FOURTH SECTION
DECISION
Application no. 19219/07
Krzysztof SYLKA
against Poland
The European Court of Human Rights (Fourth Section), sitting on
3 June 2014 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 3 May 2007,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Krzysztof Sylka, is a Polish national, who was born
in 1972 and lives in Bytów. He was represented before the Court by
Mr J. Smallhoover, a lawyer practising in Paris.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be
summarised as follows.
3. On 26 September 2005, when driving a car, the applicant was stopped
by a police patrol. The police officers explained to the applicant that they
had noticed that his seatbelt had not been fastened. A discussion ensued, in
the course of which the applicant alleged that the police officers could not
have actually seen whether he had his seatbelt fastened. He told the police
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SYLKA v. POLAND DECISION
officers that they should pursue other, real offenders. The applicant also
requested that the police officers present their badges to him. A further
discussion ensued as he wanted the badges to be shown for a longer period
of time than the police officers considered necessary. The applicant referred
to some of his previous, negative experience with the local police. In the
course of the discussion the applicant also said to the police officers that “he
would not descend to their level” (nie będzie się zniżał do ich poziomu).
4. Eventually, the police officers asked the applicant whether he
accepted the fine of 100 Polish zlotys (PLN; equivalent of EUR 25) for
a breach of the Code of Administrative Offences. He refused to accept it.
The police officers informed him that the case concerning an administrative
offence of driving without a seatbelt fastened would thus be referred to
a court and left. The exchange between the applicant and the police officers
was witnessed by a passenger in his car.
5. On 24 October 2005 the Bytów District Court, in summary
proceedings, convicted the applicant of the administrative offence
(wykroczenie) of driving without his seatbelt fastened and sentenced him to
a fine of PLN 50 (EUR 12). The applicant did not appeal.
6. On an unspecified date the Bytów District Prosecutor (Prokurator
Rejonowy) instituted criminal proceedings against the applicant. The
applicant was charged with having insulted the police officers in the course
of and in conjunction with them carrying out their duties under
Article 226 § 1 of the Criminal Code.
7. On 16 December 2005 a bill of indictment against the applicant was
lodged with the Bytów District Court.
8. The trial court held hearings on 1 and 28 March 2006. The court heard
the applicant and the witnesses, including the police officers concerned and
the passenger of the applicant’s car. In the course of the judicial proceedings
the applicant claimed that he had only uttered part of the impugned
statement (“I am not going to descend”) whereas it had been the police
officers who had supplemented it with “to our level”. He also argued that
the statement had been made during a discussion with the police officers
which had been prompted by their inappropriate behaviour when presenting
their badges upon his request. He further referred to his previous experience
with the local police alleging that the intervention had been carried out in
revenge for his previous legal actions.
9. On 28 March 2006 the Bytów District Court found the applicant
guilty of verbally insulting the two police officers in the course of and in
conjunction with them carrying out their duties under Article 226 § 1 of the
Criminal Code and sentenced him to a fine of PLN 900 (EUR 225).
Following a civil claim filed by the Bytów District Prosecutor on behalf of
the insulted police officers, the court also ordered the applicant to pay
PLN 2,500 (EUR 625) to a local fostering service. He was also ordered to
pay PLN 290 (EUR 72) for the costs of the proceedings.
SYLKA v. POLAND DECISION
3
10. The District Court established that the applicant had uttered the
statement “I am not going to descend to your level” towards the police
officers in the course of and in conjunction with them carrying out their
duties. In the light of the applicant’s conviction for having committed an
administrative offence of driving without his seatbelts fastened which he did
not appeal against, the court found that the police intervention had been
justified. The court further found, on the basis of the evidence given by the
two police officers, that the applicant had in fact insulted them by uttering
the impugned statement. The District Court considered that the statement
was objectively insulting as it suggested that the police officers were of
a lower intellectual level than the applicant and thus it constituted an
expression of contempt for them as people and as civil servants carrying out
their duties in a public place.
