Full case report

Kubaszewski v Poland

Reference Application no. 571/04
Court European Court of Human Rights

Judge Bratza P, Garlicki, Bonello, Mijovic, Hirvela, Bianku, Vucinic

Date of Judgment 2 Feb 2010


Summary

Defamation – Human Rights – Article 10, ECHR


Facts

In March 2000, during a session of the Kleczew Municipal Council, the Applicant participated in a debate on the question of whether the Municipal Board had made appropriate use of its budget. He expressed doubts as to whether certain investments had been made as planned and stated that it was not clear which sums had been spent for which purpose and asked whether this manner of public spending did not amount to money laundering. A local newspaper published an article in which the applicant’s accusations against the Municipal Board were quoted. Proceedings were commenced against the Applicant which were successful. The Applicant was ordered to apologise. On appeal the Appeal Court found that most of the Applicant’s statements had fallen within the limits of permissible criticism and only his allusion to money laundering had gone beyond those limits, infringing the Board members’ personal rights.


Issue

Whether the decisions against the Applicant violated Article 10 of the ECHR


Held

Finding a violation of Article 10:
The allegation of money laundering was made at the appropriate time and place, the session of council having been devoted to deciding on whether the Board had made appropriate use of its budget in conformity with its obligations and the allegations of money laundering were part of a political debate. The allegation was not made personally against a specific person but against the whole Board. It was precisely the task of an elected representative to ask critical questions when it came to public spending. The domestic courts had not taken into account that the limits of acceptable criticism were wider for politicians than for private individuals and that the members of the Municipal Board thus should have shown a greater degree of tolerance. No fair balance had been struck between the protection of the Board members’ reputation and the applicant’s right to freedom of expression.


Comment

This latest offering of the European Court of Human Rights endorses the use of harsh language in a political context, and criticised the failure of the domestic courts to take notice of the “greater degree of tolerance” that politicians must display in respect of criticism of their actions. It is to be noted that a requirement of such greater tolerance is not explicitly part of English law at present, and to that extent it may be out of step with the Convention jurisprudence.


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