Communicated on 18 January 2018
FIRST SECTION
Application no. 20422/15
Jan STANISZEWSKI
against Poland
lodged on 22 April 2015
STATEMENT OF FACTS
1. The applicant, Mr Jan Staniszewski, is a Polish national who was born in 1956 and lives in Bulkowo.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The newsletter
3. Since 2010 the applicant has been the sole editor and distributor of a free newsletter “The Voice of Bulkowo Municipality” (Gazeta Głos z Gminy Bulkowo). In 2014 ten editions of the monthly newsletter were distributed, each numbering 2,000 copies. The newsletter consisted of one double-sided page and dealt with issues which were of importance for people living in that district. In several editions the applicant described the actions of G.G., the mayor of Bulkowo (wójt gminy).
4. In edition no. 9/2014, published on 10 September 2014, the applicant wrote, inter alia, about:
- the harvest festival in Blichów;
- the construction of a wind farm in the municipality;
- a charity called Association N.P., in which G.G.’s wife was treasurer;
- the amount of allowances received by councillors (radni) and local mayors (sołtysi);
- the payment of a loan of 2,622,466 Polish zlotys (PLN), that is over 655,000 euros (EUR). He concluded that article with the statement:
“Well, let’s keep our pockets tight because G.G. wishes to reach deeper into them,” (“No to trzymajmy się za kieszenie, do których G.G. chce nam się dobrać głębiej”).
5. In edition no. 10/2014, published on 10 October 2014, the applicant wrote:
- about the municipality’s debt, taxes and charges;
- that G.G. had more than forty hectares of farming land and that during his term of office as mayor he had taken on odd jobs (fuchy).
- about the Association N.P.
6. The applicant states that his newsletter has also in the past criticised S.S., G.G.’s opponent in elections, for his actions when in office.
2. The electoral campaign
7. On 27 August 2014 the campaign for municipal elections started. The applicant asked two party election committees if they would accept him as a candidate for the official Electoral Commission of Bulkowo municipality (hereafter, “the Commission”). The Election Committee of the Polish People’s Party (Komitet Wyborczy Polskiego Stronnictwa Ludowego, hereafter “the KW PSL”) agreed first and by its recommendation the applicant became a member of the Commission on 22 September 2014. The applicant underlines that he was not a member of that party or of its election committee.
8. On 4 September 2014 the Election Committee of Voters for G.G. “Together for Bulkowo” (Komitet Wyborczy Wyborców G.G. “Razem dla Bulkowa”) was registered. On 7 October 2014 G.G. was registered as a candidate for the mayor’s office. On the same day S.S., who was the candidate of the KW PSL, was registered as well.
3. The proceedings against the applicant
9. On 21 October 2014 at about 10.45 a.m. the applicant received a call from a clerk of the Płock Regional Court (Sąd Okręgowy), telling him that G.G. had lodged a claim under the Election Code and that a hearing was going to take place the next day at 9 a.m. He was asked to provide his e‑mail address, to which the clerk sent the claim with attachments at 12.09 p.m. The applicant was only able to read the email in the evening when he got back home.
10. G.G. was represented by a lawyer. The applicant was unable to find a professional legal representative at such short notice.
11. In the claim, G.G. requested that the applicant and the Contact National Trade Union (Ogólnopolski Związek Zawodowy „Kontakt”, the publisher of the newsletter; hereafter “the Union”) be forbidden from disseminating such untrue information:
- that the harvest festival in Blichów had been organised in connection with the campaign for the mayor’s office;
- that G.G. and the councillors of Bulkowo Municipality who had been in office from 2011 to 2014 were the only ones responsible for the construction of the wind farm there;
- that the Association N.P. had taken part in G.G.’s campaign by giving food to those who needed it;
- that G.G. had been responsible for the amount of councillors’ and local mayors’ allowances;
- that G.G. had taken the decision that a long-term loan of PLN 2,622,466 (EUR 655,000), taken under the name of Bulkowo Municipality, would be paid back with money from the inhabitants of the commune;
- that that money would come from higher taxes and charges;
- that the municipal debt at the end of June 2014 had amounted to PLN 10,138,000 (EUR 2,534,500);
- that in 2015 the property tax (podatek od nieruchomości) would rise by 80 percent;
- that G.G. was exhausted and had not taken a holiday, which had affected his duties as mayor;
- that G.G. owned more than forty hectares of farming land;
- that during his term of office as mayor, G.G. had taken on additional employment;
- that the Association N.P., in which G.G.’s wife was treasurer, had taken money from the investor in the wind farm.
He asked that the newsletters be confiscated and that the applicant and the Union be ordered to publish an announcement in a regional weekly magazine that the impugned statements were untrue and that they apologised for them. He also wanted a handwritten apology (spisane własnoręcznie I podpisane oświadczenie), and requested that they pay PLN 10,000 (approximately EUR 2,500) to a charity and cover the costs of the proceedings.
The statement of claim comprised eight pages.
12. During the hearing G.G.’s lawyer supported the claim.
13. The applicant argued that it should be rejected because:
- the newsletters could not be considered as campaign material because they had been published legally and the topics raised in them had constituted the continuation of previous articles;
- the articles had criticised G.G. as mayor, not as a candidate for mayor, and the fact that an election campaign was taking place could not preclude negative comments;
- the fact that the applicant had been nominated as a candidate for the Commission by the KW PSL did not mean that his newsletter was in favour of S.S., especially as he had also criticised S.S. during his term in office;
- it was wrong to say he was a member of the KW PSL;
- issue no. 9/2014 had been published almost a month before G.G. had been registered as a candidate and before the applicant had become a member of the Commission so its contents should not be examined at all;
- many of the impugned statements were related to his opinions, conclusions, questions and even suppositions, which were connected to various factual situations.
14. The applicant states that the presiding judge in the Płock Regional Court asked him selectively about various issues. Moreover, at the beginning of the hearing he asked the judge to admit ten issues of the newsletter (all from 2014) in evidence, also stating that he would hand them over at the end of the hearing because he needed them to present his statement. The judge agreed, but after the parties’ submissions she closed the hearing and did not accept the newsletters from the applicant.
15. By a decision of 22 October 2014, the Płock Regional Court allowed almost all points of the claim by:
- forbidding the applicant and the Union from disseminating the information requested by G.G., with the exception of that related to the Association N.P., in which G.G.’s wife was treasurer, had taken money from the wind farm investor; and that G.G. had been exhausted and had not taken a holiday, which had affected his work as mayor;
- ordering the confiscation of the 9/2014 and 10/2014 editions of the newsletter;
- ordering the applicant and the Union to publish an announcement in the regional magazine Tygodnik Płocki (“Płock Weekly”) with a declaration that the impugned statements were untrue, including an apology;
- ordering the applicant to prepare a handwritten apology for the untrue statements (wręczenie spisanego własnoręcznie i podpisanego oświadczenia);
- ordering the applicant and the Union to pay PLN 10,000 (approximately EUR 2,500) to a charity;
- dismissing the rest of the action;,
- ordering the applicant and the Union to pay PLN 377 (approximately EUR 94) in costs.
16. The Regional Court held as follows:
“It has to be acknowledged that the time of publication of the campaign material (September, October 2014), the office held by [G.G.] (the mayor of Bulkowo Muncipality) and by Jan Staniszewski (the author of the newsletter, its publisher, a member of the election committee who supports the claimant’s opponent from another political group), the circulation of the publication (the high number of issues of the newsletter), as well as the form and content of the statements unequivocally show that the participants [the applicant and the Union] instigated and conducted a so‑called ‘negative campaign’, based, as the claimant has proven, on gossip, insinuation, speculation, sensation, emotions and press statements of a kind that were equivalent to the level of statements by tabloids.
[G.G.] is taking part in the campaign (he was registered on 7 October 2014). Jan Staniszewski is a member of the Election Commission, nominated by the PSL. He is a writer for the ‘The Voice of Bulkowo Municipality Newsletter’, its publisher and editor-in-chief, so he is wholly responsible for the statements made in it. They are malicious, full of subjective dislike of the claimant. The author speculates about why the harvest festival took place in one place rather than in another, analyses how S.S.’s victory in some constituencies in 2010 angered the claimant and how he aims to win over various followers and states that the harvest festival is a sign from G., ‘Follow me’. He comments ‘Will the nation be fooled and buy all that?’ (‘Czy naród da się ogłupić i zechce to kupić?’).
The respondent is cross with [G.G.] on the issue of the wind farm – that he did not withdraw from his predecessor’s decision, that he does not ‘boast’ about them. The editor threatens the inhabitants with wind turbine syndrome, names the symptoms of a poor disposition, states that [G.] has concocted an ‘uncertain future’ for the people. ... The respondent’s arguments about the differences in the remuneration of the mayors and local mayors and their ‘disparity and unfairness’ are totally incomprehensible while the allegation that the loan taken by the municipality will be paid by its inhabitants (!), and that this is the fault of [G.G.], who will force them to do it (‘will reach into their pockets’) is totally groundless. The claimant indicated the sources of the debt repayment.
In edition no. 10/2014 the respondent [the applicant] suggests that the Association N.P. gave away bad food for free just to gain followers for [G.] amongst the poorest people; he makes an untrue statement about the size of the municipality’s debt and about how much (80%) the property tax will rise in 2015, oblivious to the fact that it is the council of the municipality, not the mayor himself, which establishes the rates of property tax and other local taxes, which stems from Section 5 of the Act on local taxes and charges. Accusing [G.G.] of ‘having two occupations’ (dwuzawodowstwo) and ‘odd jobs’ (fuchy) without specifying of what that consists – while asking when and where [G.] takes a rest because it is difficult to believe that he performs all his duties well – is completely incomprehensible. The standard of these statements and their unequivocally negative, sensational context, their conciseness (hasłowość), and the lack of detail and information about their source, breaches journalistic ethics and without a doubt infringes the claimant’s personal rights (dobra osobiste). It creates in in the mind of the average reader a feeling of dislike for the mayor, which he actually encounters at the present time, and about his past actions. It suggests that he has questionable dealings, and performs ‘odd jobs’ (an unequivocally pejorative term). The publication does not make it clear if and which duties the mayor neglected, while the manner in which he takes a rest is not a public fact that requires evaluation or comment. It is also not true that the claimant has a farm of 40 hectares. In any case, all the facts concerning the mayor (and even his wife), the decisions he has made, and the property he owns are commented on by the participants in an unfavourable manner, with a hint of a suspicion of dishonesty and swindling (w tonie podejrzeń o nieuczciwość i machlojki). Such public and widely broadcast statements, which the respondent has personally tried to distribute, disparage the claimant, who has a public function, and unfavourably affect his general electoral profile.
