
What is more, civil servants must enjoy public confidence in conditions
free of undue perturbation if they are to be successful in performing their
tasks and it may therefore prove necessary to protect them from offensive
and abusive verbal attacks when on duty. In the present case the
requirements of such protection do not have to be weighed in relation to the
interests of the freedom of the press or of open discussion of matters of
public concern since the applicant's remarks were not uttered in such a
context (see paragraph 32 above; and cf. the above-mentioned Lingens
judgment, p. 26, § 42 in fine).
34. In the Court's view, the reasons prompting the applicant's conviction
were relevant ones in terms of the legitimate aim pursued. It is true that the
applicant resorted to abusive language out of genuine concern for the wellbeing
of fellow citizens in the course of a heated discussion. This language
was directed at law-enforcement officers who were trained how to respond
to it. However, he insulted the guards in a public place, in front of a group
of bystanders, while they were carrying out their duties. The actions of the
guards, even though they were not based on the explicit regulations of the
municipal council but on sanitary and traffic considerations, did not warrant
resort to offensive and abusive verbal attacks (see paragraph 8 above).
Consequently, even if there were some circumstances arguing the other way,
sufficient grounds existed for the decision ultimately arrived at by the
national courts.
JANOWSKI v. POLAND JUDGMENT 12
(c) Conclusion
35. Having regard to the foregoing, the Court is satisfied that the reasons
adduced by the national authorities were "relevant and sufficient" for the
purposes of paragraph 2 of Article 10. The Court further finds that, in the
particular circumstances of the instant case, the resultant interference was
proportionate to the legitimate aim pursued. In this connection, it is
noteworthy that the applicant's sentence was substantially reduced on
appeal and, most significantly, his prison sentence was quashed by the
Sieradz Regional Court (see paragraph 12 above). In sum, it cannot be said
that the national authorities overstepped the margin of appreciation
available to them in assessing the necessity of the contested measure.
There has consequently been no breach of Article 10 of the Convention.
FOR THESE REASONS, THE COURT
Holds by twelve votes to five that there has been no breach of Article 10
of the Convention.
Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 21 January 1999.
Luzius WILDHABER
President
Michele DE SALVIA
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the following dissenting opinions are annexed to this
judgment:
(a) dissenting opinion of Mr Wildhaber;
(b) dissenting opinion of Sir Nicolas Bratza joined by Mr Rozakis;
(c) dissenting opinion of Mr Bonello;
(d) dissenting opinion of Mr Casadevall.
L.W.
M. de S.
JANOWSKI v. POLAND JUDGMENT 13
DISSENTING OPINION OF JUDGE WILDHABER
In my view, no "pressing social need" justified, in the circumstances of
the case, the fine imposed on the applicant. Since the applicant used only
two moderately insulting words, in a spontaneous and lively discussion, to
defend a position which was legally correct and in which he had no
immediate personal interest, it was not "necessary in a democratic society"
to fine him in order to "prevent disorder".
JANOWSKI v. POLAND JUDGMENT 14
DISSENTING OPINION OF JUDGE Sir Nicolas BRATZA
JOINED BY JUDGE ROZAKIS
I regret that I am unable to agree with the majority of the Court that there
has been no violation of Article 10 in the present case.
In reaching this conclusion, the majority have placed emphasis on the
margin of appreciation to be afforded to the domestic courts: it is their view
that, in finding that the words used by the applicant to describe the
municipal guards ("ćwoki" and "głupki") were insulting within the meaning
of Article 236 of the Criminal Code and in convicting and sentencing the
applicant for a breach of that provision, the Sieradz Regional Court did not
exceed the permissible margin and that in consequence the applicant's
conviction was justified under paragraph 2 of Article 10.
In my view this is to take too narrow an approach to the issues under
Article 10. The real difficulty in the case seems to me to arise from the
sweepingly broad and unqualified terms of Article 236 itself. The Article
makes it an offence punishable with imprisonment for anyone to insult a
civil servant during and in connection with the carrying out of his official
duties. As I understand it, the Article allows no discretion to the domestic
court other than to convict a defendant once it finds that insults have been
addressed to a civil servant when carrying out his official duties. In
particular, it appears that the court is neither required nor free to examine
the circumstances in which insulting words were used, or whether the use of
the words could be justified, or whether the conduct of the civil servant
provoked the insulting words or whether the use of the words in any way
hindered the civil servant in the performance of his official duties. In this
regard, I note the Government's submission that, in determining whether an
offence is committed under Article 236, "it is irrelevant or indifferent
whether a civil servant was substantially right or wrong in undertaking a
specific action within his official duties ..., it is sufficient to establish that a
civil servant was insulted during the carrying out of his/her official duties".
This is in marked contrast to the provisions of Austrian law which were
examined by the Court in the case of Oberschlick v. Austria (no. 2)
(judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV),
where a defence was available to a person using insulting language to
another if the insults were provoked and resulted from the understandable
indignation of the person concerned.
I am prepared, with some hesitation, to agree that the application of the
Article to the applicant in the present case served a legitimate aim for the
purposes of Article 10 § 2, namely "the prevention of disorder," even in the
absence of any evidence that the use of the two words did, or was likely to,
provoke any disorder. I cannot, on the other hand, accept the Government's
submission that the prosecution of the applicant served the further
legitimate
JANOWSKI v. POLAND JUDGMENT ­ DISSENTING OPINION 16
OF JUDGE Sir Nicolas BRATZA JOINED BY JUDGE ROZAKIS
aim of "the protection of the ... rights of others": this submission flies in the
face of the judgment of the Regional Court, which specifically held that the
purpose of Article 236 was not to protect the personal dignity of civil
servants, but to ensure that they were not hindered in carrying out their
tasks.
More importantly, I am quite unable to accept that the application of this
provision in the present case was necessary in a democratic society to
achieve any legitimate aim: the use of the Article to prosecute, convict and
fine the applicant was in my view neither a response to a pressing social
need, nor proportionate to any legitimate aim served.
In reaching this view, I place particular reliance on the following factors
of the case.
(1) There is clear evidence that the two words of insult were used in the
course of what the Commission accurately described as a "lively exchange"
between the applicant and the municipal guards. This exchange was equally
clearly provoked by what the applicant saw as an abuse of authority by the
guards in requiring stall holders to leave the square and move their stalls to
a nearby market-place. While the Government dispute that the municipal
guards were acting unlawfully in so doing, it is indisputable that, as the
Regional Court found, the applicant correctly considered that there had been
no resolution of the municipal council prohibiting the selling of
merchandise on the streets and that no public notice to this effect had been
posted at the material time and place. The applicant was, in these
circumstances, amply justified in exercising his freedom of expression in
remonstrating with the municipal guards. The fact that, in the course of
doing so, he used two insulting words which evidently reflected his sense of
frustration with the attitude of the guards, could not in my view justify his
prosecution. As the majority of the Commission correctly pointed out, even
though the language used by the applicant may be considered exaggerated,
it did not amount to a deliberate and gratuitous personal attack on the
guards.
(2) The majority of the Court place emphasis on the fact that the
applicant's remarks did not form part of an open discussion of matters of
public concern. I cannot agree. While it is true that the discussion in the
present case concerned only the applicant and the municipal guards and
while the subject matter of the discussion may not have been of major
significance, it concerned nevertheless what was perceived by the applicant
as an abuse or excess of authority on the part of public officials and to this
JANOWSKI v. POLAND JUDGMENT ­ DISSENTING OPINION 16
OF JUDGE Sir Nicolas BRATZA JOINED BY JUDGE ROZAKIS
extent was in my view clearly a matter of public concern which merited
the protection of Article 10.
(3) There is nothing to suggest that the use of the two words of insult
was in any way calculated to cause public disorder or to hinder the guards in
the performance of what they considered to be their proper functions. It is
possible that their confrontation with the applicant might have served as a
hindrance and might have proved a public embarrassment for the guards.
But the applicant was expressly acquitted of the offence of "hooliganism"
by the Regional Court and there is nothing in the judgment of the Regional
Court to indicate that the use of the two words of themselves had any
impact on the performance by the guards of their official functions.
(4) The fine imposed on the applicant was by no means insignificant.
The Government assert that the fine was modest. On the other hand, they
also accept that it was the approximate equivalent of one month's
unemployment benefit, which cannot in my mind be regarded as a
proportionate response to the offence of which the applicant was convicted.
In my view, the application of the blunt instrument of Article 236 of the
Criminal Code in the circumstances of the present case to prosecute, convict
and sentence the applicant amounted to an unjustified interference with the
applicant's rights under Article 10 of the Convention.
JANOWSKI v. POLAND JUDGMENT 17
DISSENTING OPINION OF JUDGE BONELLO
I regret I am unable to concur with the majority.
Satisfactory evidence has been produced in this case that the municipal
guards of Zduńska Wola were acting in excess of their powers when they
dispersed some street vendors from an area in which the selling of
merchandise was not prohibited by a resolution of the municipal council1
.
The applicant remonstrated with the guards against this abuse of power. In
the process he resorted to language which can reasonably be qualified as
offensive.
That moment in time saw a confrontation between two excesses: on the
one hand, the guards, who were exceeding the limits of their authority; on
the other, the applicant, who was exceeding the limits of permissible
criticism.
The Court agrees that the criminal prosecution of the applicant and his
subsequent conviction for insulting a civil servant (in terms of Article 236
of the Polish Criminal Code) constituted an interference with his right to
freedom of expression. That Article gives special protection to public
officers who are carrying out their official duties. An interference with the
enjoyment of a fundamental right would, of course, be justified in terms of
Article 10 § 2 if it were prescribed by law and shown to be necessary in a
democratic society.
The basic tests for establishing the necessity of interferences with
freedom of expression in a democratic society are whether the intrusion
corresponds to a pressing social need and whether it is proportionate to the
legitimate aim pursued by the authorities.
I fail to discern any urgent social exigency in condemning those who
attempt to prevent abuses, even through immoderate disapproval. The State
has a greater necessity to silence those who usurp power than those who
raise their voices when power is usurped. In this case I am aware of one
manifestly pressing social need: that of curbing illegitimate excess of
authority.
I find no difficulty at all with a legal regime that affords special
protection to public officers in the discharge of their duties. I harbour, on the
other hand, scruples in endorsing the protection of public officers in the
course of an abuse of power.
The balancing which, in my view, this case called upon the Court to carry
out, was between a violation of the law committed by the guardians of the
law, and a violation of the law committed by an irascible do-gooder. A
proper equilibrium had to be calibrated between sheltering those who were
1
. See the judgment of the 29 September 1993 of the Sieradz Regional Court and paragraph
23 of the report of the Commission.
JANOWSKI v. POLAND JUDGMENT ­ DISSENTING OPINION 18
OF JUDGE BONELLO
abusing public order, and those who, exceeding the limits of permissible
speech, abused the abusers of the law.
The municipal guards, by exceeding the limits of their lawful authority,
had placed themselves squarely on the wrong side of the rule of law. From
the position of an outlaw, they are invoking the protection of the law. The
condition of their illegality preceded, in time, and surpassed, in magnitude,
that of the applicant. In approving the punishment of Mr Janowski, the
Court broadcast a signal that it deems the verbal intemperance of a choleric
to be more open to disapproval than the infringement of the rule of law by
those who are assigned to defend it.
I wonder what the Court would have found had the applicant insulted the
guards while witnessing accidentally the torture of a third person. Would the
Court have said that the guards were carrying out their official duties and
were therefore entitled to special protection? The difference between torture
and any other official abuse is only one of degree, not of substance.
I ask whether it is necessary, in a democratic society, to retain the
umbrella of law over government agents when they are exceeding their
authority. I have only minimal hesitations with the answer. Polish case-law
on Article 236 of the Criminal Code seems to afford equal protection to
public officers in the course of their duties and to public officers who are
abusing their functions1
. If that is really the case, it is a system that has
advanced along quaint avenues towards even-handedness. A regime which
considers the verbal impertinence of an individual more reprehensible than
illicit excesses by public officers is one that has, in my view, pulled the
scale of values inside out.
I fully endorse the necessity of maintaining the authority of the State and
enhancing that of its agents. But authority, in democracy, no longer
parachutes from heaven; it is born from consensus, nurtured in acceptance
and fulfilled by concurrence. Respect for authority has to be deserved; it is
hardly earned by looking down on the law. There can be negligible
reverence for authority, when its claims are conceived in arrogance and
propped by misconduct.
1
. See the memorial of the Government of 7 August 1998, §§ 22-29.
JANOWSKI v. POLAND JUDGMENT 19
DISSENTING OPINION OF JUDGE CASADEVALL
(Translation)
1. The majority of the Grand Chamber found no violation in the present
case. I regret that I am unable to agree.
2. Certainly the case is not a very serious one. However, the context in
which the incident took place and the judgment at first instance of
29 April 1993 in which the Zduńska Wola District Court sentenced the
applicant, for an act of hooliganism, to eight months' imprisonment,
suspended, and a fine (which judgment was quashed on 29 September 1993
by the Regional Court) reveal a rather disturbing state of mind.
3. In my opinion, the Court should have adopted a rather more balanced
approach to its assessment of the facts, taking into account the applicant's
spontaneous reaction to the municipal guards' arbitrary and unjustified
intervention, the fact that he was right from the legal point of view1
and the
nature of the words spoken to the public officials on the spur of the moment.
I do not approve of terms such as "oafs" or "dumb", but I consider, like the
majority of the Commission, that the applicant, in the very special
circumstances of the case, did not overstep the limits of acceptable criticism
of the municipal guards. They, being responsible for maintaining public
order, had a duty to act in accordance with the law.
4. The Government's argument concerning the objective nature of the
offence as defined in Article 236 of the Polish Criminal Code (which made
it a kind of strict-liability offence) is not acceptable. They asserted that in
order to establish whether the offence of insult has been committed "it is
irrelevant ... whether a civil servant was substantively right or wrong in
undertaking a specific action within his official duties"2
. In the Oberschlick
case, with regard to use of the word "idiot" (Trottel) in an article published
by a journalist in the magazine Forum to describe a politician, the Austrian
court held that, as the word itself was insulting, its mere use was enough to
justify the conviction. The Court disagreed, observing:
"[The Court] wishes to point out in this connection that the judicial decisions
challenged before it must be considered in the light of the case as a whole, including
the applicant's article and the circumstances in which it was written."3
1
. The Sieradz Regional Court, in its judgment, noted that there was no legal provision
prohibiting trading on the public highway at the place where the incident took place, nor
had any notice to that effect been put up there (Commission's report, paragraph 42).
2
. Paragraphs 25-26 of the Government's memorial.
3
. Oberschlick v. Austria (no. 2) judgment of 1 July 1997, Reports of Judgments and
Decisions 1997-IV, p. 1275, §§ 30 and 31.
JANOWSKI v. POLAND JUDGMENT ­ DISSENTING OPINION 20
OF JUDGE CASADEVALL
The same analysis is required in the present case, namely an assessment
of the words spoken by Mr Janowski in the conditions and circumstances of
the incident with the municipal guards.
5. No one has denied that the applicant's conviction constituted
interference with the exercise of his right to freedom of expression. Thus, as
Mr Janowski was eventually convicted of insulting civil servants, an offence
under the Criminal Code1
, the interference was "prescribed by law" and was
aimed at preventing disorder or protecting the rights of others, but it remains
to be seen whether it was really necessary in a democratic society.
As stated in paragraph 33 of the judgment, civil servants must enjoy
public confidence in conditions free of undue perturbation if they are to be
successful in performing their tasks and it may prove necessary to protect
them from offensive verbal attacks when on duty. That is quite right. But it
is still necessary, and is the least one might expect, for those civil servants to
act in accordance with the law. Arbitrary conduct cannot be protected.
6. The Court's judgments relating to Article 10, from Handyside to
Lingens and on to Vogt, lay down the fundamental principles regarding the
criterion of necessity, which are reproduced in paragraph 30 of the present
judgment: the adjective "necessary" implying "pressing social need", the
margin of appreciation for determining whether such a need exists, the
proportionality of the interference and the existence of "relevant and
sufficient" reasons.
7. In the present case, can it be maintained that the applicant's
conviction on account of a banal discussion with the municipal guards,
when ­ in spite of the fact that a few of the remarks he made were
unfortunately chosen ­ he was right about the substantive legal point at
issue, met a "pressing social need" within the meaning of the Court's caselaw?
In my opinion it cannot.
I accordingly conclude that there has been a violation of Article 10 of the
Convention.
1
. Article 236 of the Polish Criminal Code.