The court further considered that the applicant’s claims as to the content
of the statement and the allegedly inappropriate conduct of the police
officers were unfounded in the light of the consistent evidence given by the
two officers. The domestic court also considered that the applicant’s
submissions as to his previous experience with the local police had been
irrelevant to the case.
11. The applicant lodged an appeal. He argued that the statement “I am
not going to descend” or even “I am not going to descend to your level”
could not be considered an insult within the meaning of Article 226 § 1 of
the Criminal Code. The applicant also questioned the findings of fact of the
first-instance court alleging that he had been provoked by an inappropriate
behaviour of the police officers.
12. On 7 November 2006 the Słupsk Regional Court altered the
impugned judgment and quashed the applicant’s conviction. The Regional
Court conditionally discontinued the criminal proceedings against the
applicant for a probationary period of one year. It also ordered the applicant
to pay PLN 500 (EUR 125) to a local fostering service and PLN 100
(EUR 25) for the costs of proceedings.
13. The Regional Court upheld the findings of fact of the first-instance
court. It pointed out that it was the applicant who had provoked the
unnecessary discussion with the police officers. The police intervention had
been justified as the applicant had admitted that he had not had his seatbelt
on. Consequently, the Regional Court considered that the applicant’s
statement constituted an insulting remark rather than a legitimate criticism
of the conduct of a civil servant. In addition, the applicant had not been
hindered in any way in expressing criticism of the police officers’ actions
had he wished to do so by other means. As to the severity of the sentence,
the court underlined that the words used by the applicant had only been
moderately insulting and found that conditional discontinuation of the
criminal proceedings constituted an adequate and proportional reaction of
the State in these circumstances.
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SYLKA v. POLAND DECISION
B. Relevant domestic law and practice
1. Relevant provisions of the Criminal Code
14. At the relevant time Article 226 § 1 of the Criminal Code provided
as follows:
“Anyone who insults a public official or a person called upon to assist him, in the
course of or in connection with the carrying out of official duties shall be liable to
a fine, a restriction of liberty or imprisonment not exceeding one year.”
15. Under Article 66 §§ 1 and 2 of the Criminal Code, criminal
proceedings may be conditionally discontinued if the seriousness of the
offence, punishable by a prison sentence of less than three years, and the
guilt of the perpetrator is not significant, the circumstances in which it was
committed have been established beyond reasonable doubt, the perpetrator
does not have a criminal record and his personal circumstances and qualities
suggest that he will abide by the law during the probation period.
16. Under Article 67 § 1 of the Code, the court can fix a probation
period of between one and two years, running from the date on which the
judgment became final. Pursuant to Article 67 §§ 2 and 3 of the Code, when
deciding to discontinue the proceedings for the period of probation, the
court can impose certain obligations on the accused, in particular, to pay
appropriate compensation to the victim of the offence or to pay a certain
sum to a charity.
17. Under Article 68 of the Code the conditionally discontinued
proceedings may be resumed if during the probation period the offender
disregards the obligations imposed by the court, acts in flagrant breach of
public order, or, in particular, commits a new criminal offence. The
proceedings cannot be resumed later than six months after the expiry of the
probation period (Article 68 § 4).
2. Relevant provisions of the National Criminal Register Act
18. In accordance with section 1 § 1 (2) of the Act the information about
persons against whom the criminal proceedings have been conditionally
discontinued is entered into the National Criminal Register. Section 14 § 1a
of the Act, which entered into force on 2 November 2007, reads, in so far as
relevant:
“The data of the persons who are referred to in section 1 § 1 (2) of the Act shall be
removed from the Register after the expiry of the time-limit specified in Article 68 § 4
of the Criminal Code, ...”.
3. The Constitutional Court’s judgment of 11 October
(case no. P 3/06) on Article 226 § 1 of the Criminal Code
2006
19. On 11 October 2006 the Constitutional Court ruled on a legal
question referred to it by the Lublin District Court challenging
SYLKA v. POLAND DECISION
5
constitutionality of Article 226 § 1 of the Criminal Code. The Constitutional
Court held that this provision was partly incompatible with Article 54 § 1
(freedom of expression) read in conjunction with Article 31 § 3 (principle of
proportionality) of the Constitution in so far as it criminalised insult of
a public official committed in private or in public but not in the course of
the carrying out of official duties. It extensively referred to the
jurisprudence of the Strasbourg Court.
