On September 6, 2021, as we celebrated 20 years of the Access to Public Information Act, a motion to repeal the decree imposing a state of emergency on the border with Belarus was unsuccessfully pursued in the Sejm.
We wrote at the time: “The regulation on introduction of state of emergency is a short act that imposes restrictions virtually exclusively related to ways to acquire and disseminate information. It is about exclusion of the right to information on the situation on the border and the decisions made, about the lack of access to places from which one can see something, about the ban on recording images. We have been cut off from information as citizens. And without information, you cannot exercise control. Is this what those in power mean?” https://siecobywatelska.pl/niepokojacy-brak-rzetelnych-informacji-o-uzasadnieniu-stanu-wyjatkowego/
Just over 4 months later (January 19, 2022), the Supreme Court affirmed that “this is what those in power meant.” This ruling came thanks to the actions of the Ombudsman and it concerns journalists. However, it perfectly illuminates the lack of justification for cutting off citizens from information.
We cite excerpts from the extensive text on Ombudsman’s website https://bip.brpo.gov.pl/pl/content/rpo-granica-dziennikarze-kara-stan-wyjatkowy-sn-kasacja:
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On September 28, 2021, three employees and journalists of the German-French television network ARTE and AFP were detained on suspicion that while staying in B. – where a state of emergency has been imposed – they violated a ban on being in the area covered by it.
This was considered an offence under Section 23(1)(7) of the Act on the State of Emergency. According to it, whoever, during a state of emergency, contrary to the ban or order referred to in Article 18(2)(1) stays or does not leave a designated place, object or area within the specified time shall be subject to a penalty of arrest or fine.
The District Court in S. on summary judgement on September 29 found the defendants guilty. A reprimand was imposed on each. The ruling became final.
The Ombudsman’s cassation
The punished were in a state of emergency in connection with the performance of their journalistic work. An analysis of the legislation leads to the conclusion that § 1(1)(4) of the Regulation of the Council of Ministers introducing a 24-hour ban on being in an area under a state of emergency, insofar as it applies to journalists, is inconsistent with Article 6(4) of the Press Law.
It states that the press must not be hindered from collecting critical material or otherwise suppressing criticism. Journalists, on the other hand, are not listed in the regulation among those who are excluded from the general ban on being in an area under a state of emergency. And such exemptions include, for example, persons performing gainful employment in the area for entities that permanently operate there, or attending a baptism, wedding or funeral.
In fact, the real content of the ban on being in an area under a state of emergency, insofar as it is directed at persons practicing the profession of journalism, is to prevent the realisation in that area of the constitutional freedom to obtain information (Art. 54(1) of the Constitution).
It follows from Art. 233(1) of the Constitution that a law specifying the scope of restrictions on human and civil liberties and rights during a state of emergency may restrict the freedom specified in Art. 54(1) of the Constitution. However, among the types of restrictions on human and civil liberties and rights set out in § 2 of the Regulation of the President of the Republic of Poland, the freedoms referred to in Art. 54(1) were not included.
This means that the Council of Ministers could not, by imposing a 24-hour general ban on being in an area under a state of emergency, exclude journalists from exercising their constitutional freedom to obtain information in a state of emergency.
In this respect, § 1(1)(4) of the Regulation of the Council of Ministers is inconsistent with Art. 54(1) of the Constitution of the Republic of Poland and Art. 6(4) of the Press Law. This is because it prevents journalists from gathering material in the area of the state of emergency.
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Supreme Court verdict with the main reasons for the decision
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The Supreme Court finds no reason why such a severe restriction on liberty – and one that indirectly affects the enjoyment of a number of other rights and freedoms – would be justified in these circumstances. The mere presumption as to the existence of a threat to public order resulting from the presence of certain persons in the area covered by the state of emergency cannot be equivalent to the objective existence of grounds for restriction (…). Moreover, it is impossible to a priori presume that the total ban on being in entire area under a state of emergency at all times is the result of an effort to minimise the burden of limiting the space of individual freedom.
The lack of justification for such an intensive interference with the right to be in a certain area is compounded by the fact, which is not disputed in the case, that the journalists punished in the present case were preparing press materials for work provided to their employers. If the purpose of introducing the ban on being in an area under a state of emergency as a rule was to ensure the safety of citizens, it is not clear why § 2 of the Regulation of the Council of Ministers introduced relatively numerous exceptions to this rule in terms of individuals (e.g. persons being in the area under the state of emergency in order to run an errand in an office – point 3; persons permanently performing paid work in the area of the state of emergency for the benefit of entities that permanently conduct their activity in this area, including business – point 4; persons permanently performing business activity in the area of the state of emergency – point 5; owners of real estate located in the area of the state of emergency – point 7; persons being in the area under the state of emergency in order to perform or participate in religious worship, baptism, wedding or funeral – point 13).
The described selectivity of the scope of the residence ban’s application reasonably led the Ombudsman to assume that “it is not a matter of maximum limitation of the number of natural persons being in the area under the state of emergency, but of exclusion of the being of specified professional groups in this zone.” Indeed, it is not clear what circumstances support the possibility of the above categories of persons being legally in the area under the state of emergency, while the ban includes journalists. One can also look at the issue from the other side, i.e. assuming that it is journalists in particular who should be allowed to be free in the places where they prepare material for the media.
The result of the ban shaped in such a subjective manner – regardless of the reservations presented earlier – leads to a violation of Article 54(1) of the Constitution, according to which “Everyone shall be granted the freedom to express his opinions and to acquire and disseminate information”, and Article 10(1) in principio ECHR, which guarantees the right to freedom of expression, including the freedom to hold opinions and to receive and transmit information and ideas without interference by public authorities and regardless of state borders. At the statutory level, this issue is regulated by Article 6(4) of the Act of 26 January 1984 – the Press Law, according to which it is forbidden to hinder the press from collecting critical materials or otherwise suppress criticism. Although these rights are not absolute and may be subject to restriction in a state of emergency, the standard of protection for a journalist’s freedom to obtain information is much higher than for other categories of persons.
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The special mission that rests on a journalist in a democratic state and which involves the formation of public opinion, as well as the right of members of the public to information and the need to control the actions of political power, has its consequences in the context of the ban on being in the area under the state of emergency. In light of the above, it is those in the journalism profession who have a unique legitimacy to be in places where events of importance to the political community take place. On the other hand, it is not reasonable to assume that it is this professional group that poses a threat to the proper conduct of activities aimed at restoring the normal functioning of the state. It is merely mentioned here that commonly the presence of correspondents reporting events is not questioned even under conditions of a state of war.
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