WĘGRZYNOWSKI AND SMOLCZEWSKI v. POLAND JUDGMENT
7
28. The Court reiterates that an application may be rejected as abusive
under Article 35 § 3 of the Convention, among other reasons, if it was
knowingly based on untrue facts (see, Varbanov v. Bulgaria, no. 31365/96,
§ 36, ECHR 2000-X; Popov v. Moldova (no. 1), no. 74153/01, § 48,
18 January 2005; Rehak v. Czech Republic (dec.), no. 67208/01, 18 May
2004; and Kérétchachvili v. Georgia (dec.), no. 5667/02, 2 May 2006).
Incomplete and therefore misleading information may also amount to abuse
of the right of application, especially if the information concerns the very
core of the case and no sufficient explanation is given for the failure to
disclose that information (see Hüttner v. Germany (dec.), no. 23130/04,
9 June 2006; Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July
2007; Predescu v. Romania, no. 21447/03, §§ 25-26, 2 December 2008; and
Kowal v. Poland (dec.), no. 2912/11, 18 September 2012).
29. The Court first observes that the Government’s arguments do not
concern “untrue facts”. Rather, their objection is based on their own
perception of the applicants’ possible intentions (see, for a similar approach
on the Government’s part, Antoni Lewandowski v. Poland, no. 38459/03,
§ 51, 2 October 2012). The Government’s argument amounts to
a rephrasing of their own submissions on the merits of the present case (see
paragraphs 50–51 below).
30. The Court is therefore of the view that it cannot be said that the
manner in which the applicants presented their case amounts to an abuse of
the right of petition.
2. The applicants’ victim status
31. The Government submitted that the damage caused by the
defamatory article had been effectively made good by the domestic courts’
judgments of 8 May 2002 and 24 April 2003 allowing the applicants’ claim
and awarding them compensation (see paragraphs 6 and 8 above). In their
view, these judgments had prevented the applicants from alleging another
violation of their rights originating in the same factual circumstances which
had already existed, and had been known to the applicants or could have
easily been known to them, namely the availability of the article on the
newspaper’s website in December 2000.
32. The Government did not accept that the availability of the article on
the newspaper’s website after the judgment of 24 April 2003 had become
final constituted a separate and continuing violation of the applicants’
rights. The article had been published online on 2 December 2000,
simultaneously with the article in the newspaper, and only once. It had
never been modified afterwards. It could not therefore be accepted that there
had been a new publication which could have given rise to a new violation
of the applicants’ rights. Therefore, the Warsaw Court of Appeal’s judgment
of 20 July 2006, upholding the Warsaw Regional Court’s judgment of
28 September 2005, could not have had a negative effect on the applicants’
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