FOURTH SECTION
DECISION
Application no. 26818/11
STOWARZYSZENIE ‘‘POZNAŃSKA MASA KRYTYCZNA’’
against Poland
The European Court of Human Rights (Fourth Section), sitting on 22 October 2013 as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 19 April 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Stowarzyszenie Poznańska Masa Krytyczna, is an association registered in Poznań. It is represented before the Court by Mr A. Bodnar, a lawyer practising in Warsaw.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant association, may be summarised as follows.
3. The applicant is a registered association. Its objective is to draw the attention of the public and the local authorities to the growing number of cyclists in Poznań and to the need to adapt traffic management measures and the road network for their benefit. Since 2005 it had organised monthly events consisting of gatherings of large numbers of cyclists riding through the main thoroughfares of Poznań.
4. On 27 October 2009 the applicant association notified the Poznań Town Hall of an event to be held on 30 October 2009 in protest against various forms of discrimination (mające na celu protest wobec dyskryminacji). It was to start at 6 p.m. and end at approximately 8.45 p.m. A specific route for the cycle ride was indicated in the notice.
5. By a decision of 29 October 2009 the mayor of Poznań banned the event. He was of the view that the assembly in the form planned by the applicant association had to be regarded as a “ride” (przejazd), a term to which section 7 of the Assemblies Act 1990 could not be held applicable. That provision referred to an assembly as a “passage” (przejście). As the planned event was to take the form of a ride, it could not be regarded as assembly within the meaning of that Act. Such an event fell under the Road Traffic Act 1997.
6. The applicant association appealed against that decision the same day, on the grounds that it was in breach of its right to freedom of peaceful assembly.
7. On 5 November 2009 the governor of Wielkopolska allowed the appeal. He held that the first-instance decision was in breach of Article 7 of the Assemblies Act. It had wrongly construed the notion of assembly in such a manner as to exclude a group of cyclists riding through town from the scope of the notion of assembly within the meaning of the provision. Such an interpretation was unduly restrictive and in breach of Article 57 of the Constitution, Article 21 of the UN Covenant of Civil and Political Rights, and Article 11 of the Convention. Furthermore, the conditions laid down in section 8 of the Assemblies Act specifying circumstances in which a ban of an assembly to be held could be imposed, such as danger to life or limb or a major danger to property, were not met.
8. The appellate body discontinued the proceedings.
9. The applicant association appealed against the second-instance decision, on the grounds that it also was in breach of the right to freedom of assembly, because it had been given after the planned date. The applicant association had not had at its disposal any procedure which would have made it possible to obtain a final decision prior to that date. It was of the view that a procedure should be in place enabling organisers of public meetings and assemblies to have a ruling – delivered in advance of the event – on whether the event can be held.
10. It further challenged the decision to discontinue the proceedings. It asked the Poznań Regional Administrative Court (Wojewódzki Sąd Administracyjny) to consider lodging a legal question with the Constitutional Court as to the compatibility of sections 7.1, and 9.1 and 4 of the Assemblies Act with the Constitution in so far as they laid down the procedural framework for obtaining authorisation.
11. On 20 November 2009 the Regional Administrative Court dismissed the appeal. It shared the view of the appellate body that the first-instance decision had been in breach of the applicant association’s right to freedom of assembly.
12. As to the grounds for appeal based on the allegedly deficient time‑frame, the court held that pursuant to section 7 of the Assemblies Act, a request for approval to hold an assembly had to be filed no earlier than thirty days and no later than three days before the planned date. In the present case notice had been given on 27 October 2009, whereas the event had been planned for 30 October. The first-instance decision dated 29 October had been served on the applicant association the same day. It had lodged an appeal the next day, Friday 30 October. Saturday and Sunday were regarded as non-working days. On Monday 2 November the appeal had been forwarded to the second-instance administrative body. The decision had been given on 5 November and served on the applicant the same day.
13. The speed with which the case had been processed was not open to criticism. The governor had dealt with the case speedily. The applicant association had failed to take into consideration that the public administration did not work on Saturdays and Sundays. Had it filed its request earlier, it would have been possible for the authorities to give a decision prior to the planned date.
14. The court shared the appellant’s view that the contested decision had failed to indicate the grounds on which the proceedings had been discontinued in accordance with the applicable procedural provisions. However, this procedural breach had no bearing on the outcome of the case.
15. The court further held that there were no grounds on which to put a legal question to the Constitutional Court with a view to challenging the provisions of the Assemblies Act as to the time-frame within which the administrative authorities had to decide requests for approval to hold an assembly.
B. Relevant domestic law
1. Relevant provisions of the Constitution
16. Article 57 of the Constitution reads:
Freedom of peaceful assembly and participation in such assemblies shall be ensured to everyone. Limitations upon such freedoms may be imposed by statute.
