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BACZKOWSKI AND OTHERS v. POLAND - 1543/06 [2007] ECHR 370 (3 May 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/370.html
Cite as:
[2007] ECHR 370,
48 EHRR 19,
(2009) 48 EHRR 19
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FOURTH
SECTION
CASE OF
BĄCZKOWSKI AND OTHERS v. POLAND
(Application
no. 1543/06)
JUDGMENT
STRASBOURG
3 May
2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of
Bączkowski and Others v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 3 April 2007
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 1543/06) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Tomasz Bączkowski, Mr Robert Biedroń,
Mr Krzysztof Kliszczyński, Ms Inga Kostrzewa, Mr Tomasz
Szypuła and by the Foundation for Equality (Fundacja
Równości), on 16 December 2005.
The
applicants were represented before the Court by Professor Zbigniew
Hołda, a lawyer practising in Warszawa.
The
respondent Government were represented by their Agent, Mr Jakub
Wołąsiewicz of the Ministry of Foreign Affairs.
The
applicants complained that their right to peaceful assembly had been
breached by the way in which the domestic authorities had applied
relevant domestic law to their case. They alleged that they had not
had at their disposal any procedure which would have allowed them to
obtain a final decision before the date of the planned assemblies.
They also complained that they had been treated in a discriminatory
manner in that they had been refused permission to organise the
assemblies whilst other persons had received such permissions.
By
a decision of 5 December 2006, the Court declared the application
admissible. It decided to join to the merits of the case the
examination of the Government's preliminary objections.
The
applicants filed further written observations (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Preparation of the assemblies
The
applicants, a group of individuals and the Foundation for Equality
(of whose executive committee the first applicant is also a member
empowered to act on its behalf in the present case), wished to hold,
within the framework of Equality Days organised by the Foundation and
planned for 10 12 June 2005, an assembly (a march) in Warsaw
with a view to alerting public opinion to the issue of discrimination
against minorities - sexual, national, ethnic and religious - and
also against women and disabled persons.
On
10 May 2005 the organisers held a meeting with the Director of the
Safety and Crisis Management Unit of Warsaw City Council. During this
meeting an initial agreement was reached as to the itinerary of the
planned march.
On
11 May 2005 Mr Bączkowski obtained an instruction of the Warsaw
Mayor's Office on “requirements which organisers of public
assemblies have to comply with under the Road Traffic Act” if
the assembly was to be regarded as an “event” (impreza)
within the meaning of Article 65 of that Act.
On
12 May 2005 the organisers requested the City Council Road Traffic
Office for permission to organise the march, the itinerary of which
would lead from the buildings of Parliament (Sejm) to the
Assembly Place (Plac Defilad) in the centre of Warsaw.
On
3 June 2005 the Traffic Officer, acting on behalf of the Mayor of
Warsaw, refused permission for the march, relying on the organisers'
failure to submit a “traffic organisation plan” (“projekt
organizacji ruchu”) within the meaning of Article 65
(a) of the Road Traffic Act, which they had allegedly been ordered to
submit.
On
the same day the applicants informed the Mayor of Warsaw about
stationary assemblies they intended to hold on 12 June 2005 in
seven different squares of Warsaw. Four of these assemblies were
intended to protest about discrimination against various minorities
and to support actions of groups and organisations combating
discrimination. The other three planned assemblies were to protest
about discrimination against women.
On
9 June 2005 the Mayor gave decisions banning the stationary
assemblies to be organised by Mr Bączkowski, Mr Biedroń,
Mr Kliszczyński, Ms Kostrzewa, Mr Szypuła, and another
person, Mr N. (who is not an applicant), who are active in
various non governmental organisations acting for the benefit of
persons of homosexual orientation. In his decision the Mayor relied
on the argument that assemblies held under the provisions of the
Assemblies Act of 1990 (Ustawa o zgromadzeniach) had to be
organised away from roads used for road traffic. If they were to use
roads, more stringent requirements applied. The organisers wished to
use cars carrying loudspeakers. They had failed to indicate where and
how these cars would park during the assemblies so as not to disturb
the traffic and how the movement of persons and these cars between
the sites of the assemblies would be organised.
Moreover,
as there had been a number of requests submitted to organise other
assemblies on the same day, the tenor of which ran counter to the
ideas and intentions of the applicants, permission had to be refused
in order to avoid any possible violent clashes between the
participants of various demonstrations.
On
the same day the municipal authorities, acting on the Mayor's behalf,
allowed the three planned assemblies concerning discrimination
against women to be held as requested by the applicants.
On
the same day the same authorities permitted six other demonstrations
to be organised on 12 June 2005. The themes of these assemblies were
as follows: “For more stringent measures against persons
convicted of paedophilia”, “Against any legislative work
on the law on partnerships”, “Against propaganda for
partnerships”, “Education in Christian values, a
guarantee of a moral society”, “Christians respecting
God's and nature's laws are citizens of the first rank”,
“Against adoption of children by homosexual couples”.
2. Meetings held on 11 June 2005
On
11 June 2005, despite the decision given on 3 June 2005, the
march took place. It followed the itinerary as planned in the
original request of 12 May 2006. The march, attended by
approximately 3,000 people, was protected by the police.
Apart
from the march, nine stationary assemblies were held on the same day
under permissions given by the Mayor on 9 June 2005 (see
paragraphs 15 16 above).
