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FOURTH
SECTION
CASE OF
KAPERZYŃSKI v. POLAND
(Application
no. 43206/07)
JUDGMENT
STRASBOURG
3 April
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Kaperzyński v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
David Thór Björgvinsson,
President,
Lech Garlicki,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
Vincent
A. De Gaetano, judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 13 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43206/07)
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”) by a
Polish national, Mr Przemysław Kaperzynski (“the
applicant”), on 28 September 2007.
2. The
applicant was represented by Mr A. Bodnar, a lawyer practising in
Warsaw. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
3. The
applicant alleged a breach of his right to freedom of expression
guaranteed by Article 10 of the Convention.
- On
15 December 2010 the Court decided to give
notice of the application to the Government. It also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lives in Olsztyn.
- At
the material time the applicant was editor-in-chief of the local
weekly newspaper “Iławski Tydzień”.
- On
17 October 2005 the newspaper published an article co authored
by the applicant, entitled “Municipality in danger; authorities
fail to see problem”. It described in detail the situation
concerning the sewage system in the Iława municipality. The
thrust of the article was that the sanitary situation in the
municipality was a matter of concern and posed significant public
health risks; extensive investments were necessary to improve it;
there was a serious shortage of available funds; the municipal
authorities were dealing with the problems in a slow and incompetent
manner; it was more important for them to save money than to prevent
serious health risks and to avert a danger to the population; the
quality of water was unsatisfactory; and the mayor, despite the fact
that he had been in office for two terms, had failed to deal with the
problems properly.
- In
a letter to the newspaper of the same date the mayor of Iława
complained about the article. The first paragraph of that letter was
couched in ironic terms. The mayor expressed doubts about the
applicant’s intentions and suggested that the applicant had
been acting in his own personal interest. He maintained that the
general tone of the article was inappropriate. He also voiced doubts
as to whether the newspaper had any readers at all and whether it was
therefore worth his while to react to the article.
- He
further requested, referring to section 31 § 1 read together
with section 32 of the Press Act 1984, that the applicant publish a
rectification (see paragraph 22 below). He stated that the
development of the sewage network was a priority for the municipal
authorities and listed a number of projects undertaken by the
municipality during the preceding five years. Further, three projects
planned for the years 2007-2013 were listed. The mayor stated that
the quality of the water was monitored by the appropriate services
and referred to several projects for modernising and overhauling the
existing sewage and sanitary systems.
- The
applicant did not reply to this letter and did not publish it.
- On
an unspecified later date the municipality of Iława brought a
private bill of indictment against the applicant before the Elbląg
District Court for the offence of failure to publish a rectification
or reply as prescribed by section 46 § 1 of the Press Act (see
paragraph 24 below).
- In
his written pleadings of 4 December 2005 the applicant argued that
the mayor’s letter could not reasonably be regarded as a
request for rectification within the meaning of section 31 of the
Press Act, because its content lacked the essential characteristics
of a “rectification”. It was not related to the facts and
it was not couched in objective terms, as stipulated by that
provision. In fact, its first part, in particular, was very critical
of the applicant and contained innuendos about his character, motives
and about the newspaper and its journalists. This alone made it
impossible to regard the letter as a request for rectification.
Furthermore, the style of the letter lacked the objectivity which
could be expected of a rectification. It could therefore not be
reasonably seen as such. It resembled rather a “reply”,
within the meaning of the same provision of the Press Act, expressing
the value judgments and views of its author vis-à-vis the
impugned article. Even assuming that the letter could be seen as a
rectification, it did not comply with the relevant requirements laid
down by section 33 of the Press Act as it was more than twice the
length of the contested article.
- The
applicant further submitted that the letter could not be seen as a
rectification request because it breached his personal rights and the
rights of other journalists working for the “Tydzień
Iławski”, by calling into doubt their professionalism
and personal integrity. The applicant referred to section 33 of the
Press Act, which obliged an editor-in-chief to refuse the publication
of a rectification or a reply if its form or content were
incompatible with the principles of co-existence with others (“zasady
współżycia społecznego”).
- On
13 December 2006 the Elbląg District Court found the applicant
guilty of an offence punishable by section 46 § 1 of the Press
Act in conjunction with its section 31 § 1. The court sentenced
the applicant to four months’ restriction of liberty in the
form of twenty hours’ community service per month and suspended
the sentence for a period of two years. It further deprived him of
the right to exercise the profession of journalist for a period of
two years and ordered that the judgment be made public by being
displayed at the Iława Municipal Office.