2. Assemblies Act
17. By virtue of section 1 of the Assemblies Act 1990, everyone has the right to freedom of peaceful assembly. A gathering of at least fifteen people, called in order to debate an issue or to express an opinion on a given issue, is to be regarded as an assembly within the meaning of the Act.
18. Under section 2, freedom of assembly can only be restricted by statute 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.
19. In principle, decisions concerning the exercise of freedom of assembly must be taken by the local authority in the municipality where the assembly is to be held. These decisions can be appealed against to the regional governor.
20. Under section 6 of the Act, the municipality must be informed by the organisers of the intention to hold a public gathering in an open air area accessible to an unspecified number of people. Under section 7, notice must be given to the municipality no earlier than thirty days and no later than three days before the planned date of the demonstration.
21. Pursuant to section 8 the municipality shall ban a demonstration if its purpose is in breach of the Act itself or of the provisions of the Criminal Code, or if it might entail danger to life or limb, or major damage to property.
22. According to the legislative provisions in force at the relevant time, a first-instance decision to ban a demonstration had to be served on the organisers within three days of the date on which the relevant request was filed and no later than twenty-four hours before the planned time of the demonstration. An appeal against the ban had to be lodged within three days of the date of its service. The lodging of such an appeal did not prevent the ban of the demonstration taking effect.
23. A decision given by the appellate authority had to be served on the organisers within three days of the date on which the appeal was lodged.
COMPLAINTS
24. The applicant association complained that its freedom of peaceful assembly had been breached by the ban of its event and by the manner in which the domestic authorities had applied the relevant domestic law to their case. It submitted that when the first-instance decision had been taken to ban the holding of the assembly, it had not had at its disposal any procedure which would have allowed it to obtain a final administrative decision prior to the date of the planned event.
25. Pursuant to section 7 of the Assemblies Act, notice of an assembly had to be given thirty days before the planned date at the earliest and three days at the latest. The applicant association submitted that the State should create a procedure enabling the organisers of public meetings and assemblies to have a ruling – delivered in advance of the event – on whether the event can be held.
26. The applicant association relied on Articles 11 and 13 of the Convention.
THE LAW
27. The applicant association complained that its freedom of peaceful assembly had been breached by the ban of its event. It submitted that it had not had at its disposal any procedure which would have allowed it to obtain a final administrative decision prior to the planned date.
28. The applicant association relied on Articles 11 and 13 of the Convention, which read as follows:
Article 11
“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.”
Article 13
“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.”
29. The Court first reiterates that in order to claim to be a victim of a violation within the meaning of Article 34 of the Convention, an applicant must show that he or she was directly affected by the impugned measure (see, among many other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008, with further references).
30. It observes in this connection that on 29 October 2009 the mayor of Poznań banned the event, which was planned for 30 October. The applicant association appealed against that decision the same day. However, it did not make any submissions that would allow the Court to establish whether the event was ultimately held on the planned date or not. Nor has it been shown that the ban imposed by the first-instance authority had, in the particular circumstances of the case, a chilling effect and was capable of discouraging persons from taking part in the demonstration (see Bączkowski and Others v. Poland, no. 1543/06, § 67-68, 3 May 2007, and, mutatis mutandis, Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 116-118, ECHR 2011,). It has not therefore been shown to the Court’s satisfaction that the applicant association was indeed negatively affected by the decision complained of.
31. However, even assuming that the applicant association can claim to be a victim of a breach of its rights guaranteed by the Convention and that it has exhausted relevant domestic remedies, the Court notes that the application is in any event manifestly ill-founded for the following reasons.
32. The Court reiterates that the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Thus it should not be interpreted restrictively. This right covers both private meetings and meetings in public thoroughfares, as well as static meetings and public processions. In addition, it can be exercised by individuals and by those organising an assembly. States must not only safeguard the right to assemble peacefully but also refrain from applying unreasonable indirect restrictions upon that right (see Djavit An v. Turkey, no. 20652/92, § 56, ECHR 2003‑III, with further references).
33. The Court has to first examine whether there was an interference with the applicant association’s rights under Article 11 of the Convention in the present case.
34. The Court observes that on 27 October 2009 the applicant association notified the Poznań Town Hall of its intention to organise a demonstration on 30 October. By a decision of 29 October the mayor of Poznań banned the event. He was of the view that the assembly planned was to be of a mobile character and therefore could not be regarded as assembly within the meaning of the Assemblies Act 1990. The Court emphasises that this decision was served on the applicant association the same day. On 5 November the second-instance administrative authority allowed an appeal by the applicant association and quashed the contested decision. It further discontinued the proceedings. It was of the view that the first-instance authority had interpreted the applicable provisions of the domestic law in an unduly restrictive manner in breach of Article 11 of the Convention and in violation of the Constitution. Subsequently, the applicant association challenged the part of the decision discontinuing the proceedings, submitting that a procedure should be available under domestic law to make it possible to obtain a final administrative decision prior to the date on which an assembly is to be held. The appeal was dismissed by the Regional Administrative Court by a judgment of 20 November 2009.