3. Appellate proceedings
a) The march
On
28 June 2005 the applicant Foundation appealed to the Local
Government Appellate Board against the decision of 3 June 2005,
refusing permission for the march. It was argued that the requirement
to submit “a traffic organisation plan” lacked any legal
basis and that the applicants had never been requested to submit such
a document prior to the refusal. It was also argued that the decision
amounted to an unwarranted restriction of freedom of assembly and
that it had been dictated by ideological reasons, incompatible with
the tenets of democracy.
On
22 August 2005 the Board quashed the contested decision, finding that
it was unlawful. The Board observed that under the applicable
provisions of administrative procedure the authorities were obliged
to ensure that parties to administrative proceedings had an
opportunity of effectively participating in them. In the applicant's
case this obligation had not been respected in that the case file did
not contain any evidence to show that the applicant Foundation had
been informed of its procedural right to have access to the case
file.
The
Board's decision further read, inter alia:
“In the written grounds of the decision complained
of, the first instance authority refers to the fact that the
traffic organisation plan is not to be found in the case file. Under
section 65 (a) item 3 (9), an organiser of a demonstration is obliged
to develop, in co operation with the police, such a project, if
he or she was obliged to do so by the authority. However, in the case
file there is not as much as a mention that the organisers were
obliged to submit such a project. (...) The document on the procedure
for obtaining permission to organise an event which was served on the
organisers did not contain information on such an obligation either.
Having regard to the fact that the organisers' request
concerned a march to be held on 11 June 2005 and having also taken
into account the fact that the appeal was received by the Board's
Office [together with the case file] on 28 June 2005, the proceedings
had already become on that latter date devoid of purpose. “
b) The assemblies
On
10 June 2005 the applicants appealed to the Mazowsze Governor against
the Mayor's refusals of 9 June 2005 of permission to hold six out of
the eight planned assemblies. They argued that the ban on the
assemblies breached their freedom of assembly guaranteed by the
Constitution and that the assemblies were to be entirely peaceful.
They submitted that the assemblies did not pose any threat to either
public order or to morals. They contested the argument relied on in
the decision that they were obliged to submit a document on the
planned itinerary between the places where assemblies were to be
held, arguing that they only intended to organise stationary
assemblies, not any movement of persons between them and that they
should not be responsible for any organisation or supervision of such
movement.
On
17 June 2005 the Mazowsze Governor gave six identical decisions by
which he quashed the contested refusals to hold the assemblies given
on 9 June 2005.
It
was first observed that these decisions breached the law in that the
parties had been served only with copies of the decisions, not with
originals as required by law on administrative procedure. It was
further noted that the Mayor had informed the media of his decisions
before they had been served on the applicants, which was manifestly
in breach of principles of administrative procedure.
It
was further observed that the 1990 Act of Assemblies was a guarantee
of freedom of assembly both in respect of organisation of assemblies
and participation therein. The Constitution clearly guaranteed the
freedom of assembly, not a right. It was not for the State to create
a right to assembly; its obligation was limited to securing that
assemblies be held peacefully. This way the applicable law did not
provide for any permit for an assembly to be held.
The
Governor noted that the requirement to submit a permit to occupy a
part of the road, based on the provisions of the Road Traffic Act,
lacked any legal basis in the provisions of the Assemblies Act. The
Mayor had assumed that the demonstration would occupy a part of the
road, but had failed to take any steps to clarify whether this had
really been the organisers' intention, while he was obliged to do so
by the law.
It
was further observed that a decision banning an assembly had to be
regarded as a method of last resort because it radically restricted
freedom of expression. The principle of proportionality required that
any restriction of constitutionally protected freedoms be permitted
only insofar as it was dictated by the concrete circumstances of a
particular case.
The
Governor noted in this connection that the Mayor's reliance on the
threat of violence between the demonstrations organised by the
applicants and the counter demonstrations planned by other
persons and organisations for the same day could not be countenanced.
It would have been tantamount to accepting that the administration
endorsed the intentions of organisations which clearly and
deliberately intended to breach public order, whereas the protection
of freedom of expression guaranteed by the Assemblies Act should be
an essential task of the public powers.
He
further discontinued the proceedings as they had become devoid of
purpose, the assemblies having taken place on 11 June 2005.
4. Translation of an interview with the Mayor of Warsaw
published in “Gazeta Wyborcza” of 20 May 2005
“E.
Siedlecka: The Assemblies Act says that the freedom of
assembly can only be restricted if a demonstration might entail a
danger to life or limb, or a major danger to property. Did the
organisers of the march write anything in their registration request
that would show that there is such a danger?
Mayor
of Warsaw: I don't know, I haven't read the request. But I
will ban the demonstration regardless of what they have written. I am
not for discrimination on the ground of sexual discrimination, for
example by ruining people's professional careers. But there will be
no public propaganda of homosexuality.
E. S.
What you do in this case is exactly discrimination: you make it
impossible for people to use their freedom only because they have a
specific sexual orientation.
MoW: I
do not forbid them to demonstrate, if they want to demonstrate as
citizens, not as homosexuals.
E.
S.: Everything seems to suggest that – like last
year – the Governor will set your prohibition aside. And if the
organisers appeal to the administrative court, they will win, because
preventive restrictions on freedom of assembly are unlawful. But the
appellate proceedings will last some time and the date for which the
march is planned will pass. Is this what you want?
MoW: We
will see whether they win or lose. I will not let myself be persuaded
to give my permission for such a demonstration.
E.
S.: Is this correct that the exercise of people's
constitutional rights depended on the views of powers that be?
MoW: In
my view, propaganda of homosexuality is not tantamount to exercising
one's freedom of assembly”.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Relevant provisions of the Constitution
Article
57 of the Constitution reads:
The freedom of peaceful assembly and participation in
such assemblies shall be ensured to everyone. Limitations upon such
freedoms may be imposed by statute.
Article
79 § 1 of the Constitution, which entered into force on
17 October 1997, provides as follows:
“In accordance with principles specified by
statute, everyone whose constitutional freedoms or rights have been
infringed, shall have the right to appeal to the Constitutional Court
for a judgment on the conformity with the Constitution of a statute
or another normative act on the basis of which a court or an
administrative authority has issued a final decision on his freedoms
or rights or on his obligations specified in the Constitution.”
Article
190 of the Constitution, insofar as relevant, provides as follows:
“1. Judgments of the Constitutional
Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ...
shall be published without delay.
3. A judgment of the Constitutional Court
shall take effect from the day of its publication; however, the
Constitutional Court may specify another date for the end of the
binding force of a normative act. Such time-limit may not exceed 18
months in relation to a statute or 12 months in relation to any other
normative act. ...
2. The Assemblies Act
Pursuant
to section 1 of the 1990 Assemblies Act, everyone has the right to
freedom of peaceful assembly. A gathering of at least fifteen
persons, called in order to participate in a public debate or to
express an opinion on a given issue is to be regarded as an assembly
within the meaning of the Act.
Under
section 2, freedom of assembly can only be restricted by statutes and
where it is necessary for the protection of national security or
public safety, for the protection of health or morals or for the
protection of the rights and freedoms of others.
All
decisions concerning the exercise of freedom of assembly must be
taken by the local municipalities where the assembly is to be held.
These decisions can be appealed against to the Governor.
Under
section 3 of the Act, the municipality must be informed by the
organisers of the intention to hold a public gathering organised in
the open air for an indeterminate number of persons. Under section 7,
such information must be submitted to the municipality not earlier
than thirty days before the planned date of the demonstration and not
later than three days before it. Such information must contain the
names and addresses of the organisers, the aim and programme of the
demonstration, its place, date and time as well as information about
the itinerary if the demonstration is intended to proceed from one
place to another.
Pursuant
to section 8, the municipality shall refuse permission for the
demonstration if its purpose is in breach of the Act itself or of
provisions of the Criminal Code, or if the demonstration might entail
a danger to life or limb, or a major danger to property.
A
first-instance refusal of permission to hold a demonstration must be
served on the organisers within three days of the date on which a
relevant request has been submitted and not later than three days
before the planned date of the demonstration. An appeal against
such a refusal must be lodged within three days of the date of its
service. The lodging of such an appeal does not have a
suspensive effect on the refusal of permission to hold the
demonstration.
A
decision given by the appellate authority must be served on the
organisers within three days of the date on which the appeal was
submitted.
3. The Road Traffic Act
Under
section 65 of the Road Traffic Act of 1997, as amended in 2003, the
organisers of sporting events, contests, assemblies and other events
which may obstruct road traffic are obliged to obtain permission for
the organisation of such assemblies.
Under
section 65 read together with section 65 (a) of the Act, organisers
of such events are obliged to comply with various administrative
obligations specified in a list contained in this provision and
numbering nineteen items, including the obligation to submit a
traffic organisation plan to the authorities.
These
provisions were repealed as a result of the judgment of the
Constitutional Court, referred to below.
4. Judgment of the Constitutional Court of 18 January
2006
In
its judgment of 18 January 2006 the Constitutional Court examined the
request submitted to it by the Ombudsman to determine the
compatibility with the Constitution of the requirements imposed on
organisers of public events by the provisions of the Road Traffic Act
in so far as they impinged on freedom of assembly, arguing that they
amounted to an excessive limitation of that freedom.
The
Constitutional Court observed that the essence of the constitutional
problem was whether the requirements imposed by section 65 of
the Act were compatible with freedom of expression as formulated by
the Constitution and developed by the Assemblies Act. It noted that
the 1990 Assemblies Act was based on the premise that the
exercise of this freedom did not require any authorisations or
licences issued by the State. As it was a freedom, the State was
obliged to refrain from hindering its exercise and to ensure that it
was enjoyed by various groups despite the fact that their views might
not be shared by the majority.
Accordingly,
the Assemblies Act provided for a system based on nothing more than
the registration of an assembly to be held.
The
Court observed that subsequently the legislature, when it enacted the
Road Traffic Act, had incorporated various administrative
requirements which were difficult to comply with into the procedure
created for the organisation of sporting events, contests and
assemblies, thus replacing the registration system by a system based
on permission. In doing so, it placed assemblies within the meaning
of the Assemblies Act on a par with events of a commercial character
or organised for entertainment purposes. This was incompatible with
the special position that freedom of expression occupied in a
democratic society and rendered nugatory the special place that
assemblies had in the legal system under the Constitution and the
Assemblies Act. The Court also had regard to the fact that the list
of requirements imposed by the Road Traffic Act contained as many as
nineteen various administrative obligations. The restrictions on
freedom of assembly imposed by that Act were in breach of the
requirement of proportionality applicable to all restrictions imposed
on the rights guaranteed by the Constitution.
The
Court concluded that section 65 of the Road Traffic Act was
incompatible with the Constitution in so far as it applied to
assemblies.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A. Whether the applicants can claim to have the status
of victims
The
Government contended by way of a preliminary submission that the
applicants could not claim to be victims of a violation of the
Convention within the meaning of Article 34. It transpired from the
written grounds of the second-instance administrative decisions that
the appellate authorities had fully shared the applicants' arguments
and had quashed the contested decisions in their entirety. The
Governor, in his decision of 17 June 2005 (see paragraph 22
above), had gone even further in that he had stressed that
prohibiting an assembly on the ground of a threat of violence between
the demonstrators and counter-demonstrators would have been
tantamount to accepting that the authorities endorsed the intentions
of organisations which deliberately intended to breach the public
order. When quashing the contested decisions, the appellate
authorities had stated that their assessment had been made bearing in
mind the applicants' freedom of assembly. As these decisions had
eventually been found unjustified, the applicants could not claim to
have a victim status.
The
Government were of the view that as the applicants had not claimed to
have sustained any pecuniary or non-pecuniary damage, the domestic
authorities had not been under an obligation to offer them any
redress. A decision or measure favourable to the applicant was not in
principle sufficient to deprive him of his status as a “victim”
unless the national authorities had acknowledged, either expressly or
in substance, and then afforded redress for, the breach of the
Convention (Eckle v. Germany, judgment of 15 July
1982, Series A no. 51, § 66).
The
applicants submitted that the authority relied on by the Government,
the Eckle v. Germany case, was of little relevance to the
case at hand. They reiterated that it was only when those two
conditions were cumulatively satisfied that the subsidiary nature of
the protective mechanism of the Convention precluded examination of
an application (see Scordino v. Italy (dec.),
no. 36813/97, 27 March 2003). In their case it could not be
said that those two conditions had been satisfied. No redress had
ever been afforded at domestic level for any of the breaches of the
Convention alleged in their application.
The
Court reiterates that in its decision on the admissibility of the
application it joined to the merits of the case the examination of
whether the applicants could claim to be victims of a breach of their
rights (see paragraph 5 above). The Court confirms its approach.
B. Exhaustion of domestic remedies
The
Government submitted that the applicants had had at their disposal
procedures capable of remedying the alleged breach of their freedom
of assembly. Section 7 of the Assemblies Act provided for time-limits
which should be respected by persons wishing to organise an assembly
under the provisions of this Act. A request for a decision about an
assembly to be held had to be submitted to the municipality not
earlier than thirty days before the planned date of the demonstration
and no later than three days before it.
If
the applicants had considered that the provisions on the basis of
which the domestic decisions in their cases had been given had been
incompatible with the Constitution, it had been open to them to
challenge these provisions by lodging a constitutional complaint
provided for by Article 79 of the Constitution. Thus, the
applicants could have obtained the aim they sought to attain before
the Court, namely an assessment of whether the contested regulations
as applied to their case had infringed their rights guaranteed by the
Convention.
The
Government recalled that the Court had held that the Polish
constitutional complaint could be recognised as an effective remedy
where the individual decision, which allegedly violated the
Convention, had been adopted in a direct application of an
unconstitutional provision of national legislation (Szott Medyńska
v. Poland (dec.), no. 47414/99, 9 October
2003). The Government concluded that the applicants should
have had recourse to this remedy.
The
applicants disagreed. They submitted that because of the specific
nature of their case, a remedy that had not been capable of providing
them with a judicial or administrative review of the ban on holding
their assemblies before 11 June 2005 could not be regarded as
effective. Therefore, any subsequent review by the Constitutional
Court would not have served any practical purpose.
In
any event, even if it were to be accepted that an ex post facto
review could be contemplated as a remedy to be used in their case,
the applicants were of the view that it would have been ineffective
also for other reasons. A constitutional complaint under Polish law
was a remedy available only when a possibility existed to apply for
the re opening of the original proceedings in the light of a
favourable ruling of the Constitutional Court. This condition alone
would have rendered this remedy ineffective since, in view of the
specific and concrete nature of the redress sought by the applicants,
the reopening of their case would have been an entirely impracticable
and untimely solution. Furthermore, the quashing of the final
decisions would have been futile as the decisions of 3 and 9 June
2005 had already been quashed by the Self Government Board of
Appeal and the Governor of Mazowsze Province on 22 August and
17 June 2005, respectively.
The
Court reiterates that in its decision on the admissibility of the
application it joined to the merits of the case the examination of
the question of exhaustion of domestic remedies (see paragraph 5
above). The Court confirms its approach to the exhaustion issue.
II. THE MERITS OF THE CASE
A. Alleged violation of Article 11 of the Convention
The
applicants complained that their right to peaceful assembly had been
breached by the way in which the domestic authorities had applied the
relevant domestic law to their case. They invoked Article 11 of
the Convention which reads:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration
of the State.”
1. The arguments of the parties
The
Government were of the view that there had been no interference with
the applicants' rights guaranteed by Article 11 of the Convention.
They referred in this respect to their submissions concerning the
applicants' victim status (see paragraphs 45 48 above).
The
Government did not contest the fact that the second-instance
decisions of the domestic authorities had been given after the date
for which the assemblies had been planned. However, the applicants
had been aware of the time limits provided by the applicable
laws for the submission of requests for permission to hold an
assembly.
The
applicants complained that their right to peaceful assembly had been
breached by the way in which the domestic authorities had applied the
relevant domestic law to their case. It followed from the very
character of the freedom of assembly that the requirements which laws
imposed on organisers of public meetings should be restricted to a
reasonable minimum and to those of a technical character.
Under
the 1990 Assemblies Act the authorities could ban the organisation of
an assembly only when its purpose ran counter to provisions of
criminal law or when it might entail danger to life or limb or a
major danger to property. On the other hand, the requirements that
could be imposed on organisers of assemblies once the authorities
classified the assembly to be held as an “event” under
the Road Traffic Act went much further. They lacked precision,
leaving the decision as to whether the organisers satisfied them
entirely to the discretion of the authorities.
In
the applicants' view, the Mayor's refusals lacked proper
justification. The assemblies to be held were of a peaceful
character, their aim being to draw the society's attention to the
situation of various groups of persons discriminated against, in
particular persons of homosexual orientation. The relevant requests
had complied with the very limited requirements laid down by the
Assemblies Act. As to the Equality March, the refusal had been
motivated by the alleged failure of the applicants to submit the
project of traffic organisation which the authorities had never
required to be submitted prior to this refusal. These assemblies had
lawful aims and there had been no special grounds, such as a major
danger to property or danger to life or limb, which could justify the
refusals.
2. The Court's assessment
As has been stated many times in the Court's judgments, not only is
democracy a fundamental feature of the European public order but the
Convention was designed to promote and maintain the ideals and values
of a democratic society. Democracy, the Court has stressed, is the
only political model contemplated in the Convention and the only one
compatible with it. By virtue of the wording of the second paragraph
of Article 11, and likewise of Articles 8, 9 and 10 of the
Convention, the only necessity capable of justifying an interference
with any of the rights enshrined in those Articles is one that may
claim to spring from “democratic society” (see Refah
Partisi (the Welfare Party) and Others v. Turkey [GC],
nos. 41340/98, 41342/98, 41343/98 and 41344/98, §§ 86 89,
ECHR 2003 II; Christian Democratic Peoples Party v. Moldova,
28793/02, 14 May 2006).
While in the context of Article 11 the Court has often referred to
the essential role played by political parties in ensuring pluralism
and democracy, associations formed for other purposes are also
important to the proper functioning of democracy. For pluralism is
also built on the genuine recognition of, and respect for, diversity
and the dynamics of cultural traditions, ethnic and cultural
identities, religious beliefs, artistic, literary and socio-economic
ideas and concepts. The harmonious interaction of persons and groups
with varied identities is essential for achieving social cohesion. It
is only natural that, where a civil society functions in a healthy
manner, the participation of citizens in the democratic process is to
a large extent achieved through belonging to associations in which
they may integrate with each other and pursue common objectives
collectively (see Gorzelik and Others v. Poland [GC],
no. 44158/98, § 92, 17 February 2004).
Referring
to the hallmarks of a “democratic society”, the Court has
attached particular importance to pluralism, tolerance and
broadmindedness. In that context, it has held that although
individual interests must on occasion be subordinated to those of a
group, democracy does not simply mean that the views of the majority
must always prevail: a balance must be achieved which ensures the
fair and proper treatment of minorities and avoids any abuse of a
dominant position (see Young, James and Webster v. the United
Kingdom, 13 August 1981, Series A no. 44, p. 25,
§ 63, and Chassagnou and Others v. France [GC],
nos. 25088/95 and 28443/95, ECHR 1999 III, p. 65,
§ 112).
In
Informationsverein Lentia and Others v. Austria (judgment of
24 November 1993, Series A no. 276) the Court described the
State as the ultimate guarantor of the principle of pluralism (see
the judgment of 24 November 1993, Series A no. 276, p. 16,
§ 38). A genuine and effective respect for freedom of
association and assembly cannot be reduced to a mere duty on the part
of the State not to interfere; a purely negative conception would not
be compatible with the purpose of Article 11 nor with that of the
Convention in general. There may thus be positive obligations to
secure the effective enjoyment of these freedoms (see Wilson &
the National Union of Journalists and Others v. the United
Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 41,
ECHR 2002 V; Ouranio Toxo v. Greece, no. 74989/01,
20 October 2005, § 37). This obligation is of
particular importance for persons holding unpopular views or
belonging to minorities, because they are more vulnerable to
victimisation.
65.
In this connection, the Court reiterates that according to the
Convention organs' constant approach, the word “victim”
of a breach of rights or freedoms denotes the person directly
affected by the act or omission which is in issue (see Marckx
v. Belgium, judgment of 13 June 1979, Series A no. 31,
§ 27, and Dudgeon v. the United Kingdom,
judgment of 22 October 1981, Series A no. 45, § 41).
Turning
to the circumstances of the present case, the Court observes that the
authorities banned the planned march and the six stationary
assemblies. The appellate authorities, in their decisions of 17 June
and 22 August 2005, quashed the first instance decisions
and criticised them for being poorly justified and in breach of the
applicable laws. These decisions were given after the dates on which
the applicants had planned to hold the demonstrations.
The Court acknowledges that the assemblies were eventually held on
the planned dates. However, the applicants took a risk in holding
them given the official ban in force at that time. The assemblies
were held without a presumption of legality, such a presumption
constituting a vital aspect of effective and unhindered exercise of
the freedom of assembly and freedom of expression. The Court observes
that the refusals to give authorisation could have had a chilling
effect on the applicants and other participants in the assemblies. It
could also have discouraged other persons from participating in the
assemblies on the ground that they did not have official
authorisation and that, therefore, no official protection against
possible hostile counter demonstrators would be ensured by the
authorities.
Hence,
the Court is of the view that, when the assemblies were held, the
applicants were negatively affected by the refusals to authorise
them. The Court observes that legal remedies available to them could
not ameliorate their situation as the relevant decisions were given
in the appellate proceedings after the date on which the assemblies
were held. The Court refers in this respect to its finding concerning
Article 13 of the Convention (see paragraph 84 below). There has
therefore been an interference with the applicants' rights guaranteed
by Article 11 of the Convention.
