AS TO THE ADMISSIBILITY OF
Application No. 23420/94
by Jan TOMASZKIEWICZ
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 May 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 November 1993
by Jan TOMASZKIEWICZ against Poland and registered on 7 February 1994
under file No. 23420/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant, a Polish citizen born in 1934, is a psychiatrist
residing in Poznan.
On 23 August 1990 E.B., acting as a private prosecutor, requested
institution of criminal proceedings for defamation against the
applicant before the Warsaw District Court (S*d Rejonowy w Warszawie).
She contended that the applicant, in two letters published in two
periodicals, "Szpilki" and "Czas", in April 1990 and July 1990, had
defamed her late husband O.B.
In a letter of 18 March 1991 the applicant complained to the
President of the Warsaw District Court that he had become aware of the
criminal proceedings against him pending before that Court through an
informal source. He requested to be duly served with the bill of
indictment.
On 14 May 1991 the President sent a copy thereof to the applicant
and confirmed that the indictment had not previously been served on the
applicant.
On 4 October 1991 the Warsaw Regional Court (S*d Wojewódzki w
Warszawie), in accordance with Article 26 of the Code of Criminal
Procedure, transferred the case from the Warsaw District Court to the
Koscian District Court as it considered that the persons who would have
to be summoned to appear before the court, lived in the vicinity of the
Koscian Court.
On 28 January 1993 the Koscian District Court convicted the
applicant of defamation and sentenced him to six months' limitation of
liberty in that the applicant had to pay 10 per cent of his salary to
the Association of Assistance to Handicapped Persons in Koscian.
The Court observed that in January 1990 the Koscian Society had
decided to attribute to the local psychiatric hospital O.B.'s name for
the purpose of acknowledging his professional achievements as a
director of the hospital from 1945 to 1957. On 4 April 1990 and
28 July 1990 two periodicals, "Szpilki" and "Czas", published the
applicant's letters in which he opposed this idea. He contended,
without mentioning O.B.'s name or initials, that during his
directorship several patients had died in suspicious circumstances in
the Koscian hospital. It had given rise to suspicions that there had
been politically motivated murders, committed on the orders of the
communist authorities, in particular as two of those patients had been
former soldiers of the anticommunist Home Army during the Second World
War. The patients had been selected in categories which received
treatment of unequal quality. Those patients, whose diseases had been
particularly serious, had been transferred to worse hospitals. O.B.
had been subservient to the communist authorities.
The Court considered that it could not be disputed that the
applicant's letters concerned O.B., who had died in 1973. The
applicant denied that his purpose had been to lower O.B. in public
esteem. He only wished to dissuade the local authorities from giving
his name to the hospital as he considered him unworthy. However, it
was obvious that the statements were of a disparaging character,
notwithstanding the applicant's intentions. These statements did not
find support in the evidence, in particular in the testimony of four
witnesses H.F., J.Z., Z.J. and M.G., who had been O.B.'s collaborators.
The Court also heard witnesses A.R. and I.U, who had not worked with
O.B. The Court considered the account given by Z.J. of the content of
the medical records of five patients, who allegedly had been killed or
allowed to die in the Koscian hospital on the orders of the communist
authorities and refuted the allegations. O.B. had owed his position
to his outstanding professional skills, independence of character and
ability to influence people. He was not a member of the communist
party, although this was normally required from hospital directors.
Thus the allegations of his subservience to the authorities were
unfounded. The fact that the patients had been put into different
groups was motivated by needs of treatment; in particular the purpose
had been to avoid a negative influence which the conduct of severely
ill patients could exert on the less severely afflicted ones.
The Court further observed that the applicant's right to freedom
of expression under Article 10 of the Convention was not unlimited.
Freedom of expression involved a right to express views, which find
support in proven facts. Legitimate interests of third parties, such
as good reputation, required that public criticism be fair and based
on ascertainable facts and not on conjecture.
In his appeal against the judgment the applicant, relying on
Articles 6 and 10 of the Convention, pointed out that the Court had
disregarded all evidence favourable to him. He became aware of the
proceedings only after nine months. He had never been served with any
decision relating to the transfer of the case to the Koscian Court.
He stressed that he had not mentioned O.B.'s name in the letters at
issue. He had not alleged that O.B. had caused the deaths of five
patients but had only put forward a suspicion that this might have been
the case. The applicant complained that three articles in the local
press, which he had submitted to the Koscian Court, had been
disregarded by the Court.
On 23 June 1993 the Poznan Regional Court changed the judgment
in that it decided that the applicant had disseminated false
information and had acted with intention to lower O.B. in public
esteem, thus having committed aggravated defamation, according to
Section 178 para. 2 of the Criminal Code. The Court, in addition to
the sentence imposed by the Koscian Court, obliged the applicant to
apologise to O.B.'s widow in the periodicals which had published the
letters at issue and upheld the remainder of the contested judgment.
The Court observed that the lower court had ample evidence from
various sources and had assessed it carefully, including the three
press articles relied on by the applicant, which the Koscian District
Court had included in the case-file. It was true that the applicant
had not mentioned O.B.'s name or even his initials. However, it
clearly appeared from the context that his letters related to him, as
they had mentioned the director of the psychiatric hospital in Koscian.
The applicant should have known that his allegations were untrue as the
sources on which he relied, namely the articles in the local press, had
not contained a sufficient basis therefor; in particular one of them
had only praised O.B. and his modern methods of treatment. Another
article had described the dramatic state of health in which several
patients had been brought to the hospital in the 1950's, apparently
having been tortured by the communist secret police. This article had
not contained any suggestion that they had subsequently died as a
result of any acts or negligence of the hospital staff. While it was
true that O.B. had grouped the patients according to their diseases,
this had not been based on any inappropriate reasons, but had been
justified by the needs of treatment. The applicant had not adduced any
evidence with regard to his allegations of O.B.'s subservience to the
communist authorities other than the general assumptions about everyone
in managing position during the stalinist years having to conform to
the orders of the political authorities.
The Court considered that the sentence imposed was adequate
having regard both to the danger of the offence and to the applicant's
personal situation, in particular his bad health.
COMPLAINTS
The applicant complains under Article 10 of the Convention that
the criminal conviction amounted to a violation of his right to freedom
of expression. He submits that he had acted in the public interest.
He complains under Article 6 of the Convention that the
proceedings were unfair. The courts failed to take into consideration
the evidence submitted by the applicant. His defence rights were
violated as for nine months he did not know the exact contents of the
bill of indictment. The courts were not impartial, given that the
Public Prosecutor did not participate in the proceedings and the courts
had to carry out both the judicial function and that of a Public
Prosecutor. The transfer of the case to the Koscian District Court
negatively affected the impartiality of the court as this Court was
biased against him.
THE LAW
1. Insofar as the applicant's complaints relate to a period prior
to 1 May 1993, the Commission recalls that Poland recognised the
competence of the Commission to receive individual applications "from
any person, non-governmental organisation or group of individuals
claiming to be a victim of a violation by Poland of the rights
recognised in the Convention through any act, decision or event
occurring after 30 April 1993".
It follows that this part of the application is outside the
competence ratione temporis of the Commission and therefore
incompatible with the provisions of the Convention within the meaning
of Article 27 para. 2 (Art. 27-2).
2. The applicant complains under Article 10 (Art. 10) of the
Convention that the criminal conviction breached his right to freedom
of expression. He submits that he had acted in the public interest.
Article 10 (Art. 10) of the Convention 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 Commission considers that the applicant's conviction for
aggravated defamation constituted an interference with the exercise of
his freedom of expression within the meaning of Article 10 para. 1
(Art. 10-1) of the Convention. Such interference is in breach of
Article 10, unless it is justified under paragraph 2 of Article 10
(Art. 10-2), i.e. it must be "prescribed by law", have an aim or aims
that is or are legitimate under Article 10 para. 2 (Art. 10-2) and be
"necessary in a democratic society".
The Commission notes that the applicant's conviction was based
on Section 178 para. 2 of the Criminal Code, and was, therefore,
"prescribed by law" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention.
Moreover, the interference complained of was aimed to protect
"the reputation or rights of others",i.e. the right of O.B.'s widow to
have her husband's reputation protected against unfounded attacks,
which is a legitimate aim under Article 10 para. 2 (Art. 10-2) of the
Convention.
It remains to be examined whether the interference was "necessary
in a democratic society". The term "necessary" implies the existence
of a "pressing social need". Nevertheless, the Contracting States
enjoy a certain margin of appreciation in determining whether such a
need exists, but this goes hand in hand with a European supervision,
the extent of which depends upon the circumstances. The review under
the Convention is confined to the question whether the measures taken
on the national level are, in the light of the case as a whole,
justifiable in principle and proportionate (cf. Eur. Court H.R., Sunday
Times (No. 2) judgment of 26 November 1991, Series A no. 217, pp.28-29,
para. 50).
The Commission observes that the applicant was convicted of
defamation because he had published two letters, containing allegations
that O.B. had not observed professional conduct in managing the Koscian
psychiatric hospital in 1945-1957. The applicant's statements in these
letters were considered to be of disparaging nature as they questioned
both O.B.'s professional skills and his moral character.
It is true that the subject of both publications related to a
matter of general interest. However, having regard to the fact that
the applicant's allegations were not found to be supported by relevant
evidence as well as the sentence imposed on the applicant, the
obligation to pay 10 per cent of his monthly salary to a non-profit
organisation, the applicant's interest in criticising the idea of
attributing O.B.'s name to the hospital cannot, in the Commission's
opinion, outweigh the right of O.B.'s widow to have her late husband's
reputation protected against being disparaged in public. Therefore,
the Commission considers that the interference at issue was justifiable
and proportionate.
In these circumstances, the interference complained of can be
reasonably regarded as "necessary in a democratic society" within the
meaning of Article 10 para. 1 (Art. 10-1) of the Convention.
This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant complains under Article 6 (Art. 6) of the
Convention that the proceedings were unfair and the courts were not
impartial.
The Commission first observes that certain events of which the
applicant complains took place before 1 May 1993, notably the serving
of the bill of indictment and the transfer of the case to the Koscian
District Court. There is no indication that these events affected the
fairness of the proceedings after 1 May 1993. They are therefore
outside the Commission's competence ratione temporis (see 1. above).
The Commission recalls that the admissibility and assessment of
evidence is primarily governed by the rules of domestic law, and as a
general rule it is for the national courts to assess the evidence
before them. The Commission's task is to ascertain whether the
proceedings, considered as a whole, including the way in which the
evidence was submitted, were fair (see Eur. Court.H.R., Lüdi judgment
of 15 June 1992, Series A no. 238, p. 23, para.43).
In the present case there is no indication that the applicant
could not duly put forward his submissions or any evidence.
The applicant also complains of the lack of impartiality of the
courts as they carried out both a judicial function and that of Public
Prosecutor. However, the Commission notes that in the proceedings
concerned the prosecuting function was carried out by O.B.'s widow.
The applicant has not submitted any ascertainable facts which might
raise doubts as to the impartiality of the courts.
In sum, the Commission finds no appearance of a violation of
Article 6 (Art. 6) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M. T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy