Poland: New Bill Could Ban Journalists from Historical Debate

Update: 06 Feb 2018 State replied
Year 01 Feb 2018 Country Poland Category Other acts having chilling effects on media freedom Source of threat State Partner Article 19 , AEJ Alert level Level 2
01 Feb 2018 Poland Other acts having chilling effects on media freedom State Article 19 , AEJ Level 2

On 1 February 2018 the Polish Senate approved an amendment to the National Remembrance Institute Act (NRIA), introducing criminal liability for ‘publicly ascribing responsibility or co-responsibility to the Polish People or State for Nazi crimes committed by the Third Reich’, as well as for ‘grossly reducing the responsibility of the actual perpetrators of these crimes.’ This act is punishable by a fine or imprisonment of up to 3 years. The authors of the bill state its aim as counteracting the phrase “Polish concentration camps”, used by non-Polish commentators to describe Nazi concentration camps on the territory of Poland, during the occupation of Poland during the Second World War. While the Bill includes an exception for artistic or scientific expression, it does not clearly state how artistic or scientific activity would be defined. There is a risk the legislation could affect media freedom, particularly with regard to journalists engaged in debates about Poland’s history. The Bill also introduces vague provisions on civil liability for ‘infringement of the good name of the Republic of Poland and the Polish Nation’, in violation of international standards, which do not permit restrictions on freedom of expression made in order to protect “the state” or its symbols from insult or criticism. The amendments based on existing provisions in the Civil Code aimed at the "Protection of Personal Interests" (Articles 23-24). The amendments would enable the National Remembrance Institute or a non-governmental organisation to bring a claim against an individual. Remedies could include a retraction of the statement and/or compensation. Compensation would be awarded to the State Treasury, and the amount awarded at the discretion of the courts, opening up the possibility of very large fines, that could cripple independent outlets. The bill is now awaiting approval by the Polish President.

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02 Feb 2018 : New law on World War II crimes in Poland can threaten freedom of expression, says OSCE Representative Désir.

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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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