CASE OF BĄCZKOWSKI AND OTHERS v. POLAND
(Application no. 1543/06 )
3 May 2007
This judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision . C O N SEIL
D E L’EU R O PE
C O U N C IL
O F EU R O PE
C O U R EU R O PÉEN N E D ES D RO ITS D E L’H O M M E
EU R O PEA N CO U RT O F H U M A N R IG H TS
BACZKOWSKI AND OTHERS v. POLAND JUDGMENT 1
In the case of Bączkowski and Others v. Poland ,
The European Court of Human Rights (Fourth Section) , sitting as a
Chamber composed of:
Sir Nicolas BRATZA , President ,
Mr J. CASADEVALL ,
Mr S. PAVLOVSCHI ,
Mr L. GARLICKI ,
Ms L. M IJOVIĆ ,
Mr J. ŠIKUTA ,
Mrs P. HIRVELÄ , judges
and Mr T.L. EARLY , Section Registrar ,
Having deliberated in private on 3 April 2007 ,
Delivers the following judgment, which was adopted on that d ate:
1. The case originated in an application (no. 1543/06) against the
Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by Mr Tomasz Bączkowski, Mr Robert Biedroń,
Mr Krzysztof Kliszczyński, Ms Inga Kostrzewa , Mr Tomasz Szypuła and
by the Foundation for Equality ( Fundacja Równo ści ), on 16 December
2. The applicants were represented before the Court by Professor
Zbigniew Hołda, a lawyer practising in Wars aw .
3. The respondent Government were represented by their Agent,
Mr Jakub Wo łąsiewicz of the Ministry of Foreign Affairs.
4. The applicant s complained that their right to peaceful assembly had
been breached by the way in which the domestic authorities had applied
relevant domestic law to their c ase. They alleged that they had not had at
their disposal any procedure which would have allowed them to obtain a
final decision before the date of the planned assemblies . They also
complained that they had been treated in a discriminatory manner in that
they had been refused permission to organise the assemblies whilst other
persons had received such permission.
5. By a decision of 5 December 2006, the Court declared the application
admissible. It decided to join to the merits of t he case the examination of the
Government ‘s preliminary objections.
6. The applicant s filed fur ther written observations (Rule 59 § 1).
2 BACZKOWSKI AND OTHERS v. POLAND JUDGMENT
I. THE CIRCUMSTANCES OF THE CASE
1. Preparation of the assemblies
7. The applicants, a group of individuals and the Foundation for Equality
(of whose executive committee the first applicant is also a member
empowered to act on its behalf in the present case), wished to hold, within
the framework of Equality Days organised by the Foundation and planned
for 10 -12 June 2005, an assembly (a march) in Warsaw with a view to
alerting public opinion to the issue of discrimination against minorities –
sexual, national, ethnic and religious – and also again st women and disabled
8. On 10 May 2005 the organisers held a meeting with the Director of
the Safety and Crisis Management Unit of Warsaw City Council. During
this meeting an initial agreement was reached as to the itiner ary of the
9. On 11 May 2005 Mr Bączkowski obtained an instruction of the
Warsaw Mayor ‘s Office on “requirements which organisers of public
assemblies have to comply with under the Road Traffic Act” should the
ass emb ly be regarded as an “event” ( impreza ) within the meaning of
Article 65 of that Act.
10 . On 12 May 2005 the organisers applied to the City Council Road
Traffic Office for permission to organise the march, the itinerary of which
would lead from the Parliament buildings (Sejm ) to Assembly Square (Plac
Defilad ) in the centre of Warsaw.
11 . On 3 June 2005 the Tra ffic Officer, acting on behalf of the Mayor of
Warsaw, refused permission for the march, relying on the organisers ‘ failure
to submit a “traffic organisation plan ” ( “projekt organizacji ruchu” ) within
the meaning of Article 65 (a) of the Road Traffic Act, which they had
allegedly been ordered to submit.
12 . On the same day the applicants informed the Mayor of Warsaw
about stationary assemblies they intende d to hold on 11 June 2005 in seven
different squares in Warsaw. Four of these assemblies were intended to
protest about discrimination against various minorities and to support
actions of groups and organisations combating discrimination. The other
three planned assemblies were to protest about discrimination against
13 . On 9 June 2005 the Mayor issued decisions banning the stationary
assemblies to be organised b y Mr Bączkowski, Mr Biedroń,
Mr Kliszczyński, Ms Kostrzewa, Mr Szy pu ła, and another person,
Mr N. (who is not an applicant) , who are active in various
BACZKOWSKI AND OTHERS v. POLAND JUDGMENT 3
non -governmental organisations acting for the benefit of persons of
homosexual orientation. In his decision the Mayor relied on the argument
that assemblies held under the provisions of the Assemblies Act of 1990
(Ustawa o zgromadzeniach ) had to b e organised away from roads used for
road traffic. If they were to use roads, more stringent requirements applied.
The organisers wished to use cars carrying loudspeakers. They had failed to
indicate where and how these cars would park during the assemblie s so as
not to disturb the traffic , and how the movement of persons and these cars
between the assembly sites would be organised.
14 . Moreover, as a number of requests had been submitted to organise
other assemblies on the same day the tenor of which ran counter to the ideas
and intentions of the applicants, permission had to be refused in order to
avoid any possible violent clashes between participants in the various
15 . On the same day the municipal authorities, acting on the Mayor ‘s
behalf, allowed the three planned assemblies concerning discrimination
against women to be held as requested by the applicants .
16 . On the same day the same authorities permitted six other
demonstrations to be held on 11 June 2005. The themes of these assemblies
were as follows: “For more stringent measures against persons convicted of
paedophilia”, “Against any legislative work on the law on partnerships”,
“Against propaganda for partnerships”, “Education in Christian values, a
guarantee of a moral society”, “Christians respecting God ‘s and nature ‘s
laws are citizens of the first rank”, “Against adoption of children by
homosexual coupl es”.