20. Following the judgment of the Constitutional Court, Article 226 § 1
was amended on 25 July 2008. The amended provision reads as follows:
“Anyone who insults a public official or a person called upon to assist him, in the
course of and in connection with the carrying out of official duties shall be liable to
a fine, a restriction of liberty or imprisonment not exceeding one year.”
COMPLAINTS
21. The applicant complained under Article 10 of the Convention about
a violation of his right to freedom of expression. He argued that the
domestic courts had applied the provisions of domestic law in an
unforeseeable manner and that the interference had thus not been
“prescribed by law”. He further alleged that the judgments in question had
not been proportionate to the legitimate aim. The aim of his remarks was not
to insult the police officers but to express criticism of their official actions.
22. He further complained under Article 6 § 1 of the Convention about
the outcome of the proceedings in question, in particular the allegedly
erroneous assessment of evidence by the courts. The applicant also invoked
Article 6 § 2 alleging that not all of the constitutive elements of the offence
had been proved in the domestic proceedings.
THE LAW
A. Complaint under Article 10 of the Convention
23. The applicant complained under Article 10 of the Convention that
his right to freedom of expression had been infringed. He alleged that the
Criminal Code had been applied in an unforeseeable manner and that the
measures imposed on him had been disproportionate.
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SYLKA v. POLAND DECISION
24. The Court considers it appropriate to first examine whether the
complaint under Article 10 is admissible in the light of Article 35 § 3 (b) of
the Convention. This provision added a new admissibility requirement to
Article 35 § 3 of the Convention with the entry into force of Protocol No. 14
on 1 June 2010. It reads as follows:
“3. The Court shall declare inadmissible any individual application submitted under
Article 34 if it considers that:
(b) the applicant has not suffered a significant disadvantage, unless respect for
human rights as defined in the Convention and the Protocols thereto requires an
examination of the application on the merits and provided that no case may be
rejected on this ground which has not been duly considered by a domestic tribunal.”
25. In accordance with Article 20 of the Protocol, the new provision
applies from the date of its entry into force to all applications pending
before the Court, except those declared admissible. The Court may raise the
new admissibility criterion of its own motion (see Adrian Mihai Ionescu
v. Romania (dec.), no. 36659/04, § 30, 1 June 2010).
26. The purpose of the new admissibility criterion is to enable more
rapid disposal of unmeritorious cases and thus to allow the Court to
concentrate on its central mission of providing legal protection of human
rights at the European level (see the Explanatory Report to Protocol No. 14,
CETS No. 194, §§ 39 and 77-79). The High Contracting Parties clearly
wished the Court to devote more time to cases which warrant consideration
on the merits, whether seen from the perspective of the legal interest of the
individual applicant or considered from the broader perspective of the law
of the Convention and the European public order to which it contributes
(ibid., § 77).
27. The main element contained in the new admissibility criterion is the
question of whether the applicant has suffered a “significant disadvantage”.
Inspired by the general principle of de minimis non curat praetor, this
admissibility criterion hinges on the idea that a violation of a right, however
real from a purely legal point of view, should attain a minimum level of
severity to warrant consideration by an international court (Ladygin
v. Russia (dec.), no. 35365/05, 30 August 2011). Violations which are
purely technical and insignificant outside a formalistic framework do not
merit European supervision (see Shefer v. Russia (dec.), no. 45175/04,
13 March 2012, § 18). The assessment of this minimum level is relative and
depends on all the circumstances of the case (see Gagliano Giorgi v. Italy,
no. 23563/07, § 55, ECHR 2012 (extracts)). The severity of a violation
should be assessed by taking into account both the applicant’s subjective
perceptions and what is objectively at stake in a particular case (see Korolev
v. Russia (dec.), no. 25551/05, ECHR 2010; Finger v. Bulgaria,
no. 37346/05, § 70, 10 May 2011; and Eon v. France, no. 26118/10, § 34,
14 March 2013). However, the applicant’s subjective perception cannot
alone suffice to conclude that he/she suffered a significant disadvantage.
