EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 26229/95

Józef Gaw ę da

against

Poland

REPORT OF THE COMMISSION

(adopted on 4 December 1998)

. INTRODUCTION

(paras. 1 ‑ 15) ............................................. 1

A. The application

(paras. 2 ‑ 4) ......................................... 1

B. The proceedings

(paras. 5 ‑ 10) ........................................ 1

C. The present Report

(paras. 11 ‑ 15) ....................................... 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 ‑ 24) ............................................ 3

A. The particular circumstances of the case

(paras. 16 ‑ 20 ) ...................................... 3

B. Relevant domestic law

(paras. 21 ‑ 24) ....................................... 3

III. OPINION OF THE COMMISSION

(paras. 25 ‑ 52) ............................................ 5

A. Complaint declared admissible

(para. 25) ................................................. 5

B. Point at issue

(para. 26) ................................................. 5

C. As regards Article 10 of the Convention

(paras. 27-51) ............................................. 5

CONCLUSION

(para. 52) ................................................. 8

DISSENTING OPINION OF Mr F. MARTINEZ .......................................................................9

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ..................... 11

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ..................... 16

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a Polish citizen, born in 1936 and resident in Kęty.

3 . The application is directed against Poland.  The respondent Government were represented by Mr Krzysztof Drzewicki of the Ministry of Foreign Affairs.

4 . The case concerns the Polish courts' refusal to register two periodicals.  The applicant invokes Article 10 of the Convention.

B. The proceedings

5 . The application was introduced on 30 January 1994 and registered on 17 January 1995.

6 . On 15 January 1996 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Article 10 of the Convention in respect of two periodicals.  It declared the remainder of the application inadmissible.

7 . The Government's observations were submitted on 13 May 1996.  The applicant replied on 18 June 1996.

8 . On 13 January 1997 the Commission declared the remainder of the application admissible.

9 . The text of the Commission's decision on admissibility was sent to the parties on 29 January 1997.

10 . After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

12 . The text of this Report was adopted on 4 December 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14 . The Commission's decisions on the admissibility of the application are annexed hereto.

15 . The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

A. The particular circumstances of the case

16 . On 9 September 1993 the Bielsko-Biała Regional Court (Sąd Wojewódzki) dismissed the applicant's request for registration of a 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 Order of the Minister of Justice on Registration of Periodicals, the name of a periodical should be relevant to its contents.  The name as proposed by the applicant would suggest that an European institution had been established in Kęty, which was untrue and would be misleading to prospective buyers.  Moreover, the title proposed by the applicant would be disproportionate to its actual importance and readership as it was hardly conceivable that a periodical of a European dimension could be published in Kęty.

17 . On 17 December 1993 the Katowice Court of Appeal (Sąd Apelacyjny) upheld this decision.  On 6 May 1994 the Minister of Justice refused to grant leave for an extraordinary appeal as the impugned decisions were in accordance with the law.

18 . On 17 February 1994 the Bielsko-Biała Regional Court dismissed the applicant's request for registration of a press title of a periodical "Germany - a Thousand year-old Enemy of Poland" ("Niemcy - Polski Wróg Tysiąclecia").  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, refused to do so.  The Court considered that the registration of the periodical with the proposed title would be harmful to Polish-German reconciliation and detrimental to good cross-border relations.

19 . The applicant appealed against this decision, submitting that the Court's decision was incomprehensible and amounted to straightforward censorship.

20 . On 12 April 1994 the Katowice Court of Appeal upheld this decision.  The name, as proposed by the applicant, suggested that the proposed periodical would concentrate unduly on negative aspects of Polish-German relations and thus give an unbalanced picture of the facts.  The Court considered that the lower Court was justified in finding that the name would be detrimental to Polish-German reconciliation and to good relations between Poland and Germany and that the registration of a periodical with this title would infringe Article 5 of the Order of the Minister of Justice on Registration of Periodicals.

B. Relevant domestic law

21 . Article 20 of the Press Act 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, address of the editor, name and other personal data concerning the editor-in-chief, 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 shall refuse registration if the request does not contain the required data or if the proposed title would prejudice a right to protection of the title of any existing periodical.

22 . Article 23 (a) of the Press Act authorises the Minister of Justice to issue an order to specify the manner in which the press register should be run.

23 . Article 5 of the Order of the Minister of Justice on the register of periodicals provides that the court cannot order registration if such registration would not be in conformity with the regulations in force or with the real state of matters ("Sąd nie może zarządzić wpisu do rejestru, jeżeli wpis ten byłby niezgodny z obowiązującymi przepisami lub faktycznym stanem rzeczy").

