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ECtHR: conviction for defamation violates freedom of expression

The European Court of Human Rights held last week that the conviction of Izabela Lewandowska-Malec for a letter, in which she had expressed critical opinions about mayor of Świątniki Górne, had violated the applicant’s right to freedom of expression (Application no. 39660/07).

Izabela Lewandowska-Malec, an assistant professor at the Jagiellonian University in Kraków, served as a local councillor in Świątniki Górne, a town in southern Poland. In her public role she keenly observed the work of the mayor. On numerous occasions Ms Lewandowska-Malec informed the prosecution service of the irregularities she had noticed in the work of the Municipality Office. Nevertheless, all investigations of those allegations were eventually discontinued. Finally, in 2004 the applicant wrote a letter to the Polish Press Agency, in which she stated, among other things, that: “[…] prompts me to say that the mayor is putting extralegal pressure on that authority [prosecution service]”.

Following the publication of the letter by the PPA, the mayor lodged a private bill of indictment against the applicant. In the course of the trial the courts requested Ms Lewandowska-Malec to prove the truthfulness of her allegation. The courts failed to consider her submission that the impugned passage from her letter was a value judgment and not a statement of fact and as such it cannot be judged in terms of truth or falseness. In 2006 the District Court in Wieliczka found the applicant guilty of defaming the mayor and ordered her to pay a fine of 7,500 Polish zlotys. It also ordered the applicant to publish the judgment on the website of the Polish Press Agency. The applicant’s appeal was dismissed by the Circuit Court which found the appeal to be manifestly ill-founded.

Ms Lewandowska-Malec unsuccessfully requested the Prosecutor General and the Human Rights Defender to file a cassation appeal in her case. “Ms Lewandowska-Malec has lodged an appeal with the European Court of Human Rights arguing that her conviction was in breach of her right to freedom of expression enshrined in Article 20 of the European Convention on Human Rights and that the punishment imposed on her was disproportionate”, says Dominika Bychawska-Siniarska, a lawyer of the HFHR representing the applicant.

The ECtHR found that there had been a violation of Article 10 of the Convention. In deciding the case, the Court underlined that the domestic courts erred in limiting their analysis to a single, isolated passage from the applicant’s letter without taking into account the documentation submitted by the applicant.

“According to the ECtHR, this statement was made by the applicant in the context of a public debate and by using the impugned assertion she had referred to the previous official stance of the Municipal Council”, explains Ms Bychawska-Siniarska. She continues: “Both the applicant and the mayor acted in their roles of local politicians. They should have ‘thicker skin’ and accept harsher criticism concerning their work done as part of public positions”.

The ECtHR concluded that the criminal sanction imposed in the case had been disproportionate. Besides the high fine and the order to publish the judgment on the PPA’s website the applicant had to face the inconvenience of the criminal trial.

Concluding, the Court held that the domestic courts overstepped the narrow margin of appreciation afforded to them to restrict political speech, violating Article 10 of the Convention.

This is the third judgment in which Poland has been found guilty of a violation of freedom of expression in connection with the conviction for defamation.

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