Communicated on 13 October 2014
FOURTH SECTION
Application no. 7389/09
STOWARZYSZENIE WIETNAMCZYKÓW W POLSCE ‘SOLIDARNOŚĆ I PRZYJAŹŃ’
against Poland
lodged on 23 January 2009
STATEMENT OF FACTS
The applicant, Stowarzyszenie Wietnamczyków w Polsce ‘Solidarność i Przyjaźń’ (Association of Vietnamese People in Poland Solidarity and Friendship), is an association registered in Warszawa and represented by their President Mr Le Thiet Hung. The applicant association is represented before the Court by Mr A. Bodnar, a lawyer from the Helsinki Foundation for Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background of the case
The applicant association is representing interests of Vietnamese entrepreneurs who have been renting retail locations in the shopping centre in W. – specialising in Asian goods. The applicant association intended to organise an assembly to protest against unfair business practices of the company running the shopping centre which for example had raised rent by 300%.
2. Proceedings concerning the assembly planned for 19 May 2008
On 12 May 2008 the applicant association informed the Mayor of the Lesznowola Commune (Wójt gminy) about their intention to organise an assembly on 19 May 2008. They indicated the time and the place of the proposed event.
On 14 May 2008 the Mayor gave a decision in which he banned the assembly on the ground that its proposed location would cause excessive difficulty for people and cars to circulate around the shopping centres. The Mayor based his decision on section 8 (2) of the Assembly Act.
On 16 May 2008 the applicant association lodged an appeal against the decision. They argued that the assembly would be limited to a small fragment of the street and that there had been alternative streets which would allow access to shops and the centre of the town.
The assembly did not take place as the Mazowiecki Governor failed to examine the appeal before its planned date.
On 24 July 2008 the Governor quashed the impugned the decision and discontinued the proceedings as they had been devoid of purpose, the assembly was to take place over two months ago. This decision was delivered to the applicant’s lawyer on 25 August 2008.
3. Proceedings concerning the assembly planned for 26 May 2008
On 16 May 2008 the applicant association informed the Mayor of the Lesznowola commune about their intention to organise an assembly, in the same place, on 26 May 2008.
On 21 May 2008 the Mayor gave a decision in which he banned the assembly relying on identical arguments as previously.
On 23 May 2008 the applicant association appealed against the decision.
The assembly planned for 26 May 2008 did not take place.
The Mazowiecki Governor gave his decision on 24 July 2008 quashing 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 assembly planned for 19 May 2008.
The decision was delivered to the applicant’s lawyer on 25 August 2008.
4. The Constitutional Court
On 24 October 2008 the applicant association lodged a complaint with the Constitutional Court. They relied on Article 57 of the Constitution of the Republic of Poland which guarantees freedom of assembly.
On 9 May 2009 the Constitutional Court refused to pursue the complaint. The court considered that the applicant association should have had lodged a complaint with the Regional Administrative Court against the Governor’s decisions of 24 July 2008. By failing to lodge such a complaint the applicant association did not exhaust a domestic remedy which was one of the conditions of admissibility of the constitutional complaint.
The applicant association’s appeal against the decision was finally rejected as lodged out of time on 16 September 2010.
B. Relevant domestic law and practice
The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Bączkowski and Others v. Poland, no. 1543/06, §§ 28-44, 3 May 2007.
COMPLAINTS
The applicant association complains under Article 11 of the Convention about the interference with their right to peaceful assembly. They further complain under Article 13 taken together with Article 11 of the Convention about lack of effective remedy in their case. They refer in particular to the fact that the Mazowiecki Governor’s decisions, granting their appeals, were given after the date of the planned assembly.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant association’s right to freedom of peaceful assembly, contrary to Article 11 of the Convention?
2. Did the applicant association have at their disposal an effective domestic remedy for their complaint under Article 11, as required by Article 13 of the Convention? Reference is made to the case Bączkowski and Others v. Poland, no. 1543/06, 3 May 2007.
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