- The
court noted that the facts of the case, for the most part, were not
disputed by the parties. It found that the applicant had not replied
to the mayor’s letter and had not published that letter or
excerpts thereof, either as a rectification or reply. It noted that
he was clearly obliged to do so under the provisions of the Press
Act. He was aware of his obligation as he had previously published
rectifications in the newspaper. No objective grounds existed which
could be said to have legitimately prevented the applicant from
complying with that obligation and, in any event, he had not invoked
any such grounds. It was the applicant’s own decision to refuse
to publish the rectification requested. Similarly, he had failed to
reply to the mayor, explaining to him the reasons for his refusal to
publish. His failure corresponded to the offence specified in section
46 of the Press Act read together with section 31 of that Act.
- The
judgment further read:
“The above assessment of the [applicant’s
conduct] is additionally supported by the fact that in the impugned
article he had discussed a question of significant importance for the
municipality of Iława, namely the condition of its sewage
system, by saying that the mayor had failed to take effective steps
in order to have the sewage system installed. Assuming that the
accused took into consideration the significance of his article, he
should have, as a diligent journalist and editor-in-chief, either
published the rectification demanded by the municipality, which
directly concerned the questions raised in the article and outlined
the steps which the municipality had already taken, or informed the
municipality of the grounds for his refusal to publish a
rectification.”
-
The court further held that the applicant’s failure to
publish the mayor’s letter had been to the serious detriment of
the Iława municipality as by making it impossible for a fair and
public debate to develop it had undermined the confidence which a
democratically elected municipal executive authority should enjoy.
- The
applicant appealed, essentially reiterating his arguments as
submitted to the first-instance court.
- On
29 March 2007 the Elbląg Regional Court upheld the contested
judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
54 of the Constitution provides:
“1. Freedom to express opinions, and to
acquire and disseminate information shall be ensured to everyone.
2. Preventive censorship of means of social
communication and licensing of the press shall be prohibited.”
Article
31 of the Constitution reads:
“1. Freedom of the person shall receive legal
protection.
2. Everyone shall respect the freedoms and rights of
others. No one shall be compelled to do that which is not required by
law.
3. Any limitation upon the exercise of constitutional
freedoms and rights may be imposed only by statute, and only when
necessary in a democratic state for the protection of its security or
public order, or to protect the natural environment, health or public
morals, or the freedoms and rights of other persons. Such limitations
shall not violate the essence of freedoms and rights.”
Article 190 of the Constitution, regarding the effects of judgments
of the Constitutional Court, provides, in so far as relevant:
“1. Judgments of the Constitutional
Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ...
shall be published without delay.
3. A judgment of the Constitutional Court
shall take effect from the day of its publication; however, the
Constitutional Court may specify another date for the end of the
binding force of a normative act. Such a time-limit may not exceed
eighteen months in relation to a statute or twelve months in relation
to any other normative act. ...
4. A judgment of the Constitutional Court on
non-conformity with the Constitution, an international agreement or
statute, of a normative act on the basis of which a final and
enforceable judicial decision or a final administrative decision ...
is given, shall be a basis for reopening the proceedings or for
quashing the decision ... in a manner and on principles specified in
provisions applicable to the given proceedings.”
- The
relevant provisions concerning the correction of information in the
press and other media are contained in the Press Act (Prawo
prasowe) of 26 January 1984.
Section
31 provides, in so far as relevant, as follows:
“At the request of a natural or legal person or
other organisational entity, the editor in-chief of the relevant
daily or magazine is under an obligation to publish, free of charge:
1. a factually based (rzeczowe i odnoszące się
do faktów) rectification of untrue or inaccurate
statements,
2. a factually based (rzeczową) reply to any
statement which might infringe someone’s personal rights”
- Section
32 provides, in so far as relevant, as follows:
“...Without the consent of the claimant, it is
forbidden to shorten or make any other amendments to the correction
or reply which would weaken its significance or alter the intentions
of the author. The correction may not be commented upon in the same
edition or broadcast ...”
- Section 33
provides, in so far as relevant, as follows:
“1. The editor-in-chief is under an
obligation to refuse publication of the rectification or reply if:
1) it does not fulfil the
requirements laid down in section 31 (...)
3. The editor-in-chief, when refusing to publish a
rectification or reply, shall, without undue delay, send the claimant
written notification of the refusal and the reasons for it. If the
refusal is based on reasons referred to in sub section (1),
the editor in-chief shall indicate those parts which cannot be
published; the seven-day time-limit for producing an amended
correction or reply starts running again from the day on which the
refusal and its justification were delivered. The editor cannot
refuse to publish a rectification or reply which has been amended in
accordance with his or her indications.”
- Section
46 provides for the following penal provision:
“Whosoever, in breach of the statutory obligation,
refuses to publish a rectification or reply, as referred to in
section 31, or who publishes such a rectification or reply contrary
to the conditions laid down in this Act, shall be subject to a fine
or a restriction of liberty.”
- In
a judgment of 5 May 2004 the Constitutional Court (P 2/03)
examined the constitutionality of the prohibition on making editorial
comments on a request for rectification in the same issue of a
newspaper in which the rectification was published, which was at that
time provided for by section 32 § 6 of the
Press Act 1984 and backed up by a criminal sanction provided for by
section 46 § 1 of that Act.