The claimant has proved that these allegations are false by means of the documents attached to the claim; their content leaves no doubt. They refute the respondents’ statements and result in the recognition of the claim as justified almost in full, also in the context of the remedies to remove the effects of the infringement.”
17. On 24 October 2014 the Płock Regional Court allowed an application by G.G. to supplement the decision of 22 October 2014 by adding a requirement that the correction of the false statements and the apology be published by 28 October 2014.
18. The applicant appealed against the original court decision.
19. On 27 October 2014 the Łódź Court of Appeal (Sąd Apelacyjny) dismissed his appeal. It held:
“Ultimately it has to be stated that Jan Staniszewski’s ethics arouse serious doubts because as author of the articles and editor-in-chief of the newsletter ‘The Voice of Bulkowo Municipality’ he engaged actively in electoral agitation (agitacja wyborcza) against one of the candidates for mayor of Bulkowo Municipality while he was a member of the Election Commission of Bulkowo Municipality. Paragraph 3 of Article 153 of the Election Code includes a prohibition on members of election commissions from conducting electoral agitation for specific candidates and for lists of candidates. That provision requires that members of electoral commissions refrain from electoral agitation for (or against) any candidate and, obviously, from imparting private opinions about candidates or political parties. Jan Staniszewski’s behaviour is in obvious conflict with that provision.”
20. The Płock Election Commissioner (komisarz wyborczy) did not revoke the applicant’s membership of the Commission.
B. Relevant domestic law and practice
1. Relevant constitutional provisions
21. Article 14 provides as follows:
“The Republic of Poland shall ensure freedom of the press and other means of social communication.”
Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides:
“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”
Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:
“Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.”
2. The Election Code
22. The Election Code (Kodeks wyborczy) of 5 January 2011 came into force on 1 August 2011.
Article 105 provides, in so far as relevant:
“Public incitement or encouragement to vote in a certain manner or to vote for a candidate of a certain electoral committee constitutes electoral agitation.”
Article 109 provides, in so far as relevant:
“Campaign material is any public and fixed transfer of information that originates from an electoral committee that is connected to an election that has already been called.”
Article 111 provides, in so far as relevant:
Ҥ 1. If any campaign material which has been distributed, including via the press within the meaning of the Press Act (Prawo prasowe) of 26 January 1984, in particular posters, leaflets and slogans, as well as statements or other forms of electoral agitation, contains untrue information, a candidate or an electoral agent of the electoral committee concerned has the right to lodge a claim with a Regional Court to give a decision:
1) restraining [the defendant] from publishing such information;
2) on the confiscation of such material;
3) on correcting the information;
4) requiring [the defendant] to publish a response to statements that infringe personal rights;
5) requiring [the defendant] to apologise to the aggrieved party;
6) requiring [the defendant] to pay up to PLN 100,000 to a charity.
§ 2. A Regional Court shall examine an application of the kind referred to in § 1 within 24 hours in non-contentious [civil] proceedings. [...] The court shall, without undue delay, serve on the interested party referred to in § 1 and the person required to execute the court’s ruling a decision which will bring the proceedings in the case to an end.
§ 3. Appeal against the decision of the Regional Court lies with the Court of Appeal, provided it is lodged within 24 hours of delivery of the decision. The Court of Appeal shall examine the appeal in non-contentious [civil] proceedings, under 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 its decision shall be enforceable with immediate effect.”
Article 153 provides, in so far as relevant:
“§ 3. Members of an electoral commission cannot campaign for specific candidates or lists of candidates.”
COMPLAINTS
The applicant complains under Article 6 of the Convention that he could not adequately prepare for the hearing and find a lawyer who would represent him owing to the short time he had at his disposal, thus his right to a fair trial within a reasonable time was violated.
Under Article 10 he complains that his freedom to hold and impart opinions was violated as the publications in question related to issues that were of importance to the public. He also complains that the cumulative effect of the sanctions imposed on him constituted a disproportionate interference with his freedom of speech.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Reference is made in particular to the applicant’s allegations that the time-limits established in the Election Code made it difficult for him to prepare his case and appoint a lawyer.
2. Has there been a violation of the applicant’s right to freedom of expression, in particular his right to impart information, contrary to Article 10 of the Convention?
Full & Egal Universal Law Academy