WĘGRZYNOWSKI AND SMOLCZEWSKI v. POLAND JUDGMENT
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39. It follows that the application, in so far as it relates to the first
applicant, has been introduced out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the Convention.
4. Exhaustion of domestic remedies as regards the second applicant,
Mr Smolczewski
40. The Government submitted that the second applicant had not
exhausted all available domestic remedies. He could have applied to the
domestic courts seeking an interim injunction (zabezpieczenie powództwa)
under Article 730 § 1 of the Code of Civil Procedure. It had been open to
him to request, for example, that a temporary footnote or a comment
informing any reader about the proceedings be added to the article on the
website. The Government referred to the Court’s findings to the effect that
such a temporary notice would “normally remove any sting from the
material” (relying upon Times Newspapers Ltd v. the United Kingdom
(nos. 1 and 2), nos. 3002/03 and 23676/03, § 47, ECHR 2009).
41. The Government further submitted that the second applicant should
have had recourse to the rectification procedure (sprostowanie) provided for
by Article 31 of the Press Act (see paragraph 23 above). This provision was
designed to offer a person negatively affected by a press article a possibility
of requesting the publisher to publish, free of charge and in a proper place
and form, his or her statement addressing and rectifying the content of the
original article. However, the second applicant had failed to have recourse
to this remedy.
42. The second applicant disagreed with the Government’s submissions.
43. Article 35 § 1 of the Convention requires that the only remedies to
be exhausted are those that are available and sufficient to afford redress in
respect of the breaches alleged. The purpose of Article 35 § 1 is to afford
the Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are submitted to the
Court (see, inter alia, Selmouni v. France [GC], no. 25803/94, § 74,
ECHR 1999-V).
44. The existence of the remedies in question must be sufficiently
certain not only in theory but in practice, failing which they will lack the
requisite accessibility and effectiveness (see, among other authorities,
Orchowski v. Poland, no. 17885/04, § 105, 22 October 2009, and
Norbert Sikorski v. Poland, no. 17599/05, § 108, 22 October 2009). The
development and availability of a remedy said to exist, including its scope
and application, must be clearly set out and confirmed or complemented by
practice or case-law (Mikolajová v. Slovakia, no. 4479/03, § 34, 18 January
2011). A Government’s arguments clearly carry more weight if relevant
examples from national case-law are provided (see Sakhnovskiy v. Russia
[GC], §§ 43-44, 2 November 2010, and Toziczka v. Poland, no. 29995/08,
§ 26, 24 July 2012).
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