Case Summary and Outcome

The European Court of Human Rights (“ECtHR”), by a majority of twelve judges, ruled that Poland had not violated the applicant’s freedom of expression by penalizing Mr Jozef Janowski (“the applicant”) in a criminal procedure for insulting the municipal guards by calling them “oafs” and “dumb”. Mr. Janowski, a journalist, intervened in an incident where municipal guards were ordering street vendors to leave a square (where selling was not allegedly authorized), by informing the guards that their actions had no legal basis and infringed vendors’ fundamental rights. The applicant was subsequently charged with having insulted municipal guards on duty. The ECtHR found that there was no violation of Article 10 of the European Convention on Human Rights (“ECHR”) as the applicant 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 did not warrant resort to offensive and abusive verbal attacks and therefore, the domestic courts had sufficient reasons for the conviction of the applicant.

---

Facts

Mr Jozef Janowski was a journalist living in Zduńska Wola, Poland. On September 2, 1992, Mr. Janowski noticed two municipal guards approaching street vendors in Zduńska Wola (Poland) and instructing them to move from the square to the nearby marketplace. Allegedly, the square in Zduńska Wola where the vendors were selling was not authorized by municipal authorities. The applicant intervened, informing the guards that they had no legal basis to act in such a manner and their actions infringed the laws guaranteeing freedom in the economic field. Subsequently, there was a verbal conflict between the applicant and the guards where the applicant apparently called them “oafs” and “dumb”. The exchange between the applicant and the guards was witnessed by a group of bystanders.

In response to the altercation, criminal proceedings were instituted against the applicant by the district prosecutor for having insulted the municipal guards while they were carrying out their legal duties and with acting with flagrant contempt for legal order, an offense specified in Article 236 of the Criminal Code of Poland (“Criminal Code”). On April 29, 1993, the District Court convicted the applicant for verbally insulting two municipal guards, declaring that the offense committed 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 imposed with a fine of 1,500,000 old zlotys (PLZ).

After the applicant’s appeal on an unspecified date where he claimed that his conviction was based on insufficient evidence, the Sieradz Regional Court by a judgment dated September 29, 1993, quashed the imprisonment sentence but upheld the fine of PLZ 1,500,000. The Court opined that there was enough evidence to establish that the applicant “insulted the guards by calling them ‘oafs’ and ‘dumb’ (‘ćwoki’ and ‘głupki’)” [p. 6], which were offensive and exceeded the limits of freedom of expression. While it held that the conviction was rightly imposed under Article 236 of the Criminal Code (which aimed to ensure that civil servants were not hindered in carrying out their duties), the Sieradz Regional Court noted that the applicant had not acted without a justifiable motive (to defend street vendors against the acts of the municipal guards which he had considered illegal) and therefore, did not commit an act of “hooliganism”. Also, the Regional Court aligned with the applicant’s statement that the guards’ request towards vendors had not been rooted in any resolution issued by the municipal council.

Mr. Janowski applied to the European Commission of Human Rights on January 25, 1994. He relied on Article 6 and Article 10 of the ECHR, claiming violation of freedom of expression as well as refusal of the Zduńska Wola District Court to grant him legal aid and hear two defence witnesses. On November 27, 1996, the Commission admitted the application, expressing by eight votes to seven, that there was a violation of Article 10 of the ECHR.

---

Decision Overview

The Grand Chamber of the European Court of Human Rights delivered the judgment of the Court. The ECtHR had to decide primarily whether the described conviction of the applicant represented a violation of the right to freedom of expression protected by Article 10 of the ECHR. Besides freedom of expression, the applicant had argued that his right to a fair trial under Article 6 had also been violated, but that particular part of the application was declared inadmissible.

Article 10 of the Convention prescribes the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The scope of the right under Article 10 is limited, inter alia, to the extent necessary in a democratic society, in the interests of national security, territorial integrity or public safety and for the prevention of disorder or crime. Article 6, on the other hand, guarantees every individual a right to fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

At the relevant time, Article 236 of the Criminal Code of Poland provided as follows:

“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.”

Whereas, Article 59(1) of the Criminal Code prescribes a sentence of imprisonment for a premeditated offence of a hooligan nature. Article 120(14) lays three conditions for hooliganism, those being (i) the perpetrator acted in public, (ii) without any justifiable motive or with an obviously unjustified one, and (iii) demonstrating flagrant contempt for legal order.

In considering the applicant’s claims under Article 10 of ECHR, the Court applied the three-part test to determine whether the interference was (i) prescribed by law, (ii) pursued a legitimate aim and (iii) was necessary in a democratic society, as required under Article 10(2) of the ECHR. Since the applicant did not dispute otherwise, the Court held that the interference was prescribed by law. Whereas, with respect to the pursuance of a legitimate aim, the Court considered that the conviction of the applicant was intended to pursue the legitimate aim of the prevention of disorder.

In response to the third leg of the test (whether the interference was necessary in a democratic society), the applicant had argued that his intention had not been to insult the guards but to point out that their actions were unlawful. He claimed that his words should have been considered appropriate, albeit with harsh criticisms of the guards. Finally, he claimed that, since he had been a journalist, his conviction was an act of censorship and constituted discouragement of the expression of criticism in future.

