CASE OF KAPERZYNSKI v. POLAND
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1964 and lives in Olsztyn. 6. At the material time the applicant was editor-in-chief of the local weekly newspaper “Iławski Tydzień”. 7. On 17 October 2005 the newspaper published an article coauthored 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. 8. 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. 9. 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. 10. The applicant did not reply to this letter and did not publish it. 11. 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). 12. 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. 13. 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”). 14. 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. 15. 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. 16. 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.” 17. 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. 18. The applicant appealed, essentially reiterating his arguments as submitted to the first-instance court. 19. On 29 March 2007 the Elbląg Regional Court upheld the contested judgment. 20. 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.” 21. 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 editorin-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” 22. 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 ...” 23. 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 subsection (1), the editorin-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.” 24. 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.” 25. 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. 26. 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. 27. 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. 28. 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. 29. 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. 30. 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.” 31. 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. 32. 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 ...”