Published on 2 November 2021

FIRST SECTION

Applications nos. 15532/21 and 16560/21 Marta Elżbieta GRUNDLAND against Poland and Natalia BOJAROWSKA against Poland lodged on 3 March 2021 and 8 March 2021 respectively communicated on 11 October 2021

STATEMENT OF FACTS

1. A list of the applicants is set out in the appendix.

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. The applicants are environmental activists who regularly collaborate with Greenpeace Poland.

4. On 22 July 2020 at 10 a.m. a protest against a campaign of large-scale tree logging was held by Greenpeace in front of the headquarters of the Directorate General of State Forests ( Dyrekcja Generalna Lasów Państwowych ). The protest took the form of a picket during which people dressed in white uniforms covered the building’s glass door in glue and sawdust in such a way as to form a caption “DON’T CUT” ( nie tnijcie ).

5. The protest was part of a larger campaign held by Greenpeace and various other environmental NGOs in light of an increased timber harvesting activity across the country that was authorised by public authorities, as well as the judgment of 17 April 2018 by which the Court of Justice of the European Union found Poland in breach of its obligations under two EU Directives in relation to the logging in BiaÅ‚owieża Forest (C ‑ 41/17 - Commission v. Poland).

6. The applicants submit that they were present at the protest as freelance “citizen journalists” ( dziennikarka obywatelska ), standing off to the side, together with a group of professional journalists. They were not dressed in the white uniforms such as those of the Greenpeace protesters. The applicants were broadcasting the events live on the Internet using their smartphones and commenting on the events for various media outlets.

7. At some point during the protest, the police approached each applicant while or shortly after they were speaking to the camera. The applicants submit that they clearly stated that they were not taking part in the picket but were only broadcasting it. The applicants also submit that the police officers then asked them to step into a police car. The applicants complied and, after sitting in the car for a while, they were informed that they were being arrested. The applicants were then taken to a police station.

8. The respective arrest reports contain the following information.

9. Both applicants were arrested at 10.30 a.m. The report in respect of the first applicant was completed at 3.25 p.m. and, that in respect of the second applicant, at 4.25 p.m. The reports were faxed to a local prosecutor at 5.38 p.m. (first applicant) and shortly after 6 p.m. (second applicant).

10. The applicants, who were handcuffed, were photographed and subjected to a visual examination by an expert ( biegły ) – the first applicant, at 2.40 p.m. and the second applicant, at 2.25 p.m.

11. It appears that the first applicant remained under arrest for 28 hours and the second applicant for 27 hours.

12. The arrest reports stated that the reason for the applicants’ arrest was the suspicion that they had “damaged the building’s door and windows by covering them in unremovable paint mixed with sawdust”.

13. Upon their release on 23 July, the applicants were charged with a petty offence of unlawful advertising ( nielegalne ogłoszenie ), proscribed by Article 63 a § 1of the Petty Offences Code ( Kodeks wykroczeń ), by placing an inscription in a public place not intended for that purpose without the administrator’s consent.

14. On 29 July 2020 the applicants’ lawyer lodged interlocutory appeals against his clients’ arrest and detention, arguing, inter alia , that the measure was in breach, firstly, of Article 5 of the Convention in that it was unnecessary and unjustified, and secondly, of Article 10 of the Convention in that it impeded the applicants from reporting and publicly commenting on the events in question.

15. The applicants’ appeals against the respective arrest decisions were examined jointly with those regarding the actual protesters (decision of the Warsaw District Court of 19 August 2020, no. V Kp 972/20).

16. On 8 September 2020 the Warsaw District Court ( Sąd Rejonowy) dismissed the applicants’ appeals, holding that the applicants’ arrest was well-founded as at the time of their arrest a reasonable suspicion existed that they had committed a criminal offence of destruction of or damage to property under Article 288 § 1 of the Criminal Code ( Kodeks Karny ). In that regard, the court observed that at the relevant time it appeared that the substance used to cover the building’s doors and windows was unremovable. Moreover, as to the two applicants, the fact that they were standing to the side of the protest and were merely broadcasting the events had not been known to the police until the video recordings of the scene had later been submitted for viewing.

17. The proceedings regarding the petty offence are ongoing.

COMPLAINTS

18. The applicants complain under Article 5 § 1 of the Convention that their detention was unlawful, unjustified and disproportionate. Firstly, there was no reasonable suspicion that they committed an offence and no risk existed that they would abscond or otherwise try to hamper the proceedings against them. Secondly, even assuming that the police were justified in mistaking the applicants for the protesters, the applicants should have been released as soon as the authorities learned that they were in fact citizen journalists, that is to say, as soon as the police verified the applicants’ identity and were shown the recordings of the relevant broadcast. Thirdly, the applicants should not have been arrested as they were not posing any danger to themselves or to others. They were also not disturbing public order.

19. The applicants also complain under Article 10 of the Convention that their arbitrary and unjustified arrest and detention impeded them from disseminating information about an important matter of public interest. In that respect, the applicants submit that they immediately and clearly informed the police that they were reporting the protest live to social media. The applicants argue that the unjustified and disproportionately harsh measure had a chilling effect on them and other journalists.

QUESTIONS TO THE PARTIES

1. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention?

2. Was there an interference with the applicants’ freedom of expression, in particular their right to impart information, within the meaning of Article 10 § 1 of the Convention?

3. To the extent that any interference was derived from the events of 22 July 2020, was it “prescribed by law” and was it necessary in terms of Article 10 § 2 of the Convention?

APPENDIX

No.

Application no.

Case name

Applicant Year of Birth Nationality

Represented by

1.

15532/21

Grundland v. Poland

Marta Elżbieta GRUNDLAND 1990 Polish

Adam

PLOSZKA

and

Paweł MURAWSKI

2.

16560/21

Bojarowska v. Poland

Natalia BOJAROWSKA 1992 Polish

Adam PLOSZKA

and

Paweł MURAWSKI