PALUSINSKI v. POLAND
Inadmissible
The applicant, Mr Robert Palusiński, is a Polish national who was born in 1963. He is a writer, translator and publisher and lives in Cracow. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In 1994 the applicant published a book called “Narcotics – A guide” (Narkotyki – przewodnik). The book had the following subtitle: “Part 1: Soft drugs. Marijuana – LSD-25 – Mushrooms. History – Production – How to use – Effects – Dangers.” The book opened with the following introduction: “From the author: I am aware of the fact that among persons knowledgeable on the subject, the use of the word ‘narcotics’ in the title may be controversial because of the complexity surrounding the meaning of that word. I would therefore like to add the following explanation. The word ‘narcotics’ actually means agents used in surgical anaesthetics and in painkillers not used in surgery (for example, morphine). However, in common parlance it is understood much more widely, probably because an appropriate term, akin to the English ‘drugs’, for instance, has not been established in the Polish language. I think that the broad meaning given to the word ‘narcotics’ in common parlance stems from the publication ‘Narcotics and the unwashed soul’ by S.J. Witkiewicz, and from the way the word is currently used by the media. Probably the most appropriate title for this book would be: ‘Psychosocial implications of the pharmacodynamics of psychoactive agents and their neurophysiological, cultural, qualitative and quantitative determinants.’ However, in my view this title is slightly too long for a book aimed at the general public. At the same time, I would like to state that it is not my intention in any way to solicit, encourage or propagate the use of psychoactive agents. The aim of this publication is to fill the alarming void which exists in our country resulting from widespread ignorance and lack of knowledge about the basic issue referred to (mistakenly and often improperly) as drug addiction.” The book was divided into the following chapters: On the back cover of the book the applicant included a quotation that began as follows: “People do not take drugs because they are bad. They do not take drugs out of perversity. They take them because the drugs make them feel good. Very good indeed.” The quotation was attributed to Mr J.C. Flynn, a professor at Baylor University in Texas. On an unspecified date in 1995 the Rzeszów district prosecutor started an investigation into allegations that the applicant’s book contained instructions on the production and use of drugs. The prosecutor appointed experts to assess the content of the book. On 7 June 1995 the district prosecutor charged the applicant under section 32 of the Prevention of Drug Addiction Act 1985 with inciting readers of his book to use drugs. On 28 September 1995 the applicant was indicted before the Cracow District Court. On 25 January 1996 the applicant was tried by the CracowŚródmieście District Court. He was convicted as charged and sentenced to a fifteenmonth prison term suspended for two years and a fine of 2,000 Polish zlotys (PLN). The court gave the following reasons for the applicant’s conviction: “In view of the evidence before it the Court considers that there can be no doubt as to Robert Palusiński’ Between September 1994 and June 1995 R. Palusiński published his book entitled ‘Narcotics – A guide – Part 1: Soft drugs’. He distributed the book throughout the country. One of the reasons the defendant wrote the above book was for financial gain. This was admitted by the defendant, who said that all economic activity was aimed at financial gain. The defendant also acted in pursuit of personal goals since he published his book and sold it throughout the country, presenting it as his contribution to the discussion concerning the legalisation of narcotics, in an attempt to establish himself as a published author. The defendant referred in his book to his own claims as well as citing numerous quotations from Polish and foreign publications. In the same vein, he intentionally selected information in support of his claims designed to create the impression not just that the narcotics described were not dangerous, but that taking them benefited human mental and physical health. In order to achieve this aim, the defendant omitted numerous pieces of information which were known to him and which showed the harmful influence of these psychoactive agents on the human body. Another fact which it is important to point out is that the defendant addressed his book mainly to young people, as demonstrated by the quotation printed on the back cover. The Court considers that reading this quotation in a bookshop is liable to make a potential reader interested in the content of the book. The Court is of the view that the aim of the message contained in the book was to persuade ... readers to try out one of the narcotics described therein when the opportunity arose. In order to achieve this aim, the defendant sought to break down the psychological barriers normally encountered by reasonable individuals by choosing his words carefully, using analogies, outlining what he saw as the numerous qualities and advantages for the prospective consumer, and hiding or referring only in general terms to several dangerous consequences of drug use. No individual knows himself sufficiently well to be certain whether and how a certain narcotic may influence his psyche. The book in question was intended to be read in particular by young people. It is widely known that different types of narcotics, including those described by the defendant, are trafficked among high-school students and even among older pupils in primary schools. Moreover, it is known from radio, television and the press that the narcotics described by the defendant are taken by people, some of them teenagers, at private social events and in discotheques. Experience and observation of the environment tell us that persons of such a young age have not developed the necessary degree of self-criticism to allow them to approach