FOURTH SECTION
DECISION
Application no. 60551/11
Ewelina ŚWIĘCH
against Poland
The European Court of Human Rights (Fourth Section), sitting on 12 November 2013 as a Committee composed of:
George Nicolaou, President,
Zdravka Kalaydjieva,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 15 September 2011,
Having regard to the declaration submitted by the respondent Government on 1 July 2013 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Ms Ewelina Święch, is a Polish national, who was born in 1978 and lives in Sędziszów. She was represented before the Court by Mr J. Rejman, a lawyer practising in Łańcut.
The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs.
The application had been communicated to the Government.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was an editor-in-chief of a local newspaper “Głos Powiatu”, published in Ropczyce. On 3 December 2008 the newspaper published the article entitled “Slave Traders” (Handlarze niewolników). The article informed the public about a criminal case concerning charges related to a large-scale human trafficking scheme carried out by way of recruiting employees for work abroad under false pretences. That case was at the time pending before the Kraków Regional Court.
One of the accused brought before the Rzeszów Regional Court a civil action against the applicant and the article’s author for the protection of his personal rights within the meaning of Articles 24 and 25 of the Civil Code. He requested the court to make an award of compensation in the amount of 30,000 Polish zlotys (PLN) and to order the applicant to publish apologies in the same newspaper.
On 12 May 2010 the Rzeszów Regional
Court dismissed the claim. The plaintiff appealed.
On 17 March 2011 the Rzeszów Court of Appeal amended the contested judgment in that it ordered the applicant and the journalist to pay, jointly, PLN 30,000 to the defendant. It further ordered them to pay PLN 3,768 in various court costs and legal fees. The court noted and shared the assessment made by the lower court that the plaintiff’s personal rights had been breached by the impugned article. The journalist paid the damages whereas the applicant contributed to the payment of the court costs and legal fees.
COMPLAINTS
The applicant complained under Article 10 of the Convention that the judgments of the civil court given in her case amounted to a breach of her freedom of expression.
The applicant complained, relying on Article 6 of the Convention, that the courts had erred in the assessment of the evidence and that they had found against her on an insufficient basis.
THE LAW
The applicant complained that the judgment of the civil court given in her case amounted to a breach of her freedom of expression. She relied on 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.”
A. The Government’s unilateral declaration
After the failure of attempts to reach a friendly settlement, by a letter of 1 July 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“... the Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of violation of the applicant’s right to freedom of expression within the meaning of Article 10 of the Convention.
... having regard to the particular facts of the case ... the Government declare that they offer to pay to the applicant the amount of PLN 6,000 (six thousand zlotys) which they consider to be reasonable in the light of the Court’s case-law in cases against Poland concerning the interferences with a person’s right to freedom of expression, originating in civil actions for the protection of personal rights.
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
The Government would respectfully suggest that the above declaration might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention ...”
By a letter of 5 August 2013, the applicant indicated that she was not satisfied with the terms of the unilateral declaration on the ground that the amount specified had failed to make allowance for the fact that she had paid the legal costs in the proceedings before the Court.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03).
The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of the applicant’s right to freedom of expression (see, for example, Jucha and Żak v. Poland, no. 19127/06, 23 October 2012; Kita v. Poland, no. 57659/00, 8 July 2008; Smolorz v. Poland, no. 17446/07, 16 October 2012 and Sosinowska v. Poland, no. 10247/09, 18 October 2011).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
B. Costs and expenses
Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the costs shall be at the discretion of the Court. ...”
The applicants claimed 3,000 Polish zlotys (PLN) for legal costs and expenses borne in connection with the case before the Court. The Government did not address this claim.
According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Although the proceedings before the Court were not complex and resulted in a decision to strike the case out of its list, the applicant’s representative had submitted her observations on the admissibility and merits of the case as well as other pleadings. The Court thus accepts that some of these costs were actually and necessarily incurred (see mutatis mutandis, Ahmed v United Kingdom (dec), no. 31668/05, 14 October 2008; and Meriakri v. Moldova (striking out), no. 53487/99, § 33, 1 March 2005). Regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicants the sum of 700 euros (EUR) covering the costs of the proceedings before the Court.
C. Inadmissible complaint
The applicant further complained under Article 6 of the Convention that the courts had erred in the assessment of the evidence and that they found against her on an insufficient basis.
Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.
It follows that this part of 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
Takes note of the terms of the respondent Government’s declaration under Article 10 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Holds
(a) that the respondent State is to pay the applicants, within three months, EUR 700 (seven hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicants, to be converted into Polish zlotys at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Fatoş AracıGeorge Nicolaou
Deputy RegistrarPresident
Full & Egal Universal Law Academy