Gaweda v. Poland



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

13 January 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

Mr. M. de SALVIA, Deputy 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 reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

13 May 1996 and the observations in reply submitted by the

applicant on 18 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

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

residing in K*ty, whose requests to register several periodicals were

dismissed.

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

summarised as follows:

Particular circumstances of the case

a) 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.

b) 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.

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 the register

of periodicals provides that the Court shall refuse registration if the

registration would not be in conformity with the regulations in force

or with the real state of affairs ("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.

COMPLAINT

The applicant complains under Article 10 of the Convention that

the Polish courts refused to register two titles of periodicals which

he wanted to publish.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 January 1994 and registered

on 17 January 1995.

On 15 January 1996 the Commission decided to communicate the

applicant's complaint concerning the refusal to register two

periodicals to the respondent Government and to declare the remainder

of the application inadmissible.

The Government's written observations were submitted on 13 May

1996, after an extension of the time-limit fixed for that purpose. The

applicant replied on 18 June 1996.

THE LAW

The applicant complains under Article 10 (Art. 10) the Convention

that the Polish courts refused to register titles of two periodicals

which he wanted to publish.

Article 10 (Art. 10) of the Convention, insofar as relevant,

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."

The Government stress the importance of freedom of expression in

a democratic society. The limitations thereof contained in para. 2 of

Article 10 (Art. 10) of the Convention are but exceptions from the

general principle set out in para. 1. The Government are fully aware

that these exceptions must meet all the requirements set out in para.

2 of Article 10 (Art. 10-2) of the Convention.

The Government submit that the refusals to register the press

titles in the present case comply with these requirements.

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 the applicant would suggest that an

European institution had been established in K*ty, 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 cannot be registered

if the registration would not be in conformity with regulations in

force or with the real state of affairs.

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 correspond to the reality.

The proposed title, in the courts' opinion, would be harmful to Polish-

German reconciliation and detrimental to good cross-border relations.

The Government submit that both decisions were issued in

conformity with the Polish law and that they did not infringe the

applicant's freedom of expression guaranteed by Article 10 (Art. 10)

of the Convention. They conclude that the application should be

declared manifestly ill-founded.

The applicant contests this. He submits that the Government has

not indicated which of the legitimate purposes set out in para. 2 of

Article 10 (Art. 10) of the Convention would justify the refusals to

register the titles concerned. The Government have not substantiated

their statement that the refusals to register the press titles in the

present case comply with the requirements of Article 10 (Art. 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 K*ty. It is obvious that the only

meaning to be given to this title is that a periodical under this name

is published there. The Government has not shown how the title

"Germany - a Thousand year-old Enemy of Poland" would be detrimental

to the Polish-German relations. Moreover, the authorities assumed

that the content of this periodical would be limited only to the

negative aspects of these relations. This assumption was devoid of any

factual basis and was arbitrary. The applicant submits that the

refusals were not "prescribed by law" and that they amounted to prior

censorship, contrary to Article 10 (Art. 10) of the Convention.

The Commission considers that the applicant's above complaint

raises serious issues of fact and law under Article 10 (Art. 10) of the

Convention the determination of which should depend on an examination

of the merits. It follows that the application cannot be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint that the courts' refusal to register two

titles of periodicals was in violation of his rights under

Article 10 (Art. 10) of the Convention.

M. de SALVIA S. TRECHSEL

Deputy Secretary President

to the Commission of the Commission