European Court of Human Rights Considers Obligation to Facilitate Peaceful Assembly, Association and Expression

Baczkowski & Ors v Poland [2007] ECHR 1543/06 (3 May 2007)

The European Court of Human Rights has found that Poland violated its obligations to protect the right to freedom of assembly as a result of a failure to facilitate and accommodate a protest regarding discrimination against minority groups.

Facts The Polish group, Foundation for Equality, sought a determination in the European Court of Human Rights that their right to peaceful assembly had been breached by Poland in its application of domestic administrative law. They sought a declaration in response to a decision by the Warsaw Mayor’s Office to refuse permission for a march aimed at raising awareness of discrimination against minority groups, including homosexuals, due to an alleged failure to submit a ‘traffic organisation plan’ as required under art 65(a) of Poland’s Road Traffic Act. A day before the march was to occur the Mayor’s Office banned stationary assemblies that protested against discrimination against homosexuals, under the Assemblies Act of 1990, whilst allowing other protests. In the month before this decision was taken the Mayor had publicly asserted that the ‘propaganda of homosexuality is not tantamount to exercising one’s freedom of assembly’. Despite the ban, the march went ahead, and the Polish Constitutional Court subsequently found the provisions of the Road Traffic Act to be incompatible with art 57 of the Polish Constitution, which guarantees freedom of assembly. The applicants subsequently sought a determination in the European Court of Human Rights, on the grounds that the administrative decision to ban the march was a breach of their freedom of assembly, that there were no adequate domestic remedies and that the ban was discriminatory. Decision The European Court considered several issues in relation to freedom of assembly. The first issue was whether the applicants’ rights were violated under art 11 of the European Convention on Human Rights which provides for the right to freedom of peaceful assembly. The Polish Government contested the applicants’ claim on the grounds that the applicants did not have status as victims and had failed to exhaust the available domestic remedies. The Court rejected the first ground on which the application was contested because the applicants were ‘negatively affected’ by the decision to forbid the assemblies and that the Polish authorities’ interference with the applicants’ right to freedom of assembly was not prescribed by law and was therefore in breach of art11. The Court also found that there was no effective domestic remedy to amend a breach of the right to freedom of assembly. Article 13 of the Convention requires a State to make a domestic remedy available if a person’s rights are infringed under art 11. In this instance, as any remedy to which the applicants might be entitled was only available after the date of the planned assembly had passed, they were not entitled to a domestic remedy that could prevent the original breach from occurring. In fact, the time of the available remedy became critical to the court’s determination. The Court found that state authorities must give the decisions within reasonable time limits, which in the case, would have been before the planned assembly was due to occur. Finally, the Court considered whether or not the decision to ban the march was discriminatory. Article 14 of the Convention provides for the enjoyment of rights and freedoms contained in the Convention, without discrimination on any ground. The decision to ban the applicants’ march was discriminatory because none of the other organisations planning similar marches at the same time were required to submit ‘traffic organisation plans’. The Court found it could not disregard the Mayor’s publicly expressed personal opinion against allowing the march and that it could have affected the decision-making process. The decision to disallow the march impinged on the applicants’ right to freedom of assembly in a discriminatory manner and was therefore in breach art 14 of the Convention. Implications for the Victorian Charter Section 32(2) of the Victorian Charter permits Victorian Courts to consider the judgments of foreign or international courts when interpreting the Charter. The decision in this case may assist the Court in interpreting s 16 of the Charter, which provides for the right to peaceful assembly and freedom of association. In could also be relevant to interpreting the right to take part in public life without discrimination, which is protected under s 18(1) of the Victorian Charter, and could be relevant to the more general provisions of the charter dealing with discrimination. Whilst the Charter may be effective protecting the substantive human rights that were in issue in the Baczkowski Case, it is less clear whether Victoria has implemented adequate effective domestic remedies to address breaches of freedom of assembly (as was required in the Baczkowski Case pursuant to art 13 of the Convention). This case illustrates the importance of the Charter in extending the protection of human rights under Victorian law into areas not previously covered by existing legislation, and how flow-on legislative changes may continue to be required in order to accommodate this new legal framework. Even were it not for the Charter, Victorians faced with administrative discrimination of the sort that occurred here may have other legal remedies available to challenge such a decision. For example, judicial review of administrative action may be available. The decision in available at http://www.echr.coe.int/ECHR/EN/Header/Case- Law/HUDOC/HUDOC+database. Georgina Molloy, Human Rights Law Group, Mallesons Stephen Jaques.