Notably, the Commission during its previous review of the case had considered that while the words used by the applicant were “offensive”, they 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. As a result, the conviction was considered not necessary in a democratic society.

The Government, however, disagreed with the claims of the Commission, arguing that civil servants were not subject to wider limits of criticism. While they should be subject to close scrutiny and criticism, civil servants should also enjoy the protection against “destructive attacks” in order to be able to carry out their duties effectively. Also, the sanitary and traffic legal provisions supported the guards’ actions, regardless of the fact that there had not been municipal provisions. Regarding the applicant’s journalist status, the applicant did not articulate his speech through media nor his speech was a part of a public debate on a certain important issue. Thus, they argued there had not been a violation of Article 10 of the ECHR.

The ECtHR, in determining whether 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”, reiterated three fundamental principles established in the case law on Article 10 of ECHR.

First, Article 10 protects statements “that offend, shock or disturb. Such are the demands of that pluralism, tolerance, and broadmindedness without which there is no ‘democratic society’” [p. 10-11]. Secondly, the word “necessary” implies the existence of a “pressing social need”. There is a certain margin of appreciation for States in “assessing whether such a need exists, but the ECtHR has a final ruling if certain interference is in accordance with Article 10 of ECHR”. Finally, the Court stated that it “analyze[d] the case as a whole, not just content of speech, but the context as well”.

In applying the above principles to the facts of the case, the Court relied on the content of the applicant’s statements towards guards. It noted that the use of words such as “oafs” and “dumb” was not a part of any public debate on a matter of public concern since it only concerned the actions of municipal guards who insisted that street vendors trading in the square move to another venue. The applicant’s remarks did not involve freedom of the press, because the applicant acted in a private capacity. The applicant was convicted due to the insulting nature of his words, not because of “the fact that he had expressed opinions critical of the guards or alleged that their actions were unlawful” [p. 12]. The Court, thus, disagreed that the conviction of the applicant was an attempt to restore censorship and constituted discouragement of the expression of criticism in future.

Regarding the nature of the guards as public servants, the ECtHR stated that the limits of acceptable criticism might be broader regarding civil servants when performing their duties than to private persons. Nevertheless, politicians and civil servants are not equal in this regard, and civil servants should enjoy more protection from criticism than politicians. Additionally, the Court found that “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” [p. 12].

Lastly, the Court admitted that the applicant used “abusive language” because he had been concerned for his fellow citizens (street vendors). Nevertheless, the applicant did insult the guards in a public forum before a group of citizens, while the guards had been exercising their duties. The ECtHR considered that the guards’ actions had been based on sanitary and traffic considerations and those actions “did not warrant resort to offensive and abusive verbal attacks” [p. 12].

Bearing in mind the above, the Court decided that there was no violation of Article 10 of ECHR. However, five judges dissented and four of them wrote separate opinions.

In the first dissenting opinion, Judge Wildhaber described that there was no pressing social need to convict the applicant because he had used “two moderately insulting words, in a spontaneous and lively discussion, to defend a position which [had been] legally correct and in which he [had had] no immediate personal interest”.

Judge Bratza wrote the second dissenting opinion and was joined by Judge Rozakis. Judge Bratza found that the insulting words had reflected the applicant’s “sense of frustration with the attitude of the guards” [p. 15]. He relied on the findings of the Commission [the former organ of the ECtHR] that the impugned words might have been “exaggerated”, but they did not amount to a deliberate personal attack on the guards. Additionally, Bratza opined, unlike the majority, that the applicant’s statement formed a part of an “open discussion of matter of public concern” since the applicant perceived actions by the guards as an abuse of public powers. Also, the impugned statement did not cause public disorder nor did it bar the guards from performing their duties.  Lastly, they claimed that the fine cannot be considered insignificant because it was equal to one month’s unemployment benefit which was not proportionate to the applicant’s offense.

Judge Bonello criticized the majority approach in his dissenting opinion, finding no urgent social need to punish those [the applicant] who attempt to prevent abuses of public authority. According to Judge Bonello, the Polish case law on Article 236 of the Criminal Code protected all public servants from insults, regardless if they had abused their powers or not. He argued that “a regime which consider[ed] the verbal impertinence of an individual more reprehensible than illicit excesses by public officers [as] one that ha[d] pulled the scale of values inside out” [p. 19]. Consequently, Bonello’s argument was centered on the cause of the applicant’s action – i.e. the apparent misconduct by public officials.

The last dissenting opinion was of Judge Casadevall. He did not approve of using words “oafs” and “dumb” in general, but in this particular case, those words did not “overstep the limits of acceptable criticism of the municipal guards”. He found that the strict liability (the lawfulness of the guards’ action was of no relevance) as defined by the Polish Criminal Law was not acceptable. Thus, he argued that the context of the case should have been relevant, not the mere fact of insult. Since the applicant had been correct about the lack of legal basis for guards’ actions, the conviction did not meet a “pressing social need” [p. 21].

---