WIESZCZEK AND STOWARZYSZENIE MIESZKANCOW v. POLAND
Inadmissible
Nicolas Bratza
The first applicant, Ms Barbara Wieszczek, a Polish national, is also a statutory representative of the second applicant, an Association of Inhabitants of Municipal Housing (Stowarzyszenie Mieszkańców Domów Komunalnych) with headquarters in Stalowa Wola. She also represents the second applicant before the Court. At a meeting held on 8 September 2002 the applicant association distributed among its members 90 copies of an election leaflet of which it had printed 100 copies. The leaflet exhorted the members of the association to vote in the municipal elections scheduled for October 2002. It was further stressed that no votes should be cast in favour of these representatives of the local parties who had been using their position in various municipal authorities to enrich themselves by being involved in dubious business deals, to the detriment of the public interest and municipal finances. In this context name of one of the local councillors, J.P., who also was a candidate to the council in the coming elections, was mentioned. It was alleged that she had, contrary to applicable laws regulating the status of local councillors, been combining her function of councillor with a paid post on the governing board of one of public companies owned by the municipality, obtaining a “nice salary” (“pensyjka”). Subsequently J.P. instituted proceedings on the basis of the 1998 Act on Elections to Municipality, District Councils and Regional Assemblies. This Act made it possible for the election candidates to institute proceedings in which to claim that untrue information published about them during the election campaign be rectified and that apologies be published (see Relevant domestic law). The plaintiff argued that she had indeed been a member of the governing board of one company owned by the municipality, but only from June 1997 until December 1997, before she had become a councillor. Afterwards, she had stepped down. As it transpired from the leaflet concerned that she remained on the board, contrary to the applicable anti-corruption provisions of the 1998 Local Government (County) Act, the leaflet was disseminating false information, detrimental to her reputation and to her prospects of being elected. On 19 September 2002 the Tarnobrzeg Regional Court held a hearing during which it questioned the parties. It had also regard to the evidence submitted by the plaintiff, including a letter of the Municipal Office dated 16 September 2002, from which it transpired that J.P. had been on the board of M.K.Z. company owned by the Stalowa Wola Municipality from 4 June to 29 December 1997. It further took evidence from the documents of the company, from which it transpired that J.P. had ceased to be on its governing board on that date. On the same day the court gave a ruling, in which it ordered the applicant association and the applicant to cease dissemination of information concerning J.P.’s alleged involvement in the governing board of that company. It also ordered forfeiture of the remaining copies of the leaflet, ordered the applicant association to publish apologies in a local newspaper and to pay the plaintiff’s costs in the amount of PLN 2,045. The court dismissed the plaintiff’s request that the association be ordered to pay PLN 5,000 to the local children’s home. The court established that it was not in dispute that the leaflet had been authored and distributed by the bodies of the applicant association and that it contained an allegation that J.P. had at the time of its distribution been a member of the governing board of M.Z.K. company, owned by the municipality of Stalowa Wola. The court noted that if this had been true, it would have been in breach of the anticorruption provisions of the 1998 Local Government (County) Act. Having regard to the documents of the company and to the letter of the Municipal Office of Stalowa Wola submitted by J.P., the court found that it indeed had been the case, but only from June until December 1997. On 29 December 1997 she had ceased to serve on the board, Hence, the allegations that she retained this post afterwards and continued to receive a salary were untrue. Therefore, under Article 72 of the Law of 16 July 1998 on Elections to Municipality, District Councils and Regional Assemblies, this information had to be rectified. Consequently, the court ordered that the remaining copies of the leaflet should be forfeited and that the applicant association should publish in a local newspaper apologies for disseminating untrue information during the election campaign. As for the plaintiff’s demand of payment of PLN 5,000 by the association, the court found that such payment would constitute a serious blow to its finances, which in any event were in a quite precarious position, given the relative newness of the association. The association had had no time in which to find any serious source of income, other than the membership fees. The court further observed that if it had ordered the association to make this payment, this might seriously impair its ability to act and also constitute an interference in the democratic process of election, unduly improving the plaintiff’s chances to be elected. The court further noted that such an order would not serve any useful purpose for the protection of the plaintiff’s interests and reputation, which were sufficiently ensured by the forfeiture of the remaining copies of the leaflet and by the order to publish apologies by the association. The applicant association appealed, arguing essentially that in the light of document it had at its disposal, the information contained in the leaflet was true and that the judgment was generally wrong. On 8 October 2002 the Rzeszów Court of Appeal dismissed the appeal, considering that the findings of fact made by the lower court that J.P. had ceased to be on the governing board of the company in 1997 were correct. The use of the present tense in the impugned leaflet clearly suggested that, in contravention of laws governing the status and obligations of municipal councillors, she still remained on the board and had been obtaining emoluments for her work. This was obviously untrue, and therefore the first-instance judgment was correct. Article 72 of the Law of 16 July 1998 on Elections to Municipality, District Councils and Regional Assemblies provided, in so far as relevant: “§ 1. If posters, slogans, leaflets, statements or other forms of propaganda and campaigning contain untrue data and information, a candidate standing for local election or a representative of an electoral committee has the right to make an application asking the Regional Court to: 1) order the confiscation of such materials, 2) issue an injunction restraining [the defendant] from publishing such data and information, 3) order rectification of the information, 4) order [the defendant] to apologise to the aggrieved party, 5) order [the defendant] to pay to a charity up to PLN 10,000, 6) order [the defendant] to pay to the claimant up to PLN 10,000 in damages. § 2. The Regional Court, sitting as a single judge, shall examine the application referred to in § 1 within 24 hours in [civil] non-contentious proceedings. [...]. The court shall serve on the interested party referred to in § 1, the relevant regional electoral commissioner and the person obligated to execute the court’s decision, without undue delay, a decision terminating the proceedings in the case. § 3. The decision of the Regional Court may be appealed to the Court of Appeal within 24 hours from the moment it was pronounced. The Court of Appeal, sitting as a panel of three judges, shall examine the appeal in [civil] non-contentious proceedings, according to 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 such decision shall be enforceable with immediate effect.”