Documentarian refused entry to Polish Parliament, HFHR brings case to ECtHR

♦ The HFHR and lawyers of Leśnodorski, Ślusarek i Wspólnicy have drafted an application to the European Court of Human Rights on behalf of Konrad Szołajski, a filmmaker who was denied entry to the Parliament. Mr Szołajski wanted to film the parliamentary grounds and use the recordings in a documentary he was working on at the time.

♦ The Speaker of the Sejm refused to issue a press pass for the documentarian and his crew, and the Supreme Administrative Court ruled that this decision could not be challenged by way of a judicial review performed by administrative courts.

♦ In his ECtHR application, Mr Szołajski alleges that his freedom of expression, right to a court and right to an effective remedy has been violated.

♦ Konrad Szołajski is represented before the European Court of Human Rights by the HFHR’s Dominika Bychawska-Siniarska and Maciej Ślusarek of Leśnodorski, Ślusarek i Wspólnicy acting pro bono. Previously, Mr Ślusarek agreed to the HFHR’s request to represent the applicant in domestic proceedings.

The Speaker: they are not journalists

While working on a documentary entitled Dobra zmiana (The Good Change), Konrad Szołajski planned to film parliamentary debates. To be able to do so, the filmmaker twice unsuccessfully applied for a press pass for himself and his crew that would allow him to enter the Parliament grounds. According to the Speaker of the Sejm, it was not possible to issue press passes to documentary filmmakers, who, in the Speaker’s opinion, are not journalists within the meaning of the Press Law Act, despite the fact that the footage was supposed to be broadcast by several media outlets, including Swedish television.

“Indeed, Konrad Szołajski and his team acted, for all practical purposes, as journalists because they prepared, under the authority of a broadcaster, a documentary film that was scheduled to be aired on TV. Given the above, there was no reason to deny them press passes”, Konrad Siemaszko, HFHR lawyer, analyses the case.

Administrative courts say they have no jurisdiction to review the case

In July 2018, Mr Szołajski appealed against the most recent Speaker’s denial to the Provincial Administrative Court in Warsaw. Maciej Ślusarek, a Partner at Leśnodorski, Ślusarek i Wspólnicy, agreed to the HFHR’s request to represent the appellant pro bono before administrative courts.

The Provincial Administrative Court rejected the appeal in October 2018, holding that the issuance of press passes giving the right to enter the Sejm grounds does not fall within the scope of judicial review exercised by administrative courts. Konrad Szołajski files a complaint in cassation, which was dismissed in October 2018 the Supreme Administrative Court. The Supreme Administrative Court ruled that the contested refusal to issue press passes was related to organisational and technical matters, and the rules of access to the Parliament are laid down in its Rules of the Sejm, which is a body free to set out its own working rules under the law.

ECtHR application

“The physical presence of members of the media in the Sejm is crucial for upholding the people’s right to obtain information on the activities of their parliamentary representatives. The grant of access to the Parliament’s grounds cannot depend solely on an arbitrary decision of the Speaker of the Sejm. Meanwhile, Mr Szołajski had no way of effectively challenging the Speaker’s decision denying access, either as part of the press pass issuance procedure or before an administrative court”, says Konrad Siemaszko, a lawyer of the HFHR. He adds: “Therefore, in the application prepared jointly with lawyers of Leśnodorski, Ślusarek i Wspólnicy, we make three complaints. First, we allege a violation of freedom of expression, which results from the applicant having been prohibited from obtaining information for the purposes of a documentary film. Second, we complain about a violation of the right to a court, which results from the unavailability of a judicial review of the Speaker’s decision. Third, we point to a violation of the right to an effective remedy, which results from the absence of a procedure to challenge the refusal to issue a press pass.

A worrying trend of restricting access to the Parliament

The HFHR emphasizes that it is necessary to develop a transparent policy of media access to the Parliament. This is particularly important the recurring cases of impediments placed on access to the Sejm. An example of such restrictions is the increasingly frequent practice of temporary suspension of the issuance of single-entry passes. The Helsinki Foundation for Human Rights has pointed out on several occasions that such actions have an adverse impact on the right to information and freedom of speech, referring to, among other things, the restrictions on access during the protest of persons with disabilities and their carers in May 2018, or the changes in the organisation of the media access to the Sejm, which were announced in December 2016, but ultimately discarded following widespread opposition.

The Supreme Administrative Court will also hear two cases of journalists who were denied access to the May 2018 session of the Sejm due to the temporary suspension of the issuance of single-entry passes, which was ordered by the Speaker on the “security grounds” in connection with the then-ongoing protest of persons with disabilities and their carers. In March 2019, the Provincial Administrative Court in Warsaw ruled in both cases that the refusal of access had constituted an unacceptable restriction of the right of access to a parliamentary session under Article 61(4) of the Constitution. The Court stated that this restriction had had no appropriate legal basis and that the Speaker of the Sejm had not given any reasons as to how the refusal would improve security in the Parliament or why it would be necessary to protect public interest. In one of these cases, the Provincial Administrative Court annulled a provision of the Speaker’s Order which allowed for a temporary limitation or exclusion of the right of access to the Sejm.

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The case of Konrad Szołajski is conducted as part of the HFHR’s project of legal aid for journalists and bloggers financed by Media Legal Defence Initiative.