Article 10 European Convention on Human Rights (Freedom of Expression) The Case of Kacki v. Poland
Avrupa İnsan Hakları Sözleşmesi Madde 10 (İfade Özgürlüğü) Kacki - Polonya Davası
İklim SOLCAN
On an unspecified date, political party member A.R. of the Republic of Poland, informed a daily newspaper about the sex scandal of a party. According to A.R., 3 activist have offered money and job for sex to her in the party. But they denied that. On 30 November 2007 M.C., a Member of the European Parliament, lodged a private bill of indictment against the publisher of interview. He demanded that the applicant be charged with defamation. The District Court found the applicant guilty of the defamation of M.C. with respect to his publication of the statements made by A.R. concerning nepotism. According to the court, the applicant neglected his professional obligations because he didn’t verify that the job had been offered to M.C.’s daughter. At the trial, this information couldn’t be accurate because M.C. didn’t have a daughter. However, the applicant first approves the interview with A.R. and then publishes it. So, the applicant didn’t add own interpretation. The applicant applied European Court of Human Rights for violation of Article 10 ECHR.
Art.10, Responsible Journalism, Activist, Good Faith, Freedom Of Expression.
Belirtilmemiş bir tarihte Polonya Cumhuriyeti siyasi parti üyesi A.R., güncel bir gazeteye bir partideki seks skandalı hakkında bilgi vermiştir. A.R’ye göre 3 aktivist bir partide kendisine para ve iş karşılığında cinsel ilişki teklifinde bulunmuştur. Ama onlar iddiaları reddetmiştir. 30 Kasım 2007’de Avrupa Parlamentosu üyesi M.C., röportajı yayınlayanın karalama suçuyla yargılanmasını istemiştir. Bölge Mahkemesi, başvuranı suçlu bulup tazminat vermesini istemiştir. Suçlu bulunmasının nedeni; A.R., M.C.’nin kızını kayırdığını söylemiştir ancak mahkeme sonucuna göre M.C.’nin kızı yoktur. Yani applicant, mesleğinin getirdiği doğrulama görevini yapmamıştır. Ancak başvuran, röportajı önce A.R.’ye onaylatıp daha sonra yayınlamıştır. Yani kendi yorumunu katmamıştır. Başvuran, AİHS Madde 10’un ihlali sebebiyle Avrupa İnsan Hakları Mahkemesi’ne başvurmuştur.
AİHS m. 10, Sorumlu Gazetecilik, Aktivist, İyiniyet, İfade Özgürlüğü.
Relevant Domestic Law and Practice
In domestic law and practices are related to the issue, article 14 is the main source of constitutional provision concerning freedom of expression. In article 31 § 3 of the Constitution clarify how restrictions can be applied in possible circumstances. Again, the constitution guarantees freedom of expression and the use of information in article 54 § 1.
Relation between these related articles and the case; after publication of the interviews and following process caused the separation of point of view in terms of the freedom of expression and the defamation.
The Court
According to the Court’s case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”.
The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with Court supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.
The Court further observes that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate concerning questions of public interest.
The Court also reiterates that the press is a vector for disseminating debates on matters of public interest, but it also has the role of revealing and bringing to the public’s attention information capable of eliciting such interest and of giving rise to such a debate within society. At the same time, the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism.
In exercising its supervisory jurisdiction the Court must look at the alleged interference with the applicant’s right to freedom of expression in the light of the case as a whole, including the content of the statements concerned, the context in which they were made and the particular circumstances of those involved. The Court will examine whether the journalist who carried out the impugned interview acted in good faith in accordance with the tenets of responsible journalism.
Responsible journalism requires that the journalists check the information provided to the public to a reasonable extent. At the same time, in applying the standards of journalistic diligence it is necessary to consider the nature of the publications. In particular, differences between papers written by journalists and interviews have to be taken into account. The Court attaches importance to the fact that the material published by the applicant was an interview and not a general article. Thus the applicant did not publish his own statements. There is no reason to doubt the good faith of the journalist in the instant case.
Taking into account that considerations the Court finds that the domestic courts overstepped the margin of appreciation afforded to member States and that there was no reasonable relationship of proportionality between the measures applied by them and the legitimate aim pursued.
The authorities therefore failed to strike a fair balance between the relevant interests of, on the one hand, the protection of the politician’s right to maintenance of reputation and, on the other, a journalist’s right to freedom of expression, especially where issues of public interest are concerned.
There has, accordingly, been a violation of Article 10 of the Convention.
(*) İstanbul Kültür Üniversitesi Hukuk Fakültesi Öğrencisi.
