The applicants, a group of individuals and the Foundation for Equality, wished to hold a march in Warsaw between 10-12 June 2005, with a view to raising awareness of discrimination against minorities – sexual, national, ethnic and religious – and also against women and disabled persons.
On 3 June 2005, the Traffic Officer, acting on behalf of the Mayor of Warsaw refused permission for the march for failure to submit a ‘traffic organisation plan’. On 9 June 2005, the Mayor gave decisions banning stationary assemblies organised by applicants who were members of LGBTQ organisations. Permissions were granted to planned assemblies concerning discrimination against women, and six other demonstrations for that day.
On 10 June 2005, the organisers of the appealed the refusal to the Mazowszw Governor. The Governor agreed with the applicants and overturned the refusals on 17 June 2005. The Governor observed that the 1990 Act of Assemblies guaranteed freedom of assembly.
On 28 June 2005, following the march, the applicants appealed to the Local Government Appellate Board claiming that the decision lacked any legal basis and that it was an unwarranted restriction of freedom of assembly. The Appeals Board found in favour of the applicants holding that the Traffic Officer had failed to provide them with an opportunity to participate in the administrative proceedings.
In an interview with the Mayor of Warsaw from 20 May 2005, the Mayor stated ‘there will be no public propaganda of homosexuality’ and that ‘propaganda of homosexuality is not tantamount to exercising one’s freedom of assembly.’
Baczkowski and others approached the ECtHR alleging violations of Articles 11 (freedom of assembly and association), 13 (right to an effective remedy) and 14 (non-discrimination) of the European Convention on Human Rights. The Polish government argued that the applicants could not claim to be victims as the appellate authorities in Poland had quashed the original decisions. The applicants claimed that they had not been afforded redress at a domestic level. In a decision on 5 December 2006, the Court declared the application admissible. It decided to join to the merits of the case the examination of the Government’s preliminary objections.
Regarding Article 11 of the ECHR, the applicants complained that their right to peaceful assembly had been breached by the way in which the domestic authorities had applied the relevant domestic law to their case. The applicants argued that their requests had complied with the requirements laid down by the Assemblies Act. They also stated that the march had been refused because of the alleged failure of the applicants to submit a ‘traffic organisation plan’ which the authorities had not requested prior to the refusal.
The ECtHR found that whilst the assemblies were held on the planned dates, ‘the refusals to give authorisation could have had a chilling effect on the applicants and other participants in the assemblies.’ The ECtHR held that when the assemblies were held, the applicants were negatively affected by the refusals to authorise them and this interfered with Article 11 of the ECHR.
Regarding Article 13 of the ECHR, the court found that the applicants were entitled to a satisfactory remedy. It stated that in having obtained decisions of the second-instance administrative bodies in their favour, there was no legal interest in bringing an appeal and consequently the Constitutional Court was not open to them. The court also asserted that the overturn of the original decisions occurred after the planned dates of the assemblies. As such, the remedies available to the applicants, all of them being of post-hoc character, could not provide satisfactory redress.
The applicants also complained that they had been treated in a discriminatory manner in violation of Article 14 in conjunction with Article 11 of the ECHR. Considering the strong personal opinions of the Mayor of Warsaw in the 20 May interview, the ECtHR was of the view that ‘it may be reasonably surmised that his opinions could have affected the decision-making process in the present case and, as a result, impinged on the applicants’ right to freedom of assembly in a discriminatory manner.’
The court dismissed the Government’s preliminary objects and held that there was a violation of Articles 11, 13 and 14 of the ECHR.
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