CASE OF SKALKA v. POLAND
Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award
Georg Ress;Mark Villiger
9. The applicant was born in 1941. He is currently serving a prison sentence. 10. On 16 December 1993 the Nowy Targ District Court convicted the applicant of aggravated theft and sentenced him to imprisonment. While in prison, on unspecified dates the applicant wrote a letter to the Penitentiary Division of the Katowice Regional Court and he received a reply. Dissatisfied with that reply, on 15 November 1994 the applicant sent a letter to the President of the Katowice Regional Court, complaining about the judge who had replied to his letter. The relevant passages of the applicant's letter read: “(...) It cannot be excluded that further acts of that kind on the part of the Penitentiary Division of the Regional Court would make me complain to the judicial supervision about the irresponsible clowns placed in that Division. I will start by saying that any little cretin, whether he wears a gown or not, should vent his need to intimidate others by making allusions to legal responsibility [for their acts] on his mistress, if he has one, or on his dog, but not on me. I am not going to be afraid of any such clown who wants to intimidate me, but the truth is that my request of 18 August 1994 was addressed to the court, not to some fool. I expect that the President of the Katowice Regional Court will somehow convey my request to that bully and that he will, at the same time, read his reply to me (...) Not only does [the judge] write rubbish about my alleged request for a pardon, which my request was absolutely not, but he also intimidates me. If he is such a brilliant lawyer that he is able to reply to questions that were not asked – and his legal skills can be seen if the content of my letter is compared with his reply – he should find a relevant legal provision to use against me. It would not change the fact that such a limited individual, such a cretin should not take the post of a reliable lawyer who would know how to reply to a letter. A cretin he will remain and I see no reason to be afraid of any legal consequences. “You know, you understand, shut up” – that is all the education he has, as a fool does not need any better.” 11. Subsequently, on an unspecified date, the Sosnowiec District Prosecutor instituted criminal proceedings against the applicant. On 31 January 1994 the prosecuting authorities lodged a bill of indictment against the applicant with the Sosnowiec District Court. He was charged with proffering insults against a State authority at its headquarters or in public, an offence punishable under Article 237 of the Criminal Code 1969, committed by sending a letter to the President of the Katowice Regional Court. In this letter the applicant had insulted an unidentified judge of that court's Penitentiary Division and all judges of that court. The applicant had been questioned in connection with the offence. He had stated that he had not meant the court as a whole, but only one judge, and this in his personal, not professional, capacity. He maintained that the letter could only be regarded as an insult against a private person, but not a State institution. 12. On 6 September 1995 the Sosnowiec District Court convicted the applicant of insulting a State authority and sentenced him to eight months' imprisonment. The court found that on 15 November 1994 the applicant had sent a letter to the President of the Regional Court in which he referred to all judges of the Regional Court's Penitentiary Division in an insulting and abusive manner as “irresponsible clowns”. Moreover, further on in the same letter, he referred in a particularly insulting manner (“w sposób szczególnie obraźliwy”) to an unidentified judge of the same Division, to whom he had allegedly written certain letters, which remained unanswered. 13. The court had regard to the results of the applicant's examination by psychiatrists who found that he could be held criminally responsible. 14. The court considered that it was beyond any doubt that it was the applicant who had written the impugned letter. The analysis of its content and form led to the conclusion that the applicant had acted with the firm intention of insulting the Regional Court as a judicial authority. He had first addressed himself to the judges of that court as a group, and then focused on one unidentified judge. Accordingly, it had to be understood that the applicant had insulted the court as the State authority, and the unidentified judge could be regarded as a symbol of that court. The court further observed that the applicant, as a citizen, had a constitutional right to criticise the State authorities. However, the impugned letter had largely exceeded the limits of acceptable criticism and was directly aimed at lowering the court in the public esteem. The court further observed that the sentence was commensurate with the applicant's degree of guilt and with the seriousness of the offence. The assessment of the latter had been made having regard to the nature and importance of the interests protected by the criminal law provision applied in the case, i.e. by Article 237 of the Criminal Code. 15. The applicant and his officially assigned lawyer lodged appeals against this judgment. 16. On 19 June 1996 the Katowice Court of Appeal, following a request from all of the judges of the Katowice Regional Court to be allowed to step down, considered that, in view of fact that the offence had been directed against the judges of that court, it was in the interest of the good administration of justice and the impartiality of the court that the appeal be transferred to the Bielsko-Biała Regional Court. 17. On 10 September 1996 the Bielsko-Biała Regional Court upheld the contested judgment, having examined both the appeal lodged by the applicant himself and that of his lawyer. The court first noted that the first-instance court had accurately established the facts of the case. The court went on to state that it shared the conclusions of the first-instance court, namely that the content and form of the letter called for the conclusion that the applicant had acted with the firm intention of insulting the Regional Court as a State authority. The legal assessment of the facts of the case was correct, and the sentence imposed corresponded to the degree of the applicant's guilt. The applicant had a long criminal record, even though he had been assessed positively by the penitentiary services, and could be held criminally responsible. The applicant's lawyer had argued that the applicant had intended to insult a specific person, not an institution. However, in the light of the court's other findings, this analysis was rejected. 18. The applicant's lawyer lodged a cassation appeal with the Supreme Court. 19. On 2 June 1997 the Supreme Court dismissed the appeal and confirmed the contested judgment. The court referred to the grounds of appeal in which it had been argued that the conviction had been in flagrant breach of Article 237 of the Criminal Code in that the applicant's acts, in the light of his submissions as to his motives, did not amount to a punishable criminal offence. 20. The Supreme Court first noted that the grounds of the applicant's cassation appeal had been laconic and limited in their reasoning. Moreover, it clearly transpired therefrom that in fact the applicant's lawyer contested the assessment of evidence and the factual findings made by the lower courts, whereas the purpose of the cassation appeal was only to bring procedural complaints to the attention of the Supreme Court. This in itself constituted a sufficient basis for dismissing the appeal as not being in compliance with the requirements laid down by the applicable procedural provisions. 21. However, the court emphasised, it was worth noting that the Regional Court in its judgment had examined all complaints submitted in the appeal against the first-instance judgment, including those concerning the assessment of evidence and the factual findings of the first-instance court. No new arguments had been submitted to the Supreme Court to show that there had been any procedural shortcomings in the proceedings. Certainly the argument that the applicant's acts could not be regarded as a criminal offence could not be regarded as such a procedural complaint. 22. The Supreme Court went on to state that the applicant's abusive letter, referred to and quoted by the Regional Court, had clearly exceeded the limits of acceptable criticism. Even if it were acknowledged that in the second part of the letter the applicant had focused on one judge, it had to be recognised that at the beginning he had attacked all the judges of the Regional Court. The appellate court correctly had regard thereto. It had also indicated why it considered that the applicant's attitude could be qualified as an offence under Article 237 of the Criminal Code 1969. The Supreme Court therefore dismissed the cassation appeal as unfounded. 23. Article 237 of the Criminal Code 1969, applicable at the relevant time, read as follows: “Anyone who insults a State authority at the place where it carries out its duties or in public, is liable to up to two years' imprisonment, to a restriction of personal liberty or a fine.”