- In the light of section 32 § 6 of the 1984 Act,
the prohibition on publishing comments on requests for rectifications
was not absolute, since it was permissible to include such comments
in the next issue or broadcast. That prohibition was necessary to
protect the freedom of expression of the person having submitted the
request for rectification. The challenged provisions of the Press Act
made it possible to maintain a balance of power between the media and
persons submitting requests for rectifications to be published, with
the latter generally having more limited opportunity to publicly
express their views.
- The
court further noted that the practical application of section 46
had given rise to serious difficulties in judicial practice; the
Press Act did not formulate any conditions concerning either the form
or the substance that would allow for a clear categorisation of a
given request submitted to an editor-in-chief as a “rectification”
or a “reply”. Hence, editors could have –
and in practice did have – serious problems in classifying such
submissions. Since it was impossible to provide an unambiguous
interpretation of the relevant criminal law norm and no uniform
interpretation had been developed in practice, the challenged
provision (that is, section 32 § 6 of the Press Act) failed to
respect the principle nullum crimen sine lege, enshrined in
Article 46 of the Constitution.
As a
result, the prohibition on commenting on a rectification in the same
issue, hitherto based on that provision, was deprived of its criminal
sanction. The remaining elements of the criminal law provision
contained in section 46 § 1 of the Press Act retained their
binding force.
- The
court further observed that the prohibition expressed in section 32 §
6 of the Press Act should be secured by an adequately effective
sanction, independently of civil liability. It should take into
account the principle of proportionality and assume, on the one hand,
the protection of the interests of those harmed by press publications
and, on the other hand, values linked to the freedom of expression.
- On
1 December 2010 the Constitutional Court held that section 46
§ 1, sections 31 and 32 § 1 of the Press Act were
incompatible with Article 46 of the Constitution. It reiterated
its findings concerning the lack of precision in the manner in which
criminal offences punishable under those provisions were defined. It
further held that as a result of the judgment those provisions were
to lose their binding force no later than eighteen months after the
judgment was officially published. Until that time, they should be
applied by the courts.
- Article
23 of the Civil Code contains a non-exhaustive list of rights known
as “personal rights” (dobra osobiste). This
provision states:
“The personal rights of an individual, such as, in
particular, health, liberty, reputation (cześć),
freedom of conscience, name or pseudonym, image, secrecy
of correspondence, inviolability of the home, scientific or
artistic work, [as well as] inventions and improvements shall be
protected by the civil law regardless of the protection laid down in
other legal provisions.”
- Article 24 of the Civil Code provides for ways of
redressing infringements of personal rights. In accordance with that
provision, a person facing the threat of an infringement may demand
that the prospective perpetrator refrain from the wrongful activity,
unless it is not unlawful. Where an infringement has taken place, the
person affected may, inter alia, request that the wrongdoer
make a relevant statement in an appropriate form, or claim just
satisfaction from him or her. If an infringement of a personal
right causes financial loss, the person concerned may seek damages.
- Under
Article 448 of the Civil Code, a person whose personal rights have
been infringed may seek compensation. That provision, in its
relevant part, reads:
“The court may grant an adequate sum as pecuniary
compensation for non-material damage (krzywda) caused to
anyone whose personal rights have been infringed. Alternatively, the
person concerned, regardless of seeking any other relief that may be
necessary for removing the consequences of the infringement
sustained, may ask the court to award an adequate sum for the benefit
of a specific public interest ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that his criminal conviction amounted to a
breach of Article 10 of the Convention. This provision reads as
follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
- The Government submitted that the applicant had not
exhausted all the remedies afforded by Polish law in that he had
failed to lodge a constitutional complaint under Article 79 § 1
of the Constitution questioning the compatibility with the
Constitution of the provisions on which the decisions in his case
were based. They referred to the judgments of the Constitutional
Court given on 5 May 2004 and 1 December 2010 (see paragraphs 25 and
29 above). The Constitutional Court had held that certain terms of
the Press Act used in connection with the rectification procedure
were imprecise and therefore failed the test which a statutory
determination of a criminal offence had to meet. In their view the
applicant should have availed himself of that remedy and challenged
the compatibility of the Press Act with the right to freedom of
expression guaranteed by the Constitution. Such a complaint offered
reasonable prospects of success. Moreover, when the applicant had
brought his case to the Court, the case in which the Ombudsman had
challenged the constitutional character of the provisions of the
Press Act concerned in the applicant’s case, ultimately
determined by the judgment of 1 December 2010 (see paragraph 27
above), was already pending before the Constitutional Court. The
applicant should have availed himself of that remedy.
- They
further argued that the applicant should have lodged a cassation
appeal with the Supreme Court against the second-instance judgment.
- The
applicant argued that when his case had ended, the proceedings
referred to by the Government had already been pending since 2007. It
would therefore not have served any useful purpose to submit a
constitutional complaint challenging the same provisions.
The
applicant averred that the problem arising in his case under Article
10 of the Convention was not related to the provisions of a law
as such but originated in the incorrect application of the provisions
of the Press Act.
- The
applicant submitted that a cassation appeal to the Supreme Court did
not lie against the second-instance judgment.
- The
Court observes that the Polish model for applications to the
Constitutional Court is characterised by a significant limitation as
to the form of redress it provides. By virtue of Article 190 of the
Constitution, the principal direct effect of a judgment of the
Constitutional Court is the abrogation of the statutory provision
which has been found to be unconstitutional. In the case terminated
by the Constitutional Court’s judgment of 1 December 2010
(see paragraph 29 above) the Constitutional Court ruled that the
unconstitutional provisions of the Press Act should temporarily
remain in force and lose their binding force no later than eighteen
months from the date of the judgment. Moreover, the Constitutional
Court did not order any individual measure with regard to the author
of the constitutional complaint. The Court further observes that the
practice of the Constitutional Court in that regard, conferring on
successful authors of constitutional complaints the so-called “right
of privilege”, which aims at rewarding the individual who
brought the first constitutional complaint concerning a particular
matter for his or her proactive attitude, is not yet
well established. Consequently, it is not certain that it would
be applied in a similar way with regard to each constitutional
complaint (see Orchowski v. Poland, no. 17885/04,
§ 110, ECHR 2009 ... (extracts).
- The
Court is further of the opinion that the applicant’s conviction
was not based on a direct application of section 46 § 1,
sections 31 and 32 § 1 of the Press Act. Rather, his
conviction was the result of a judicial interpretation which applied
these provisions to the particular circumstances of the applicant’s
case. In that connection the Court points to the established case-law
of the Constitutional Court, according to which constitutional
complaints based solely on the allegedly wrongful interpretation of a
legal provision are excluded from its jurisdiction.
It
follows that an individual complaint to the Constitutional Court
cannot be recognised as an effective remedy, within the meaning of
the Convention, in the circumstances of the applicant’s case.
- In
so far as the Government argued that the applicant should have filed
a cassation appeal with the Supreme Court, the Court observes that
such an appeal is available only in cases in which a prison sentence
has been imposed on a defendant. No such sentence was pronounced in
the present case.
- It
follows that the Government’s plea of inadmissibility on the
ground of non-exhaustion of domestic remedies must be dismissed.
- The
Court notes that the application is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant argued that the importance of a free press in a democratic
society dictated that the duties and responsibilities of journalists
should not be enforced by means of the criminal law. The Press Act
had been adopted in 1984, in a pre-democratic political context. Its
provisions, applied in a democratic system, were capable of hindering
the exercise of the freedom of expression, in particular as they
imposed on journalists legal obligations which should normally be
reserved for professional codes of conduct.
- The
applicant further argued that he had failed to respond to the mayor’s
letter because section 33 § 1 of the Press Act lacked
clarity as to the circumstances in which such a refusal was
permissible. This lack of clarity, albeit in the context of the
nullum crimen sine lege principle, had later been confirmed by
the Constitutional Court’s judgment of 1 December 2010
(see paragraph 29 above).
- The
applicant further submitted that, for a newspaper, a refusal to
publish a rectification was a matter of editorial policy and an
aspect of the freedom to provide information. The freedom to choose
and pursue editorial policy fell within the scope of the freedom of
expression. The order to publish the rectification requested by the
mayor and the applicant’s criminal conviction had violated that
freedom.
- The
applicant further argued that the mayor’s letter had not in
fact related to information contained in the original article
published in the applicant’s newspaper and could not therefore
be regarded as a proper request for rectification. That letter
contained comments violating the applicant’s personal rights.
The national courts had failed to examine whether that letter could
be regarded as a “rectification” within the meaning of
domestic law. In particular, they failed to establish whether the
impugned article had distorted information about the sanitary and
sewage situation in the municipality. The applicant had alleged
mismanagement on the mayor’s part. Hence, the article concerned
a matter of public interest and the criticism published in the
article was directed against a public figure, an elected head of the
local government.
- The
applicant argued that the interference had in fact been aimed at
protecting the rights and reputation of the municipality as it had
been the municipality which had brought the criminal case against the
applicant (see paragraph 11 above).
- Finally,
the applicant submitted that the interference complained of had not
been dictated by any pressing social need. It had been
disproportionate, given in particular that he had been divested of
his right to work as a journalist. In addition, the courts had
imposed on him a four month restriction of liberty in the form
of twenty hours’ community service per month. They had also
ordered the judgment be made public. This had forced the applicant to
leave his job. Moreover, the fact that the applicant had a criminal
record had caused serious and ongoing difficulties in finding new
employment.
- The
Government argued that the restrictions on the applicant’s
freedom of expression had been prescribed by section 46 § 1
of the Press Act. They had therefore complied with the lawfulness
requirement stipulated by Article 10 § 2 of the
Convention.
- They
further argued that the interference with the applicant’s
freedom of expression served the legitimate purpose of the protection
of the freedom of the press. The applicant’s failure to publish
the mayor’s rectification had made impossible an objective
debate about his role and the performance of his mandate in the
development of the local sewage system and prevented the mayor from
disseminating relevant factual information to the local public. Thus
the applicant had prevented other persons from having their voices
heard. This, in turn, was to the detriment of the local community.
The domestic courts, bearing in mind the applicant’s unlawful
and unprofessional conduct, had acted in the interests of the
protection of the freedom of the press, which should be equally
accessible to all.
- The
Government averred that the interference complained of was necessary
in a democratic society in order to ensure an appropriate reaction to
the applicant’s intention to prevent the mayor from challenging
certain allegations about the conduct of the latter’s official
duties.
- They
were further of the view that the grounds relied on by the domestic
authorities were relevant and sufficient. In any event, it was for
the national authorities to decide whether no there existed a
pressing social need for the impugned interference. The domestic
courts enjoyed a certain margin of appreciation in this respect.
- The
Government submitted that the penalty imposed on the applicant,
namely four months’ restriction on the exercise of his freedom,
suspended for two years, had been lenient. The prohibition on the
applicant exercising the profession of journalist was not too severe
because when the first-instance court had given its judgment, the
applicant had no longer been working as a journalist.
2. The Court’s assessment
(a) General principles
- According to the Court’s well established
case law, freedom of expression constitutes one of the essential
foundations of a democratic society and one of the basic conditions
for its progress and for each individual’s self fulfilment.
Subject to paragraph 2 of Article 10, it is applicable not
only to “information” or “ideas” that are
favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. Such
are the demands of that pluralism, tolerance and broadmindedness
without which there is no “democratic society”. As set
forth in Article 10 § 2, this freedom is subject to
exceptions, which must, however, be construed strictly, and the need
for any restrictions must be established convincingly (see, among
many other authorities, Janowski v. Poland [GC],
no. 25716/94, § 30, ECHR 1999-I; Nilsen and
Johnsen v. Norway [GC], no. 23118/93, § 43,
ECHR 1999-VIII; and Lingens v. Austria, 8 July
1986, § 41, Series A no. 103).
- The
press plays an essential role in a democratic society. Although it
must not overstep certain bounds, in particular in respect of the
reputation and rights of others, its duty is nevertheless to impart –
in a manner consistent with its obligations and responsibilities –
information and ideas on all matters of public interest (see, among
many authorities, Observer and Guardian v. the
United Kingdom, 26 November 1991, § 59, Series A
no. 216; and Bladet Tromsø and Stensaas
v. Norway [GC], no. 21980/93, § 59,
ECHR 1999-III).
- In
this context, the safeguards to be afforded to the press are of
particular importance (Janowski v. Poland [GC],
no. 25716/94, § 30, ECHR 1999 I). Not only
does the press have the task of imparting information and ideas: the
public also has a right to receive them. Were it otherwise, the press
would be unable to play its vital role of “public watchdog”
in imparting information of serious public concern (see, among other
authorities, Observer and Guardian, cited above, § 59,
and Gawęda v. Poland, no. 26229/95, § 34,
ECHR 2002 II).
- However,
Article 10 of the Convention does not guarantee a wholly unrestricted
freedom of expression even with respect to press coverage of matters
of serious public concern. Under the terms of paragraph 2 of the
Article the exercise of this freedom carries with it “duties
and responsibilities”, which also apply to the press. By reason
of the “duties and responsibilities” inherent in
the exercise of freedom of expression, the safeguard afforded by
Article 10 to journalists in relation to reporting on issues of
general interest is subject to the proviso that they are acting in
good faith in order to provide accurate and reliable information in
accordance with the ethics of journalism (see Goodwin v. the
United Kingdom, 27 March 1996, § 39, Reports of
Judgments and Decisions 1996 II ; Fressoz and Roire v.
France [GC], no. 29183/95, § 54, ECHR 1999-I;
and Wołek, Kasprów and Łęski v. Poland
(dec.), no. 20953/06, 21 October 2008).
(b) Application of the principles to the
circumstances of the present case
- In
the present case the prosecuting authorities instituted proceedings
against the applicant for breach of his obligation to publish, by way
of a “rectification” within the meaning of section 31 of
the Press Act, the mayor’s letter. Ultimately, the courts found
him guilty of an offence and imposed a criminal sanction on him. It
is not in dispute that this sanction amounted to an interference with
his right to freedom of expression.