2. Meetings held on 11 June 2005
17 . On 11 June 2005, despite the decision given on 3 June 2005, the
march took place. It followed the itinerary as planned in the origina l request
of 12 May 2006. The march, attended by approximately 3,000 people, was
protected by the police.
18 . In addition to the march, nine stationary assemblies were held on the
same day under permission granted by the Mayor on 9 June 2005 (see
para graphs 15 -16 above) .
3. Appe al proceedings
a) The march
19 . On 28 June 2005 the applicant F oundation appealed to the Local
Government Appe als Board against the decision of 3 June 2005 refusing
permission for the march. It was argued that the requirement to submit “ a
traffic organisation plan ” lacked any legal basis and that the applicants had
never been requested to submit such a document prior to the refusal. It was
4 BACZKOWSKI AND OTHERS v. POLAND JUDGMENT
also argued that the decision amounted to an unwarranted restriction of
freedom of assembly and that it had been dictated by ideological reasons
incompatible with the tenets of democracy.
20 . On 22 August 2005 the Board quashed the contested decision ,
finding that it was unlawful . The Board observed that under the applica ble
provisions of administrative procedure the authorities were obliged to
ensure that parties to administrative proceedings had an opportunity of
effectively participating in them. In the applicant ‘s case this obligation had
not been respected in that the case file contained no evidence that the
applicant F oundation had been informed of its procedural right to have
access to the case file.
The Board ‘s decision further read, inter alia :
“In the written grounds of the de cision complained of, the first -instance authority
refer s to the fact that no traffic organisation plan is to be found in the case file. Under
section 65 (a) item 3 (9) an organiser of a demonstrati on is obliged to develop such a
plan in co -operation with the police if he or she is requi red to do so by the authority.
However, in the case file there is no mention that the organisers were obliged to
submit such a plan . (…) The document on the procedure for obtaining permission to
organise an event which was served on the organisers contai ned no information on
such an obligation either.
Having regard to the fact that the organisers ‘ request concerned a march to be held
on 11 June 2005 and that the appeal was received by the Board ‘s Office [together with
the case file] on 28 June 2005, the p roceedings had already become devoid of purpose
by that latter date .”
b) The assemblies
21 . On 10 June 2005 the applicants appealed to the Mazowsze Governor
against the Mayor ‘s refusals of 9 June 2005 of permission to hold severa l of
the planned assemblies. They argued that the assemblies were to be entirely
peaceful and that banning them breached their freedom of assembly
guaranteed by the Constitution. They submitted that the assemblies did not
pose any threat to either public o rder or morals. They contested the
argument relied on in the decision th at they were required to submit a
document on the planned itinerary between the places where the assemblies
were to be held, arguing that they only intended to organise stationary
asse mblies, not any movement of persons between them , and that they
should not be held responsible for the organisation or supervision of such
22 . On 17 June 2005 the Mazowsze Governor quashed the contested
9 June 2005 refusals of authorisation to hold the assemblies .
It was first observed that these decisions breached the law in that the
parties had been served only with copies of the decisions, not with originals
as required by the law on administrative procedure. It was further noted that
BACZKOWSKI AND OTHERS v. POLAND JUDGMENT 5
the Mayor had informed the media of his decisions before they had been
served on the applicants , which was manifestly in breach of the principles of
23 . It was further observed that the 1990 Assemblies Act was a
guarantee of freedom of assembly in respect of both the organisation of and
participation in assemblies. The Constitution clearly guaranteed freedom of
assembly, not a right. It was not for the State to create a right to assem bly;
its obligation was limited to ensuring that assemblies were held peacefully.
Thus the applicable law did not provide for any permit for the holding of an
24 . The Governor noted that the requirement to submit a permit to
occupy a part of the road, based on the provisions of the Road Traffic Act ,
lacked any legal basis in the provisions of the Assemblies Act . The Mayor
had assumed that the demonstration would occupy a part of the road, but
had failed to take any steps t o clarify whether this had really been the
organisers ‘ intention, which he was obliged to do by law.
It was further observed that a decision banning an assembly had to be
regarded as a method of last resort because it radically restricted freedom of
expres sion. The principle of proportionality required that any restriction of
constitutionally protected freedoms be permitted only in so far as it was
dictated by the concrete circumstances of a particular case.
25 . The Governor noted in this connection that the Mayor ‘s reliance on
the threat of violence between the demonstrations organised by the
applicants and the counter -demonstrations planned by other persons and
organisations for the same day could not be countenanced . It was
tantamount to the administration endors ing the intentions of organisations
which clearly and deliberately intended to breach public order, whereas
protecti ng the freedom of expression guaranteed by the Assemblies Act
should be an essential task of the pub lic powers.
26 . He then discontinued the proceedings as they had become devoid of
purpose, the assemblies having taken place on 1 1 June 2005.
4. Translation of an interview with the Mayor of Warsaw published in
“Gazeta Wyborcza” on 20 May 2005
27 . “E. Siedlecka: The Assemblies Act says that freedom of assembly
can be restricted only if a demonstration might entail a danger to life or
limb, or a major danger to property. Did the organisers of the march write
anything in their application that indicates that there is such a danger?
Mayor of Warsaw : I don ‘t know, I haven ‘t read the application . But I will
ban the demonstration regardless of what they have written. I am not for
discrimination on the ground of sexual orientation , for example by ruining
people ‘s professional careers. But there will be no public propaganda about
6 BACZKOWSKI AND OTHERS v. POLAND JUDGMENT
E. S. What you are doing in this case is precisely discrimination: you are
making it i mpossible for people to use their freedom only because of their
particular sexual orientation.
