MURA v. POLAND
Inadmissible
András Sajó;George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney
1. The applicant, Mr Tadeusz Mura, is a Polish national, who was born in 1957 and lives in Rybnik. He was represented before the Court by Ms A. Krasuska-Terrillon, a lawyer practising in Katowice. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant and his wife run a company which produces and sells construction materials. On 14 March 2005 the applicant’s wife was arrested and remanded in custody on charges of fraud and association with an organised crime group. The applicant and their children protested against the detention by organising demonstrations outside the prosecutor’s office and the prison, contacting the press and writing letters to the authorities. Following the arrest of his wife, the applicant’s family and financial situation deteriorated; their adolescent son underwent psychiatric treatment after a suicide attempt. The applicant’s wife was released on bail on 13 June 2005. In 2009 she was indicted and, according to information received by the Court in 2013 the criminal proceedings against her are still pending. 5. During his wife’s detention, the applicant wrote voluminous letters to her on a daily basis. In them he related the events of recent days in detail and urged his wife to be brave and withstand her situation. The letters contained assurances of his love for her and his trust in God, to whom he had been praying every day. The letters were also full of profanities and abuse directed against the authorities and, most particularly, against the prosecutor, R.P., whom he considered responsible for his wife’s incarceration. Some included passages addressed directly to R.P. or showed that the applicant had been aware that the letters would be read by the prosecutor. In his letters the applicant admitted that he felt angry and full of hatred towards the prosecutor. On few occasions he apologised to his wife for it. It also appears that in her letters to him his wife complained about such behaviour. 6. The applicant often took the letters, addressed to his wife at the Lubliniec Prison, directly to the Registry of the Katowice Appellate Prosecutor in order to speed up their delivery. He must have known that all the letters addressed to his wife were censored by the prosecutor’s office. On at least one occasion he apologised for the fact that a passage of his letter to his wife had not been addressed to her. 7. For instance, in the applicant’s letter to his wife of 30 April 2005 he alleged that the prosecutor made copies of their letters in order to masturbate when aroused by the private passages that they contained. He also stated: “I guess his father must have had syphilis to have made such a product (forgive me)”. Another passage from the letter read: “I love you and I miss you. And with every minute my hatred towards this son of a bitch is growing. I curse him every day, I made myself a doll [resembling him] and I put nails in it every day ... I see the harm being caused to our children and I curse him every day and I hope with all my strength that my cursing will have an effect.” In his letter of 12 May 2005 the applicant referred to R.P. as a prat (dupek), an idiot (debil) and a bandit. He stated: “Our victory will be great. This prat knows that his time is over. The idiot thought that he could lock up innocent people and secure his promotion on this account. But this prat is simply stupid.” In a letter of 20 May 2005 the applicant spoke of their son’s health problems, which had led to his hospitalisation in Kraków. He then stated: “I know you were brave during the [identification parade at the police station] and according to the witnesses that fool (palant) P. was stoned. There was no contact with him. He was clearly stoned. Even the police officers confirmed it. I think that prat is almost finished. I have talked about this case with journalists from the Polish Television and they are going to go after him (the son of a bitch) ... I hope he ends up in prison ... and his friends from the mafia (key witnesses) will be wiping his arse. And if human justice fails to reach him, he cannot escape God’s.” 8. On an unspecified date the Katowice Regional Prosecutor indicted the applicant under Article 226 of the Criminal Code, accusing him of insult of a public official, the Appellate Prosecutor Mr R.P. The latter participated in the proceedings and asked the court to proceed with the case also if the court considered that the offence was subject to private prosecution. 9. On 15 June 2007 the Katowice District Court convicted the applicant of insult (zniewaga) in breach of Article 216, rather than Article 226, of the Criminal Code, considering that the offence had not been committed during or in connection with the carrying out of professional duties by a public official. The applicant was fined 500 Polish zlotys (PLN), calculated as 50 daily rates, each equivalent to PLN 10. He was further ordered to pay the State Treasury PLN 900 for the costs of the proceedings. The court considered that, between April and May 2005, in his numerous letters to his wife, the applicant had used vulgar and insulting language about Mr R.P. In particular, the applicant had stated that the prosecutor had an IQ of below ten, had ridiculed the Polish judicial system and had a mental disorder. He also called him Satan, bastard, bandit, and stupid. The court noted that some of the insults were so vulgar that they should not be quoted in the reasoning of the judgment. The applicant had also stated that the prosecutor had cooperated with the mafia, had accepted money from criminals and had been protecting them. In one of the letters he alleged that the prosecutor had been under the influence of drugs at work. The court considered that the applicant’s statements contained no opinion or actual criticism of the prosecutor. The applicant’s intention was merely to debase the victim and insult him. His statements had not been provoked by any actions of the prosecutor. The court concluded that although the letters had never been published, it had been the applicant’s intention for the insults to reach Mr R.P. The applicant knew that all the letters addressed to his wife were subject to censorship, and thus would be read by Mr R.P. He took the letters directly to the prosecutor’s office and requested that they be censored as a priority. Moreover, in several letters the applicant addressed his insults directly to Mr R.P., stating for example “P., you bandit”. He would also apologise to his wife that parts of his letters were not in fact addressed to her. 10. The applicant and the prosecutor each lodged an appeal against the judgment. 11. On 19 February 2008 the Katowice Regional Court dismissed both appeals. The court upheld the findings and conclusions of the firstinstance court. The appellate court examined the case from the standpoint of Article 10 of the Convention and considered that the applicant had overstepped the limits of permissible criticism. 12. The applicant submitted that he had not been able to pay the fine owing to his difficult financial situation and that it had been commuted to imprisonment. The fine was in the end paid by the applicant’s daughter. 13. Article 216 of the Criminal Code, in so far as relevant, provides as follows: "1. Anyone who insults another person in his or her presence, or publicly in his or her absence, or with the intention that the insult will reach such a person, is liable to a fine or the restriction of liberty. 5. Prosecution is subject to the private procedure." 14. Article 226 § 1 of the Criminal Code, prohibiting insult of a public official, reads as follows: "Anyone who insults a public official, or a person assisting him or her, in the performance of his or her official duties or in connection with such duties is liable to a fine, the restriction of liberty or imprisonment of up to one year."