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Case Law 1543/06 (03/05/2007)

Type: Judgment

Authority: European Authorities: European Court of human rights

Date: 05/03/2007

Subject: In the context of a campaign called Equality Days organised from 10 to 12 June 2005 by the Foundation, the applicants wished to organise a march to take place in the streets of Warsaw. The march was aimed at bringing public attention to discrimination against minorities, women and the disabled. The applicants also intended to hold rallies on 12 June in seven different squares in Warsaw some of which were intended to protest about discrimination against various minorities and others about discrimination against women. 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 also complained 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 demonstrations. They further alleged that they had been treated in a discriminatory manner in that they had been refused permission to organise certain demonstrations whereas other organisers had obtained permission. They relied on Article 11 and Articles 13 and 14 in conjunction with Article 11. Decision of the Court Article 11 The Court reiterated that it attached particular importance to pluralism, tolerance and broadmindedness. Pluralism was 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 people and groups with varied identities was essential for achieving social cohesion. It was only natural that, where a civil society functioned in a healthy manner, the participation of citizens in the democratic process was to a large extent achieved through belonging to associations in which they might integrate with each other and pursue common objectives collectively. The positive obligation of a State to secure genuine and effective respect for freedom of association and assembly was of particular importance to those with unpopular views or belonging to minorities, because they were more vulnerable to victimisation. The Court acknowledged that the demonstrations had eventually been held on the planned dates. However, the applicants had taken a risk given the official ban in force at that time. The Court observed that that could have discouraged the applicants and others from having participated in the demonstrations on the ground that, not having been given official authorisation, no official protection could be ensured by the authorities against potentially hostile demonstrators. That situation could not have been rectified either by legal remedies available to the applicants since the relevant decisions had been given after the date on which the demonstrations had been held. Therefore, the Court found that there had been an interference with the applicants’ rights as guaranteed under Article 11. Furthermore, given the decisions of 17 June and 22 August whereby the first-instance decisions had been quashed, that interference had not been “prescribed by law”. That conclusion could only be reinforced by the Constitutional Court’s judgment of 18 January 2006. The Court therefore concluded that there had been a violation of Article 11. Article 13 in conjunction with Article 11 The Court considered that it was in the nature of democratic debate that the timing of public meetings held in order to voice certain opinions might be crucial for its political and social weight. If a public assembly was organised after a given social issue lost its relevance or importance in a current social or political debate, the impact of the meeting might be seriously diminished. The freedom of assembly – if prevented from being exercised in good time – could even be rendered meaningless. Hence, in the circumstances, the notion of an effective remedy had implied the possibility to obtain a ruling before the time of the planned events. The organisers had given sufficient forewarning of their plans to the authorities (12 May for the march and 3 June 2005 for the rallies): under Section 7 of the Assemblies Act a request to hold a demonstration had to be submitted to the municipality no earlier than 30 days and no later than three days before the event’s date. A similar law did not exist, however, whereby the authorities had been obliged by a legally binding time-frame to give their final decision before the demonstrations were to take place. The Court was not persuaded that the remedies available, all post hoc, could have provided adequate redress to the applicants and found that they had therefore been denied an effective domestic remedy in respect of their complaint. There had therefore been a violation of Article 13 in conjunction with Article 11. Article 14 in conjunction with Article 11 The Court noted that there was no overt discrimination behind the first-instance decisions as they were focused on technical aspects of the organisation of the demonstrations and their compliance with certain requirements. The refusal of the march had been based on the applicants’ failure to submit a “traffic organisation plan” whereas, the Court observed, other organisers had not been subject to a similar requirement. As concerned the rallies, they had been refused due, in particular, to the risk of violent clashes on 12 June between demonstrators. It was not, however, disputed that the authorities had given permission to other groups to hold their counter-demonstrations on that very same day. The Court could not speculate on the existence of motives other than those expressly referred to in the administrative decisions. It could not though overlook the Mayor’s interview of 20 May 2005 in which he had expressed strong personal opinions about freedom of assembly and “propaganda about homosexuality” and had stated that he would refuse permission to hold the demonstrations. The Court reiterated that there was little room under Article 10 for restrictions on political speech or debate. That freedom, however, with respect to elected politicians who at the same time held public offices at executive level of the government, entailed particular responsibility. They should therefore show restraint when exercising this freedom, especially having borne in mind that their views could be regarded as instructions by civil servants, whose employment and careers depended on their approval. It observed that the decisions concerning the applicants’ request for permission to hold the demonstrations had been given by the municipal authorities acting on the Mayor's behalf and after he had already made known to the public his opinion on the matter. The Court concluded that it could be reasonably surmised that the Mayor’s opinions affected the decision-making process and, as a result, infringed the applicants' right to freedom of assembly in a discriminatory manner. Accordingly, the Court was of the view that there had been a violation of Article 14 in conjunction with Article 11.

Parties: Bączkowski e altri c/ Polonia

Classification: Freedoms - Art. 12 Freedom of assembly - Freedom of association - Equality - Art. 21 Non discrimination - Justice - Art. 47 Right to an effective remedy before a tribunal