MoW : I do not forbid them to demonstrate, if they want to demonstrate
as citizens, not as homosexuals.
E. S.: Everything seems to suggest that – like last year – the Governor
will quash your prohibition. And if the organisers appeal to the
administrative court, they will win, because preventive restrictions on
freedom of assembly are unlawful. But the appeal proceedings will last
some time and the date for which the march is planned will pass. Is this
what you want?
MoW : We will see whether they win or lose. I will not let myself be
persuaded to give my permission for such a demonstration.
E. S.: Is it right that the exercise of people ‘s constitutional rights should
depend on the views of the powers that be?
MoW : In my view, propaganda about homosexuality is not to the same
as exercising one ‘s freedom of assembly .”
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Relevant p rovisions of the Constitution
28 . 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.
29 . Articl e 79 § 1 of the Constitution , which entered into force on
17 October 1997, provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional
freedoms or rights have been infringed shall have the right to appeal to the
Constitutional Court for a judgment on the conformity with the Constitution of a
statute or other normative act on the basis of which a court or an administrative
authority has issued a final decision on his freedoms or rights or on his obligations
specifi ed in the Constitution.”
30 . Article 190 of the Constitution, insofar as relevant, provides as
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, . .. shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its
publication; however, the Constitutional Court may specify another date for the end of
the binding force of a normative act. Such time -lim it may not exceed 18 months in
relation to a statute or 12 months in relation to any other normative act. …
BACZKOWSKI AND OTHERS v. POLAND JUDGMENT 7
2. The Assemblies Act
31 . Pursuant to section 1 of the 1990 Assemblies Act, everyone has the
right to freedom of peacefu l assembly. A gathering of at least fifteen
persons, called in order to participate in a public debate or to express an
opinion on a given issue , is to be regarded as an assembly within the
meaning of the Act.
32 . Under section 2, freedom of assembly can be restricted only 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.
33 . All decisions concerning the exercise of freedom of assembly must
be taken by the local authorities in the municipalit y where the assembly is to
be held. These decisions can be appealed against to the Governor.
34 . Und er section 3 of the Act, the municipality must be informed by the
organisers of the intention to hold a public gathering in the open air for an
indetermin ate number of persons. Under section 7 s uch information must be
submitted to the municipality not earl ier than thirty days before the planned
date of the demonstration and not later than three days before it. The
information must include the names and addresses of the organisers, the aim
and program me of the demonstration, its place, date and time as well as
information about the itinerary if the demonstration is intended to proceed
from one place to another.
35 . Pursuant to section 8 the municipality shall refuse permission for the
demonstration if its purpose is in breach of the A ct itself or of provisions of
the Criminal Code, or if the demonstration might entail a danger to life or
limb, or a major danger to property.
36 . A first -instance refusal of permission to hold a demonstration must
be served on the organisers within three days of the date on which the
relevant request was submitted and not later than three days before the
planned date of the demonstration. An appeal against such a refusal must be
lodged within th ree days of the date of its service. The lodging of such an
appeal does not have a suspensive effect on the refusal of permission to hold
37 . A decision given by the appellate authority must be served on the
org anisers within three days of the date on which the appeal was submitted.
3. The Road Traffic Act
38 . Under section 65 of the Road Traffic Act of 1997, as amended in
2003, the organisers of sporting events, contests, assemblies and other
events which may obstruct road traffic are obliged to obtain permission for
the organisation of such assemblies.
39 . Under section 65 read together with section 65 (a) of the Act,
organisers of such events are obliged to com ply with various administrative
8 BACZKOWSKI AND OTHERS v. POLAND JUDGMENT
obligations specified in a list contained in that provision and numbering
nineteen items, including the obligation to submit a traffic organisation plan
to the authorities.
40 . These provisions were repealed as a result of the judgment of the
Constitutional Court, referred to below.
4. Judgment of the Constitutional Court of 18 January 2006
41 . In its judgment of 18 January 2006 the Constitutional Court
examined a request submitted to it by the Ombudsman to determine whether
the requirements imposed on organisers of public events by the provisions
of the Road Traffic Act were compatib le with the Constitution in so far as
they impinged on freedom of assembly, or whet her they amounted to an
excessive limitation of that freedom.
42 . The Constitutional Court observed that the essence of the
constitutional problem was whether the requirements imposed by section 65
of the Act were compatible with f reedom of expression as formulated by the
Constitution and developed by the As semblies Act. It noted that the 1990
Assemblies Act was based on the premise that the exercise of this freedom
did not require any authorisations or licences issued by the State. As it was a
freedom , the State was obliged to refrain from hindering its exercise and to
ensure that it was enjoyed by various groups despite the fact that their views
might not be shared by the majority.
43 . Accordingly, the Asse mblies Act provided for a system based on
nothing more than the registration of the proposed assembly.
The court observed that subsequently, when it enacted the Road Traffic
Act, the legislature had incorporated various administrative requirements
which we re difficult to comply with into the procedure created for the
organisation of sporting events, contests and assemblies, thus replacing the
registration system by a system based on permission. In so doing , it placed
assemblies within the meaning of the Assemblies Act on a par with events
of a commercial character or organised for entertainment purposes. This
was incompatible with the special position that freedom of expression
occupied in a democratic society and rendered nugatory the special place
that assemblies had in the legal system under the Constitution and the
Assemblies Act. The court also had regard to the fact that the list of
requirements imposed by the Road Traffic Act contained as many as
nineteen sundry administrative obligations. The restr ictions on freedom of
assembly imposed by that Act were in breach of the requirement of
proportionality applicable to all restrictions imposed on the rights
guaranteed by the Constitution.
44 . The court concluded that section 65 of the Road Traffic Act was
incompatible with the Constitution in so far as it applied to assemblies.
