CASE OF KUBASZEWSKI v. POLAND
Violation of Art. 10;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
6. The applicant was born in 1944 and lives in Kleczew. 7. At the material time the applicant was a member of the Kleczew Municipal Council. 8. On 22 March 2000, in the course of a session of the Kleczew Municipal Council, the applicant gave a speech in his capacity as a member of the Council. The purpose of the debate was to take a vote on whether the Municipal Board (Zarząd Gminy) had made appropriate use of the 1999 municipal budget. In this context the applicant made the following statements: “What the members of the Municipal Council received is all lumped together; it is unclear what costs how much ... According to the Municipal Council’s resolution of 22 June 1999, spending on investments was to be increased. The money was to be spent on modernising and renovating the purification plant and building access to it.” 9. The applicant had doubts as to whether that investment had in fact been made. He also referred to another investment project, the sanitary sewage system, saying: “It is unclear how many metres have been built. It is important, because this is public money. Everyone knows how to spend his own money, but where public money is concerned, it is being spent as much as possible.” 10. The applicant further compared the Kleczew municipality with the neighbouring Wilczyn municipality, which had had a small budget but had managed to construct an interceptor sewer at much less expense, which was an example of rational public spending (gospodarność), and said: “And this is shocking; with contractors earning 660,880 zlotys, is this not money laundering in our municipality?” 11. The applicant asked the members of the Board many other questions relating to the 1999 budget. 12. During a break in the session the applicant gave an interview to a journalist from the local newspaper, the Local Express (Ekspres Powiatowy). 13. On 24 March 2000 the “Local Express” published an article entitled “Where is the million?” with the subtitle “Kleczew municipal councillor accuses Municipal Board of money laundering”. The article read that “according to the councillor’s statement made at the session of the Municipal Council, one million zlotys from the municipal budget allocated for the autonomous activity of the municipality has disappeared”. The article went on to cite the following statement made by the applicant: “... I made these calculations because there was something not right here, a million is missing and I am sure of that. Maybe the Municipal Board is money laundering? I will inform the institutions which deal with controlling the municipalities of the matter” 14. On 10 May 2000 seven members of the Kleczew Municipal Board lodged a claim with the Konin Regional Court (Sąd Okręgowy) for the protection of their personal rights. Among other things, they sought an order requiring the applicant to publish an official apology in the local newspaper. 15. On 17 April 2002 the Poznań Regional Court gave judgment finding that the statements made by the applicant at the Council meeting on 22 March 2000 and given to the press had been untrue and had infringed the plaintiffs’ personal rights (by tarnishing their good name and reputation). The court further found that the plaintiffs were public officials and their good name, reputation and reliability were of great importance. It ordered the applicant to publish an official apology in the Local Express and to make a statement of apology at the next Municipal Council session for his statements made at the 22 March 2000 session and subsequently reproduced in the Local Express of 24 March 2000. 16. On an unspecified date the applicant appealed against that judgment. 17. On 28 November 2002 the Poznań Court of Appeal (Sąd Apelacyjny) partly amended the first-instance judgment. It found that most of the applicant’s statements made at the session on 22 March 2000 had fallen within the limits of permissible criticism and that the applicant, as a representative of the local community acting in their interest, had had the right to ask critical questions relating to the way public money was spent by the Municipal Board. The court found, however, that the applicant’s allusion to money laundering made during the session of the Municipal Council had gone beyond the limits of permissible criticism and that by that statement, referring to a type of crime traditionally associated with organised criminal groups, the applicant had infringed the plaintiffs’ personal rights. The court ordered the applicant to publish an official apology for his allusion to money laundering in the Local Express and to make the same apology at the next session of the Municipal Council. 18. On an unspecified date the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy). 19. On 1 August 2003 the Supreme Court refused to entertain that appeal. 20. The applicant appealed against that decision but, on 17 October 2003, the Supreme Court dismissed his appeal as inadmissible in law. 21. On 27 July 2007 the Konin District Prosecutor instituted criminal proceedings against the applicant for making false accusations about another person before a prosecuting body. Notification of the possible commitment of a crime was lodged by the Mayor of Kleczew. 22. The criminal proceedings against the applicant are pending. 23. Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” (dobra osobiste). This provision states: “The personal rights of an individual, such as health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected under civil law regardless of the protection laid down in other legal provisions.” 24. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person faced with the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages. 25. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant a suitable sum as pecuniary compensation for non-pecuniary damage (krzywda) suffered by anyone whose personal rights have been infringed. Alternatively, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement, the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest. ...”