CASE OF GAWEDA v. POLAND
Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award
Elisabeth Palm;Gaukur Jörundsson
6. On 9 September 1993 the Bielsko-Biała Regional Court dismissed the applicant's request for registration of the title of a periodical, The Social and Political Monthly – A European Moral Tribunal (Miesięcznik społeczno-polityczny, europejski sąd moralny) to be published in Kęty. The court considered that in accordance with the Press Act and the Ordinance of the Minister of Justice on the registration of periodicals, the name of a periodical should be relevant to its contents. The name as proposed by the applicant would suggest that a European institution had been established in Kęty, which was untrue and would be misleading to prospective buyers. Moreover, the proposed title would be disproportionate to the periodical's actual importance and readership as it was hardly conceivable that a periodical of a European dimension could be published in Kęty. The court went on to state: “... the applicant stubbornly applies for registration of periodicals the titles of which would suggest the existence in Kęty of an institution of international character (such as the European Moral Tribunal or the World Tribunal of Morality), and when requested by the court to change the titles he declares that he will not do so.” 7. On 17 December 1993 the Katowice Court of Appeal dismissed an appeal by the applicant against this decision. The court stated, inter alia, that in the proceedings before the first-instance court the applicant had been requested to change the proposed title by deleting the term “European Moral Tribunal”, but he had refused to do so. 8. Subsequently, the applicant made a number of further applications for the registration of periodicals. He succeeded in obtaining four registrations. 9. On 6 May 1994 the Minister of Justice refused to grant leave for an extraordinary appeal against the decision of 17 December 1993, finding that it was in accordance with the law. 10. On 17 February 1994 the Bielsko-Biała Regional Court dismissed a new request by the applicant for registration of a periodical, Germany – A thousand-year-old enemy of Poland. The court noted that at a hearing on 17 February 1994 the applicant, when requested to change the proposed title so as to remove its negative character, had refused to do so. The court considered that registration of the periodical with the proposed title would be harmful to Polish-German reconciliation and detrimental to good cross-border relations. 11. The applicant appealed against this decision, submitting that it was incomprehensible and amounted to censorship. 12. On 12 April 1994 the Katowice Court of Appeal upheld the contested decision. The court observed that the title, as proposed by the applicant, suggested that the proposed periodical would concentrate unduly on negative aspects of Polish-German relations. The court considered that such a title would be in conflict with reality in that it would give an unbalanced picture of the relevant facts. The court further considered that the lower court had been justified in refusing registration on the ground that the title would be detrimental to Polish-German reconciliation and to good relations between Poland and Germany. 13. Section 20 of the Press Act of 26 January 1984 requires registration of a press title by the regional court as a prerequisite for publication of a periodical. A request for registration should contain the proposed title, the editor's address, the name of the editor-in-chief and other personal data, the name and address of the publishing house and information on how often the periodical would be published. The decision on registration is to be taken within thirty days of the date on which the request has been filed with the court. The court must refuse registration if the request does not contain the required information or if the proposed title would prejudice a right to protection of the title of any existing periodical. Section 45 of the Press Act provides that a person who publishes a periodical without the required registration is liable to a fine. 14. Section 23(a) of the Press Act authorises the Minister of Justice to issue an ordinance specifying the manner in which the press register should be run. 15. Section 5 of the Ordinance of the Minister of Justice on the registration of periodicals, as applicable at the material time, provided that registration was not possible if it would be “inconsistent with the regulations in force and with the real state of affairs” (“niezgodny z przepisami prawa lub z istniejącym stanem rzecz”). 16. On 1 November 1997 the ordinance was amended in that section 5 was deleted.