CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 octobre 2006

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THE FACTS The applicant, Mr Robert Palusiński, is a Polish national who was born in 1963. He is a writer, translator and publisher and lives in Cracow. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. A.     The circumstances of the case 1.     The book In 1994 the applicant published a book called “Narcotics – A guide” ( Narkotyki – przewodnik ). The book had the following subtitle: “Part 1: Soft drugs. Marijuana – LSD-25 – Mushrooms. History – Production – How to use – Effects – Dangers.” The book opened with the following introduction: “From the author: I am aware of the fact that among persons knowledgeable on the subject, the use of the word ‘narcotics’ in the title may be controversial because of the complexity surrounding the meaning of that word. I would therefore like to add the following explanation. The word ‘narcotics’ actually means agents used in surgical anaesthetics and in painkillers not used in surgery (for example, morphine). However, in common parlance it is understood much more widely, probably because an appropriate term, akin to the English ‘drugs’, for instance, has not been established in the Polish language. I think that the broad meaning given to the word ‘narcotics’ in common parlance stems from the publication ‘Narcotics and the unwashed soul’ by S.J.   Witkiewicz, and from the way the word is currently used by the media. Probably the most appropriate title for this book would be: ‘Psychosocial implications of the pharmacodynamics of psychoactive agents and their neurophysiological, cultural, qualitative and quantitative determinants.’ However, in my view this title is slightly too long for a book aimed at the general public. At the same time, I would like to state that it is not my intention in any way to solicit, encourage or propagate the use of psychoactive agents. The aim of this publication is to fill the alarming void which exists in our country resulting from widespread ignorance and lack of knowledge about the basic issue referred to (mistakenly and often improperly) as drug addiction.” The book was divided into the following chapters: 1.     Narcotics – what is the problem? 2.     Marijuana –     Criminalisation –     The end of the Anslinger era? –     The plant and how it is processed –     More useful than harmful –     Application in medicine –     Effects –     Sex and marijuana 3.     LSD-25 –     David and Goliath 4.     Mushrooms –     Amanita muscaria –     A mushroom deity   On the back cover of the book the applicant included a quotation that began as follows: “People do not take drugs because they are bad. They do not take drugs out of perversity. They take them because the drugs make them feel good. Very good indeed.” The quotation was attributed to Mr J.C. Flynn, a professor at Baylor University in Texas. 2.     The applicant’s prosecution and trial On an unspecified date in 1995 the Rzeszów district prosecutor started an investigation into allegations that the applicant’s book contained instructions on the production and use of drugs. The prosecutor appointed experts to assess the content of the book. On 7 June 1995 the district prosecutor charged the applicant under section 32 of the Prevention of Drug Addiction Act 1985 with inciting readers of his book to use drugs. On 28 September 1995 the applicant was indicted before the Cracow District Court. On 25 January 1996 the applicant was tried by the Cracow ‑ Śródmieście District Court. He was convicted as charged and sentenced to a fifteen ‑ month prison term suspended for two years and a fine of 2,000   Polish zlotys (PLN). The court gave the following reasons for the applicant’s conviction: “In view of the evidence before it the Court considers that there can be no doubt as to Robert Palusiński’s guilt and the circumstances of the case. Between September 1994 and June 1995 R. Palusiński published his book entitled ‘Narcotics – A guide – Part 1: Soft drugs’. He distributed the book throughout the country. One of the reasons the defendant wrote the above book was for financial gain. This was admitted by the defendant, who said that all economic activity was aimed at financial gain. The defendant also acted in pursuit of personal goals since he published his book and sold it throughout the country, presenting it as his contribution to the discussion concerning the legalisation of narcotics, in an attempt to establish himself as a published author. The defendant referred in his book to his own claims as well as citing numerous quotations from Polish and foreign publications. In the same vein, he intentionally selected information in support of his claims designed to create the impression not just that the narcotics described were not dangerous, but that taking them benefited human mental and physical health. In order to achieve this aim, the defendant omitted numerous pieces of information which were known to him and which showed the harmful influence of these psychoactive agents on the human body. Another fact which it is important to point out is that the defendant addressed his book mainly to young people, as demonstrated by the quotation printed on the back cover. The Court considers that reading this quotation in a bookshop is liable to make a potential reader interested in the content of