BACZKOWSKI AND OTHERS v. POLAND JUDGMENT 9
I. THE GOVERNMENT ‘S PRELIMINARY OBJECTION S
A. Whether the applicants can claim to have the status of victims
45 . The Government contended by way of a preliminary submission that
the applicants could not claim to be victims of a violation of the Convention
within the meaning of Article 34. It transpired from the written grounds of
the second -instance administrative decisi ons that the appellate authorities
had fully shared the applicants ‘ arguments and had quashed the contested
decisions in their entirety. The Governor, in his decision of 17 June 2005
(see para graph 22 above) , had gone even further , stressing that prohibiting
an assembly on the ground s of a threat of violence between demonstrators
and counter -demonstrators was tantamount to the authorities ‘ endorsing the
intentions of organisations which deliberately set out to cause a disturbance .
When quashi ng the contested decisions, the appellate authorities had stated
that their assessment had been made bearing in mind the applicants ‘ freedom
of assembly. As the impugned decisions had eventually been found
unjustified, the applicants could not claim to hav e victim status.
46 . The Government were of the view that as the applicants had not
claimed to have sustained any pecuniary or non -pecuniary damage, the
domestic authorities had been under no obligation to offer them any redress.
A decision or measure favourable to the applicant was not in principle
sufficient to deprive him of his status as a “victim” unless the national
authorities had acknowledged, either expressly or in substance, and then
afforded redress for, the breach of the Convention ( Eckle v. Germany ,
judgment of 15 July 1982, Series A no. 51, § 66).
47 . The applicants submitted that the authority relied on by the
Government, the Eckle v. Germany case, was of little relevance to the case
at hand. They argued that it was only when those two conditions were
cumulatively satisfied that the subsidiary nature of the protective
mechanism of the Convention precluded examination of an application (see
Scordino v. Italy (dec.) , no. 36813/97, 27 March 2003). In their case it could
not be said that those two conditions had been satisfied. No redress had ever
been afforded at domestic level for any of the breaches of the Convention
alleged in their application.
48 . The Court reiterates that in its decision on the admissibility of the
application it joined to the merits of the case the examination of whether the
applicants could claim to be victims of a breach of their rights (see
paragraph 5 above). The Court confirms its approach.
10 BACZKOWSKI AND OTHERS v. POLAND JUDGMENT
B. Exhaustion of domestic remedies
49 . The Government submitted that the applicants had had at their
disposal procedures capable of remedying the alleged breach of their
freedom of assembly. Section 7 of the Assemblies Act provided for time –
limits which should be respected by persons wishing to organise an
assembly under the provisions of that Act. A request for authorisation for an
assembly to be held had to be submitted to the municipality not earlier than
thirty days before the plann ed date of the demonstration and no later than
three days before it.
50 . If the applicants had considered that the provisions on the basis of
which the domestic decisions in their cases had been given were
incompatible with the Con stitution, it had been open to them to challenge
those provisions by lodging a constitutional co mplaint provided for by
Article 79 of the Constitution. The applicants could thus have achieved the
aim they sought to attain before the Court, namely an assessment of whether
the contested regulations as applied to their case had infringed their rights
guaranteed by the Convention.
51 . The Government recalled that the Court had held that the Polish
constitutional complaint could be recognised as an effective remedy where
the individual decision which allegedly violated the Convention had been
adopted in direct application of an unconstitutional provision of national
legislati on ( Szott -Medyńska v. Poland (dec.) , no. 47414/99, 9 October
2003). The Government concluded that the applicants should have had
recourse to that remedy.
52 . The applicants disagreed. They submitted that because of the
specific na ture of their case, a remedy that had not been capable of
providing them , before 11 June 2005, with a judicial or administrative
review of the ban on holding their assemblies could not be regarded as
effective. Subsequent review by the Constitutional Court would have served
no practical purpose.
53 . In any event, even if it were to be accepted that an ex post facto
review could be contemplated as a remedy to be used in their case, the
applicants were of the view that it would have b een ineff ective also for
other reasons. A constitutional complaint under Polish law was a remedy
available only when a possibility existed to apply for the re -opening of the
original proceedings in the light of a favourable ruling of the Constitutional
Cou rt. This condition alone would have rendered this remedy ineffective
since, in view of the specific and concrete nature of the redress sought by
the applicants, the reopening of their case would have been an entirely
impracticable and untimely solution. Fu rthermore, the quashing of the final
decisions would have been futile as the decisions of 3 and 9 June 2005 had
already been quashed by the Self -Government Board of Appeal and the
BACZKOWSKI AND OTHERS v. POLAND JUDGMENT 11
Governor of Mazows ze Province on 22 August and 17 June 2005,
54 . The Court reiterates that in its decision on the admissibility of the
application it joined to the merits of the case the examination of the question
of exhaustion of domestic remedies (see paragraph 5 above). The Court
confirm s its approach to the exhaustion issue.
II. THE MERITS OF THE CASE
A. Alleged violation of Article 11 of the Convention
55 . 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. They invoked Article 11 of the
Convention which reads:
“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 righ ts by members of the armed forces, of the police or of the
administration of the State.”
1. The arguments of the parties
56 . The Government were of the view that there had been no
interference with the applicants ‘ rights guaranteed by Article 11 of the
Convention. They referred in this respect to their submissions concerning
the applicants ‘ victim status (see para graphs 45 -48 above).
57 . The Government did not contest the fact that the seco nd -instance
decisions of the domestic authorities had been given after the date for which
the assemblies had been planned. However, the applicants had been aware
of the time -limits provided by the applicable laws for the submission of
requests for permissi on to hold an assembly.
58 . 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. It followed from the ve ry character of
freedom of assembly that the requirements which laws impose d on
organisers of public meetings should be restricted to a reasonable minimum
and to those of a technical character .
12 BACZKOWSKI AND OTHERS v. POLAND JUDGMENT
59 . Under the 1990 Assemblies Act the authorities c ould ban the
organisation o f an assembly only when its purpose ran counter to provisions
of criminal law or when it might entail danger to life or limb or a major
danger to property. On the other hand, the requirements that could be
imposed on organisers of assemblies once the authorities classif ied the
assembly to be held as an “event” under the Road Traffic Act went much
further . T hey lack ed precision, leaving the decision as to whether the
organisers satisfied them entirely to the discreti on of the authorities.
60 . In the applicants ‘ view, t he Mayor ‘s refusals lacked proper
justification. The assemblies to be held were of a peaceful character, their
aim being to draw society ‘s attention to the situation of various g roups of
persons who were discriminated against, in particular persons of
homosexual orientation. The relevant requests had complied with the very
limited requirements laid down by the Assemblies Act. As to the Equality
March, the refusal had been motivate d by the alleged failure of the
applicants to submit a traffic organisation plan which the authorities had
never required to be submitted prior to this refusal. These assemblies had
lawful aims and there had been no special grounds, such as a major danger
to property or danger to life or limb, which could justify the refusals.
2. The Court ‘s assessment
61 . As has been stated many times in the Court ‘s judgments, not only is
democracy a fundamental feature of the European public order but the
Convention was designed to promote and maintain the ideals and values of
a democratic society. Democracy, the Court has stressed, is the only
political model contemplated in the Convention and the only one
compatible with it. By virtue of the word ing of the second paragraph of
Article 11, and likewise of Articles 8, 9 and 10 of the Convention, the only
necessity capable of justifying an interference with any of the rights
enshrined in those Articles is one that may claim to spring from a
“democrati c society” (see Refah Partisi (t he Welfare Party) and Others
v. Turkey [GC], nos. 41340/98, 4134 2/98, 41343/98 and 41344/98,
§§ 86 -89, ECHR 2003 -II, and Christian Democratic Peoples Party
v. Moldova , 28793/02, 14 May 2006 ).
62 . While in the context of Article 11 the Court has often referred to the
essential role played by political parties in ensuring pluralism and
democracy, associations formed for other purposes are also important to the
proper functioning of democracy. For pl uralism is also built on genuine
recognition of, and respect for, diversity and the dynamics of cultural
traditions, ethnic and cultural identities, religious beliefs and artistic, literary
and socio -economic ideas and concepts. The harmonious interaction of
persons and groups with varied identities is essential for achieving social
cohesion. It is only natural that, where a civil society functions in a healthy
manner, the participation of citizens in the democratic process is to a large
BACZKOWSKI AND OTHERS v. POLAND JUDGMENT 13
extent achieved thr ough belonging to associations in which they may
integrate with each other and pursue common objectives collectively (see
Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, 17 February
63 . Referring to the hallmarks of a “democratic society”, the Court has
attached particular importance to pluralism, tolerance and broadmindedness.
In that context, it has held that although individual interests must on
occasion be subordinated to those of a group, democracy does not simpl y
mean that the views of the majority must always prevail: a balance must be
achieved which ensures the fair and proper treatment of minorities and
avoids any abuse of a dominant position (see Young, James and Webster
v. the United Kingdom , 13 August 1981, Series A no. 44, p. 25, § 63 , and
Chassagnou and Others v. France [GC], nos. 25088/95 and 28443/95,
ECHR 1999 -III, p. 65, § 112).
64 . In Informationsverein Lentia and Others v. Austria (judgment of
24 November 1993 , Series A no. 276 , p. 16, § 38 ) the Court described the
State as the ultimate guarantor of the principle of pl uralism . Genuine and
effective respect for freedom of association and assembly cannot be reduced
to a mere duty on the part of the State not to interfere; a pur ely negative
conception would not be compatible with the purpose of Article 11 nor with
that of the Convention in general. There may thus be positive obligations to
secure the effective enjoyment of these freedoms (see Wilson & the
National Uni on of Journa lists and Others v. the United Kingdom ,
nos. 30668/96, 30671/96 and 30678/96, § 41 , ECHR 2002 -V, and Ou ranio
Toxo v. Greece , no. 74989/01, 20 October 2005, § 37). This obligation is of
particular importance for persons holding unpopular views or belonging to
minorities, because they are more vulnerable to victimisation.
65 . In this connection, the Court reiterates that a ccording to the
Convention organs ‘ constant approach, the word “victim” of a breach of
rights or freedoms denotes the person directly affected by the act or
omission which is in issue (see Marckx v. Belgium , judgmen t of 13 June
1979, Series A no. 31, § 27, and Dudgeon v. the United Kingdom , judgment
of 22 October 1981, Series A no. 45, § 41).
66 . Turning to the circumstances of the present case , the Court observes
that the authorities banned the planned march and several of the stationary
assemblies. The appellate authorities, in their decisions of 17 June and
22 August 2005, quashed th e first -instance decisions and criticised them for
being poorly justified and in breach of the applicable laws . These decisions
were given after the dates on which the applicants had planned to hold the
67 . The Court acknowledges that the assemblies were eventually held
on the planned dates. However, the applicants took a risk in holding them
given the official ban in force at that time. The assemblies were held
without a presumption of legality, such a presu mption constituting a vital
14 BACZKOWSKI AND OTHERS v. POLAND JUDGMENT
aspect of effective and unhindered exercise of freedom of assembly and
freedom of expression. The Court observes that the refusals to give
authorisation could have had a chilling effect on the applicants and other
participants in the assemblies . It could also have discouraged other persons
from participating in the assemblies on the ground s that they did not have
official authorisation and that, therefore, no official protection against
possible hostile counter -demonstrators woul d be ensured by the authorities.
68 . Hence, the Court is of the view that , when the assemblies were held
the applicants were negatively affected by the refusals to authorise them .
The Court observes that legal remedies available to them could not
ameliorate their situation as the relevant decisions were given in the appeal
proceedings after the date on which the assemblies were held . The Court
refers in this respect to its finding concerning Article 13 of the Convention
(see para graph 84 below). There has therefore been an interference with the
applicants ‘ right s guaranteed by Article 11 of the Convention.
69 . An interference will constitute a breach of Article 11 unless it is
“prescribed by law”, pursues one or more legitimate aims under paragraph 2
and is “necessary in a democratic society” for the achievement of those
70 . In this connection, the Court observes that on 22 August 2005 the
Local Government Appeals Board found the d ecision of 3 June 2005
unlawful (see para graph 20 above). Likewise, on 17 June 2005 the
Mazowsze Gov ernor quashed the refusals of 9 June 2005, finding that they
had breached the applicants ‘ freedom of assembly ( see paragraphs 22 – 26 ).
The Court concludes that the interference with the applicants ‘ right to
freedom of peaceful assembly was therefore not prescribed by law.
71 . In the context of the examination of the lawfulness of the
interference complained of, the Court notes , in addition, the relevance of the
judgment of the Constitutional Court given on 18 January 2006. T hat court
found that the provisions of the Road Traffic Act as applied in the
applicants ‘ case were incom patible with the co nstitutional guarantees of
freedom of assembly. It observed that the restrictions on the exercise of this
freedom imposed by the impugned provisions were in breach of the
proportionality principle applicable to all restrictions imposed o n the
exercise of rights guaranteed by the Constitution (see paragraphs 39 -42
The Court is well aware that under the applicable provisions of the
Constitution these provisions lost their binding force after the events
concerned in the present case (see paragraph 30 above). However, it is of
the view that the Constitutional Court ‘s ruling that the impugned provisions
were incompatible with the freedom of assembly guaranteed by the
Constitution cannot but add force to i ts own above conclusion concerni ng
the lawfulness of the interference complained of in the present case.
BACZKOWSKI AND OTHERS v. POLAND JUDGMENT 15
72 . Having regard to this con clusion, the Court does not need to verify
whether the other two requirements (legitimate aim and necessity of the
interf erence) set forth in Article 11 § 2 have been complied with.
73 . The Court therefore dismisses the Government ‘s preliminary
objection regarding the applicants ‘ alleged lack of victim status and
concludes that there has been a violation of Article 11 of the Convention.
B. Alleged violation of Article 13 of the Convention
74 . The applicants further complained that Article 13 of the Convention
had been breached in their case because they had not had at their disposal
any procedure which would have allowed them to obtain a final decision
prior to the date of the planned demonstration s.
Article 13 of the Convention reads:
“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.”
1. The arguments of the parties
75 . The Government reiterated their submissions concerning the
question of exhaustion of domestic remedies. In particular, the applicants
should have lodged a constitutional complaint to challenge the provisions
on the basis of which the decisions in their case had been given.
76 . The applicants complained that , when the first -instance decisions
had banned the holding of the assemblies , they had not had at their disposal
any procedure which would have allowed them to obtain a final decision
before the date o n which it was planned to hold them. This was so because
if a refusal was issued, the second -instance authority c ould only quash that
decision and could not issue a new one . This m ean t that the organisers
would have to start the procedure all over again. I n fact, that was h ow the
relevant procedural provisions had been applied in the applicant s’ case.
77 . The applicants submitted that p ursuant to section 7 of the Assemblies
Act, a request for approval of an assembly to be organised c ould be
submitted thirty days before the planned date at the earliest. That mean t that
it was impossible to submit such a request earlier. Under Polish law, if the
authorities consider ed that the planned assembly was to be regarded as an
“event” covered by the provisions of the Road Traffic Act as applicable at
the relevant time , it was altogether impossible to comply with the thirty -day
time -limit, given the unreasonably onerous requirements to submit
numerous documents relating to the traffic organisation aspects of such an
assembly which c ould be imposed on the organisers under that Act.
78 . The applicants concluded that i n any event, the State should create a
procedure – a special one if need be – which would make it possible for
16 BACZKOWSKI AND OTHERS v. POLAND JUDGMENT
organisers of public meetings to have the whole procedure completed within
the time -frame set out in the Act, that is to say from 30 to 3 days prior to the
planned date and, importantly , before the day on which the assembly was
planned to be held.
2. The Court ‘s assessment
79 . The Court reiter ates that the effect of Article 13 is to require the
provision of a domestic remedy allowing the competent national authority
both to deal with the substance of the relevant Convention compla int 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 , judgment of 15 November 1996, Reports of Judgments
and Decisions 1996 -V, pp. 1869 -70, § 145).
In the present case the Court found that the applicants ‘ rights under
Article 11 were infringed (see paragraph 73 above). Therefore, they had an
arguable claim within the meaning of the Court ‘s case -law and were thus
entitled to a remedy satisfy ing the requirements of Article 13.
80 . As regards the Government ‘s re liance on an individual constitutional
complaint, the Court first notes that in the context of Polish administrative
procedure, two -tiered judicial review of second -instance administrative
decisions is available. Only a judgment of the Supreme Administrative
Court is considered to constitute a final decision in connection with whi ch a
constitutional complaint is available. In the present case, th e applicants,
having obtained decisions of the second -instance administrative bodies
essentially in their favour, in that the y quashed the decisions refusing to
allow their demonstrations , had no legal interest in bringing an appeal
against these decisions to the administrative courts . Hence, the way to the
Constitutional Court was not open to them.