the content of Robert Palusiński’s book with the required objectivity. The Court considers that the average reader will not analyse in depth the philosophical content of the book, but will remember simple facts designed to show that the narcotics described bring immediate pleasure and unforgettable experiences – including experiences of a religious nature – and, more importantly, that taking the doses suggested by the defendant ... will not have any negative consequences for life and health. The Court considers, therefore, that the approach taken by the defendant, consisting of publishing selected information, was aimed at inducing and making it easier for readers to take the narcotics described. The defendant published detailed information in his book on how to obtain ingredients and prepare them. He also gave instructions on the doses to be taken and described the states of mind which might be experienced. His actions were therefore aimed at making it easier for the reader to use narcotics. The defendant did not deny that access to narcotics in Cracow was very easy. It is well known from the media that there are places where almost anyone who wants to experiment with a chosen narcotic may buy it. In the context of this widely known information, the defendant advised readers to buy ingredients from verified sources. The Court is of the view that the average young person, after reading the book, buying narcotics and, under the influence of the book, forgetting his or her fears and apprehensions, is liable to decide unhesitatingly to take the narcotics. After reading the book he would feel certain that he was unlikely to become addicted and that he would not experience any negative effects, while being able for many years to experience new states of mind without fear. In view of the above, the Court has come to the conclusion that the actions of the defendant, Robert Palusiński, fit the characteristics of the misdemeanour described in section 32(1) of the Prevention of Drug Addiction Act of 31 January 1985. ... When sentencing the defendant, the Court took into account, as a factor counting against him, the significant degree of social harm which could be caused by his actions in the context of increasing drug addiction among young people. The Court also took into account the following circumstances in the defendant’s favour: the fact that he had no criminal record, the positive opinion of his neighbours and the fact that only 2,780 copies of the book had been printed, making it less accessible to potential readers in Poland. In sentencing the defendant the Court further took into account the profit he made from the sale of the book, his ability to earn a living and the fact that he has to support a wife and two children. In view of the above-mentioned circumstances in the defendant’s favour, his personal circumstances and his lifestyle, which justify the assumption that he will comply with the law and will not reoffend, the Court has decided to suspend his sentence. ...” The applicant appealed against his conviction but the appeal was dismissed by the Cracow Regional Court on 30 April 1996. The appellate court fully subscribed to the District Court’s findings and agreed that the book was actually a “guide for drug addicts”. The court was of the opinion that the introduction to the book, in which the applicant denied his “intention in any way to solicit, encourage or propagate the use of psychoactive agents”, was in complete contradiction to the content of the book. The court also relied on the opinions of two experts who considered the book to be “a set of instructions for drug addicts [and] incitement to the use [of drugs]” given that the applicant was of the view that narcotics were “less harmful [than generally assumed] or not harmful at all”. On 19 August 1996 the applicant lodged an appeal on points of law with the Supreme Court. Between 19 August 1996 and 14 March 2001 the case lay dormant before the Supreme Court. On 15 March 2001 the Supreme Court dismissed the applicant’s appeal on points of law. It followed the lower court’s findings and agreed with its opinion that the applicant’s book incited readers to use drugs and facilitated the taking of drugs by young people. Article 14 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and came into force on 17 October 1997, states: “The Republic of Poland shall ensure freedom of the press and other means of social communication.” Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides: “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 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant: “The freedom to express opinions and to acquire and disseminate information shall be secured to everyone.” For more details on the constitutional provisions, see Pachla v. Poland (dec.), no. 8812/02, 8 November 2005. Section 32(1) of the Prevention of Drug Addiction Act of 31 January 1985 reads as follows: “Anyone who, for financial gain or in pursuit of personal goals, provides another person with narcotic or psychotropic products, facilitates their use or incites others to use them, shall be liable to a term of imprisonment of between one and ten years.” On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) came into force. It lays down various legal means designed to counteract and/or afford redress for the undue length of judicial proceedings. For a more detailed exploration of the relevant domestic legal provisions, see Charzyński v. Poland (dec.), no. 15212/03, §§ 1223, ECHR 2005-V. Section 2 of the 2004 Act reads, in so far as relevant: “(1) Section 18 lays down transitional rules in relation to applications already pending before the Court. It reads, in so far as relevant: “(1) Within six months of the date of entry into force of this Act persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to trial within a reasonable time guaranteed by Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms ... may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this Act if their complaint to the Court was lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.”