the book. The Court is of the view that the aim of the message contained in the book was to persuade ... readers to try out one of the narcotics described therein when the opportunity arose. In order to achieve this aim, the defendant sought to break down the psychological barriers normally encountered by reasonable individuals by choosing his words carefully, using analogies, outlining what he saw as the numerous qualities and advantages for the prospective consumer, and hiding or referring only in general terms to several dangerous consequences of drug use. No individual knows himself sufficiently well to be certain whether and how a certain narcotic may influence his psyche. The book in question was intended to be read in particular by young people. It is widely known that different types of narcotics, including those described by the defendant, are trafficked among high-school students and even among older pupils in primary schools. Moreover, it is known from radio, television and the press that the narcotics described by the defendant are taken by people, some of them teenagers, at private social events and in discotheques. Experience and observation of the environment tell us that persons of such a young age have not developed the necessary degree of self-criticism to allow them to approach the content of Robert Palusiński’s book with the required objectivity. The Court considers that the average reader will not analyse in depth the philosophical content of the book, but will remember simple facts designed to show that the narcotics described bring immediate pleasure and unforgettable experiences – including experiences of a religious nature – and, more importantly, that taking the doses suggested by the defendant ... will not have any negative consequences for life and health. The Court considers, therefore, that the approach taken by the defendant, consisting of publishing selected information, was aimed at inducing and making it easier for readers to take the narcotics described. The defendant published detailed information in his book on how to obtain ingredients and prepare them. He also gave instructions on the doses to be taken and described the states of mind which might be experienced. His actions were therefore aimed at making it easier for the reader to use narcotics. The defendant did not deny that access to narcotics in Cracow was very easy. It is well known from the media that there are places where almost anyone who wants to experiment with a chosen narcotic may buy it. In the context of this widely known information, the defendant advised readers to buy ingredients from verified sources. The Court is of the view that the average young person, after reading the book, buying narcotics and, under the influence of the book, forgetting his or her fears and apprehensions, is liable to decide unhesitatingly to take the narcotics. After reading the book he would feel certain that he was unlikely to become addicted and that he would not experience any negative effects, while being able for many years to experience new states of mind without fear. In view of the above, the Court has come to the conclusion that the actions of the defendant, Robert Palusiński, fit the characteristics of the misdemeanour described in section   32(1) of the Prevention of Drug Addiction Act of 31 January 1985. ... When sentencing the defendant, the Court took into account, as a factor counting against him, the significant degree of social harm which could be caused by his actions in the context of increasing drug addiction among young people. The Court also took into account the following circumstances in the defendant’s favour: the fact that he had no criminal record, the positive opinion of his neighbours and the fact that only 2,780 copies of the book had been printed, making it less accessible to potential readers in Poland. In sentencing the defendant the Court further took into account the profit he made from the sale of the book, his ability to earn a living and the fact that he has to support a wife and two children. In view of the above-mentioned circumstances in the defendant’s favour, his personal circumstances and his lifestyle, which justify the assumption that he will comply with the law and will not reoffend, the Court has decided to suspend his sentence. ...” 3.     The appeal proceedings The applicant appealed against his conviction but the appeal was dismissed by the Cracow Regional Court on 30 April 1996. The appellate court fully subscribed to the District Court’s findings and agreed that the book was actually a “guide for drug addicts”. The court was of the opinion that the introduction to the book, in which the applicant denied his “intention in any way to solicit, encourage or propagate the use of psychoactive agents”, was in complete contradiction to the content of the book. The court also relied on the opinions of two experts who considered the book to be “a set of instructions for drug addicts [and] incitement to the use [of drugs]” given that the applicant was of the view that narcotics were “less harmful [than generally assumed] or not harmful at all”. On 19 August 1996 the applicant lodged an appeal on points of law with the Supreme Court. Between 19 August 1996 and 14 March 2001 the case lay dormant before the Supreme Court. On 15 March 2001 the Supreme Court dismissed the applicant’s appeal on points of law. It followed the lower court’s findings and agreed with its opinion that the applicant’s book incited readers to use drugs and facilitated the taking of drugs by young people. B.     Relevant domestic law 1.     Relevant constitutional provisions Article 14 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and came into force on 17 October 1997, states: “The Republic of Poland shall ensure freedom of the press and other means of social communication.” Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides: “Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant: “The freedom to express opinions and to acquire and disseminate information shall be secured to everyone.” For more details on the constitutional provisions, see Pachla v. Poland (dec.), no. 8812/02, 8 November 2005. 2.     Relevant provision of the Prevention of Drug Addiction Act Section 32(1) of the Prevention of Drug Addiction Act of 31 January 1985 reads as follows: “Anyone who, for financial gain or in pursuit of personal goals, provides another person with narcotic or psychotropic products, facilitates their use or incites others to use them, shall be liable to a term of imprisonment of between one and ten years.” 3.     Remedies against unreasonable length of proceedings On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”) came into force. It lays down various legal means designed to counteract and/or afford redress for the undue length of judicial proceedings. For a more detailed exploration of the relevant domestic legal provisions, see Charzyński v. Poland (dec.), no.   15212/03, §§ 12 ‑ 23, ECHR 2005-V. Section 2 of the 2004 Act reads, in so far as relevant: “(1)     Parties to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).” Section 18 lays down transitional rules in relation to applications already pending before the Court. It reads, in so far as relevant: “(1)     Within six months of the date of entry into force of this Act persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to trial within a reasonable time guaranteed by Article   6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms ... may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this Act if their complaint to the Court was lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.” COMPLAINTS 1.     The applicant complained under Article 6 § 1 of the Convention of the unreasonable length of the proceedings in his case. 2.     He also complained that he had been convicted and sentenced to imprisonment and a fine in breach of Article 10 of the Convention. THE LAW 1.     The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings in his case had exceeded a “reasonable time” within the meaning of that provision. The Government pleaded non-exhaustion of domestic remedies on the ground that the applicant had not made use of the remedies provided for by the 2004 Act. The applicant maintained that those remedies were not effective for the purposes of Article 35 § 1 of the Convention. Article 35 § 1 of the Convention, in its relevant parts, provides: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...” The Court observes that the present application was lodged with it when the relevant proceedings were pending before the domestic court. It further observes that, under section 18 of the 2004 Act, it was open to persons such as the applicant in the present case whose cases were pending before the Court to lodge, within six months from 17 September 2004, a complaint regarding the unreasonable length of the proceedings with the relevant domestic court, provided that their application to the Court had been lodged in the course of the impugned proceedings and that it had not yet been declared admissible. The Court has already examined that remedy for the purposes of Article   35 § 1 of the Convention and found it to be effective in respect of complaints regarding the excessive length of judicial proceedings in Poland. In particular, it considered that it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that had already occurred (see Charzyński v. Poland (dec.), no. 15212/03, §§ 36 ‑ 42, ECHR 2005-V). However, the applicant chose not to avail himself of this remedy. It follows that the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies. 2.     The applicant also complained under Article 10 of the Convention of his conviction for inciting readers of his book to use drugs. Article 10, in so far as relevant, provides: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ... 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of health or morals, [or] for the protection of the ... rights of others ...” A.     Applicability of Article 10 The Court notes the Government’s submission that the application should be regarded as constituting an abuse of rights within the meaning of Article   17 of the Convention and should be rejected accordingly. The Court reiterates that the purpose of Article 17 of the Convention, “in so far as it refers to ... individuals, is to make it impossible for them to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention; ... no person may be able to take advantage of the provisions of the Convention to perform acts aimed at destroying the aforesaid rights and freedoms ...” (see Lawless v. Ireland , 1 July 1961, Series A no. 3, p. 45, §   7). The Court has also held that, “like any other remark directed against the Convention’s underlying values, the justification of a pro ‑ Nazi policy could not be allowed to enjoy the protection afforded under Article   10” and that there is “a category of clearly established historical facts – such as the Holocaust – whose negation or revision would be removed from the protection of Article 10 by Article 17” (see Lehideux and Isorni v. France , 23 September 1998, §§ 47 and 53, Reports of Judgments and Decisions 1998 ‑ VII, and Garaudy v. France (dec.), no. 65831/01, ECHR 2003 ‑ IX). In the present case, however, the applicant published a book in which, as the domestic courts established, he incited readers to use narcotics by describing them as beneficial to mental and physical health. Even though the views expressed by the applicant went against domestic anti ‑ drugs policy, the Court is not convinced by the Government’s argument that the applicant essentially sought to employ Article 10 as a basis under the Convention for a right to engage in activities contrary to the text and spirit of the Convention which, if granted, would contribute to the destruction of the rights and freedoms set forth in the Convention. The Court therefore considers that the applicant can rely on Article 10 and that the complaint is not incompatible ratione materiae with the provisions of the Convention. B.     The Government’s plea of non-exhaustion of domestic remedies The Government further submitted that the applicant had not exhausted all domestic remedies as required by Article 35 § 1 of the Convention. In particular, the applicant could have availed himself of the possibility of lodging a constitutional complaint with the Constitutional Court. They relied on a previous case in which the Court had recognised a constitutional complaint as an effective remedy (compare Szott-Medyńska and Others v. Poland , no. 47414/99, 9 October 2003). The applicant disagreed with the Government. He submitted that a constitutional complaint was not an effective remedy within the meaning of Article   35 § 1 of the Convention. Under Article 79 of the Constitution, a constitutional complaint was a means of striking down laws which were unconstitutional; the provisions of the Prevention of Drug Addiction Act, however, which had formed the basis for his conviction, were obviously compatible with the Constitution. The Court observes that the object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address alleged violations of Convention rights and, where appropriate, to afford redress before those allegations are submitted to the Court (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI). Further, the Court reiterates that Article 35 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002 ‑ VIII). The Court has also held that a constitutional complaint in Poland can be recognised as an effective remedy, within the meaning of the Convention, only where: (1) the individual decision which allegedly violated the Convention was adopted in direct application of an unconstitutional provision of national legislation; and (2) procedural regulations applicable to the revision of such individual decisions provided for the reopening of the case or the quashing of the final decision in consequence of the judgment of the Constitutional Court in which the finding of unconstitutionality was made (see Pachla v. Poland (dec.), no. 8812/02, 8   November 2005, and Szott-Medyńska and Others , cited above). Turning to the circumstances of the instant case, the Court is of the opinion that the applicant’s conviction was not based on a direct application of section 32(1) of the Prevention of Drug Addiction Act penalising incitement to use drugs. Rather, his conviction was the result of a judicial interpretation which applied the relevant provision to the particular circumstances of the applicant’s case. In that connection the Court points to the established case-law of the Constitutional Court, according to which constitutional complaints based solely on the allegedly wrongful interpretation of a legal provision are excluded from its jurisdiction. The Court therefore considers that a constitutional complaint cannot be regarded with a sufficient degree of certainty as an effective remedy in the applicant’s case. For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. C.     Compliance with Article 10 1.     The parties’ submissions The applicant contended that his prosecution, conviction and sentence amounted to unjustified interference with his right to freedom of expression. He argued that there was no evidence that anybody had sustained any harm after reading his book. Moreover, he submitted that foreign authors whose books on the subject were available in Poland at the material time had not been prosecuted. The applicant was also of the opinion that all authors published their books for financial gain and that the domestic courts should not have relied on the fact that he had made a profit from sales of the book as one of the grounds for his conviction. The Government submitted that in matters relating to protection of public morals and health the Contracting States enjoyed a wide margin of appreciation. They maintained that, according to the Supreme Court’s judgment, the restriction on the applicant’s right to freedom of expression was justified not only on the basis of domestic law but also on the basis of the 1961 Single Convention on Narcotic Drugs. The domestic courts had established that the book, which was addressed to young people, described narcotics as presenting no danger and actually being beneficial to individuals’ mental and physical health. The Government therefore concluded that the sentence imposed on the applicant was to be regarded as a measure proportionate to the aim of protection of public morals and health. 