WĘGRZYNOWSKI AND SMOLCZEWSKI v. POLAND JUDGMENT
5
court in the present case to examine facts which had already existed prior to
that judgment. The plaintiffs could not lodge a new claim based on factual
circumstances which had already existed during the previous set of
proceedings. The court noted in passing that the existing online publication
was not a fact which would have been impossible to establish at that time
(“nie była to tzw. okoliczność nieujawnialna”).
17. The applicants submitted an appeal on points of law, invoking their
right to the effective legal protection of their personal rights, including their
reputation. They reiterated that the continued availability of the article on
the newspaper’s website infringed their personal rights.
18. On 3 November 2006 the Warsaw Court of Appeal requested the
applicants’ legal representative to amend the statement of appeal’s formal
deficiencies by specifying whether it had been lodged on behalf of one or
both of the applicants. It noted that the court fee paid in connection with the
appeal had corresponded to the sum to be paid for an appeal lodged by one
person only.
19. By letter of 10 November the applicants’ lawyer clarified that the
appeal had been lodged by the second applicant, Mr Smolczewski.
20. On 17 November 2006 the Warsaw Court of Appeal rejected the
appeal in so far as it related to the first applicant, having regard to the fact
that the relevant court fee had not been paid. This decision was served on
the applicants’ lawyer on 4 December 2006. No appeal was lodged against
this decision.
21. By a decision of 7 February 2007 the Supreme Court, sitting in
camera, refused to entertain the first applicant’s cassation appeal (odmówił
przyjęcia kasacji do rozpoznania).
II. RELEVANT DOMESTIC LAW AND PRACTICE
22. Article 23 of the Civil Code contains a non-exhaustive list of
“personal rights” (dobra osobiste). This provision states:
“The personal rights of an individual, such as, in particular, health, liberty, , freedom
of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of
the home, scientific or artistic works [] inventions and improvements, shall be
protected by the civil law regardless of the protection laid down in other legal
provisions.”
Article 24, paragraph 1, of the Civil Code provides:
“A person whose personal rights are at risk [of infringement] from a third party may
seek an injunction, unless the activity [complained of] is lawful. In the event of
infringement, [the person concerned] may also require the party who caused the
infringement to take the necessary steps to redress the consequences of the
infringement ... In compliance with the principles of this Code, [the person concerned]
may also seek pecuniary compensation or may ask the court to award an appropriate
sum for the benefit of a specific public interest.”
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