Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The European Court of Human Rights held that decisions by Polish authorities to refuse to authorise a march and assemblies protesting against discrimination was a violation of the right to freedom of assembly. Various organizations and individuals in Warsaw, Poland had applied to hold demonstrations to protest against discrimination against various minorities, including sexual minorities. The local authorities refused permission on the grounds that the organizers of the assemblies had failed to submit the relevant traffic control documents. Two appeal processes in Poland held that the refusals had been incorrect and violated freedom of assembly. The European Court of Human Rights considered comments about homosexuality made by the Mayor of Warsaw and found that they likely influenced the decision makers. It held that the refusals by public officials to allow the assemblies were not prescribed by law and were therefore an unjustifiable limitation of the right.
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.”
Judge Nicolas Bratza, the President of the Fourth Section of the European Court of Human Rights signed the unanimous decision. The central issue for the Court’s determination was whether the applicants’ right to freedom of assembly had been infringed by the refusals to permit the assemblies – even though the assemblies did take place.
The applicants argued 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” [para. 58]. They submitted that “the requirements which laws imposed on organisers of public meetings should be restricted to a reasonable minimum and to those of a technical character” [para. 58]. They highlighted the distinction between the Assemblies Act – which only permitted restriction when an assembly’s purpose “ran counter to provisions of criminal law or when it might entail danger to life or limb or a major danger to property” [para. 59] – and the Road Traffic Act. The applicants submitted that the Road Traffic Act provisions “lacked precision, leaving the decision as to whether the organisers satisfied them entirely to the discretion of the authorities” [para. 59]. The applicants maintained that the march and assemblies were to be peaceful, sought to raise issues of discrimination, and had complied with the requirements under the Assemblies Act.
The Polish Government argued that the organizers of the march and assemblies were not “victims” of a violation of the European Convention and that they had not exhausted their domestic remedies. The Government accepted that the appeal decisions had come after the planned dates for the march and assembly but submitted that “the applicants had been aware of the time-limits provided by the applicable laws for the submission of requests for permission to hold an assembly” [para. 57].
The Court emphasized that the European Convention envisages democracy as “the only political model contemplated … and the only one compatible” with the Convention [para. 61]. It stressed that Article 11 recognizes the critical role non-political organizations play in the “proper functioning of democracy” and that pluralism requires recognition of diversity [para. 62]. With reference to its case of Gorzelik and Others v. Poland [GC], the Court identified that citizen participation in democracy is regularly achieved through membership of associations “in which [citizens] may integrate with each other and pursue common objectives collectively” [para. 62]. The Court also referred to Young, James and Webster v. the United Kingdom, and Chassagnou and Others v.France [GC], which had held that “democracy does not simply mean that the views of the majority must always prevail” and that minorities must receive “fair and proper treatment” [para. 63].
In examining the nature of the State’s obligation to protect the right to freedom of assembly, the Court referred to Informationsverein Lentia and Others v. Austria and characterized the State’s obligation as a positive one and being more than a “mere duty not to interfere” [para. 64]. It also noted that this positive obligation to “secure the effective enjoyment” of the right is particularly important “for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimisation” [para. 64].
The Court held that the applicants did meet the requirements of being “victims” of a breach of the Article 11 right. It then held that the applicants were negatively affected by the ban on their assemblies – even though the assemblies did go ahead. It noted that the assemblies were held “without a presumption of legality” which is a “vital aspect of effective and unhindered exercise of freedom of assembly and freedom of expression” and that the refusals could have created a “chilling effect” and discouraged participants [para. 67]. Accordingly, the Court held that Article 11 had been infringed.
The Court held that the fact that the Appeals Board and the Mazowsze Governor had set aside the decisions to refuse to allow the assemblies meant that the interference with Article 11 was not prescribed by law. It also referred to the Constitutional Court’s finding that the Road Traffic Act was unconstitutional, and stated that the decision “cannot but add force to [the Court’s] own … conclusion concerning the lawfulness of the interference complained of in the present case” [para. 71].
Accordingly, the Court found that the applicants had the requisite victim status and that the refusal to allow their assemblies was a violation of Article 11.
The Court addressed the comments on homosexuality made by the Mayor of Warsaw. It accepted that political speech is strongly protected under Article 10 of the Convention but stressed that “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” [para. 98]. The Court added that because of public officials’ responsibility in taking administrative decisions “[w]hen exercising 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 their approval” [para. 98]. Although it recognized that there is no obligation under the Convention for public officials to portray an appearance of impartiality, the Court did state that in this 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” [para. 100]. Given the timing of the Mayor’s statements the Court found that it “may be reasonably surmised that his opinions could have affected the decision-making process … and …as a result, impinged on the applicants’ right to freedom of assembly in a discriminatory manner” [para. 100].
Accordingly, the Court held that there had also been a violation of the right to not be discriminated against, under Article 14 read with Article 11. The Court also held that the applicants’ rights under Article 13 to an effective domestic remedy had been breached.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The European Court of Human Rights emphasised the importance of non-political freedom of assembly and association in a democracy and stressed that states have a positive duty to ensure the effective exercise of the right to freedom of assembly.
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