81 . Further, the Court accepts that the administrative authorities
ultimately acknowledged that the first -instance decisions given in the
applicants ‘ case had been given in breach of the applicable laws. However,
the Court emphasises that they did so after the dates on which the applicants
planned to hold the demonstratio ns. The Court notes that the present case is
similar to that of Stankov and the United Macedonian Organisation Ilinden
v. Bulgaria (nos. 29221/95 and 29225/95, Commission decision of 29 June
1998, unreported) , in which the former Commission held that “it [was ] undisputed that had the applicants attempted [an appeal against the refusal
of the district court to examine the appeal against the mayoral ban], the
proceedings would have lasted for at least several months and any
favourable outcome would have resu lted long after the date of a planned
meeting or manifestation”. In other words, bearing in mind that the timing
of the rallies was crucial for their organisers and participants and that the
organisers had given timely notice to the competent authorities, the Court
BACZKOWSKI AND OTHERS v. POLAND JUDGMENT 17
considers that, in the circumstances, the notion of an effective remedy
implied the possibility to obtain a ruling before the time of the planned
82 . In this connection, t he Court is of the view that s uch is the n ature of
democratic debate that the timing of public meetings held in order to voice
certain opinion s may be crucial for the political and social weight of such
meeting s. Hence, the State authorities may, in certain circumstances, refuse
permission to hold a demonstration if such a refusal is compatible w ith 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 relevanc e 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.
83 . The Court is therefore of the view that it is important for the
effective enjoyment of freedom of assembly that the applicable laws provide
for reasonable time -limits within which the State authorities, when giving
relevant decisions, should act. The appli cable laws provided for time -limits
for the applicants to submit their requests for permission. In contrast, the
authorities were not obliged by any legally binding time -frame to give their
final decisions before the planned date of the demonstration . The Court is
therefore not persuaded that the remedies available to the applicants in the
present case , all of them being of a post -hoc character, could provide
adequate redress in respect of the alleged violations of the Convention.
84 . Therefore , the Court finds that the applicants have been denied an
effective domestic remedy in respect of the ir complaint concerning a breach
of their freedom of assembly. Consequently, the Court dismisses the
Government ‘s preliminary objection regarding the alleged non -exhaustion of
domestic remedies and concludes that there has been a violation of
Articl e 13 in con junction with Article 11 of the Convention.
C. Alleged violation of Article 14 in conjunction with Article 11 of
85 . The applicants complained that they had been treated in a
discriminatory manner in that they had been refused permission to organise
the march and some of the assemblies . The y relied on Article 11 read
together with Article 14 of the Convention , which provides :
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social ori gin, association with a
national minority, property, birth or other status.”
18 BACZKOWSKI AND OTHERS v. POLAND JUDGMENT
1. The arguments of the parties
86 . The Government submitted that the applicants had challenged the
administrative decisions given in their cases on 3 and 9 June 2005. In the
former, the Traffic Officer, acting on behalf of the Mayor of Warsaw, had
refused permission for the march, relying on the organisers ‘ failure to
submit a “traffic organisation plan ” within the meaning of section 65 (a) of
the Road Traffic Act. In the latter decision the Mayor had relied on the
argument that the applicants had failed to comply with more stringent
requirements imposed by the law on organisers of assemblies held on roads
used for road traffic.
87 . The Government were of the view that these decisions had been
sufficiently reasoned and that their reasoni ng had been based on section 65
of the Road Traffic Act. It could not, in their opinion, be assumed that the
decisions banning the assemblies had been influenced by the personal
opinions held by the Mayor of Warsaw as presented in an interview
publi shed in “Gazeta Wyborcza” on 20 May 2005. The facts of the case did
not indicate that any link existed between the Mayor ‘s views expressed in
the press a nd the official decisions given in the applicants ‘ case.
88 . The Government argued that i n the instant case no provisions, acts or
omissions of the public authorities had exposed the applicants to treatment
less favourable than tha t to which other persons in an analogous situation
would have been subjected. There was no indication that their treatment had
been based on any prohibited ground s. Conseq uently, the applicants had not
suffered discrimination in the enjoyment of their freedom of assembly
contrary to Article 14 of the Convention.
89 . The applicants stressed that the y had been required to submit a
“traffic organisation plan”, while other organisatio ns ha d not been requested
to do so. In the absence of particularly serious reasons by way of
justification and in the absence of any reasons provided by the Government
for such differences in treatment, the selective application of the
requirement to submi t such a plan sufficiently demonstrate d that they had
been discriminated against.
90 . The applicants further argued that they had been treated in a
discriminatory manner essentially because they were refused permission to
organise the demonstrations on 11 June 2005, while other organisations and
persons had received permission. This difference of treatment had not
pursued a legitimate aim, the more so as the Mayor and his collaborators
had made it plain to the public that the y would ban the demonstrations
because of the homosexual orientation of the organisers, regardless of any
91 . The applicants fur ther argued that the decisions of 3 and 9 June 2005
had been formally issued in the name of the Mayor of Warsaw. They
referred to the inte rview with the Mayor published in May 2005 in which he
had stated that he would ban the assemblies irrespective of what the
BACZKOWSKI AND OTHERS v. POLAND JUDGMENT 19
organisers had submitted in their requests for permission. The y submitted
that it could not be reasonably concluded that there had been no link
between the statements made by the Mayor and the decisions subsequently
given in his name . They emphasised that the practical outcome of the
proceedings in their case had been consistent with th e tenor of the Mayor ‘s
92 . The applicants observed that the Government ‘s argument about the
lack of a causal link between the opinions publicly expressed by the Mayor
and the administrative decisions given in his name a mounted to implying
that at the relevant time decisions had been issued in the Mayor ‘s office with
no regard to his opinions expressed publicly in his capacity as head of the
2. The Court ‘s assessment
93 . The Court has repeatedly held tha t Article 14 is not autonomous but
has effect only in relation to Convention rights. This provision complements
the other substantive provisions of the Convention and the Protocols. It has
no independent existence since it has effect solely in relation to “the
enjoyment of the rights and freedoms” safeguarded by those provisions.
