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Pressemitteilung
 Der Kanzler des Europäischen Gerichtshofs für Menschenrechte 06/04/06 Gerichtshof –Kammerurteil im Fall Malisiewicz-Gąsior gegen Polen [en] EUROPEAN COURT OF HUMAN RIGHTS 199
Press release issued by the Registrar CHAMBER JUDGMENT The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Malisiewicz-Gąsior v. Poland (application no. 43797/98). The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 5,000 euros (EUR) for non-pecuniary damage. (The judgment is available only in English.) 1. Principal facts The applicant, Izabela Malisiewicz-Gąsior, is a Polish national who was born in 1950 and lives in Łódź (Poland). She is a choreographer and was an independent candidate in the 1993 parliamentary elections. On 10 June 1992 Andrzej Kern, then Deputy Speaker of the Sejm (Poland’s Lower House of Parliament) lodged a complaint against Ms Malisiewicz-Gąsior with the Łódź Regional Public Prosecutor’s office. Mr Kern alleged that Ms Malisiewicz-Gąsior had kidnapped his 17-year-old daughter, M.K. According to Ms Malisiewicz-Gąsior, however, M.K. had run away from home accompanied only by her long-term boyfriend (Ms Malisiewicz-Gąsior’s son), whom she subsequently married. The regional public prosecutor (a friend of Mr Kern, according to Ms Malisiewicz-Gąsior) instructed the deputy regional public prosecutor to take charge of the case, who authorised the search of the applicant’s flat for M.K. and drugs and the tapping of the applicant’s telephone. On 11 June 1992, at 4 a.m., police officers searched Ms Malisiewicz-Gąsior’s flat, but found neither M.K. nor drugs. On 29 June 1992 the applicant was taken into custody on charges of kidnapping and was detained in Łódź Prison Hospital, apparently in the psychiatric ward. She was released on 2 July 1992. The allegations of kidnapping received extensive media coverage in Poland. ./.. The applicant applied successfully for her case to be transferred to a prosecutor who worked outside the Łódź region. On 16 September 1992 the new prosecutor discontinued the criminal proceedings, finding the allegations of kidnapping to be groundless. In 1993 Ms Malisiewicz-Gąsior decided to stand as an independent candidate in the parliamentary elections. During her campaign, she wrote two articles in the weekly newspaper “Angora”, published in August and September 1993, in which she accused Mr Kern of “abuse of power”, of having orchestrated her arrest and detention in a psychiatric cell, having her phone tapped and her flat searched for drugs. She also described her ideas about working in the Senate (Poland’s Upper House of Parliament). Her statements were subsequently broadcast on local radio and television stations. On 27 September 1993 Mr Kern lodged a private bill of indictment against Ms Malisiewicz-Gąsior, charging her with defamation (zniesławienie) under Article 178 § 2 of the Criminal Code. On 19 March 1996 she was convicted, the national courts finding her comments about Mr Kern to be both defamatory and untrue and considering that she had been acting in her own rather than the public interest. She appealed unsuccessfully against her conviction. However, her sentence was reduced on appeal from a suspended prison term of 18 months to one of a year. The appellate courts also accepted that it was “beyond doubt” that the applicant could have felt that the prosecuting authorities had been “overactive”. She was ultimately ordered to pay for the publication of the judgment against her in one national daily as well as an apology to Mr Kern to be published in “Angora”, and to pay 480 Polish zlotys (PLN) in costs and PLN 90 to the State treasury. The Polish Ombudsman subsequently found, among other things, that the regional Łódź prosecutors had broken the law and that the courts had failed to take into account important evidence in support of Ms Malisiewicz-Gąsior’s case. Ultimately the Polish courts decided not to enforce Ms Malisiewicz-Gąsior’s prison sentence after she failed to apologise to Mr Kern. 2. Procedure and composition of the Court The application was lodged with the European Commission of Human Rights on 20 October 1997 and transmitted to the Court on 1 November 1998. It was declared admissible on 29 January 2004. Judgment was given by a Chamber of seven judges, composed as follows: Christos Rozakis (Greek), President, 3. Summary of the judgment2 Complaint The applicant complained about her conviction for defamation, relying on Article 10. Decision of the Court Article 10
In addition, her comments were based on personal experience; Mr Kern’s request for criminal proceedings to be brought against her and the events which followed. The appellate court had found that the applicant could have subjectively felt that the Łódź prosecutors had been overactive in her case. Moreover, the ombudsman considered that certain prosecutors had even broken the law. When her case was transferred to the new prosecutor, the criminal proceedings against her were discontinued, the prosecutor considering those charges to be groundless. The Court therefore considered that the applicant’s allegations of abuse of power were not a gratuitous personal attack but part of a political debate. Even if some of the statements contained harsh words, they were made against a well-known politician concerning whom the limits of acceptable criticism were wider than as regards a private individual. The Court reiterated that very strong reasons were required to justify restrictions on political speech. Allowing broad restrictions on political speech in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned. The Court did not subscribe to the domestic courts’ view that the applicant was acting in her own interest; the matters covered by her in her articles concerned issues of public interest. The Court reiterated that the right to stand as a candidate in an election was of prime importance in the Convention system and crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. The Court further observed that the domestic courts failed to take into account the fact that Mr Kern, being a politician, should have shown a greater degree of tolerance towards criticism. Accordingly, the Court found that the domestic authorities failed to take into consideration the crucial importance of free political debate in a democratic society, particularly in the context of free elections. Finally, the Court considered that the defamation of a politician in the context of a heated political debate did not justify the imposition of a prison sentence. The conviction of the applicant for making, during her parliamentary campaign, press and radio statements alleging abuse of power by one of the most powerful politicians in the country must have had “a chilling effect” on the freedom of expression in public debate in general. The Court therefore found that there was no reasonable relationship of proportionality between the measures applied by the domestic courts and the legitimate aim pursued. The authorities therefore failed to strike a fair balance between the relevant interests. Finding that the interference with Ms Malisiewicz-Gąsior’s exercise of her freedom of expression was not “necessary in a democratic society”, the Court held, unanimously, that there had been a violation of Article 10. *** The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int). Press contacts:
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