SYLKA v. POLAND DECISION
7
The subjective perception must be justified on objective grounds (Ladygin,
cited above). A violation of the Convention may concern important
questions of principle and thus cause a significant disadvantage regardless
of pecuniary interest (Korolev, cited above).
28. The Court notes that the Convention does not limit the application of
the new admissibility criterion to any particular right protected under the
Convention. At the same time, the Court is mindful of the utmost
importance of freedom of expression as one of the essential foundations of
a democratic society and one of the basic conditions for its progress and for
each individual’s self-fulfillment (see Handyside v. the United Kingdom,
7 December 1976, § 49, Series A no. 24). This approach has been
consistently endorsed in the Court’s jurisprudence (see, as recent examples,
Axel Springer AG v. Germany [GC], no. 39954/08, § 78, 7 February 2012;
Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48,
ECHR 2012 (extracts)...); and Animal Defenders International v. the United
Kingdom [GC], no. 48876/08, § 100, ECHR 2013 (extracts)). Therefore, in
cases concerning freedom of expression the application of the new
admissibility criterion should take due account of the importance of this
freedom and be subject to careful scrutiny by the Court. This scrutiny
should encompass, among others, such elements as contribution to a debate
of general interest and whether a case involves the press or other news
media.
29. In the present case, the Regional Court, applying Articles 66 § 1
and 67 § 1 of the Criminal Code, conditionally discontinued the criminal
proceedings against the applicant for insulting police officers and fixed
a probationary period for one year. It further ordered the applicant to pay
PLN 500 (EUR 125) to a local fostering service and PLN 100 (EUR 25) in
respect of costs.
30. The seriousness of an alleged violation should be assessed by taking
into account the applicant’s subjective perceptions and what is objectively at
stake in a particular case. The applicant’s subjective perception is relevant;
the Court is ready to accept that individual perceptions encompass not only
the monetary aspect of a violation, but also the general interest of the
applicant in pursuing the case (see, Havelka v. Czech Republic (dec.),
no. 7332/10, 20 September 2011). However, subjective perception does not
suffice for the Court to conclude that the applicant suffered a significant
disadvantage. It must also have regard to objective grounds. With regard to
the first element, the Court accepts that the issue at stake in this case was
clearly of subjective importance to the applicant.
31. With regard to the objective aspect the Court notes that the decision
to conditionally discontinue the criminal proceedings implied that the
applicant committed the offence at issue but it did not amount to
a conviction. Such decision was taken as the Regional Court was satisfied
that the applicant’s guilt and the social danger of his act had been
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SYLKA v. POLAND DECISION
insignificant (see paragraph 15 above). In this respect it took into account
the mitigating circumstances, in particular the fact the applicant’s remark
was only moderately insulting (see paragraph 13 above).
32. Furthermore, the information about the conditional discontinuation
of the criminal proceedings was entered into the National Criminal Register
for a period equal to the probationary period plus six months (i.e. in the
applicant’s case 18 months starting from the date on which the Regional
Court’s judgment became final). After the expiry of this period the
information about the conditional discontinuation is removed from the
Register (cf. section 14 § 1a of the National Criminal Register Act which
entered into force on 2 November 2007). In addition, the applicant did not
submit any information to the Court indicating that the conditionally
discontinued proceedings were resumed during the above 18-month period
or that the information on the Register had affected him adversely in any
tangible way.
33. The financial implications of the proceedings could not represent
a particular hardship for the applicant, given the modest amount at stake
(EUR 150 in aggregate) and the fact that that he was an entrepreneur.
34. On account of these elements, the Court cannot discern objective
grounds to hold that the applicant suffered important adverse consequences
as a result of the decision to conditionally discontinue the proceedings (see
Rinck v. France (dec.), no. 18774/09, 19 October 2010; compare and
contrast, Luchaninova v. Ukraine, no. 16347/02, § 49, 9 June 2011 where
the applicant’s conviction for a petty theft was relied on as a basis for her
dismissal from work).