An
interference will constitute a breach of Article 11 unless it is
“prescribed by law”, pursues one or more legitimate aims
under paragraph 2 and is “necessary in a democratic
society” for the achievement of those aims.
In
this connection, the Court observes that on 22 August 2005 the
Local Government Appellate Board found the decision of 3 June
2005 unlawful (see paragraph 20 above). Likewise, on 17 June
2005 the Mazowsze Governor quashed the refusals of 9 June 2005,
finding that they breached the applicants' freedom of assembly (see
paragraphs 22 – 26). The Court concludes that the
interference with the applicants' right to freedom of peaceful
assembly was therefore not prescribed by law.
In
the context of the examination of the lawfulness of the interference
complained of, the Court notes, in addition, the relevance of the
judgment of the Constitutional Court given on 18 January 2006. That
Court found that the provisions of the Road Traffic Act applied also
in the applicants' case were incompatible with the constitutional
guarantees of the freedom of assembly. It observed that the
restrictions on the exercise of this freedom imposed by the impugned
provisions were in breach of the proportionality principle applicable
to all restrictions imposed on the exercise of rights guaranteed by
the Constitution (see paragraphs 39 42 above).
The
Court is well aware that under the applicable provisions of the
Constitution these provisions lost their binding force after the
events concerned in the present case (see paragraph 30 above).
However, it is of the view that the Constitutional Court's ruling
that the impugned provisions were incompatible with the freedom of
assembly guaranteed by the Constitution cannot but add force to its
own above conclusion concerning the lawfulness of the interference
complained of in the present case.
Having
regard to this conclusion, the Court does not need to verify whether
the other two requirements (legitimate aim and necessity of the
interference) set forth in Article 11 § 2 have been
complied with.
The
Court therefore dismisses the Government's preliminary objection
regarding the alleged lack of victim status on the part of the
applicants and concludes that there has been a violation of
Article 11 of the Convention.
B. Alleged violation of Article 13 of the Convention
The
applicants further complained that Article 13 of the Convention had
been breached in their case because they had not had at their
disposal any procedure which would have allowed them to obtain a
final decision prior to the date of the planned demonstrations.
Article 13
of the Convention reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
1. The arguments of the parties
The
Government reiterated their submissions concerning the question of
exhaustion of domestic remedies. In particular, the applicants should
have lodged a constitutional complaint to challenge the provisions on
the basis of which the decisions in their case had been given.
The
applicants complained that, when the first-instance decisions had
banned the holding of the assemblies, they had not had at their
disposal any procedure which would have allowed them to obtain a
final decision before the date on which it was planned to hold them.
This was so because if a refusal was issued, the second-instance
authority could only quash this decision and could not issue a new
one. This meant that the organisers had to start the procedure all
over again. In fact, that was how the relevant procedural provisions
had been applied in the applicants' case.
The
applicants submitted that pursuant to section 7 of the Assemblies
Act, a request for approval of an assembly to be organised could be
submitted thirty days before the planned date at the earliest. That
meant that it was impossible to submit such a request earlier. Under
Polish law, if the authorities considered that the planned assembly
was to be regarded as an “event” covered by the
provisions of the Road Traffic Act as applicable at the relevant
time, it was altogether impossible to comply with the thirty day
time limit, given the unreasonably onerous requirements to
submit numerous documents relating to the traffic organisation
aspects of such an assembly which could be imposed on the organisers
under that Act.
The
applicants concluded that in any event, the State should create such
procedure, a special one if need be, which would make it possible for
organisers of public meetings to have the whole procedure completed
within the time-frame set out in the Act, i.e. from 30 to 3 days
prior to the planned date, and, importantly, before the day on which
the assembly was planned to be held.
2. The Court's assessment
The
Court reiterates that the effect of Article 13 is to require the
provision of a domestic remedy allowing the competent national
authority both to deal with the substance of the relevant Convention
complaint and to grant appropriate relief, although Contracting
States are afforded some discretion as to the manner in which they
comply with their obligations under this provision (see, among many
other authorities, Chahal v. the United Kingdom, judgment
of 15 November 1996, Reports 1996 V, pp. 1869 70,
§ 145).
In
the present case the Court found that the applicants' rights under
Article 11 were infringed (see paragraph 73 above). Therefore, they
had an arguable claim within the meaning of the Court's case-law and
were thus entitled to a remedy satisfying the requirements of
Article 13.
As
regards the Governments' reliance on an individual constitutional
complaint, the Court first notes that in the context of Polish
administrative procedure, two-tiered judicial review of
second instance administrative decisions is available. Only a
judgment of the Supreme Administrative Court is considered to
constitute a final decision in connection with which a constitutional
complaint is available. In the present case, the applicants, having
obtained decisions of the second-instance administrative bodies
essentially in their favour, in that the refusal of permissions had
been quashed, had no legal interest in bringing an appeal against
these decisions to the administrative courts. Hence, the way to the
Constitutional Court was not open to them.
Further,
the Court accepts that the administrative authorities ultimately
acknowledged that the first instance decisions given in the
applicants' case had been given in breach of the applicable laws.
However, the Court emphasises that they did so after the dates
on which the applicants planned to hold the demonstrations. The
Court notes that the present case is similar to that of Stankov
and the United Macedonian Organisation Ilinden (Stankov and
the United Macedonian Organisation Ilinden v. Bulgaria
(nos. 29221/95 and 29225/95, Commission decision of 29 June
1998, unreported) in which the former Commission held that “it
[had been ] undisputed that had the applicants attempted [an appeal
against the refusal of the district court to examine the appeal
against the mayoral ban], the proceedings would have lasted for at
least several months and any favourable outcome would have resulted
long after the date of a planned meeting or manifestation”. In
other words, bearing in mind that the timing of the rallies was
crucial for their organisers and participants and that the organisers
had given timely notices to the competent authorities, the Court
considers that, in the circumstances, the notion of an effective
remedy implied the possibility to obtain a ruling before the time of
the planned events.
In
this connection, the Court is of the view that such is the nature of
democratic debate that the timing of public meetings held in order to
voice certain opinions may be crucial for the political and social
weight of such a meeting. Hence, the State authorities may, in
certain circumstances, refuse permission to hold a demonstration, if
such a refusal is compatible with the requirements of Article 11
of the Convention, but cannot change the date on which the organisers
plan to hold it. If a public assembly is organised after a given
social issue loses its relevance or importance in a current social or
political debate, the impact of the meeting may be seriously
diminished. The freedom of assembly – if prevented from being
exercised at a propitious time – can well be rendered
meaningless.
The
Court is therefore of the view that it is important for the effective
enjoyment of the freedom of assembly that the applicable laws provide
for reasonable time-limits within which the State authorities, when
giving relevant decisions, should act. The applicable laws provided
for the time limits for the applicants for the submission of
their requests for permission. In contrast, the authorities were not
obliged by any legally binding time frame to give their final
decisions before the planned date of the demonstration. The
Court is therefore not persuaded that the remedies available to the
applicants in the present case, all of them being of a post hoc
character, could provide adequate redress in respect of the alleged
violations of the Convention.
Therefore,
the Court finds that the applicants have been denied an effective
domestic remedy in respect of their complaint concerning a breach of
their freedom of assembly. Consequently, the Court dismisses the
Government's preliminary objection regarding the alleged
non exhaustion of domestic remedies and concludes that there has
been a violation of Article 13 in conjunction with Article 11
of the Convention.
C. Alleged violation of Article 14 in conjunction with
Article 11 of the Convention
The
applicants complained that they had been treated in a discriminatory
manner in that they had been refused permission to organise the march
and some of the assemblies. They relied on Article 11 read
together with Article 14 of the
Convention which provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
1. The arguments of the parties
The
Government submitted that the applicants had challenged the
administrative decisions given in their cases on 3 and 9 June
2005. In the former, the Traffic Officer, acting on behalf of the
Mayor of Warsaw, had refused permission for the march, relying on the
organisers' failure to submit a “traffic organisation plan”
within the meaning of section 65 (a) of the Road Traffic Act. In the
latter, the Mayor had relied on the argument that the applicants had
failed to comply with more stringent requirements imposed by the law
on organisers of assemblies held on roads used for road traffic.
The
Government were of the view that these decisions had been
sufficiently reasoned and that their reasoning had been based on
section 65 of the Road Traffic Act. It could not, in their
opinion, be assumed that the decisions banning the assemblies had
been influenced by the personal opinions held by the Mayor of Warsaw
as presented in an interview published in “Gazeta Wyborcza”
of 20 May 2005. The facts of the case had not indicated that any
link existed between the Mayor's views expressed in the press and the
official decisions given in the applicants' case.
The
Government argued that in the instant case no provisions, acts or
omissions of the public authorities had exposed the applicants to
treatment less favourable than that to which other persons in an
analogous situation would have been subjected. There had been no
indication that this treatment had been based on any prohibited
ground. Consequently, the applicants had not suffered discrimination
in the enjoyment of their freedom of assembly contrary to Article 14
of the Convention.
The applicants stressed that they had been required to submit the
“traffic organisation plan”, while other organisations
had not been requested to do so. In the absence of particularly
serious reasons by way of justification and in the absence of any
reasons provided by the Government for such differences in treatment,
the selective application of the requirement to submit such a plan
had sufficiently demonstrated that they had been discriminated
against.
The
applicants further argued that they had been treated in a
discriminatory manner essentially because they were refused
permission to organise the demonstrations on 12 June 2005, while
other organisations and persons had received relevant permissions.
This difference of treatment had not pursued a legitimate aim, the
more so as the Mayor and his collaborators had made it plain to the
public that they would ban the demonstrations because of the
homosexual orientation of the organisers, regardless of any legal
grounds.
The
applicants further argued that the decisions of 3 and 9 June
2005 had been formally issued in the name of the Mayor of Warsaw.
They referred to the interview with the Mayor published in May 2005
in which he had stated that he would ban the assemblies irrespective
of what the organisers had submitted in their requests for
permission. They submitted that it could not be reasonably concluded
that there had been no link between the statements made by the Mayor
and the decisions subsequently given in his name. They emphasised
that the practical outcome of the proceedings in their case had been
consistent with the tenor of the Mayor's statements.
The
applicants observed that the Government's argument about the lack of
a causal link between the opinions publicly expressed by the Mayor
and the administrative decisions given in his name amounted to
implying that at the relevant time decisions had been issued in the
Mayor's office with no regard to his opinions expressed publicly in
his capacity as head of the municipal administration.
2. The Court's assessment
The
Court has repeatedly held that Article 14 is not autonomous but
has effect only in relation to Convention rights. This provision
complements the other substantive provisions of the Convention and
the Protocols. It has no independent existence since it has effect
solely in relation to “the enjoyment of the rights and
freedoms” safeguarded by those provisions. Although the
application of Article 14 does not presuppose a breach of those
provisions – and to this extent it is autonomous – there
can be no room for its application unless the facts at issue fall
within the ambit of one or more of the latter (see, among many other
authorities, Van Raalte v. Netherlands, judgment of
21 February 1997, Reports 1997 I, p. 184, §
33; Gaygusuz v. Austria, judgment of 16 September
1996, Reports 1996 IV, § 36).
It
is common ground between the parties that the facts of the case fall
within the scope of Article 11 of the Convention. Hence,
Article 14 is applicable to the circumstances of the case.
The Court first notes that the first-instance
administrative decisions concerned in the present case did not refer
to any direct motive that could be qualified as one of the forbidden
grounds for discrimination within the Convention meaning of the term.
These decisions focused on technical aspects of the organisation of
the assemblies and on compliance with these requirements (see
paragraphs 11 and 13 above). It has been established that in the
proceedings before the Traffic Officer the applicants had been
requested to submit a “traffic organisation plan” and
that their request had been refused because of a failure to submit
such a plan. At the same time, the Court notes that it has not been
shown or argued that other organisers had likewise been required to
do this.
The Court further notes that the decision of 3 June
2005, refusing permission for the march organised by the applicants,
was given by the Road Traffic Officer, acting on behalf of the Mayor
of Warsaw. On 9 June 2005 the municipal authorities, acting on
the Mayor's behalf, gave decisions banning the stationary assemblies
to be organised by the first five applicants, referring to the need
to avoid any possible violent clashes between the participants of the
various demonstrations to be held on 12 June 2005. It is also
not in dispute that on the same day the same authorities gave
permission for other groups to stage six counter demonstrations
on the same date.
The Court cannot speculate on the existence of
motives, other than those expressly articulated in the administrative
decisions complained of, for the refusals to hold the assemblies
concerned in the present case. However, it cannot overlook the fact
that on 20 May 2005 an interview with the Mayor was published in
which he stated that he would refuse permission to hold the
assemblies (see paragraph 27 above).
The
Court reiterates that there is little scope under Article 10 § 2
of the Convention for restrictions on political speech or on debate
on questions of public interest, in particular as regards politicians
themselves (see Sürek v. Turkey (no. 1) [GC],
no. 26682/95, § 61, ECHR 1999-IV; Castells
v. Spain, judgment of 23 April 1992, Series A
no. 236). However, the exercise of the freedom of expression by
elected politicians, who at the same time are holders of public
offices in the executive branch of the government, entails particular
responsibility. In certain situations it is a normal part of the
duties of such public officials to take personally administrative
decisions which are likely to affect the exercise of individual
rights, or that such decisions are given by public servants acting in
their name. Hence, the exercise of the freedom of expression by such
officials may unduly impinge on the enjoyment of other rights
guaranteed by the Convention (as regards statements by public
officials, amounting to declarations of a person's guilt, pending
criminal proceedings, see Butkevičius v. Lithuania,
no. 48297/99, § 53, ECHR 2002 II (extracts); see
also Allenet de Ribemont
v. France, judgment of 10 February 1995, Series A no. 308,
p. 16, §§ 35-36; Daktaras v. Lithuania,
no. 42095/98, §§ 41 44, ECHR 2000 X).
When exercising their freedom of expression they may be required to
show restraint, bearing in mind that their views can be regarded as
instructions by civil servants, whose employment and careers depend
on their approval.
The Court is further of the view, having
regard to the prominent place which freedom of assembly and
association hold in a democratic society, that even
appearances may be of a
certain importance in the administrative proceedings where the
executive powers exercise their functions relevant for the enjoyment
of these freedoms (see, mutatis mutandis, De Cubber
v. Belgium, judgment of 26 October 1984, Series A no. 86,
p. 14, § 26). The Court is fully aware of the
differences between administrative and judicial proceedings. It is
true that it is only in respect of the latter that the Convention
stipulates, in its Article 6, the requirement that a tribunal
deciding on a case should be impartial from both a subjective and
objective point of view (Findlay v. the United Kingdom,
judgment of 25 February 1997, Reports 1997 I, § 73;
Warsicka v. Poland, §§ 34-37, no. 2065/03,
16 January 2007).
However,
in the present case the Court considers that in the assessment of the
case it cannot disregard the strong personal opinions publicly
expressed by the Mayor on issues directly relevant for the decisions
regarding the exercise of the freedom of assembly. It observes that
the decisions concerned were given by the municipal authorities
acting on the Mayor's behalf after he had made known to the public
his opinions regarding the exercise of the freedom of assembly and
“propaganda of homosexuality” (see paragraph 27 above).
It is further noted that the Mayor expressed these views when a
request for permission to hold the assemblies was already pending
before the municipal authorities. The Court is of the view that it
may be reasonably surmised that his opinions could have affected the
decision making process in the present case and, as a result,
impinged on the applicants' right to freedom of assembly in a
discriminatory manner.”
Having
regard to the circumstances of the case seen as a whole, the Court is
of the view that there has been a violation of Article 14 in
conjunction with Article 11 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
The
applicants did not claim any compensation for damage in connection
with the violation of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the Government's preliminary
objections;
Holds that there has been a violation of
Article 11 of the Convention;
Holds that there has been a violation of
Article 13 in conjunction with Article 11 of the Convention;
Holds that there has been a violation of
Article 14 in conjunction with Article 11 of the Convention.
Done in English, and notified in writing on 3 May 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T. L. Early Nicolas Bratza
Registrar President