2.     The Court’s assessment The Court reiterates that 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 paragraph 2 of Article 10, 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”. Although the Court’s case-law has enshrined the overriding and essential nature of this freedom in a democratic society, it has also laid down its limits (see Lehideux and Isorni , cited above, §§ 47 and 53, and Garaudy , cited above). As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among many other authorities, Hertel v. Switzerland , 25 August 1998, § 46, Reports 1998-VI). The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of 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 European supervision embracing both the legislation and the decisions applying it, even those given 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’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article   10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts. Turning to the particular circumstances of the instant case the Court notes that it is clear, and this has not been disputed, that there was interference with the applicant’s right to freedom of expression on account of his conviction and sentence. Such interference will contravene Article 10 unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10 and is “necessary in a democratic society” in order to achieve them. The Court accepts that, since the applicant’s conviction was based on section   32(1) of the Prevention of Drug Addiction Act, the resultant interference with his right to freedom of expression could be regarded as “prescribed by law”. The applicant has not specifically disputed this. The Government submitted that the interference was aimed at the protection of health and morals. The Court considers that this is a legitimate aim under Article 10 § 2. It remains to be established whether the interference was necessary in a democratic society. The Court notes that the applicant was convicted for having written and published a book in which he examined in detail marijuana, LSD and magic mushrooms, calling them “soft drugs”. The book offered very little if any information on the negative consequences of the use of those substances or on the possible risk of addiction. The book included – and this was also pointed out by the domestic courts – “instructions on how to obtain ingredients and prepare them” and the “doses to be taken” and contained descriptions of “the states of mind which might be experienced” after taking them. The Court also agrees with the domestic courts’ finding that the facts in the book were “designed to show that the narcotics described [brought] immediate pleasure and unforgettable experiences ... and, more importantly, that taking the doses suggested by the defendant ... [would] not have any negative consequences for life and health” (see the translation of the District Court’s judgment above). In the light of the above, it cannot be said that the domestic courts’ assessment of the facts was unacceptable or that they failed to apply the standards embodied in Article 10 of the Convention. The Court considers accordingly that the authorities gave “relevant and sufficient” reasons for their decisions. Finally, the Court reiterates that the nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of interference with the freedom of expression guaranteed by Article 10 (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §   111, ECHR 2004 ‑ XI, and Skałka v. Poland , no. 43425/98, § 41, 27 May 2003). In the present case, the Court considers that a suspended prison sentence and a fine of PLN 2,000 cannot be regarded as disproportionate. Given that the applicant stood to gain financially by publishing the book, it was reasonable for the domestic authorities to consider that a purely financial penalty would not have constituted sufficient punishment or deterrent (see Perrin v. the United Kingdom (dec.), no. 5446/03, ECHR 2005 ‑ XI). Nor does the length of the sentence of fifteen months suspended for two years in itself render the interference disproportionate. In fixing the sentence, the domestic courts assessed the seriousness of the offence and in suspending it they took into account the fact that the applicant had no previous convictions. The assessment in question depends on the domestic authorities’ view of the demands of the protection of morals, an area where national authorities are usually granted a wide margin of appreciation (see Handyside v. the United Kingdom , 7 December 1976, § 57, Series A no.   24). In sum, regard being had to the particular circumstances of the case, the Court does not consider that the applicant’s conviction and the sentence handed down to him could be said to have exceeded the national courts’ wide margin of appreciation in the area of protection of public health and morals. The interference complained of may therefore be regarded as “necessary in a democratic society”. It follows that this part of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.