Communicated on 12 November 2020
Published on 30 November 2020
FIRST SECTION
Application no. 25217/18
PANDORA FOUNDATION
against Poland
lodged on 23 May 2018
STATEMENT OF FACTS
1. The applicant is a non-profit organisation for the protection of animals, called the “Pandora Foundation” (“the foundation”). The foundation is registered in Brzeg, Poland. The applicant is represented before the Court by Mr I. Pyrdek, a lawyer practising in Opole.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant foundation was registered in 2017 with a number of statutory purposes, including that of animal and environmental protection.
4. On 31 January 2018 (Wednesday) the applicant informed the Skaryszew Mayor about its intention to organise a peaceful assembly during a horse fair to be held in the town of Skaryszew in order to “protect the innocent animals”. The assembly was scheduled to take place from 18 February 2018 at 10 p.m. to 20 February 2018 at 2 p.m. The organisers expected 800 participants and asked to use a local market square for the purpose of the event. The applicant asked, in light of the large number of participants, for the support of the local police.
5. In its notice about the planned assembly, the applicant explained to the local authorities that the location sought was pertinent because the market square was a place of animal cruelty as the horse fair was held there every year. The applicant further informed the mayor that its statutory purpose was to protect animals and to prevent them being subjected to acts of cruelty.
6. On 5 February 2018 (Monday) the Skaryszew Mayor inquired about the safety of the possible assembly and the horse fair with the head of the local police and the regional veterinarian.
7. On 9 February 2018 (Friday) the written opinions of these persons were drawn up and submitted to the mayor. These documents have not been submitted to the Court.
8. According to the information contained in the mayor’s decision (see paragraph 9 below), the head of the local police and the regional veterinarian had concluded that the size and the technical parameters of the market square (5700 m2, the total size of the fenced market square, out of which only 500 m2 was the space used by the visitors, the remainder being taken up by the horses, cars, evacuation roads, administration building, etc.), taken against the number of people who usually attended the fair (700 people per day), the number of horses sold (150 horses kept under a roofed surface of 900 m2, as per the relevant regulations of the European Union) and the parking needs (car park of 1500 m2), did not make it possible to ensure the safety of the assembly, the fair visitors or the horses. In addition, as the applicant submitted, the regional veterinarian had concluded that the assembly was likely to cause a disturbance. The risk analysis that was carried out by the persons in question confirmed that a real threat existed to the life and safety of fair participants.
9. On 14 February 2018 (Wednesday) the mayor prohibited the applicant’s assembly on the ground that the event could realistically threaten the life and safety of the people and animals taking part in the Skaryszew horse fair. The mayor based the above-mentioned decision on the above‑mentioned opinions of the head of the local police and the regional veterinarian.
10. On 16 February 2018 (Friday) the applicant lodged a formal written complaint (protest) against that decision, arguing that the risks invoked by the mayor did not exist and that the regional veterinarian was not a competent authority to assess the risks posed by public assemblies.
11. On 16 February 2018 the Radom Regional Court upheld the mayor’s decision, concluding that the security risks existed also because the applicant’s assembly was of a “confrontational character”. The court observed that the safety risks were increased by the fact that the assembly was to be held continuously for forty hours, including at night. In the court’s view, the applicant had misconstrued its public assembly as a means of physical protection of the horses. That uninterrupted form of the assembly, was also, in the court’s opinion, inappropriate for ensuring any debate on animal rights. Instead, it could probably cause a disturbance, including physical confrontations between people with completely opposing views about animal well-being.
12. On 16 February 2018 the applicant lodged a further interlocutory appeal in the case, arguing that no risks existed and that there was no proof that the peaceful assembly planned was going to lead to a confrontation between the demonstrators and the visitors. In fact, the assembly was meant not in the form of a demonstration but rather a “peaceful and symbolic statement” which would be made politely. Moreover, the applicant submitted that the safety of the fair could be ensured by the local police in line with their statutory duties (section 14 of the 2015 Assemblies Act), and again, that the regional veterinarian was not competent to make pronouncements about the character and risk of the planned assembly.
13. On Monday, 19 February 2018 (seventy-two hours after the applicant’s interlocutory appeal) the Lublin Court of Appeal, sitting as a bench of three judges dismissed the applicant’s interlocutory appeal, thus upholding the mayor’s first-instance decision.
14. The appellate court adhered to the reasoning of the lower-instance court and, moreover, observed that the police chief and the regional veterinarian had not claimed that the assembly in question was of a confrontational nature. A set of objective elements, however, led them to the conclusion that a confrontation was likely and that great risks to the safety of the fair participants indeed existed. The court also found that the local authorities had a priority to organise the horse fair as, firstly, they were in charge of the market square in Skaryszew and, secondly, they had registered the event months before the applicant’s attempted assembly.
15. Pursuant to section 16 (7) of the 2015 Assemblies Act, an appellate court’s ruling on an interlocutory appeal against a ban on an assembly shall be issued within twenty-four hours.
16. It is not clear whether the event was ultimately held on the planned dates or not.Legal framework
17. Assemblies are regulated by the Assemblies Act (Prawo o zgromadzeniach) of 24 July 2015, which came into force on 14 October 2015.
18. A written notice about the planned assembly must be filed with a local authority (i.e. mayor) no earlier than thirty days and no later than six days before the event (sections 7, 9 and 10).
19. Upon the receipt of the notice, the local authority must immediately convey the information about the planned assembly to the head of the local police (section 8).
20. If two or more assemblies are planned to be held simultaneously in the same location, and it is impossible to ensure the safety of all participants, priority is given to the assembly which had been notified earlier (section 12 (1)). In such an event, the local authority shall, without delay, call on the organiser of the assembly that was notified later (by telephone or email) to change the time or the location of that event (section 12 (2)).
21. The local authority can ban a peaceful assembly that poses a threat to life or limb (section 14 (2)). The decision to prohibit the assembly shall be issued no later than ninety-six hours prior to the scheduled assembly (section 14). Such a decision must then be immediately communicated to the assembly organiser and the regional court with the territorial jurisdiction (section 15).
22. Any appeal against the local authority’s decision must be lodged with the regional court within twenty-four hours from the moment of service (section 16 (2)). The regional court must rule on the matter within twenty-four hours from the moment of the filing of the appeal (section 16 (3)).
23. Any interlocutory appeal against the regional court’s decision must be lodged with the appellate court within twenty-four hours from the service of the second-instance decision (section 16 (7)). That court must rule within twenty-four hours from the moment of the filing of the interlocutory appeal (section 16 (7)).
24. The Assemblies Act is silent about the situation when the statutory deadlines fall outside the office hours of the local authorities or courts, on weekends or bank holidays.
25. The default regulation in this respect is provided by Article 115 of the Civil Code (Kodeks Cywilny), according to which if a statutory deadline falls on a Saturday or on a statutory non-working day, the deadline moves to the day following the non-working day. The term “statutory non-working day” encompasses Sundays and enumerated bank holidays.
COMPLAINTS
The applicant essentially complains that the prohibition of the assembly it wished to organise violated its Article 11 rights. The applicant also complains about a breach of Articles 6 and 13 of the Convention in that its appeal against the mayor’s ban was examined with a delay beyond the statutory time-limit.
QUESTION TO THE PARTIES
Given the decision-making process, the fact that the ultimate decision prohibiting the applicant’s assembly was issued more than twenty-four hours since the lodging of the interlocutory appeal and the authorities’ reasons for prohibiting the applicant’s public assembly, has there been a violation of the applicant’s right to freedom of peaceful assembly, contrary to Article 11 of the Convention?
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