CASE OF KOŚĆ v. POLAND
Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)
Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
5. The applicant was born in 1942 and lives in Tomaszów Mazowiecki. 6. On 29 September 2010 at a village meeting in Jadwigów, fifteen residents voted in favour of holding the previous local mayor (sołtys) Z.M. to account for his management of public funds. They appointed the applicant to be in charge of further action in that regard. 7. On 7 October 2010 the applicant sent a document to the mayor of the Tomaszów Mazowiecki District (Starosta Powiatowy - “the district mayor”) entitled “Petition” (Wniosek - “the document”), which was signed by the applicant and three other residents of Jadwigów who confirmed their agreement with the petition. 8. The text read as follows: “On 27 September in the village of Jadwigów a legally valid village meeting took place, during which residents of the village decided by a large majority to appoint me to be in charge of investigating the concerns detailed below. It took me over one week to figure out a solution to this problem. I came to the realisation that the best way to approach [it] would be to file a request with the Mayor of the District in order to clarify the issue, even though I had already informed the current local mayor and Mayor of the Tomaszów Mazowiecki Commune (wójt) of the allegations. The facts and circumstances are as follows. The local mayor of Jadwigów, Z.M., whose term in office was concluded on the election of the current local mayor, Ms J. G., received grants for the benefit of the village from the Commune and accepted payments from the lease of the village shop. During his term in office, he never asked the residents or the local council for what purpose the money should be used. He managed the funds arbitrarily and, I think, used them for building works, namely the renovation of the community hall (świetlica – dom ludowy). However, he never shared the accounts with the residents of the village; in particular how much money there was and what it was spent on. There are many rumours going around the village, which out of respect for your office I will not be repeating. I will only add one more thing, namely that the community hall was not accessible to the residents and their children for [ten] years. I consider, therefore, that the petition and the request are both valid. [signatures of three residents] I, other signatories of this request for a petition and all the residents believe that, thanks to the Mayor of the District, they will receive a full and plausible explanation of the facts described above.” 9. The document was sent to the district mayor before local elections which took place on 21 November 2010 (wybory samorządowe). Both the applicant and Z.M. were candidates in those elections but neither of them became a local councillor. 10. On an unspecified date the Tomaszów Mazowiecki Commune Council Audit Committee analysed the document. It decided, as summarised by the domestic court, “that there were no grounds to allege that somebody had mismanaged the funds.” 11. On 14 December 2010 Z.M. lodged a civil action with the Piotrków Trybunalski Regional Court (“the Regional Court”) against the applicant for infringement of his personal rights. He requested that the court order the applicant to publish an apology in the local weekly newspaper and pay 4,000 Polish zlotys (PLN) to the Voluntary Fire Brigade (Ochotnicza Straż Pożarna – “the VFB”). 12. On 31 May 2011 the Regional Court decided that the applicant had violated Z.M.’s personal rights and ordered that he send a statement by post to the district mayor, the Tomaszów Mazowiecki Commune Office (Urząd Gminy w Tomaszowie Mazowieckim) and Z.M. stating: “I, Jarsosław Kość, apologise to [Z.M.] for violating his reputation by forwarding to the Mayor of Tomaszów District a document on [7 October] 2010 entitled “Petition”, which contained false allegations that the local mayor, Z.M., arbitrarily managed funds for the benefit of the village; that he took, as local mayor, the payments under the lease of the village shop; and a statement that the community hall had not been available to the residents for the past [ten] years.” 13. In the course of the proceedings the court examined a statement made at the village meeting on 10 February 2011 at which six residents of Jadwigów confirmed that they had all been instigators of the enquiry in October 2010 which had resulted in the applicant’s document to the district mayor. The residents explained that their intention had been to clarify the questions raised, given Z.M.’s involvement in matters such as the community hall refurbishment and running of the VFB. 14. The court considered that the applicant’s letter from 7 October 2010 contained false information, which supported the finding of a violation of Z.M’s personal rights. This included statements claiming that Z.M., acting in his capacity as local mayor, had taken rent from the lease of the village shop. The domestic court established that even if Z.M. had taken any payments, he had done so as chairman of the VFB. The court also found that the village shop was located in the building owned by the VFB, which also hosted the community hall, and that the rent under the lease was paid to the VFB through an intermediary, its treasurer. Z.M., as chairman of the VFB, merely set the amount of rent to be paid each year. The court also found that during Z.M.’s time in office, the community hall had been open for public use; in that respect it dismissed the testimony of some witnesses stating the opposite. At the time, there were also building works being carried out in the same building. It was established that nobody, and this included Z.M., had received any money in cash for the work. It was also established that the village had not received any funds directly from the commune. The commune had paid the costs of the renovations of the VFB’s building. 15. The court considered that since the applicant had failed to prove the veracity of his accusations and, given their adverse effect, this amounted to a violation of Z.M.’s personal rights. 16. On 12 July 2011 the applicant lodged an appeal with the Łódź Court of Appeal, alleging that the court had not considered that the relevant text had been communicated in the public interest. 17. On 4 November 2011 the Łódź Court of Appeal dismissed the applicant’s appeal, emphasising that the publishing of false information would result in a violation of a person’s personal rights. It rejected the applicant’s claim that the petition was merely an expression of doubt concerning the lawfulness of Z.M.’s actions when he was local mayor. The court considered that the timing of the applicant’s actions proved that they had not served the public interest and had been motivated by his desire to win the elections. He had raised his concerns almost three years after the end of Z.M.’s mandate during the electoral campaign which Z.M. had lost. The applicant received a copy of the judgment on 15 December 2011. 18. On 1 March 2012 the Regional Court issued a writ of enforcement in respect of its final judgment of 31 May 2011. The applicant instituted proceedings to have the enforcement order quashed on the grounds that he had a case pending before the European Court of Human Rights. On 21 September 2012 the Piotrków Trybunalski Regional Court dismissed his claim. On 18 October 2012 the applicant lodged an appeal against the latter judgment. On 7 November 2013 it was dismissed by the Piotrków Trybunalski Court of Appeal. 19. On 21 January 2011 the applicant was elected mayor of Jadwigów.