35. The Court first notes that the argument submitted to it by the applicant association is two-pronged. Firstly, it concerns the fact that the first‑instance administrative authority banned the assembly. Secondly, it is directed against the allegedly inadequate time-frame for the processing of its notice to hold an assembly as required by the Assemblies Act 1990.
36. As to the first prong of the argument, the Court observes that the appellate authority allowed the applicant association’s appeal and quashed the ban imposed on it by the mayor of Poznań. Indeed, the governor pointed out that the first-instance decision was in breach of the applicant association’s right to freedom of assembly. Subsequently, the Regional Administrative Court shared this view. The ban was ultimately lifted.
37. As to the second prong of the argument made by the applicant association, the Court notes that pursuant to section 7 of the Assemblies Act, notice had to be given to the municipality no earlier than thirty days and no later than three days before the planned date. In the present case, the applicant association gave notice on the latest possible date, namely 27 October 2009, three days before the date of the planned event. It did not refer to any specific grounds on which the rally should be held on 30 October 2009. The Court observes that no explanation was forthcoming, either in the domestic proceedings or in the proceedings before the Court, as to why only the bare statutory minimum of three days’ notice was given and not more reasonable notice.
38. The Court is well aware 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 impact of such meetings. Furthermore, the urgency of debating an issue may call for organising an assembly within a very short period of time. 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 they 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. Freedom of assembly – if prevented from being exercised at a propitious time – can well be rendered meaningless (see Bączkowski and Others v. Poland, no. 1543/06, § 82, 3 May 2007). However, the Court notes that in the present case the event was planned as one of several monthly rides throughout the town which the applicant association organised regularly. The Court considers that it has not been argued, let alone shown, that the assembly was to be organised in connection with or in support of a specific social or political issue of particular relevance or importance at the material time which was capable of losing its purpose if it was organised on another, later date.
39. In the assessment of the case the Court cannot overlook the opinion expressed by the Regional Administrative Court as to the allegedly deficient time-frame within which the request was examined by the domestic authorities. That court observed that the first-instance authority had given its decision two days after it received notice, while the appellate authority had subsequently dealt with the case speedily within eight days. It noted that the applicant association had failed to take into account that the public administration did not work on Saturdays and Sundays. It concluded that the speed with which the authorities had processed the notice had not been open to criticism. The Court shares this opinion. It notes that the proceedings, including the appeal, lasted twenty-four days, which by no stretch of the imagination can be deemed to be a lengthy period of time. In the circumstances of the instant case the applicant association could not legitimately expect a more prompt examination of the relevant remedies by the competent authorities.
40. The Court, having regard to the circumstances of the case seen as a whole, does not find it established that there had been an interference with the applicant association’s freedom of assembly. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
41. In so far as the applicant association relies on Article 13 of the Convention, the Court reiterates that the effect of that Article 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, 15 November 1996, § 145, Reports of Judgments and Decisions 1996).
42. However, Article 13 requires that a remedy be available in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131). It does not go so far as to guarantee a remedy allowing a Contracting State’s laws to be challenged before a national authority on the grounds of being contrary to the Convention (see, among many other authorities, Costello-Roberts v. the United Kingdom, 25 March 1993, § 40, Series A no. 247‑C), but seeks only to ensure that anyone who makes an arguable complaint regarding a violation of a Convention right will have an effective remedy in the domestic legal order (ibid., § 39).
43. However, the Court has found above that the applicant association’s complaint under Article 11 concerning the alleged breach of their right to freedom of assembly was manifestly ill-founded. Consequently, it did not have an “arguable claim” for the purposes of Article 13 of the Convention.
44. In any event, bearing in mind that it has not been shown that the timing of the demonstration was crucial for the organisers and, furthermore, that they had failed to give timely notice to the competent authority, the Court considers that, in the circumstances, the notion of an effective remedy did not imply the possibility of obtaining a second-instance administrative decision prior to the planned events (compare and contrast, Cisse v. France, no. 51346/99, § 32 in fine, 9 April 2002; Ivanov and Others, cited above, § 74; Zeleni Balkani, cited above, §§ 44 and 45; Bączkowski and Others v. Poland, no. 1543/06, § 81, 3 May 2007; and Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, § 98, 21 October 2010).
45. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy