Resolution CM/ ResDH (2012) 200 [1] Frankowicz against Poland

Execution of the judgment of the European Court of Human Rights

(Application No. 53025/99, judgment of 16 December 2008, final on 4 May 2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established (see document DH-DD(2011)411E );

Recalling that the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide to by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2 0 11)411E );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted;

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

ACTION REPORT [2]

Information about the measures to comply with the judgment in the case of

Frankowicz against Poland

Case description

Frankowicz , application no. 53025/99, judgment of 16/12/2008, final on 04/05/2009

This case concerns the violation of the applicant ’ s right to freedom of expression due to his conviction in disciplinary proceedings, a decision subsequently upheld by the Supreme Medical Court in May 1998 (violation of Article 10 of the Convention).

The applicant is a gynaecologist . He was found guilty of unethical conduct in breach of the principle of professional solidarity, in violation of the Code of Ethics, and reprimanded for having prepared a critical opinion on hepatological and dermatological treatment prescribed by another doctor for one of his patients.

The European Court of Human Rights (“the European Court ”) found that this sanction, although provided by law and pursuing a legitimate aim, i.e., the protection of the rights and reputation of others, was not «necessary in a democratic society». It stressed that the applicant ’ s opinion concerned a critical assessment from a medical point of view of treatment received by his patient from another doctor, which was an issue of public interest. The disciplinary courts ’ approach risked discouraging medical practitioners from providing their patients with an objective view of their state of health and treatment received.

I. Individual measures

The notice of reprimand, imposed in 1998, was removed from the relevant register three years after the decision to impose it became final. The Court awarded the applicant just satisfaction in respect of non-pecuniary damage and rejected his claim for pecuniary damage due to the lack of a causal link between the damage claimed and the violation found. In these circumstances, no further individual measure appears to be necessary.

II. General measures

1. Legislative measures

The applicant has been convinced on the basis of Article 52 § 2 of the Code of Medical Ethics as it stood at the material time.

On 20 September 2003 Article 52 § 2 was amended and currently reads as follows:

“A physician should display particular caution in formulating opinions on the professional conduct of another doctor and in particular he should not in any way discredit him publicly.”

On 23 April 2008 the Constitutional Court delivered a judgment (SK16/07) in which it found that Article 52 § 2 of the Code of Medical Ethics was unconstitutional in so far as it prohibited the truthful public assessment of the activity of a doctor by another doctor in the public interest. The relevant provision, examined in its new wording which came into force in 2003, was not quashed as only its particular interpretation was considered to breach the constitutional norm securing the freedom of expression (§ 25 of the judgment).

Taking into consideration the amendment of Article 52 § 2 of the Code of Medical Ethics and the judgment of the Constitutional Court, indicating its correct interpretation, no further legislative measures appear to be necessary.

2. Publication and dissemination

The judgment of the European Court was translated into Polish and published on the internet site of the Ministry of Justice (www.ms.gov.pl). Information about the publication has been sent to all Courts of Appeals with request to disseminate it among judges. In addition Ministry of Health has sent the translated judgment to the President of the Supreme Medical Chamber and presidents of all regional medical chambers with request to disseminate it among the members of the medical self-government.

III. Conclusions of the respondent state

The government considers that the measures adopted, in particular legislative changes and broad dissemination of the judgment of the European Court of Human Rights, will prevent similar violations and that Poland has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 6 December 2012 at the 11 57 th Meeting of the Ministers’ Deputies .

[2] Information submitted by the Polish authorities on 27 May 2011 .