Information Note on the Court’s case-law No. 151
April 2012
Kaperzyński v. Poland - 43206/07
Judgment 3.4.2012 [Section IV]
Article 10
Article 10-1
Freedom of expression
Imposition of suspended sentence and ban on journalist for refusing to grant right to reply or provide reasons for the refusal: violation
Facts – The applicant published a newspaper article criticising the local authority for failing to take steps to remedy alleged defects in the sewage and sanitary system. The mayor wrote to the newspaper to contest the allegations and to request publication of a rectification under section 32 of the Press Act. The applicant did not publish or reply to the letter and was subsequently found guilty of an offence under section 46 of the Act. He was given a suspended sentence of four months’ restriction of liberty in the form of 20 hours’ community service per month and banned from working as a journalist for two years.
Law – Article 10: The sanction imposed on the applicant had interfered with his right to freedom of expression. The interference had been prescribed by domestic law at the material time (although the relevant provisions had subsequently been found to be incompatible with the Constitution) and pursued the legitimate aim of protecting the reputation or rights of others.
As to whether the sanction had been necessary in a democratic society, the subject of the article – the health risks posed by the municipal sewage system – was indisputably a matter of general interest for the local community. The criticism it contained of the local authorities’ and mayor’s performance had a solid factual basis, did not amount to a personal attack and was not insulting or frivolous. There had therefore been little scope for imposing restrictions on the applicant’s freedom of expression. Nevertheless, a legal obligation to publish a rectification or reply was a normal element of the legal framework governing the exercise of freedom of expression by the print media and could not, as such, be regarded as excessive or unreasonable. Likewise, an obligation to inform the party concerned in writing of the reasons for a refusal to publish a reply or rectification was not of itself open to criticism, as among other things it enabled an aggrieved party to present his reply in a manner compatible with the newspaper’s editorial practice. In that connection, the Court accepted the domestic courts’ findings that the applicant had failed to comply with his statutory obligation to publish the mayor’s reply or to provide reasons for his refusal to do so.
Nevertheless, the interference with the applicant’s freedom of expression had been disproportionate. A criminal sentence had been imposed for an offence that was essentially of a procedural nature (unrelated to the substance of the impugned article) under legislation which prevented the applicant from making or the domestic courts taking into account considerations based on freedom of expression. In addition to receiving a suspended restriction of liberty the applicant had been banned for working as a journalist for two years; that sentence was not only very harsh, it also had an enormous dissuasive effect on open and unhindered public debate on matters of public interest. Lastly, it was relevant too that the Polish Constitutional Court had, in a separate case, found the scope and modalities of the exercise of the right of reply under the Press Act to be deficient. In these circumstances, the interference had not been necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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