Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26229/95

by Józef GAW*DA

against Poland

The European Commission of Human Rights sitting in private on

15 January 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 January 1994

by Józef GAW*DA against Poland and registered on 17 January 1995 under

file No. 26229/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to :

the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

Having deliberated;

Decides as follows:

THE FACTS

Particular circumstances of the case

The facts of the case, as submitted by the applicant, may be

summarised as follows:

The applicant, a Polish citizen born in 1936, is an electrician,

residing in K*ty.

I.

On 9 September 1993 the Bielsko-Biala Regional Court (S*d

Wojewódzki) dismissed the applicant's request for registration of a

title of a periodical "The Social and Political Monthly - A European

Moral Tribunal" ("Miesi*cznik spoleczno-polityczny, europejski s*d

moralny") to be published in K*ty. 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 K*ty,

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 K*ty.

On 17 December 1993 the Katowice Court of Appeal (S*d 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.

II.

The applicant applied to the Bielsko-Biala Regional Court for

registration of a press title of a monthly "Great Encyclopedia of

Herbal Healing" ("Wielka Encyklopedia Recept Ziolowych").

On 7 July 1994 the Bielsko-Biala Regional Court dismissed this

request, considering that the relevant regulations required that a

title of a periodical should be relevant to its actual contents so as

not to be misleading for prospective buyers. As the applicant lacked

any relevant qualifications and only intended to buy recipes from

specialists and to publish traditional herbal recipes, the title of the

planned periodical would obviously not reflect its actual contents.

III.

On 17 February 1994 the Bielsko-Biala Regional Court dismissed

the applicant's request for registration of a press title of a monthly

"Germany - a Thousand year-old Enemy of Poland" ("Niemcy - Polski Wróg

Tysi*clecia"). 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.

The applicant appealed against this decision, submitting that the

Court's decision was incomprehensible and amounted to straightforward

censorship.

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 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.

IV.

On 8 December 1994 the Bielsko-Biala Regional Court dismissed the

applicant's request for registration of a periodical "Germany - a

Thousand year-old Ally of Poland" ("Niemcy-Polski Przyjaciel

Tysi*clecia").

On 24 January 1994 this Court dismissed the applicant's request

for the grounds of the decision to be recorded in writing, the request

having been submitted out of time.

Relevant domestic law

Article 20 of the Press Act requires a registration of the 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 how

often the periodical shall 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.

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.

Article 5 of the Order of the Minister of Justice on Registration

of Periodicals provides that the Court shall refuse registration if the

registration is not in conformity with the regulations in force or if

the details contained in the request for registration do not correspond

with the factual situation of the periodical ("S*d nie moze zarz*dzic

wpisu do rejestru, jezeli wpis ten bylby niezgodny z obowi*zuj*cymi

przepisami lub faktycznym stanem rzeczy").

Article 45 of the Press Act provides that a person who publishes

a periodical without the required registration, is liable to a fine.

COMPLAINTS

The applicant complains that the Election Act of 1993 requires

that any political party must obtain at least 5 per cent of the votes

in order for its candidates to be elected to the Parliament, whereas

the political representations of the national minorities are exempted

from this requirement. He relies on Articles 5, 8, 9, 10, 14 and 17

of the Convention.

The applicant further complains under Article 10 of the

Convention that the Court refused to register the titles of all the

periodicals which he wanted to publish.

THE LAW

1. The applicant complains under Articles 5, 8, 9, 10, 14 and 17

(Art. 5, 8, 8, 10, 14, 17) of the Convention that the Parliamentary

Election Act of 1993 requires that any political party must obtain at

least 5 per cent of the votes in order for its candidates to be elected

to the Parliament, whereas political representations of the minorities

are exempted from this requirement.

The Commission has examined this complaint under Article 3 of

Protocol No. 1 (P1-3) to the Convention. Insofar as the applicant

might be understood to be complaining about the parliamentary elections

in September 1993, the Commission observes that Poland ratified

Protocol No. 1 on 10 October 1994. Thus, an examination under this

provision as regards these elections is not possible having regard to

the Commission's competence ratione temporis.

Insofar as the complaint can be understood as relating to the

events after this date, the Commission recalls the Convention organs'

case-law according to which an applicant cannot complain as a

representative of people in general, because the Convention does not

permit as such an "actio popularis" (No. 10473/83, Dec. 11.12.85, D.R.

45, p. 121). The Commission is required to examine the applicant's

complaints only insofar as he himself can substantiate that he is a

victim of the alleged violation, i.e that he is affected by the law at

issue. In the present case the Commission considers that the applicant

has not shown that he was affected in any way by the Act complained of.

He cannot, therefore, claim to be the victim of a violation of the

Convention within the meaning of Article 25 (Art. 25) of the

Convention.

The Commission further considers that the facts as submitted do

not disclose any appearance of a violation of the Articles of the

Convention as invoked by the applicant.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains under Article 10 (Art. 10) of the

Convention that the Court refused to register the titles of the

periodicals "Germany -a Thousand year-old Ally of Poland" and "Great

Encyclopedia of Herbal Healing".

However, the Commission is not required to examine whether or not

the facts submitted by the applicant in support of this part of the

application disclose any appearance of a violation of the Convention

as Article 26 (Art. 26) of the Convention provides that the Commission

"may only deal with a matter after all domestic remedies have been

exhausted".

In the present case, the applicant failed to file an appeal with

the Katowice Court of Appeal against the decision of the Bielsko-Biala

Regional Court of 7 July 1994. He also failed to submit within the

time-limit a request to have the grounds of the Court's decision of 8

December 1994 recorded in writing and then to file an appeal against

this decision with the Katowice Court of Appeal. It follows that this

part of the application must be rejected for non-exhaustion of domestic

remedies under Article 27 para. 3 (Art. 27-3) of the Convention.

3. The applicant finally complains under Article 10 (Art. 10) of the

Convention that the Court refused to register the titles of the

periodicals "Germany - a Thousand year-old Enemy of Poland" and "Social

and Political Monthly - A European Moral Tribunal", thus making it

impossible for him to publish these periodicals.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of this complaint to the respondent

Government.

For these reasons, the Commission, by a majority,

DECIDES TO ADJOURN the examination of the applicant's complaint

concerning the refusals to register titles of the periodicals

"The Social and Political Monthly - A European Moral Tribunal"

and "Germany - a Thousand year-old Enemy of Poland";

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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GAWEDA v. POLAND

GAWEDA v. POLAND

LEXI