On May 10, 2005, the Polisgh organization, the Foundation for Equality (the Foundation), and a group of individuals met with the Director of the Safety and Crisis Management Unit in the Warsaw City Council to discuss the holding of a march. The march was to take place sometime between June 10 and 12, 2005 and was to highlight discrimination against “sexual, national, ethnic and religious” minorities and against women and disabled persons [para. 7]. The next day, Tomasz Bączkowski, a member of the Foundation’s executive committee, received instructions from the Warsaw Mayor’s office detailing what the organizers would have to do in terms of the Road Traffic Act in order for their march to be “regarded as an ‘event’” under that Act. On May 12, the organizers made an application to the City Council Road Traffic Office for permission and set out the route the march would take.

On May 20, 2005, the Mayor of Warsaw gave an interview in which he said he would not permit “public propaganda about homosexuality” and that “propaganda about homosexuality is not the same as exercising ones freedom of assembly” [para. 27]. When asked about the planned march, he stated that he would ban it.

On June 3, 2005, the traffic officer refused permission for the march, stating that the organizers had failed “to submit a ‘traffic organisation plan” in terms of the Road Traffic Act [para. 11].

Also on June 3, separate individuals applied to the Mayor for permission to hold “stationary assemblies” on June 11 in “seven different squares in Warsaw” [para. 12]. Four of the demonstrations concerned discrimination against minorities and three addressed gender discrimination.  On June 9, 2005, the mayor banned the stationary assemblies which were organized by representatives of “non-governmental organizations acting for the benefit of persons of homosexual orientation” [para. 13]. The Mayor stated that the assemblies contravened the Assemblies Act of 1990 which required specific requirements for assemblies near roads and that the assemblies’ organizers had not indicated where the cars which would broadcast messages through loudspeakers would be parked. The Mayor also stated that there were other assemblies planned for June 11 “the tenor of which ran counter to the ideas and intentions of the applicants” and so the assemblies to protest discrimination could not happen so as “to avoid any possible violent clashes between participants in the various demonstrations” [para. 14]. Those other demonstrations had been authorized on June 9, and had the following themes: “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 law are citizens of the first rank” and “Against adoption of children by homosexual couples” [para. 16].

The Mayor did authorize the assemblies to protest discrimination against women.

Despite the refusal of permission, the march went ahead on June 11, 2005, attended by 3000 people and “protected by the police” [para. 17].

On 10 June 2005, the organizers of the assemblies which had not received authorization appealed the decision to refuse authorization to the Mazowszw Governor (the governor for the region in which Warsaw falls), arguing that the decision violated their right to freedom of assembly. On June 17, 2005, the Governor overturned the refusals. The Governor noted that the “Assemblies Act was a guarantee of freedom of assembly in respect of both the organisation of and participation in assemblies” and that because the Constitution guaranteed the freedom of assembly rather than a right “[i]t was not for the State to create a right to assembly; its obligation was limited to ensuring that assemblies were held peacefully” [para. 23]. The Governor stressed that “a decision banning an assembly had to be regarded as a method of last resort because it radically restricted freedom of expression” [para. 24]. It also rejected the argument that the presence of other assemblies on the same day could create tension and described that reasoning as “tantamount to the administration endorsing the intentions of organisations which clearly and deliberately intended to breach public order, whereas protecting the freedom of expression guaranteed by the Assemblies Act should be an essential task of the public powers” [para. 25].

On June 28, 2005, the Foundation appealed to the Local Government Appeals Board against the refusal to allow the march. It stated that the “requirement to submit ‘a traffic organisation plan’ lacked any legal basis” and that they had not been asked to attach a plan to their application. The Foundation 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” [para. 19]. The Appeals Board found in the Foundation’s favor, holding that the traffic officer had failed to provide the Foundation with an opportunity to effectively participate in the administrative process.

In unrelated proceedings, on January 18, 2006, the Constitutional Court repealed provisions of the Road Traffic Act. The Constitutional Court held that the Assemblies Act had been enacted to give effect to the freedom of assembly and so “was based on the premise that the exercise of this freedom did not require any authorisations or licences issued by the State” [para. 42]. The Road Traffic Act had then introduced requirements for assemblies, “replacing the registration system by a system based on permission” [para. 43]. Accordingly, the Constitutional Court held that the Road Traffic Act’s legislative requirements were “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” [para. 43].

Article 57 of the Polish Constitution states: “Freedom of peaceful assembly and participation in such assemblies shall be ensured to everyone. Limitations upon such freedoms may be imposed by statute”.

Bączkowski and the Foundation and other individuals, Robert Biedroń, Krzysztof Kliszczyński, Inga Kostrzewa, and Tomasz Szypuła , whose applications for assemblies had been refused approached the European Court of Human Rights. The applicants argued that various rights, including their right to freedom of assembly under Article 11 of the European Convention on Human Rights, had been infringed.

Article 11 of the European Convention on Human Rights states: “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.”