Přehled
Rozhodnutí
FIRST SECTION
DECISION
Application no. 45561/17
Agnieszka LECHOWICZ
against Poland
The European Court of Human Rights (First Section), sitting on 8 November 2022 as a Committee composed of:
Lətif Hüseynov, President,
Krzysztof Wojtyczek,
Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 45561/17) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 June 2017 by a Polish national, Ms Agnieszka Lechowicz, who was born in 1976 and lives in Jędrzejów (“the applicant”) who was represented by Mr Reck, a lawyer practising in Katowice;
the decision to give notice of the complaint under Article 10 concerning the applicant’s conviction for libel to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak of the Ministry of Foreign Affairs;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s criminal conviction for libel.
2. The applicant, who is an animal rights activist, was convicted of libel for having signed an open letter, in which she had called an author of amendments to the law on the protection of animals a cheat (the Gdynia District Court’s judgment of 15 July 2016, upheld on appeal by the Gdańsk Regional Court on 19 December 2016).
3. The applicant was sentenced to a fine in the amount of 10,000 Polish zlotys (PLN) (approximately 2,500 euros, (EUR)) conditionally suspended for two years, and to a supplementary payment in favour of the Mondo Cane Foundation in the amount of PLN 5,000 (EUR 1,250). The applicant was also ordered to make a public apology to the person she had defamed. The applicant was charged PLN 2,000 (EUR 500) in court fees, and 420 PLN (105 EUR) in costs for the appellate proceedings.
4. The applicant did not pay the fine, which was consequently commuted to 100 days of imprisonment. She served 88 days of her sentence from 23 August to 21 November 2018.
5. On 28 June 2019 the President of Poland pardoned the applicant, with the effect that she has been released from the remainder of her prison sentence and from the obligation to make payment in favour of the Mondo Cane Foundation. She has also had her conviction expunged.
6. By letter of 20 April 2018 the applicant was informed of the Court’s decision to give notice to the Government of her complaint under Article 10 of the Convention in respect of her conviction for libel. The letter contained the following information:
“The Government have also been requested to indicate ... their position regarding a friendly settlement of this case and to submit any proposals they may wish to make in this regard (Rule 62). The same request would be made of you when you receive their observations.”
7. On 4 October 2018 the applicant’s lawyer was informed that, by letter of 21 September 2018, the Government had expressed interest in reaching a friendly settlement in the applicant’s case and had indicated a specific amount to secure the settlement.
8. On 29 October 2018 the applicant’s lawyer informed the Court that the applicant did not agree to settle the case.
9. On 12 April 2019 the Government submitted that the applicant had not respected the confidentiality of the friendly-settlement negotiations because on 12 October 2018 her representative had disclosed the contents of the Government’s friendly-settlement proposal in his application for a presidential pardon. As a result, the information in question became known not only to the President’s Cabinet (the addressee of the application) but also, to all public authorities processing pardon applications, including the Prosecutor General. In fact, it was the Prosecutor General who informed the Government’s Agent before the Court of the applicant’s request for a presidential pardon. The Government enclosed a copy of the impugned application for pardon, in which the applicant’s lawyer submitted that the case was pending examination before the Court and that the Polish Government “proposed compensation to his client, acknowledging a violation of Article 10 of the Convention”. He also asked in his request that the Prosecutor General ask proprio motu to have the enforcement of the applicant’s prison sentence discontinued. Attached to the pardon request were copies of the Government’s letter of 21 September 2018 and of the Court’s letter of 4 October 2018.
10. By letter of 17 May 2019 the applicant’s lawyer admitted that he had disclosed confidential information regarding the friendly settlement in his application for a presidential pardon.
11. The applicant complained under Article 10 of the Convention that convicting her for defamation breached her right to freedom of expression.
THE COURT’S ASSESSMENT
12. The Government argued that, by disclosing the terms of the friendly‑settlement proposal in the application for presidential pardon, the applicant’s lawyer had breached the confidentiality of the friendly-settlement negotiations, in contravention of Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, which read:
Article 39 of the Convention
“1. At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto.
2. Proceedings conducted under paragraph 1 shall be confidential.”
Rule 62 § 2 of the Rules of Court
(Friendly settlement)
“In accordance with Article 39 § 2 of the Convention, the friendly-settlement negotiations shall be confidential and without prejudice to the parties’ arguments in the contentious proceedings. No written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings.”
13. The applicant’s lawyer disagreed that his conduct had breached the obligation of confidentiality, because the information in question had not been disclosed in the framework of any contentious proceedings. In his view, the request for a presidential pardon did not have any connection with his client’s application before the Court. Moreover, he acted out of his professional obligation to formulate a convincing application for pardon and to obtain the applicant’s immediate release from prison. The lawyer argued that the disclosure of the Government’s friendly settlement proposal was justified in the circumstances of the case and did not have damaging influence on the proceedings before the Court or on the Government.
14. The general principles regarding the obligation of confidentiality of friendly-settlement negotiations are set out in Plichta v. Poland ([Committee] (dec.), no. 54127/16, §§ 20-22, 22 October 2019, with further references).
15. Turning to the present case the Court firstly observes that the applicant’s representative was a professional lawyer who did not deny being aware of the obligation of confidentiality stemming from Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of the Court. Secondly, he admitted to the disclosure of the confidential information, explaining that that action aimed at making his application for presidential pardon stronger. In view of the above, the Court finds that disclosing the content of the Government’s friendly-settlement proposal in the framework of the procedure for presidential pardon was clearly intentional.
16. The confidential information in question was communicated not only to the direct addressee of the application for pardon, but also to the General Prosecutor from whom the applicant’s representative was trying to ensure his client’s release from prison.
17. The Court has previously found that the rule of confidentiality of friendly settlement negotiations was breached and an abuse of the right of petition occurred where the impugned disclosure was to the media (among many others, Plichta, cited above, §§ 12 and 28), to a government, not party to the proceedings (see, Burlakov v. Ukraine [Committee] (dec.), no. 16142/08, §§ 12 and 21, 24 May 2018), to a Ministry of Justice (see Kopytowski v. Poland [Committee] (dec.), no. 59472/11, §§ 13 and 21, 16 June 2015; and Hadrabová and Hadrabová v. Czech Republic (dec.), no. 42165/02, 25 September 2007), to various public bodies (see Y and others v. Bulgaria [Committee] (dec.), no. 1666/19, §§ 14 and 31, 15 September 2020) or to a national court and third parties (see Camelia Bogdan v. Romania [Committee] (dec.), no. 32916/20, § 12, 27 September 2022).
18. In view of the above, the Court is of the opinion that the conduct of the applicant’s representative amounts to a breach of the rule of confidentiality and must be considered as an abuse of the right of petition as provided for in Article 34 of the Convention.
19. Thus, the application should be rejected as an abuse of the right of application pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 December 2022.
Liv Tigerstedt Lətif Hüseynov
Deputy Registrar President