Poland Opens Investigation over Article Critical of Constitutional Tribunal President

Update: 05 Feb 2018 State replied
Year 12 Jan 2018 Country Poland Category Other acts having chilling effects on media freedom Source of threat State Partner AEJ Alert level Level 2
12 Jan 2018 Poland Other acts having chilling effects on media freedom State AEJ Level 2

The Warsaw regional prosecutor’s office has opened a criminal investigation against a journalist in a case alleging “a public insult or humiliation against a constitutional authority of the Republic of Poland”. The case concerns an article in the Gazeta Wyborcza newspaper published on 20 October 2017 in which Wojciech Czuchnowski alleged that the head of the Constitutional Tribunal works for the country’s security services with the aim of ensuring that the court serves the interests of Poland’s current political leadership. Last year Czuchnowski was harshly criticised by the National Prosecutor’s Office for a publication in Gazeta Wyborcza in which he allegedly insulted the country’s chief prosecutor. The prosecutor demanded a public apology and the payment of a donation of 15,000 euro to a charitable foundation. Gazeta Wyborcza refused to apologise or make the payment and the case has so far not been pursued by the National Prosecutor’s Office. The offence in the present case carries a fine or a maximum prison term of two years. The investigation was initiated after Julia Przyłębska, the president of the Tribunal, reported the article to the Prosecutor’s Office in November 2017. Gazeta Wyborcza was formally notified of the opening of the investigation on 10 January 2018.

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20 March 2018

On 20 March 2018, the European Court of Human Rights issued its Grand chamber judgment on Mehmet Altan’s case. The Court found there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 10 (freedom of expression) of the European Convention for Human Rights. With regards to article 5 §1, according to the Court findings, “Mr Altan’s continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgment of 11 January 2018 (…), could not be regarded as ‘lawful’ ”. The Court held that “for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which (…) were the cornerstones of the guarantees against arbitrariness”. Under Article 10, the Court held in particular that “there was no reason to reach a different conclusion from that of the Constitutional Court, which had found that Mr Altan’s initial and continued pre-trial detention, following his expression of his opinions, constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society”. The Court pointed out in particular that “criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda”.

20 March 2018

On 20 March 2018, the European Court of Human Rights issued its Grand chamber judgment on Şahin Alpay’s case. The Court found there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 10 (freedom of expression) of the European Convention for Human Rights. With regards to article 5 §1, according to the Court findings, “Mr Alpay’s continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgment of 11 January 2018 (…), could not be regarded as ‘lawful’ ”. The Court held that “for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which (…) were the cornerstones of the guarantees against arbitrariness”. Under Article 46 (binding force and execution of judgments) of the Convention, the Court held that it was incumbent on the respondent State to ensure the termination of Mr Alpay’s pre-tria detention at the earliest possible date. Under Article 10, the Court held in particular that “there was no reason to reach a different conclusion from that of the Constitutional Court, which had found that Mr Alpay’s initial and continued pre-trial detention, following his expression of his opinions, constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society”. The Court pointed out in particular that “criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda”.
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