24 . Article 45 of the Press Act provides that a person who publishes a periodical without the required registration is liable to a fine.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

25 . The Commission has declared admissible the applicant's complaint that the courts refused to register the titles of two periodicals, thus preventing him from publishing the periodicals.

B. Point at issue

26 . Accordingly, the point at issue is whether there has been a violation of Article 10 of the Convention.

C. As regards Article 10 of the Convention

27 . The applicant complains under Article 10 of the Convention that the Polish courts refused to register the titles of two periodicals,  thus preventing him from publishing them.

Article 10 of the Convention reads:

"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."

28 . The applicant submits that the Government have not indicated which of the legitimate purposes set out in para. 2 of Article 10 of the Convention would justify the refusal to register the titles considered.  The Government have not substantiated their statement that in the present case the refusal to register the titles of periodicals complied with the requirements of Article 10.  The courts were wrong in considering that the title "The Social and Political Monthly - A European Moral Tribunal" would suggest that an institution of such name existed in Kęty.  It is obvious that the only meaning to be given to this title was that a periodical under this name was to be published there.  The Government have not shown how the title "Germany - A Thousand year-old Enemy of Poland" would be detrimental to Polish-German relations.  Moreover, the authorities assumed that the content of this periodical would be limited to the negative aspects of these relations.  The applicant contends that this assumption was devoid of any factual basis and arbitrary.  The applicant finally submits that the refusals were not "prescribed by law" and that they amounted to preventive censorship, which is contrary to the principles underlying Article 10 of the Convention.

29 . The Government stress the importance of freedom of expression in a democratic society. The limitations thereof contained in para. 2 of Article 10 of the Convention are but exceptions to the general principle set out in para. 1 of the provision.  The Government state that they are fully aware that these exceptions must meet all the requirements laid down in para. 2 of Article 10 of the Convention.

30 . The Government submit that in the present case the refusal to register the titles of the two periodicals complied with these requirements.

31 . As regards the periodical "The Social and Political Monthly - A European Moral Tribunal", the Government submit that the courts dismissed the applicant's application for registration on the ground that the name as proposed by him would suggest that an European institution had been established in Kęty, which was untrue and would be misleading to prospective buyers.  The courts considered that, according to Article 5 of the Order of the Minister of Justice on the Register of Periodicals, the name of a periodical could not be registered if the registration would not be in conformity with regulations in force or with the real state of matters.

32 . With regard to the periodical "Germany - a Thousand year-old Enemy of Poland", the Government submit that the courts likewise considered that the registration would not be in conformity with the real state of matters.  The proposed title, in the courts' opinion, would be harmful to Polish-German reconciliation and detrimental to good cross-border relations.

33 . The Government finally contend that both decisions were in conformity with the applicable Polish law and that they did not infringe the applicant's freedom of expression guaranteed by Article 10 of the Convention.

34 . The Commission recalls that freedom of expression constitutes one of the essential foundations of a democratic society; 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.  Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.

35 . These principles are of particular importance as far as the press is concerned.  Whilst it must not overstep the bounds set, inter alia , in the "interests of national security" or for "maintaining the authority of the judiciary", it is nevertheless incumbent on it to impart information and ideas on matters of public interest.  Not only does the press have the task of imparting such 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".

36 . The adjective "necessary", within the meaning of Article 10 para. 2, implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts (Eur. Court HR, Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, para. 59). The Convention organs are therefore empowered to give the final ruling on whether the "restriction" under examination is reconcilable with freedom of expression as protected by Article 10.

37 . The Commission further recalls that, in exercising its supervisory jurisdiction, the Convention organs must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicants. In particular, they must determine whether the interference in issue was "proportionate to the legitimate aims pursued" and whether the reasons adduced by the national authorities to justify it were "relevant and sufficient". In doing so, the Convention organs have to satisfy themselves 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, among many other authorities, Eur. Court HR, the Hertel v. Switzerland judgment of 28 August 1998, Reports of Judgments and Decisions 1998, para. 46).

38 . The Commission recalls that Article 10 of the Convention does not in terms prohibit the imposition of prior restraints on publications.  However, the dangers inherent in prior restraints are such that they call for the most careful scrutiny (Eur. Court HR, Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, para. 60).

39 . As regards the present case, the Commission observes that under Polish law the refusal to register the title of a periodical publication is tantamount to a refusal to publish it. Therefore the Commission considers that the judicial decisions concerned amounted to an interference with the applicant’s rights protected by Article 10 of the Convention. Such an interference is compatible with this provision of the Convention if it is "prescribed by law”, pursues a legitimate aim and is “necessary  in a democratic society” within the meaning of paragraph 2 of Article 10.

40 . The first issue to be determined is therefore whether the restriction at issue was "prescribed by law" as required by para. 2 of Article 10 of the Convention.

