Published on 19 April 2021

FIRST SECTION

Application no. 4775/18 Dariusz KORNACKI against Poland lodged on 13 January 2018 communicated on 1 April 2021

STATEMENT OF FACTS

The applicant, Mr Dariusz Kornacki , is a Polish national, who was born in 1975 and lives in Warsaw. He is represented before the Court by Mr I. Kami Å„ ski from the Helsinki Foundation for Human Rights in Warsaw.

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

1 . On 25 April 2017 a certain A.C. requested the Mazowiecki Governor (“the Governor”) to grant authorization for thirty-six recurrent assemblies to be held on the 10 th day of each month between 6 a.m. and 10 p.m. in central Warsaw, starting from 10 May 2017. On 27 April 2017 the authorization was granted. These recurrent assemblies (the so-called “monthly Smolensk commemoration”) were a continuation of the monthly commemorative events for the victims of the crash of the Polish government plane in Smolensk organised by the Law and Justice party.

2 . The applicant was the organiser of counter-demonstrations to the monthly Smolensk commemorations, protesting against the fact that the Smolensk crash had been used for political ends.

3 . On 12 June 2017 the applicant notified the competent authority that he planned to hold on 10 July 2017 an assembly regulated in Article 21 of the Act on Assemblies (“simplified assembly”). On 10 July 2017, that is on the date of the planned demonstration, the Governor issued a substitute order ( zarządzenie zastępcze ) banning the applicant ’ s event. On 11 July 2017 the applicant lodged an appeal against this decision, but on the following day the Warsaw Regional Court discontinued the proceedings as devoid of purpose since the date of the planned assembly had already passed. On 13 July 2017 the Warsaw Court of Appeal dismissed the applicant ’ s appeal.

4 . On 24 July 2017 the applicant notified the competent authority that he planned to hold a simplified assembly on 10 August 2017. On 10 August 2017 the Governor issued a substitute order banning the applicant ’ s assembly. On the following day the applicant lodged an appeal, which was rejected on formal grounds.

5 . On 23 August 2017 the applicant notified the competent authority that he planned to organise a simplified assembly on 10 September 2017. On 10 September 2017, that is on the date of the planned demonstration, the Governor issued a substitute order banning it. On 11 September 2017 the applicant lodged an appeal. On the same day the Regional Court discontinued the proceedings as devoid of purpose. On 12 September 2017 the Court of Appeal set aside the lower court ’ s decision and remitted the case. On 14 September 2017 the Regional Court dismissed the applicant ’ s appeal. It found that the Governor had the competence to issue the substitute order under Article 26b § 4 of the Amended Act on Assemblies. The applicant lodged an appeal. On 16 September 2017 the Court of Appeal allowed the appeal and set aside the Governor ’ s substitute order . It held that that there was no legal basis for the Governor to issue the substitute order since Article 26b § 4 of the Amended Act on Assemblies providing for his competence in this respect was not applicable to simplified assemblies.

6 . On 29 September 2017 the applicant notified the competent authority that he planned to organise a simplified assembly on 10 October 2017. On 10 October 2017 the Governor issued a substitute order banning the applicant ’ s assembly. The applicant lodged an appeal. On 11 October 2017 the Regional Court discontinued the proceedings since the date of the planned assembly had already passed. The applicant lodged an appeal. On 13 October 2017 the Court of Appeal decided to refer two legal questions to the Supreme Court and suspended the proceedings. Following the adoption of the Supreme Court ’ s resolution (see paragraph 9 below), on 21 June 2018 the Court of Appeal quashed the lower court ’ s discontinuation decision and remitted the case. On 30 July 2017 the Regional Court dismissed the applicant ’ s appeal against the Governor ’ s substitute order. The applicant lodged an appeal. On 2 August 2018 the Court of Appeal allowed the appeal and set aside the Governor ’ s decision. It held that the Governor had no competence to issue a substitute order in respect of the simplified assembly.

7 . On 7 November 2017 the applicant notified the competent authority that he planned to organise a simplified assembly on 10 November 2017. On 10 November 2017 the Governor banned the applicant ’ s assembly by means of a substitute and the applicant lodged an appeal against it on the same day. On 11 November 2017 the Regional Court set aside the Governor ’ s substitute order as it had been issued without a legal basis. It found that the Governor could have issued a substitute order only where the municipality had failed to act. However, under the Amended Act on Assemblies the municipality had no competence to ban a simplified assembly and, in consequence, the Governor could not replace the municipality in issuing such ban. The Governor lodged an appeal. The Court of Appeal suspended the appeal proceedings pending the Supreme Court ’ s examination of the legal questions. On 28 June 2018 the Court of Appeal dismissed the Governor ’ s appeal on the same grounds as those invoked in the lower court ’ s decision.