(i) Whether the interference was
prescribed by law
- The
interference complained of was based on section 46 § 1
of the Press Act in conjunction with its section 31 § 1.
- The
Court observes that on 1 December 2010 the Constitutional Court
found that these provisions were incompatible with the Constitution
in so far as it provided for the principle nullum crimen sine
lege. That court further held that the provisions should lose
their binding force no later than eighteen months from the date of
the judgment (see paragraph 29 above). However, at the time when
the final judgment in the applicant’s case was given and for a
long time afterwards, these provisions were binding on the courts.
The Court therefore concludes that the interference with the
applicant’s right to freedom of expression was at the material
time prescribed by domestic law. However, in the Court’s view
it is relevant for the assessment of the case that subsequent to the
facts of the case the legal basis for the interference concerned was
affected by the judgment given by the Constitutional Court on 1
December 2010 (see paragraph 29 above).
(ii) Whether the interference served a
legitimate purpose
- The
Court must now examine whether the interference served a legitimate
purpose.
It
notes the Government’s argument that it was aimed at protecting
the freedom of the press. The Court does not find this argument
persuasive. It fails to see how a criminal sanction imposed on a
journalist can be regarded as aimed at the protection of press
freedom.
The
Court is prepared to accept that the interference served the purpose
of protecting the reputation of the mayor and therefore the
legitimate aim of the protection of the reputation or rights of
others within the meaning of paragraph 2 of Article 10 of the
Convention.
(iii) Whether the interference was
necessary in a democratic society
- The
Court must now examine whether this interference was “necessary
in a democratic society”. The Court reiterates that
this depends on whether the interference complained of corresponded
to a pressing social need, whether it was proportionate to the
legitimate aim pursued and whether the reasons given by the national
authorities to justify it were relevant and sufficient (see Bladet
Tromsø and Stensaas, cited above,
§ 58). The Court’s task is not to take the place
of the national courts but rather to review under Article 10, in
the light of the case as a whole, the decisions they have taken
pursuant to their power of appreciation (ibid., § 60, and
see also Fressoz and Roire, cited above, § 45). In
doing so, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the
principles embodied in Article 10 and, moreover, that they based
themselves on an acceptable assessment of the relevant facts (see
Jersild v. Denmark, 23 September 1994, § 31,
Series A no. 298, and Veraart v. the Netherlands,
no. 10807/04, § 61, 30 November 2006).
- The
Contracting States have a certain margin of appreciation in assessing
whether in the circumstances of a concrete case a pressing social
need exists, but it goes hand in hand with European supervision,
embracing both the legislation and the decisions applying it, even
those delivered by an independent court. The Court is therefore
empowered to give the final ruling on whether a “restriction”
is reconcilable with freedom of expression as protected by Article 10
(see, among many other authorities, Perna v. Italy [GC],
no. 48898/99, § 39, ECHR 2003-V, and Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, § 88,
ECHR 2004 XI).
- In
the present case, the Court notes that the article published by the
applicant concerned the development and functioning of the sewage
system in the municipality. He expressed the view that the sanitary
situation posed significant public health risks and that the
municipal authorities had failed to deal with the matter in a
competent manner. He alleged, in particular, that they had not
attached sufficient weight to prevent serious health risks and that
the mayor had failed to manage the situation properly. Hence, the
subject matter of that article was indisputably a matter of
general interest for the local community which the applicant was
entitled to bring to the public’s attention. The Court
reiterates that there is little scope under Article 10 § 2
of the Convention for restrictions on political speech or on debate
on questions of public interest (see Bączkowski and Others
v. Poland, no. 1543/06, § 98, ECHR 2007 VI;
and Wojtas Kaleta v. Poland, no. 20436/02,
§ 46, 16 July 2009). In a democratic system the
actions or omissions of the government must be subject to the close
scrutiny not only of the legislative and judicial authorities but
also of public opinion (see Lombardo and Others v. Malta,
no. 7333/06, § 54, 24 April 2007).
The
Court further observes that the article did not amount to a
gratuitous personal attack and was neither insulting nor frivolous in
any way. It was a critical assessment of the performance of the local
authorities and the mayor. It was based on a solid factual basis,
referred to throughout the text. This aspect of the case was not
taken into account by the domestic court. On the contrary, the Elbląg
District Court was of the view that the importance of the
subject matter of the article and its public character justified
the sentence imposed on the applicant (see paragraph 16 above).
- The
Court observes that the 1984 Press Act imposed on the applicant, as
the editor-in-chief of a newspaper, the obligation to publish a
rectification or reply to an article submitted by a person aggrieved.
Section 31 of the Press Act formulated requirements that a
rectification or a reply had to comply with. Section 33 of that Act
allowed the editor in chief to refuse publication of a
rectification or a reply if they failed to meet certain requirements,
essentially of an editorial character. However, it also made it
obligatory for the editor to inform the persons concerned in writing
about that refusal and to explain why the editor had decided that the
text submitted would not be published.
- The
Court is of the view that a legal obligation to publish a
rectification or a reply may be seen as a normal element of the legal
framework governing the exercise of the freedom of expression by the
print media. It cannot, as such, be regarded as excessive or
unreasonable. Indeed, the Court has already held that the right of
reply, as an important element of freedom of expression, falls within
the scope of Article 10 of the Convention. This flows from the
need not only to be able to contest untruthful information, but also
to ensure a plurality of opinions, especially on matters of general
interest such as literary and political debate (see, Melnychuk
v. Ukraine (dec.), no. 28743/03, ECHR 2005 IX).
Likewise, an obligation to inform the party concerned in writing
about the reasons for a refusal to publish a reply or rectification
is not, in the Court’s opinion, of itself open to criticism.
Such an obligation makes it possible, for example, for the person who
feels aggrieved by a press article to present his reply in a manner
compatible with the editorial practice of the newspaper concerned.
- In
the present case the Elbląg District Court found that the
applicant had failed in his duty to inform the mayor that he would
not publish his reply. Likewise, the court found that he had failed
to provide any reasons for his refusal, an obligation specified by
section 33 § 3 of the Press Act. Furthermore, the
domestic courts found that the applicant had not published the
mayor’s letter, either in its entirety or in a form which could
be deemed compatible with the profile and format of the newspaper.
The Court endorses the finding of the first-instance court that the
applicant had failed to respect his professional obligations in this
respect.
- However,
in the circumstances of the case it is not merely the obligation
imposed under section 31 of the Press Act alone which constituted the
legal background to the case, but also the imposition of the criminal
sanction stipulated by section 46 § 1 of that Act.
- In
this connection, the Court reiterates that, in view of the margin of
appreciation left to Contracting States, a criminal measure as a
response to defamation cannot, as such, be considered
disproportionate to the aim pursued (see Lindon,
Otchakovsky-Laurens and July v. France [GC], cited above, §
59; Radio France and Others v. France, no. 53984/00,
§ 40, ECHR 2004-II; Rumyana Ivanova v. Bulgaria,
no. 36207/03, § 68, 14 February 2008; Reinboth
and Others v. Finland, no. 30865/08,
§ 90, 25 January 2011).
- Nevertheless,
the Court must exercise caution when the measures taken or sanctions
imposed by the national authorities are such as to dissuade the press
from taking part in a discussion of matters of legitimate public
concern (see Standard Verlags GmbH v. Austria,
no. 13071/03, § 49, 2 November 2006; Kuliś
and Różycki v. Poland, no. 27209/03, § 37,
ECHR 2009 ...). The chilling effect that the fear of
criminal sanctions has on the exercise of journalistic freedom of
expression is evident (see, mutatis mutandis, Wille
v. Liechtenstein [GC], no. 28396/95, § 50,
ECHR 1999-VII; Nikula v. Finland, no. 31611/96,
§ 54, ECHR 2002 II; Goodwin, cited above,
p. 500, § 39; Elci and Others v. Turkey,
nos. 23145/93 and 25091/94, § 714, 13 November
2003; Lombardo v. Malta, cited above, § 61).
This effect, which works to the detriment of society as a whole, is
likewise a factor which goes to the proportionality, and thus the
justification, of the sanctions imposed on media professionals. The
same considerations apply in the circumstances of the present case.
- The
Court has already had an opportunity to examine the manner in which
the criminal provisions of the 1984 Press Act were applied in the
case Wizerkaniuk v. Poland, no. 18990/05,
5 July 2011. The Court observed that it had normally been
called upon to examine whether interferences with freedom of
expression were “necessary in a democratic society” with
reference to the substance and content of statements of fact or value
judgments for which the applicants had been penalised. However, in
that case the courts had imposed a criminal penalty on the applicant
on grounds which were unrelated to the substance of the impugned
article.
- Similarly,
in the present case a criminal sentence was imposed on the applicant
on the basis of the provisions of the same Press Act for an offence
of an essentially procedural nature, that is for his failure to
publish the mayor’s letter and to inform the mayor about his
refusal and the reasons for it. The Court observes that under these
provisions the courts were prevented from taking into account
considerations based on freedom of expression. Likewise, the
applicant was denied the possibility of submitting legally relevant
arguments in his favour referring to that freedom.
- Furthermore,
in assessing the proportionality of the interference, the nature and
severity of the sanction imposed are also factors to be taken into
account (see, for example, Keller v. Hungary (dec.),
no. 33352/02, 4 April 2006; Skałka v. Poland,
no. 43425/98, §§ 41-42, 27 May 2003 and Kwiecień
v. Poland, no. 51744/99, § 56, ECHR 2007-I).