41 . The Commission recalls that the limitation of the exercise of the freedom protected by Article 10 of the Convention can be considered as "prescribed by law" if the decision occasioning it complied with the relevant domestic legislation and that legislation is sufficiently clear and accessible. It is true that it is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law (Eur. Court HR, Barthold v. Germany judgment of 25 March 1985, Series A no. 90, p. 22, para. 48). However, the domestic law must itself be in conformity with the Convention, including the general principles expressed or implied therein, and in particular with the principle of the rule of law which implies that an interference by the authorities with an individual's rights should be subject to effective control (Eur. Court HR, Silver v. the United Kingdom judgment of 25 March 1983, p. 34, para. 90).

42 . The Commission further recalls that the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his or her conduct: he or she must be able to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (Eur. Court HR, Sunday Times v.  the United Kingdom judgment of 26 April 1979, Series A no. 30, p. 31, para. 49). Those considerations apply in particular where a right embodied in the Convention and the corresponding obligation on the part of the State are not defined with precision, and consequently the State has a wide choice of the means for making the exercise of the right possible and effective (Eur. Court HR, National Union of Belgian Police v. Belgium judgment of 27 October 1975, Series A. no. 19, p. 19, para. 44, mutatis mutandis).

43 . The Commission first observes that under the Polish Press Act registration of a title is an essential requirement for publishing a periodical.  Pursuant to Article 20 of the Press Act, a court can refuse registration only in two cases: firstly, if it establishes that the request for registration does not contain the proposed title, the address of the editor, the name and other personal data concerning the editor-in-chief, the name and address of the publishing house and information on how often the periodical will be published.  Secondly, the court can refuse registration if the proposed title infringes the right to protection of the title of any existing periodical.

44 . The Commission further notes that Article 5 of the Order of the Minister of Justice on the register of periodicals provides that a court cannot order registration if the registration would not be in conformity with regulations in force or with the real state of matters.

45 . In the Commission's opinion, the applicable law, in particular the above Article 5 of the Order, appears to have a circular effect in that no reference is to be found therein as to which legal regulations are to be specifically considered by a court examining the compliance of a request for registration therewith. Moreover, this Article provides that registration can be refused if it would not "be in conformity with the real state of matters".  It can reasonably be inferred from this requirement that the details contained in the request for registration, as set out in the Press Act, (see para. 21 above) should correspond to the factual situation of the prospective periodical.  However, the Commission observes that this provision leaves open to the courts a possibility of referring to the "reality" as such, thus conferring on them an unlimited power to refuse registration.

46 . In the Commission's view, this Order gives an excessive discretion to the courts as it in fact introduces new criteria on the basis of which the registration of a title can be refused.  This makes largely meaningless the limitation of grounds of a possible refusal to the two strictly technical conditions set out in Article 20 of the Press Act.  Moreover, under Article 23 (a) of the Press Act the Minister of Justice was authorised only to issue an order to regulate the manner in which the press registers should be run.  The Minister has significantly overstepped the limits of this authorisation as Article 5 of the Order in fact sets out more extensive requirements for registration which lack any legal basis under Article 20 of the hierarchically higher Press Act.

47 . The Commission concludes therefore that the law applicable in the present case was not formulated with sufficient precision to enable the applicant to regulate his conduct.  Therefore the manner in which the limitations were imposed on the applicant's exercise of his freedom of expression was not "prescribed by law" within the meaning of Article 10 para. 2 of the Convention.

48. The Commission further observes that prior restraints on printed media so far dealt with in the case-law of the Convention organs concerned individual items intended to be published, or restraints on distribution of already published material.  In the present case the Commission emphasises the all-encompassing character of the decisions under examination, which entailed a prohibition on publication of whole periodicals on the grounds of substantive character, i.e. in view of their prospective contents.

49. The Commission notes in this respect that Article 10 of the Convention clearly distinguishes between the degree of control that the State may legitimately exert over broadcasting, television or cinema enterprises, precisely by regulating access to these commercial activities by licensing procedures in which a wider margin of discretion is left to the States, and control over forms of exercise of freedom of expression, including the press and other printed media, which are subject only to the limitations laid down in para. 2 of Article 10.

50. The Commission observes in this respect that the system of registration of periodicals under Polish law, as envisaged by Article 20 of the Press Act, sets out certain requirements with which a request for registration must comply. It can legitimately be argued, regard being had to a technical character of these requirements, that the purpose of this provision is to ensure a certain regulation of the press market in the public interest, in particular as regards protection of the rights of owners of press titles.  However, the Commission emphasises that Article 5 of the Order of the Minister of Justice, referred to above, operates in  a manner which gives an unfettered discretion to courts taking decisions concerning  requests for registration. The Commission therefore considers that the registration procedure as envisaged by the applicable regulations of Polish law amounts in fact to a "licensing" within the meaning of third sentence of para. 1 of Article 10.

51. The Commission is of the opinion that such stringent application of the legal provisions concerning the press publications cannot be said to be reconcilable with the requirements of Article 10 of the Convention, and, above all, with the spirit and purpose of this Article.   The Commission therefore concludes that in the present case the refusals to register the periodicals concerned were in conflict with the basic concepts underlying Article 10 of the Convention.

CONCLUSION

52. The Commission concludes, by 25 votes to 1, that in the present case there has been a violation of Article 10 of the Convention.

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. French)

OPINION DISSIDENTE DE

M. F. MARTINEZ

Je regrette de ne pouvoir partager l’opinion exprimée par la majorité de la Commission.              J’estime, pour ma part, qu’il n’y a pas eu, en l’espèce, violation de la liberté d’expression.

Je dirai d’abord que le système, tel que le prévoit le droit polonais, - articles 20 et 23 de la loi sur la Presse combinés avec l’article 5 de l’arrêté du ministère de la Justice -, est loin de pouvoir être assimilé à une censure préalable. De mon point de vue, la majorité commet ici une erreur.

L’enregistrement ne consiste pas en une mesure qui soit une censure. Prenons l’exemple des personnes physiques qui, elles, sont soumises à l’obligation de se faire enregistrer (à l’Etat civil), faute de quoi elles ne peuvent exercer, en pratique, aucun droit. Et pourtant, nul ne considère que la personne physique est assujettie à une censure préalable ou que le registre d’Etat civil constitue une entrave au développement des droits fondamentaux.

La seule chose qui, en droit polonais, peut être « censurée » est le titre de la publication. Or c’est précisément ce titre que l’on a refusé au requérant. Il aurait pu, et il le peut encore, procéder aux mêmes déclarations et informations s’il accepte d’utiliser, pour ses publications, des titres autres que ceux qu’il avait envisagés ; car l’administration publique ne s’est pas immiscée dans le contenu des publications proposées.

Je tiens à rappeler que le titre proposé pour les personnes physiques, à savoir leur prénom, peut faire l’objet d’un refus de la part des pouvoirs publics sans pour autant constituer une « censure préalable » de l’activité future de la personne, ni une limitation de ses droits et libertés, ni une violation de la Convention. Je me réfère à l’arrêt Guillot contre France, rendu le 24 octobre 1996, où la Cour européenne a jugé que c’est à bon droit que les juridictions françaises ont refusé d’enregistrer le prénom « Fleur-de-Marie ». De même que la fille Guillot peut jouir de ses droits et libertés en portant un autre prénom officiel que celui de « Fleur-de-Marie », le requérant peut procéder à ses publications à la seule condition de modifier leurs titres.

Je ne partage pas l’opinion de la majorité lorsqu’elle considère que le droit polonais impose à la presse écrite un régime d’autorisation que l’article 10 par. 1 de la Convention n’autorise que pour les entreprises de radiodiffusion, de cinéma ou de télévision. Pour moi, l’enregistrement visé à l’article 20 de la loi sur la Presse ne constitue qu’une formalité pure et simple, autorisée par le paragraphe 2 de l’article 10 de la Convention.

La majorité estime qu’il y a eu violation de l’article 10 de la Convention en raison de ce que les autorités judiciaires polonaises ont refusé comme titres de presse « Un Tribunal moral européen » ou « L’Allemagne, un ennemi millénaire de la Pologne. » Jamais je ne pourrais accepter cela.

Pour la Commission, l’article 5 de l’arrêté ministériel a un effet circulaire (sic), et donne trop de pouvoir aux juridictions pour décider ce qu’est une « réalité », et leur octroie ainsi un pouvoir illimité pour refuser l’enregistrement. Mes éminents collègues en tirent la conséquence que la loi interne n’offre pas la précision que l’article 10 par. 2 de la Convention exige.

Je ne saurais me rallier à une telle approche. L’article 5 de l’arrêté ministériel est suffisamment clair et précis. On autorise l’enregistrement lorsque le titre exprime « la vérité », on le refuse lorsque tel n’est pas le cas. Il me paraît clair que la publication du requérant n’est pas « Un Tribunal moral européen ». Par conséquent, il était tout à fait prévisible que le titre, faute d’exprimer la réalité, se heurterait à un refus.

L’autre titre qui a été refusé, à savoir « L’Allemagne, un ennemi millénaire de la Pologne », n’est pas conforme aux règles de l’ordre et de la paix sociale. Son rejet suit donc les prescriptions du droit interne et celles de l’article 10 par. 2 de la Convention.

[1]       The term “fomer” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.