Alth ough the application of Article 14 does not presuppose a breach of
those provisions – and to this extent it is autonomous – there can be no
room for its application unless the facts at issue fall within the amb it of one
or more of the latter (see, among many other authorities, Van Raalte
v. Netherlands , judgment of 21 February 1997, Reports 1997 -I, p. 184, § 33 ,
and Gaygusuz v. Austria , judgme nt of 16 September 1996, Reports
1996 -IV, § 36).
94 . It is common ground between the parties that t he facts of the case
fall within the scope of Article 11 of the Convention. Hence, Article 14 is
applicable to the circumstances of the case.
95 . The Court first notes that the first -instance administrative decisions
concerned in the present case did not refer to any direct motive that could be
qualified as one of the forbidden grounds for discrimination within the
Convention meaning of the term. These decisions focus ed on technical
aspects of the organisation of the assemblies and on compliance with the
relevant requirements (see para graphs 11 and 13 above) . It has been
established that in the proceedings befor e the Traffic Officer the applicants
were required to submit a “traffic organisation p lan ” and that their request
was refused because of their failure to submit such a p lan . At the same time,
the Court notes that it has not been shown or argued that other organisers
were likewise required to do this.
96 . The Court further notes that the decision of 3 June 2005, refusing
permission for the march organised by the applicants, was given by the
Road Traffic Officer, acting on behalf of t he Mayor of Warsaw. On 9 June
2005 the municipal authorities, acting on the Mayor ‘s behalf, gave decisions
20 BACZKOWSKI AND OTHERS v. POLAND JUDGMENT
banning the stationary assemblies to be organised by the first five
applicants, referring to the need to avoid any possible violent clashes
between p articipants in the various demonstrations to be held on 11 June
2005. It is also not in dispute that on the same day the same authorities gave
permission for other groups to stage six counter -demonstrations on the same
97 . The Court cannot speculate on the existence of motives, other than
those expressly articulated in the administrative decisions complained of,
for the refusals to hold the assemblies concerned in the present case.
However, it cannot overlook the fact that o n 20 May 2005 an interview with
the Mayor was published in which he stated that he would refuse permission
to hold the assemblies (see paragraph 27 above) .
98 . The Court reiterates that there is little scope under Article 10 § 2 of
the Convention for restrictions on political speech or on debate on questions
of public interest , in particular as regards politicians themselves (see Sürek
v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 -IV , and Castells
v. Spain , judgment of 23 April 1992, Series A no. 236 ). However, the
exercise of freedom of expression by elected politicians who at the same
time are holders of public offices in the executive branch of government
entails particular responsibility. In certain situations it is a n ormal part of the
duties of such public of ficials personally to take administrative decisions
which are likely to affect the exercise of individual rights, or that such
decisions are given by public servants ac ting in their name. Hence, the
exercise of fre edom of expression by such officials may unduly impinge on
the enjoyment of other rights guaranteed by the Convention (as regards
statements by public officials , amounting to declarations of a person ‘s guilt,
pending criminal proceedings , see Butkevičius v . Lithuania , no. 48297/99,
§ 53 , ECHR 2002 -II (extracts) ; see also Allenet de Ribemont v. France ,
judgment of 10 February 1995, Series A no. 308, p. 16, §§ 35 -36 , and
Daktaras v. Lithuania , no. 42095/98, §§ 41 -44, ECHR 2000 -X). W hen
exercis ing their freedom of expression they may be required to show
restraint, bearing in mind that their views can be regarded as instructions by
civil servants whose employment and careers depend on the ir approval .
99 . The Court is further of the view, having regard to the prominent
place which freedom of assembly and association hold in a democratic
society, that even appearances may be of a certain importance in
administrative proceedings where the executive powers exercise their
functions relev ant to the enjoyment of these freedoms (see, mutatis
mutandis , De Cubber v. Belgium , judg ment of 26 October 1984, Series A
no. 86, p. 14, § 26). The Court is fully aware of the differences between
administrative and judicial proceedings. It is true that it is only in respect of
the latter that the Convention stipulates, in its Article 6, the requirement that
a tribunal deciding on a case should be impartial from both a subjective and
an objective point of view (see Findlay v. the United Kingdom , judgment of
BACZKOWSKI AND OTHERS v. POLAND JUDGMENT 21
25 February 1997, Reports 1997 -I, § 73 , and Warsicka v. Poland , §§ 34 -37,
no. 2065/03 , 16 January 2007 ).
100 . However, in the present case the Court considers that in the
assessment of the case it cannot disregard the strong personal opinions
publicly expressed by the Mayor on issues directly relevant to the decisions
regarding the exercise of freedom of assembly. It observes that the decisions
concerned were given by the municipal authorities acting on the Mayor ‘s
beha lf after he had made known to the public his opinions regarding the
exercise of freedom of assembly and “propaganda about homosexuality”
(see paragraph 27 above). It is further noted that the Mayor expressed these
views when a request for permission to hol d the assemblies was already
pending before the municipal authorities. The Court is 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 appli cants ‘ right to freedom of assembly in a discriminatory manner.”
101 . Having regard to the circumstances of the case seen as a whole, the
Court is of the view that there has been a violation of Article 14 in
conjunction with Article 11 of the Convention.
III . APPLICATION OF ARTICLE 41 OF THE CONVENTION
102 . Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
103 . The applicants did not claim any compensation for damage in
connection with the violation of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government ‘s preliminary objections;
2. Holds that there has been a violation of Article 11 of the Convention;
3. Holds that there has been a violation of Article 13 in conjunction with
Article 11 of the Convention;
4. Holds that there has been a violation of Article 14 in conjunction with
Article 11 of the Convention.
22 BACZKOWSKI AND OTHERS v. POLAND JUDGMENT
Done in English, and notified in writing on 3 May 2007 , pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T. L. EARLY Nicolas BRATZA