CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 septembre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 14 September 2017   FIRST SECTION Application no. 52969/13 Ireneusz WOJCZUK against Poland lodged on 7 August 2013 STATEMENT OF FACTS The applicant, Mr Ireneusz Wojczuk, is a Polish national who was born in 1967 and lives in Warsaw. The facts of the case, as submitted by the applicant, may be summarised as follows. A.     The circumstances of the case 1.     Background Between 1997 and 2008, the applicant, who is an art historian, was employed by the Museum of Hunting and Horseriding ( Muzeum Łowiectwa i Jeździectwa ) ( “the museum” ). In the last five years of his employment, he worked as the manager of the nature and hunting department. 2.     The applicant’s actions in respect of the museum On 28 November 2007 and on 10 March 2008 the applicant sent letters to the Tax Office ( Izba Skarbowa ), Supreme Audit Office ( Najwyższa Izba Kontroli ), Regional Prosecutor ( Prokuratura Okręgowa ), and the President’s Office ( Kancelaria Prezydenta ). The letters were signed: “Staff of the Museum of Hunting and Horseriding”. They contained allegations about the mismanagement of public funds, labour law infringements, flaws in the organisation of the workplace and accounting, the hiring of staff through the back door ( po znajomości ) and irregularities in awarding bonuses. It was also stated in the letters that the museum’s director, P.Ś., was incompetent, lacked adequate knowledge and organisational skills, and that he had entered into unprofitable tender contracts, had used the museum’s funds for private purposes, had resorted to bullying, and had acted in his own private interest. The letters contained the following statements. “[D]uring renovation works, exhibits sustain damage – they are constantly moved [and] stored in unsuitable places, but Ś. [P.Ś.’s full last name] is not interested in this – he is interested in how to steal more money” ( w czasie remontów niszczą się eksponaty, ciagle przenoszone, przechowywane w miejscach do tego nie przystosowaych, ale to Ś. nie interesuje, on jest zainteresowany, aby jak najwięcej ukraść pieniędzy ). “[He] clearly cannot organise work at the museum. He resorts to bullying and improvised decision-making ( rażąco nie umie organizować pracy w muzeum. Stosuje mobbing i ręczne sterowanie ).” “[He] uses words [which are] commonly considered offensive ..., [and] is driven only by his own self-interest and gain. He does not have any capacity to make decisions, does not know how to make a decision, messes up the organisation of work at the museum ( Używa słów powszechnie uznanych za obraźliwe (...) kieruje się jedynie własnym dobrem i korzyścią. Nie ma żadnych predyspozycji do podejmowania decyzji, nie umie podjąć decyzji, dezorganizuje pracę w muzeum.) ”   “Ś. [P.Ś.’s full last name] organises, using public funds, exhibitions for private individuals ( Ś... robi za publiczne pieniądze wystawy osobom prywatnym ).” 3.     Criminal proceedings against the applicant On 24 September 2008 the museum filed a private bill of indictment against the applicant, accusing him of disseminating, between 21   December   2007 and 16 July 2008, untrue information about the activities of the museum’s management. The case was registered with the Warsaw District Court, which held ten hearings. On 26 July 2012 the Warsaw District Court convicted the applicant of libel on account of the applicant’s sending four anonymous letters, on 28   November 2007, to the Tax Office, Supreme Audit Office, Regional Prosecutor and, on 10 March 2008, to the President’s Cabinet, which contained defamatory statements, and by doing so, putting the museum at risk of losing the public trust necessary for its social, cultural and educational activity. The court imposed on the applicant a fine ( grzywna ) in the amount of 2,500 Polish zlotys (PLN – approximately 625 euros (EUR)). The applicant was also ordered to bear various costs of the proceedings in the total amount of PLN   1,596 (approximately EUR 400). The domestic court considered it established that the envelopes that contained the impugned letters bore handwriting which, without any doubt, was that of the applicant. The domestic court based its findings of fact, as described above, on the testimony of five witnesses, including that of the museum’s director; two reports issued by a court-appointed expert in the forensic examination of documents; a copy of the Warsaw District Prosecutor’s decision to refuse to open a criminal investigation; the post-audit report of the Supreme Audit Office; a copy of the Warsaw District Court’s judgment of 3   November 2009 delivered in respect of the applicant’s related case no. IV W 325/09; a   psychiatric report; letters from the President’s Cabinet, Tax Office, and Minister of Culture and Science (original typed letters which had been sent to the above-mentioned relevant institutions, together with hand-addressed envelopes); various reports concerning the museum; and the post-audit report of the Ministry of Culture, together with various other pieces of evidence. Before the domestic court the applicant stated that he had not written or sent the impugned letters. He also argued that the case had been mounted against him in revenge for his unbiased work as a court-appointed expert in a high-profile case concerning the Zamoyski family’s museum in Kozłówka. The applicant stated that P.Ś. had attempted to pressure him into drafting a report which would be favourable to the director of the Kozłówka museum, who was P.Ś.’s friend. When the applicant refused, attempts were made to have him discredited: the applicant was accused of stealing an exhibit and of libeling the museum, and, ultimately his employment contract was terminated with three months’ notice. The applicant recalled instances when, in his opinion, P.Ś. had placed himself in a situation in which he faced a conflict of interests or had disregarded the applicant’s warning that exhibits were being inappropriately handled. On the other hand, he said that he had not had access to the financial documents of the museum and he did not know of incidents involving mismanagement, irregularities in accounting, bullying or inappropriate activity on the part of other employees. B.     Relevant domestic law Article 212 of the Criminal Code 1997 provides as follows: “§   1.     Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality such behaviour or characteristics as may lower the standing of such a person, group or entity in the public’s opinion or undermine public confidence in their necessary capacity [to undertake] a certain position, occupation or type of activity shall be liable to a fine, restriction on their liberty or imprisonment not exceeding one year. §   2.     If the perpetrator commits the act described in paragraph 1 through the means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment not exceeding two years. §   3.     When imposing sentence for an offence specified in paragraphs 1 or 2, a court may award a supplementary payment to the injured person or the Polish Red Cross or for another social purpose designated by the injured person ( nawiązka ). §   4.     The prosecution of an offence specified in paragraphs 1 or 2 may occur upon a private charge [being brought].” COMPLAINT The applicant complains under Article 10 of the Convention that his criminal conviction constituted a disproportionate and unjustified sanction because criticising the professional activities of someone such as the museum’s director, who is a public figure, must be tolerated in a democratic society. QUESTIONS TO THE PARTIES 1.     Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?   2.     Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention?