STOWARZYSZENIE ''POZNAŃSKA MASA KRYTYCZNA'' v. POLAND
Inadmissible
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney
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. 2 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 timeframe, 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. 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. 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.