Information Note on the Court’s case-law No. 85
April 2006
Malisiewicz-Gąsior v. Poland - 43797/98
Judgment 6.4.2006 [Section I]
Article 10
Article 10-1
Freedom of expression
Defamation conviction for allegations by a candidate for Parliament suggesting abuse of power by Deputy Speaker of Parliament: violation
Facts: In 1992 Mr. Kern, then Deputy Speaker of the Sejm (Poland’s Lower House of Parliament) lodged a complaint against the applicant with the Łódź regional public prosecutor, alleging that she had kidnapped his 17-year-old daughter M.K. According to the applicant, however, M.K. had run away from home accompanied by her long-term boyfriend (the applicant’s son). The prosecutor instructed his deputy to take charge of the case and the latter authorised an unsuccessfully searched the applicant’s flat for M.K. and drugs. The applicant’s telephone was also tapped and she was briefly taken into custody on charges of kidnapping and was detained on the psychiatric ward of a prison hospital. The allegations of kidnapping received extensive media coverage in Poland. The applicant applied successfully for her case to be transferred to a prosecutor who worked outside the Łódź region. In September 1992 the new prosecutor discontinued the criminal proceedings, finding the allegations of kidnapping to be groundless.
In 1993 the applicant decided to stand as an independent candidate in the parliamentary elections. During her campaign, she wrote two articles in a weekly, accusing Mr Kern of “abuse of power”, of having orchestrated her arrest and detention in a psychiatric cell, having had her phone tapped and her flat searched. She also described her ideas about working in the Senate (Poland’s Upper House of Parliament). Her statements were subsequently broadcast on local radio and television stations. Mr Kern then lodged a private prosecution, charging the applicant with defamation. In 1996 she was convicted, the national courts finding her comments about Mr Kern to have been both defamatory and untrue and considering that she had been acting in her own rather than the public interest. She appealed unsuccessfully against her conviction but her sentence was reduced from a suspended prison term of 18 months to one of 12 months. The appellate courts also accepted that it was “beyond doubt” that the applicant could have felt that the prosecuting authorities had been “overactive”. She was ultimately ordered to pay for the publication of the judgment in a national daily, to have an apology to Mr Kern published in the weekly in question, and to pay costs.
The Polish Ombudsman subsequently found, among other things, that the regional Łódź prosecutors had broken the law and that the courts had failed to take into account important evidence in support of the applicant’s case. The Polish courts eventually decided not to enforce the applicant’s prison sentence after she had failed to apologise to Mr Kern.
Law: The Court observed that the applicant’s comments about Mr Kern had been made in articles published during her electoral campaign as a parliamentary candidate, in which she had also set out her political convictions and her ideas about working in the Senate. In addition, her comments had been based on personal experience, namely Mr Kern’s request for criminal proceedings to be brought against her and the events which followed. The appellate court had found that she could have subjectively felt that the Łódź prosecutors had been overactive in her case. Moreover, the Ombudsman had concluded that certain prosecutors had even broken the law. When her case had been transferred to the new prosecutor, the criminal proceedings against her had been discontinued, the prosecutor considering those charges to have been groundless. Therefore the applicant’s allegations of abuse of power had not been a gratuitous personal attack but part of a political debate. Even if some of her statements had contained harsh words, they had been made against a well-known politician concerning whom the limits of acceptable criticism were wider than as regards a private individual. Very strong reasons were required to justify restrictions on political speech as allowing broad restrictions on political speech in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned.
The Court did not subscribe to the domestic courts’ view that the applicant had been acting in her own interest; the matters covered by her in her articles had concerned issues of public interest. The right to stand as a candidate in an election was of prime importance in the Convention system. The domestic courts had failed to take into account the fact that Mr Kern, being a politician, should have shown a greater degree of tolerance towards criticism. Accordingly, the domestic authorities failed to take into consideration the crucial importance of free political debate in a democratic society, particularly in the context of free elections. The defamation of a politician in the context of a heated political debate did not justify the imposition of a prison sentence. The conviction of the applicant for making, during her parliamentary campaign, press and radio statements alleging abuse of power by one of the most powerful politicians in the country must have had “a chilling effect” on the freedom of expression in public debate in general. In sum, there had been no reasonable relationship of proportionality between the measures applied by the domestic courts and the legitimate aim pursued and the authorities had failed to strike a fair balance between the relevant interests.
Conclusion: violation (unanimously).
Article 41 – The Court awarded the applicant EUR 5,000 for non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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