35. The Court would also note that the subject matter of the complaint
does not give rise to an important matter of principle (compare and contrast,
Berladir and Others v. Russia, no. 34202/06, § 34, 10 July 2012 which
concerned the operation of the “notification-and-endorsement procedure”
for public gatherings). The applicant was prosecuted for insulting a public
official. Such an offence is a common feature of many legal systems in the
Council of Europe Member States. Moreover, on its face the present case
goes no further than an unfortunate verbal confrontation with no wider
implications or public interest undertones which might raise real concerns
under Article 10 of the Convention (see paragraph 28 above). The case is to
be distinguished from Eon v. France judgment (no. 26118/10, §§ 34-35,
14 March 2013) where, in rejecting the Government’s objection on the
grounds of lack of significant disadvantage, the Court took into account the
national debate whether the offence of insulting the head of State should
remain a criminal offence and a wider issue of its compatibility with the
Convention. Furthermore, the Regional Court’s decision was consistent
with the Constitutional Court’s judgment of 11 October 2006, case
no. P 3/06 in which the latter court reviewed the constitutionality of
Article 226 § 1 of the Criminal Code. The Constitutional Court held that the
SYLKA v. POLAND DECISION
9
offence of insulting a public official was compatible with the constitutional
provision safeguarding freedom of expression only in so far as it had been
committed in public and in the course of carrying out of their official duties
(see paragraph 19 above). Such was the situation in the applicant’s case.
36. In view of the foregoing, the Court concludes that in the
circumstances of the case the applicant has not suffered a significant
disadvantage as a result of the alleged violation of the Convention.
37. The second element contained in Article 35 § 3 (b) compels the
Court to examine the case in any event if respect for human rights so
requires. This would apply where a case raises questions of a general
character affecting the observance of the Convention, for instance whether
there is a need to clarify the States’ obligation under the Convention or to
induce the respondent State to resolve a structural deficiency. Considering
the present case in this way the Court does not discern any compelling
reason to warrant its examination on the merits. Thus, the Court finds that
respect for human rights does not require an examination of this case.
38. Lastly, Article 35 § 3 (b) does not allow the rejection of
an application under the new admissibility requirement if the case has not
been duly considered by a domestic tribunal. The purpose of that rule,
qualified by the drafters as a “second safeguard clause” (see the Explanatory
report, § 82), is to ensure that every case receives a judicial examination,
either at the national or at the European level, so as to avoid a denial of
justice (see Korolev, cited above; and Finger v. Bulgaria, no. 37346/05,
§ 73, 10 May 2011). The Court notes that the case against the applicant was
examined on the merits by the Bytów District Court and the Słupsk
Regional Court and that the applicant was able to submit his arguments in
adversarial proceedings. Consequently, the third element of the new
admissibility requirement has been satisfied.
39. It follows that the applicant’s complaint under Article 10 must be
declared inadmissible in accordance with Article 35 §§ 3 (b) and 4 of the
Convention.
B. Other complaints made by the applicant
40. The applicant also complained under Article 6 § 1 of the Convention
about the unfavourable outcome of the proceedings against him, in
particular the allegedly erroneous assessment of evidence by the courts. He
further alleged a breach of Article 6 § 2 of the Convention claiming that not
all of the elements of the offence had been proved in the domestic
proceedings against him.
41. The Court reiterates that, according to Article 19 of the Convention,
its duty is to ensure the observance of the engagements undertaken by the
Contracting Parties in the Convention. In particular, it is not its function to
deal with errors of fact or law allegedly committed by a national court
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SYLKA v. POLAND DECISION
unless and insofar as they may have infringed rights and freedoms protected
by the Convention (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28,
ECHR 1999-I). In the light of all the material in its possession, the Court
finds that the applicant’s allegations do not disclose any appearance of
a violation of Article 6 §§ 1 and 2 of the Convention.
42. It follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Fatoş Aracı
Deputy Registrar
Ineta Ziemele
President