In this connection, the Court observes that the applicant was
sentenced to four months’ restriction of liberty in the form of
twenty hours’ community service per month. The courts suspended
that sentence for a period of two years. Furthermore, the courts
deprived him of the right to exercise the profession of journalist
for a period of two years.
- The
Court is of the view that a criminal sentence depriving a media
professional of the right to exercise his or her profession must be
seen as very harsh. Moreover, it heightens the above mentioned danger
of creating a chilling effect on the exercise of public debate. Such
a conviction imposed on a journalist can only be said to have,
potentially, an enormous dissuasive effect for an open and unhindered
public debate on matters of public interest (see Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, § 118,
ECHR 2004 XI).
- Moreover,
the Court notes that the Constitutional Court found that the terms of
the Press Act made it difficult for persons in the applicant’s
situation to decide whether a request to publish a reply or
rectification amounted to a bona fide exercise of that right or not.
The Court has already found that the right of reply was compatible
with the freedom of expression (see paragraph 66 above). However, the
Constitutional Court held that the scope and modalities of the
exercise of that right under the applicable provisions of the Press
Act were deficient. That finding of the Constitutional Court is also
of relevance for the Court in the assessment of the circumstances of
the present case.
- Accordingly,
the Court is of the view that the interference complained of was not
“necessary in a democratic society” within the meaning of
Article 10 § 2 of the Convention.
- There
has accordingly been a violation of Article 10 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 6,000 euros (EUR) in
respect of pecuniary and non-pecuniary damage.
- The
Government were of the view that that amount was too high.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant
EUR 3,000 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 500 for the
costs and expenses incurred before the domestic courts and EUR 500
for those incurred before the Court.
- The
Government submitted that in the circumstances of the case a finding
of a violation of the Convention would have constituted sufficient
just satisfaction.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the sum
of EUR 750 covering costs under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Polish zlotys at the rate applicable at the date of settlement:
(i) EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR 750
(seven hundred and fifty euros), plus any tax that may be chargeable
to the applicant, in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 3 April 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David Thór Björgvinsson
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge David
Thór Björgvinsson is annexed to this judgment.
D.T.B.
T.L.E.
CONCURRING OPINION OF JUDGE
DAVID THÓR BJÖRGVINSSON
I
have voted in favour of finding a violation of Article 10 of the
Convention, but would like to add a few remarks.
On 13
December 2006 the Ebląg District Court found the applicant,
Mr Kaperzyński, guilty of an offence punishable by
section 46 § 1 of the Press Act in conjunction with
its section 31 § 1. The court sentenced him to four months’
restriction of liberty in the form of twenty hours’ community
service per month and suspended the sentence for a period of two
years. It further deprived him of the right to exercise the
profession of journalist for a period of two years and ordered that
its judgment be made public by displaying it at the Iława
Municipal Office. The judgment was upheld by the Ebląg Regional
Court on 27 March 2007. This sentence, not least the suspension
of the applicant’s right to exercise his profession as a
journalist, has not been justified. It was clearly grossly
disproportionate in the circumstances of the present case and as such
is a sufficient ground for finding a violation of Article 10 of the
Convention.
While
I agree with the finding of a violation, I have some reservations as
regards the relevance of some of the points raised in the reasoning
of the majority, in particular in paragraphs 61 and 66. In this
regard it should be noted that the domestic court proceedings were
born out of a private bill of indictment brought by the municipality
of Iława. It is therefore reasonable to consider that the letter
dated 17 October 2005 was sent to the applicant’s newspaper on
behalf of the municipality of Iława, and not by the mayor
himself in his personal capacity. This understanding is not altered
by the fact that the mayor obviously was, given the polemical content
of the letter, somewhat irritated by the newspaper article and,
rightly or wrongly, took personally the criticism made in it. I
consider that the right to reply and the duty to publish the reply
under Article 10 of the Convention must first and foremost be
assessed in light of the fact that the municipality is a public
authority, not in the light of the personal right of the mayor to
defend his allegedly damaged reputation. In my view, this is a very
important consideration in the context of the present case when
viewing the compatibility of the right to reply and the duty to
publish such a reply against the background of the right to freedom
of expression under Article 10 of the Convention.
It is
for this reason that I have reservations as to the relevance of the
principles set out in paragraph 66 of the judgment, where the right
to reply is accepted as a normal element of the legal framework
governing the freedom of expression and as such falls within the
scope of Article 10 of the Convention. By using this approach
the majority implies that the municipality’s right to reply and
the applicant’s duty to publish it has some basis in Article 10
of the Convention. I disagree. Clearly a public authority, like the
municipality of Iława, cannot invoke rights under Article 10
of the Convention to impose on private parties a duty to publish a
reply to criticism of its activities. It follows that recourse to
national law for this purpose is contrary to Article 10 of the
Convention and is another ground for finding a violation in the
present case.