8 . A similar pattern was followed in respect of subsequent four simplified assemblies that the applicant wished to organise on the tenth day of each month between December 2017 and March 2018. On or just before the date of the planned demonstrations the Governor issued substitute orders banning them. In each case the Governor ’ s decisions were set aside by the courts. The final respective decisions were given by the Court of Appeal on 25 and 26 June and 16 July 2018.

9 . In its resolution of 28 March 2018 (case no. III SZP 1/18), the Supreme Court, sitting as a bench of seven judges, held that it was not devoid of purpose to examine an appeal against the Governor ’ s decision ( a substitute order) banning the assembly issued under Article 26b § 4 of the Amended Act on Assemblies after the date of a planned assembly had passed.

10 . Article 57 of the Constitution reads as follows:

“The freedom of peaceful assembly and participation in such assemblies shall be ensured to everyone. Limitations upon such freedoms may be imposed by statute”.

11 . On 24 July 2015 the Parliament adopted the Act on Assemblies. The Act on Assemblies regulated three different types of assemblies: ordinary, simplified and spontaneous.

12 . The procedure applicable to ordinary assembly provides that the organiser of such an assembly shall inform the municipality of his intention to hold the assembly not earlier than 30 days and not later than 6 days before the planned date of the assembly. The municipality may issue a decision banning an assembly not later than 96 hours before the planned date of the event on specific legal grounds. The Act provides for an accelerated judicial procedure, whereby decisions of the first-instance court and the court of appeal have to be given prior to the date of the planned demonstration.

13 . The procedure applicable to simplified assemblies stipulates that such assembly may be organised where an assembly would not cause disruption to the traffic. The organiser of simplified assembly shall notify the competent authority of his intention to organise such an assembly no earlier than 30 days and no later than 2 days before the planned date of the assembly. The Act on Assemblies does not envisage that a municipality may ban a simplified assembly. However, a simplified assembly may be dissolved by the municipality if, inter alia , its conduct poses a risk to life or limb or property.

14 . On 13 December 2016 the parliament amended the Act on Assemblies (“the Amended Act on Assemblies”) by introducing a new type of assembly, a recurrent assembly. An authorization to organise a recurrent assembly is granted by a Governor. If the Governor issued authorization to hold a recurrent assembly at the time and place where other assembly were to be held, the municipality shall issue a decision to ban the other assembly. If the municipality fails to issue such a decision, the Governor shall promptly issue a substitute order banning the assembly.

15 . The Constitutional Court ’ s judgment of 16 March 2017, no. Kp 1/17, reviewing the constitutionality of the Amended Act on Assemblies is relevant in the context of the present case.

COMPLAINTS

16 . The applicant complains under Article 11 that the interference with his freedom of assembly, in the form of substitute orders of the Mazowiecki Governor, had no legal basis in the Amended Act on Assemblies. A substitute order could be issued in respect of an ordinary assembly, but not in respect of assemblies organised by way of the simplified procedure (simplified assemblies) as confirmed by the domestic courts. In the alternative, the applicant complains that the Governor issued substitute orders banning the applicant ’ s assembly automatically and without any assessment of the proportionality of that measure. This measure was based on the Amended Act on Assemblies which introduced and granted special status to recurring assemblies. It was aimed at preventing organisation of counter-demonstrations to the “monthly Smolensk commemorations”.

17 . The applicant claims that the Governor ’ s substitute orders were issued late due to obstruction on the part of the Governor. This, in turn, prevented the applicant from having obtained a final judicial decision on the legality of the substitute order before the date of the planned demonstration. In these circumstances, the applicant did not have an effective remedy in breach of Article 13.

18 . The applicant complains under Article 18 that the interference with his freedom of assembly in the form of the Governor ’ s substitute orders pursued other aims than those permitted under Article 11 § 2. Those substitute orders were aimed at preventing political criticism of the “monthly Smolensk commemorations”. The same argument applied to the amendment to the Assemblies Act introducing a new category of recurring assemblies.

QUESTIONS TO THE PARTIES

Article 11

1. Was the interference with the applicant ’ s right to freedom of peaceful assembly, in the form of the Governor ’ s substitute orders, prescribed by law in terms of Article 11 § 2 (cf. Patyi v. Hungary , no. 35127/08, §§ 25-27, 17 January 2012).

2. Was that interference necessary in terms of Article 11 § 2?

Article 13

Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 11, as required by Article 13 of the Convention (cf. Bączkowski and Others v. Poland , no. 1543/06, § 83, 3 May 2007)?

Article 18

Were the restrictions imposed by the State in the present case, purportedly pursuant to Article 11 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention?