CASE OF STOWARZYSZENIE WIETNAMCZYKÓW W POLSCE ‘SOLIDARNOŚĆ I PRZYJAŹŃ’ v. POLAND
(Application no. 7389/09)
2 May 2017
This judgment is final but it may be subject to editorial revision.
In the case of Stowarzyszenie Wietnamczyków W Polsce ‘Solidarność i Przyjaźń’ v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 4 April 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 7389/09) 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 Stowarzyszenie Wietnamczyków w Polsce ‘Solidarność i Przyjaźń’ (Solidarity and Friendship” Association of Vietnamese People in Poland), a non-governmental association registered in Warsaw, on 23 January 2009.
2. The applicant association was represented by Mr A. Bodnar, a lawyer from the Helsinki Foundation of Human Rights. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
3. The applicant association alleged that its right to peaceful assembly had been breached because the domestic authorities had failed to authorise two demonstrations planned for May 2008. It further alleged that it had not had at its disposal any procedure which would have allowed it to obtain a final decision before the date of the planned demonstrations.
4. On 13 October 2014 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The background of the case
6. The applicant association represents the interests of Vietnamese entrepreneurs who rent retail outlets in a shopping centre specialising in Asian goods in Wólka Kosowska, a village in the Lesznowola Commune, some 20 km south of Warsaw. The applicant association intended to organise a demonstration to protest against the business practices of company X, which ran the shopping centre, for example by raising rents by 300%.
7. Wólka Kosowska is a village with some 700 inhabitants and more than 400 registered businesses. The majority of the businesses are located in warehouses along Nadrzeczna Street.
B. Proceedings concerning the demonstration planned for 19 May 2008
8. On 12 May 2008 the applicant association, acting through its lawyer, informed the mayor of the Lesznowola commune (Wójt gminy) about its intention to organise a demonstration on 19 May 2008. It indicated that the event would start at 7 a.m. and end at 10 a.m., and would include speeches by representatives of the applicant association. Afterwards a petition would be handed over to the representatives of company X. The demonstration was to take place at Nadrzeczna Street in Wólka Kosowska. The organisers estimated the number of participants at 150 people. They also explained that the objective of the demonstration was to make a common statement on the hardships caused by company X to its tenants as a result of its allegedly unfair business practices. Attempts to negotiate with the company had failed, so it had been necessary to organise common action. The organisers assured the mayor that the demonstration would be peaceful.
At the mayor’s request, on 12 May 2008 the lawyer representing the applicant association specified that the demonstration would take place at no. 16 Nadrzeczna Street, opposite two warehouses.
9. On 14 May 2008 the mayor gave a decision in which she banned the demonstration on the grounds that it might entail a danger to life or limb, or a major danger to property (section 8(2) of the Assemblies Act). The reasons for the mayor’s decision were as follows:
“Nadrzeczna Street is the main road in Wólka Kosowska and provides access to Krakowska street for residents and many businesses located on [that street], their deliveries and employees. It should be underlined that there is increased traffic on that street, particularly during the morning (and in the evenings), which impacts on traffic on Krakowska street. Nadrzeczna Street is used by public transport minibuses and by the school bus. Therefore organising a demonstration on that street between 7 and 10 a.m. would block the entire length of the street and also limit or even make impossible any journey by car to Krakowska street and in the farther direction of Grojec. In the event of a traffic accident, the intervention of the police, the fire service or the ambulance service would be difficult, if not impossible. Similarly, access to a doctor by the residents of Wólka Kosowska during the demonstration might be totally impossible. The same applies for any intervention by the fire service or the police. This authority concludes that the holding of a demonstration on this street during heavy traffic might put people’s health at risk.”
10. On 14 May 2008 the board of directors of company X sent a letter to the applicant association referring to the demonstration planned for 19 May 2008. In the letter the applicant association was reminded that any demonstration organised on its premises would be illegal. The board of directors further referred to leaflets distributed by the applicant association, also without their permission, calling for a demonstration and blockage of the premises. According to the company, the only aim of such actions was disruption and they could not influence its position on the contested measures. In conclusion, the applicant association was urged to stop organising illegal demonstrations on premises belonging to company X. If the association failed to comply, company X would take all necessary legal actions and inform the prosecuting bodies. On the following day the board of directors met with the mayor of Lesznowola.
