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ECtHR decided the case of Kaperzyński versus Poland

The European Court of Human Rights delivered  the judgement in the case of Kaperzyński versus Poland. The case concerned a conviction for the failure to publish a correction to a press article. The Court held unanimously that the criminal liability for the failure to publish a correction violated the freedom of speech.

“The judgment touches upon a topical subject in Poland. We hope that this decision will be taken into account in the amendment to the correction regime, currently being developed in a Senate’s committee”, says Dorota Głowacka, a lawyer with the HFHR.

Przemysław Kaperzyński (the Applicant) was the editor-in-chief of Iławski Tydzień, a local weekly. He was a co-author of an article which accused local authorities of mismanagement of the local waste and sewage system. According to the journalists, the authorities’ conduct might have resulted in an environmental disaster and posed a health risk to the local population. The article also criticised the local authorities who, in the authors’ opinion, failed to exercise sufficient care and skills in tackling the problem.

The head of the Iława municipality sent a letter to the newspaper, complaining about the article. The Applicant argued that the official’s letter failed to satisfy the statutory requirements for a correction as it did not contain a separate and designated wording of the requested rectification. Moreover, the journalist claimed that the letter failed to pass the volume test established under the Press Law Act. Mr Kaperzyński did not publish the letter and failed to notify the sender about the reasons behind his decision, whereas the press law says that, as a rule, a journalist needs to substantiate a refusal to publish a correction.

In consequence, the municipality of Iława filed a private indictment against the Applicant. Domestic courts sentenced the journalist for 80 hours of community service with a two-year probation period. Moreover, the criminal court prohibited Mr Kaperzyński from pursuing his profession for two years and ordered the judgment to be displayed at the premises of the municipality office.

The ECtHR decided that the right of reply, as a generally justifiable element of the legal framework governing the free media, did not in itself contravene the Convention requirements. At the same time, the Court noted that the imposition of a sanction of such severity on the journalist for the refusal to publish the received letter cannot be reconciled with the principle of proportionality. It is even more so, considering that the criminal proceedings in which Mr Kaperzyński was convicted concerned the failure to meet a procedural obligation and not the substance of the article itself. The criminal court’s decisions did not refer to the article’s credibility or damagingof the local government’s good name. According to the Court, under such circumstances, even if an editor-in-chief fails to fulfil the duty to substantiate the refusal to publish a correction to an article, the imposition of penal sanctions is inadmissible.

“This sentence brought serious hardship on me. I lost advertisers, I had to close the paper and leave Iława to look for a new job. The Strasbourg Court’s decision restored my sense of justice. However, it disturbs me that courts may still use such draconian measures against journalists”, comments Przemysław Kaperzyński.

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