11. On 16 May 2008 the applicant association lodged an appeal against the decision of 14 May 2008 (see paragraph 9 above). It argued that the demonstration would be limited to a small part of the street and that there were alternative streets which would allow access to the shops and the centre of the village. Access to Krakowska Street was also possible by other streets. The planned demonstration would not block the entire street and would not make it impossible for cars and buses to pass. Moreover, it was excessive to conclude that the demonstration would prevent residents from seeking medical help and emergency services from gaining access to residents in an emergency. The applicant association emphasised that the Assemblies Act invoked by the mayor provided for the banning of a demonstration only in extreme circumstances; the authority had failed to show that they existed in the instant case. The mayor had accepted the arguments of the company X, which was afraid of the demonstration, and had thereby limited the association’s constitutionally protected right to freedom of assembly.
12. The demonstration planned for 19 May 2008 did not take place; on the same day the applicant association send a fax to the mayor’s office informing that they would not go ahead with the demonstration.
13. On 24 July 2008 the Governor overruled the impugned decision and discontinued the proceedings as devoid of purpose, given that the demonstration was to have taken place more than two months previously. The decision was delivered to the applicant association’s lawyer on 25 August 2008.
C. Proceedings concerning the demonstration planned for 26 May 2008
14. On 16 May 2008 the applicant association informed the mayor of the Lesznowola commune about its intention to organise a demonstration at the same place on 26 May 2008. The demonstration was to last for a shorter time than the one previously planned, from 7 a.m. to 8.30 a.m. The applicant association assured the mayor that all public and school buses would be able to pass, as well as all emergency services vehicles.
15. On 21 May 2008 the mayor gave a decision in which she banned the demonstration, relying on the same legal grounds as those relied on previously, and putting forward similar arguments. The mayor emphasised the fact that Wolka Kosowska had about 700 inhabitants, some of whom used Nadrzeczna Street to get to work and school in the mornings. Moreover, there were about 400 registered businesses in the village, most of which were located in the zone affected by the planned demonstration. Access by those entrepreneurs and for deliveries would be impossible. Nadrzeczna Street was a single carriage way with no pavement. The planned demonstration would thus effectively block that road, impeding access to many businesses. In such circumstances, the emergency services would also be prevented from accessing the zone.
16. On 23 May 2008 the applicant association appealed against the decision. They pointed out that most of the entrepreneurs working in the warehouses intended to participate in the demonstration. Moreover, the mayor had failed to notice that the duration of the planned demonstration had been halved in order to accommodate the arguments that the mayor had put forward in her first decision of 14 May 2008 (see paragraph 9 above). The applicant association further argued that if the same logic were applied, many big demonstrations in Warsaw would not have taken place, as the protesters often blocked access to government buildings.
17. The demonstration planned for 26 May 2008 did not take place.
18. The Mazowiecki Governor gave his decision on 24 July 2008, overruling the impugned decision of the mayor and discontinuing the case. Its reasoning was identical to the decision given on the same day, but concerning the demonstration planned for 19 May 2008 (see paragraph 13 above).
19. The decision was delivered to the applicant association’s lawyer on 25 August 2008.
D. The demonstration planned for 2 October 2008
20. On 1 September 2008 the applicant association informed the mayor of Lesznowola about a demonstration planned for 2 October 2008. The time, venue and purpose of the demonstration were the same as in the two previous cases. On 8 September 2008 the mayor banned the demonstration for reasons identical to those given in her previous decisions on the applicant association’s case (see paragraphs 9 and 15 above). She stated that disruption to traffic would make impossible any intervention by the police or other emergency services. The holding of the demonstration might therefore put people’s health at risk.
21. Following an appeal lodged by the applicant association, on 18 September 2008 the Mazowiecki Governor overruled the mayor’s decision. He emphasised the importance of the constitutionally protected right of freedom of assembly, which also applied to non-political assemblies held in a public space. The governor stated that the banning of an assembly should be treated as an ultimate measure and that such a stringent limitation on the freedom of assembly was limited to situations where constitutionally protected rights were in direct and serious danger. Moreover, any assessment of that danger should be based on facts and not assumptions. Therefore, the mayor’s conclusion that disruption to traffic would put people’s health at risk had been erroneous. There was no basis for a decision to ban the demonstration.
The demonstration planned for 2 October 2008 took place.
E. The Constitutional Court
22. On 24 October 2008 the applicant association lodged a complaint with the Constitutional Court. It relied on Article 57 of the Constitution, which guarantees freedom of assembly.
23. On 9 May 2009 the Constitutional Court refused to consider the complaint. The court held that for the constitutional complaint to be admissible, the applicant association should have lodged a complaint with the Regional Administrative Court against the governor’s decisions of 24 July 2008 (see paragraphs 13 and 18 above).
24. An appeal by the applicant association against the decision was finally dismissed as lodged out of time on 16 September 2010.
II. RELEVANT DOMESTIC LAW AND PRACTICE
25. The legal provisions applicable at the material time and questions of practice are set out in Bączkowski and Others v. Poland, no. 1543/06, §§ 28-44, 3 May 2007.
26. On 18 September 2014 the Constitutional Court gave a judgment (case no. K 44/12) on whether certain provisions of the Assembly Act were in compliance with the Constitution. It found that many provisions of the Act were in breach of the Constitution. For instance, it considered that the Act did not sufficiently protect small assemblies of less than fifteen persons. It also examined the obligation to inform the authorities of a planned assembly at least three days in advance, and found it unconstitutional.
27. The Constitutional Court also examined the effectiveness of domestic remedies and found that the legal system did not provide that a final ruling on prohibition of an assembly had to be obtained before its planned date. The appellate procedure lacked effectiveness as a result of the inadequate time-limits provided for in the Act. The court stated that not only did the law not provide for adequate time for an administrative authority to take action, but it also totally ignored the fact that the courts may verify the authority’s decisions.
28. On 24 July 2015 Parliament adopted a new Assembly Act, which entered into force on 29 September 2015.
I. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 11
29. The applicant association complained, under Article 13 of the Convention, in conjunction with Article 11 of the Convention, that it had not had an effective remedy against the alleged violation of its freedom of assembly. In particular, it alleged that it had not had at its disposal any procedure which would have allowed it to obtain a final decision prior to the date of the planned demonstrations. These provisions read as follows:
“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.”
“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.”
30. The Government raised two preliminary objections. Firstly, they argued that the applicant association had lost its “victim status” because it had been able successfully to hold the demonstration a few months later (see paragraph 21 above). Moreover, it had decided not to hold the demonstration originally planned for 19 May 2008. In this connection, they referred to a fax which the applicant association had sent to the mayor of the Lesznowola commune on 19 May 2008 informing her that the demonstration would not take place (see paragraph 12 above).
31. Secondly, the Government submitted that the applicant association had not exhausted domestic remedies as it had failed to lodge an appeal with the administrative courts against the decisions of the governor. Such an appeal would have allowed the applicant association to claim compensation in separate proceedings or to have successfully lodged a subsequent appeal with the Constitutional Court.
32. The applicant association contested all those arguments. It disagreed with the Government’s assessment that it had voluntarily decided not to go ahead with its demonstration. As shown by the facts of the case, on 19 May 2008, the day of the planned demonstration, the mayor’s decision banning it had been in force. The applicant association’s reluctance to go ahead with an illegal demonstration, which would have constituted an offence punishable by up to fourteen days of deprivation of liberty, should not be understood as it changing its minds about holding the rally.
33. The applicant association further argued that the fact that it had been allowed to demonstrate after the third decision of the Lesznowola Mayor had been overruled by the Mazowiecki Governor only showed that all three decisions of the mayor had lacked any justification. The third demonstration had taken place some five months later and should not be considered as remedying the banning of the two demonstrations in May 2008 and depriving the applicant association of its right to an effective remedy in that respect.
34. The Court considers that the Government’s argument that the applicant association could not claim that it had been a victim of a breach of its rights, and the question whether it could effectively challenge the set of legal rules governing the exercise of its freedom of assembly raise questions which are closely linked to the merits of the complaint.
35. The Court accordingly joins the Government’s pleas of inadmissibility on grounds of lack of “victim status” and non-exhaustion of domestic remedies to the merits of the case (see, mutatis mutandis, Bączkowski and Others v. Poland, no. 1543/06, §§ 45-48, 3 May 2007).
36. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. Arguments of the parties
37. The applicant association complained that, when the first-instance decisions had banned the holding of the demonstrations, it had not had at its disposal any effective appeal procedure which would have allowed it to obtain a final decision before the scheduled date of the demonstrations.
38. The applicant association considered that the demonstrations had been very important for the Vietnamese community and therefore their timing had been crucial. They were related to a concrete situation, namely the 300% increase in rent for the retail space imposed by company X and the latter’s refusal to negotiate with the tenants. Moreover, the applicant association had informed the authorities of the first and second demonstrations seven and ten days in advance respectively, which should have been considered as reasonable notice. The appeals against the mayor’s decisions had also been lodged promptly, two days after the decisions had been issued. Those facts proved that the applicant association bore no responsibility for the authorities’ failure to examine the case before the dates of the planned events.
The applicant association concluded that the domestic law did not guarantee that the first-instance decision would be reviewed before the scheduled date. A mere post-hoc declaration that the ban had been unlawful was not adequate to fulfil requirements of Article 13 of the Convention.
39. The Government did not make any submission on the merits of the complaint under Article 13 of the Convention.
2. The Court’s assessment
40. Where there is an arguable claim that an act on the part of the authorities may infringe an individual’s right to freedom of assembly protected by Article 11 of the Convention, Article 13 of the Convention requires 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, mutatis mutandis and among many other authorities, Chahal v. the United Kingdom, 15 November 1996, § 145, Reports of Judgments and Decisions 1996-V).
41. In the present case, the applicant association intended to protest on behalf of several hundred entrepreneurs, mostly of Vietnamese origin, who rented retail space from company X. The company drastically changed the conditions of the lease and refused to re-negotiate them with the tenants. The matter was clearly of high importance to the entrepreneurs involved and the timing of events crucial for the protest to have any prospect of success. However, the domestic authorities banned the demonstrations which the applicant association had planned to organise on 19 and 26 May 2008. Those decisions were in force on the dates on which the demonstrations had been scheduled. It would therefore have been illegal to go ahead with them and could have led to legal sanctions. The Court therefore considers that the applicant association’s decision not to hold them should not be understood as them withdrawing their intention to demonstrate.
42. In those circumstances, there is no doubt that the applicant association had an arguable claim within the meaning of the Court’s case-law and was thus entitled to a remedy satisfying the requirements of Article 13.
43. Bearing in mind that the timing of a public event is important for the organisers and participants, the organisers must give timely notice to the competent authorities. The applicant association informed the mayor of Lesznowona of the first planned demonstration seven days in advance (see paragraph 8 above) and of the second one with ten days’ notice (see paragraph 14 above). It cannot therefore be said that the notice given was unreasonably short and did not give the authorities adequate time to act (compare and contrast, Stowarzyszenie Poznańska Masa Krytyczna v. Poland (dec.), no. 26818/11, § 37, 22 October 2013, where only three days’ notice was given).
44. The Court further finds striking that two decisions of the mayor of Lesznowola given on 19 and 21 May 2008 base on the same arguments. The only ground for banning both demonstrations was that they would cause a disruption to the traffic. The Court notes that in its second notice of the demonstration planned for 29 May 2008 the applicant association indicated the existence of alternative roads as solutions to the traffic congestion, assured the mayor that the emergency services would be able to pass, and limited the demonstration to a small part of the road. Moreover, it proposed a shorter duration for the planned demonstration in order to accommodate the concerns of the mayor relating to alleged traffic hazards (see paragraph 14 above). Nevertheless, in her decision of 21 May 2008 banning the second proposed demonstration, the mayor did not give any consideration to those elements and repeated her previous arguments (see paragraph 15 above).
45. The Court reiterates in this context that the Contracting States can impose limitations on the holding of a demonstration in a given place for public security reasons (see Disk and Kesk v. Turkey, no. 38676/08, § 29, 27 November 2012). Nevertheless, although a demonstration in a public place may cause some disruption to ordinary life, including disruption to traffic, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of its substance (see Malofeyeva v. Russia, no. 36673/04, § 136, 30 May 2013).
46. The Court reiterates that the notion of an effective remedy implies the possibility of obtaining a ruling concerning the authorisation of the event before the time at which it is scheduled to take place (see Bączkowski and Others, cited above, § 81). It is therefore important for the effective enjoyment of freedom of assembly that the applicable laws provide for reasonable time-limits within which the State authorities, when giving relevant decisions, should act (ibid., § 83).
47. However in the instant case, the authorities were not obliged by any legally binding time-frame to give their final decisions before the planned date of the demonstration. After the decisions to ban both demonstrations had been issued by the mayor, the applicant association appealed (see paragraphs 11 and 16 above). However, the governor’s office issued its decisions more than two months after the date of the planned demonstrations (see paragraphs 13 and 18 above). In those circumstances, the applicant association had no legal interest in lodging a further appeal against those decisions with the administrative courts, which would have taken several more months to examine them. The ineffectiveness of the domestic appeal procedure, which did not provide that a final ruling on prohibition of an assembly had to be obtained before its planned date, was noted by the Constitutional Court in its judgment of 18 September 2014 (see paragraph 27 above).
48. Given the nature of the democratic debate, the timing of public meetings held in order to voice certain opinions may be crucial for the political and social weight of such meetings. Freedom of assembly - if prevented from being exercised at a propitious time - can well be rendered meaningless (see Bączkowski and Others, cited above, § 82).
49. The Court thus considers that in the instant case the remedy available to the applicant association, namely an appeal against the decision of the mayor, was of a post-hoc character. Such a remedy could not have provided adequate redress in respect of the alleged violations of the Convention (see Bączkowski and Others, cited above, § 83, and Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, § 99, 21 October 2010).
50. The Court finally observes that the several months later the applicant association made a third attempt to organise a demonstration. The demonstration planned for 2 October 2008 took place because the Mazowiecki Governor promptly overruled the mayor’s decision banning it (see paragraph 21 above). It should be emphasised that the details relating to the planned demonstrations - their purpose and location - were the same as for the demonstrations planned for May 2008, which are the subject matter of the instant case. Moreover, all three decisions of the mayor banning the demonstrations planned by the applicant association were based on similar arguments. The main difference was that on this occasion the applicant association informed the mayor of the planned demonstration thirty days in advance - as early as possible in accordance with the law (see Stowarzyszenie Poznańska Masa Krytyczna v. Poland, decision cited above, § 37). Moreover, the Mazowiecki Governor decided on the applicant association’s appeal promptly, before the date on which the demonstration was to take place. The Court subscribes to the reasons and conclusion reached on 18 September 2008 by the governor, who emphasised the importance of the right of freedom of peaceful assembly and pointed out that any limitations must be construed strictly and must be based on facts and not assumptions (see paragraph 21 above). The Court considers that the facts that the governor quashed the mayor’s ban and that the demonstration planned for 2 October 2008 took place and caused no disturbance, not only do not deprive the applicant association of its victim status but strengthen its argument that the banning on the demonstrations planned in May 2008 should have been reviewed promptly by the governor.
51. Therefore, the Court finds that the applicant association has been denied an effective domestic remedy in respect of its complaint concerning the ban of two manifestations scheduled for May 2008. Consequently, the Court dismisses the Government’s preliminary objections regarding the applicant association’s lack of victim status and non-exhaustion of domestic remedies and concludes that there has been a violation of Article 13 in conjunction with Article 11 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
52. The applicant association complained that its right to freedom of assembly had been breached in that the domestic authorities had prevented it from holding two peaceful demonstrations in May 2008. It invoked Article 11 of the Convention.
53. Having regard to its findings relating to Article 13 taken in conjunction with Article 11 (see paragraph 51 above), the Court does not find it necessary to examine the admissibility and merits of the applicant’s complaint under Article 11 of the Convention taken alone.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
54. 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.”
55. The applicant association claimed 10,000 euros (EUR) in respect of non-pecuniary damage.
56. The Government contested the amount claimed.
57. Having regard to its practice and giving a ruling on an equitable basis, the Court awards the applicant association EUR 5,000 in respect of non-pecuniary damage.
B. Costs and expenses
58. The applicant association also claimed EUR 750 for the costs and expenses incurred before the Court. The sum was calculated on the basis of fifteen hours worked at a rate of EUR 50 per hour.
59. The Government contested the claim.
60. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the claim in full.
C. Default interest
61. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Joins the Government’s preliminary objections to the merits and dismisses them;
2. Declares the complaint under Article 13 in conjunction with Article 11 of the Convention admissible;
3. Holds that it is not necessary to give a ruling on the admissibility and merits of the complaint under Article 11 of the Convention taken alone;
4. Holds that there has been a violation of Article 13 in conjunction with Article 11 of the Convention;
(a) that the respondent State is to pay the applicant association, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable to the applicant association, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant association’s claim for just satisfaction.
Done in English, and notified in writing on 2 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea Tamietti Nona
Deputy Registrar President