Communicated on 12 November 2020 Published on 30 November 2020

FIRST SECTION

Application no. 13375/18 Ewa Anna SIEDLECKA against Poland lodged on 11 March 2018

STATEMENT OF FACTS

1 . The applicant, Ms Ewa Anna Siedlecka , is a Polish national, who was born in 1958 and lives in Warsaw. She is represented before the Court by Mr P. Osik , a lawyer practising in Warsaw.

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

3 . The applicant is a well-known journalist writing on legal issues and human rights. She received a number of awards for her journalistic work.

4 . In the evening of 10 June 2017 the applicant took part in an assembly on Krakowskie Przedmie ś cie Street in Warsaw organised by the foundation “Citizens of the Republic of Poland”. This assembly was organised as a counter-demonstration to the monthly commemorative event for the victims of crash of the Polish government plane in Smolensk organised by the governing party Law and Justice (the so-called “monthly Smolensk commemoration”).

5 . By taking part in the assembly the applicant wished to express her dissent with, in her view, an unconstitutional Act of 13 December 2016 amending the Act on Assemblies (“the Amended Act on Assemblies”). In her view, the Amended Act on Assemblies was adopted by the government majority with a view to protecting their own monthly political events. The Amended Act on Assemblies introduced special status for the so-called recurrent assemblies ( zgromadzenia cykliczne ). On the basis of the Amended Act on Assemblies the Mayor of Warsaw banned the counter ‑ demonstration and the courts upheld his decision.

6 . The ban to organise a counter-demonstration was motivated by the fact that the monthly Smolensk commemoration was to be held at the same time. Under the Amended Act on Assemblies the latter event, being a recurrent assembly had a priority over any other assembly. In addition, under section 12 of the Amended Act on Assemblies any other assembly has to be held at least 100 metres from the recurrent assembly, which effectively rendered impossible the exercise of the right to counter ‑ demonstration.

7 . The applicant and a number of other persons took part in the counter ‑ demonstration. They intended to join the people participating in the Smolensk commemorative march. At about 7 p.m. the police decided to cordon off the persons participating in the counter-demonstration. In reaction to this, the applicant and other demonstrators sat down on the ground protesting in this way against the unconstitutional amendment to the Amended Act on Assemblies. The police called on the protesters to disperse and soon after they began removing them from the site. The applicant and other protesters were removed and put in the courtyard of a building located at 2 Miodowa Street. They were blocked in the courtyard by the police cordon and could not leave this area.

8 . One of the police officers requested the applicant to present her identity document. The applicant presented her press card, which was not accepted and then she presented her identity document. The police officer retained the applicant ’ s ID informing her that he needed to verify in the police database whether the applicant was on the list of wanted persons.

9 . The applicant was held by the police inside the courtyard until 10 p.m. of the same evening. She was informed by the police that she had not been arrested, but “remained at the disposal of the police”. The applicant was prevented from going to toilet and from buying water. The police also refused the applicant to contact lawyers sent by the Warsaw Bar who were just outside the police cordon.

10 . The applicant claims that the police prevented the applicant from participating in the counter-demonstration despite the fact that she had not blocked the march of those taking part in the Smolensk commemorative event. The applicant did not intend to encroach on the freedom of assembly of those persons.

11 . On 16 June 2017 the applicant filed an appeal against her arrest with the Warsaw- Ś r ó dmie ś cie District Court. She claimed that her arrest on 10 June 2017 for the period of more than two hours breached Article 45 § 1 (1-2) and Article 46 §§ 1-5 of the Code of Procedure for Administrative Offences (“the CPAO”) as being unlawful, unwarranted and irregular. She further argued that her arrest violated Article 41 § 1 of the Constitution and Article 5 §§ 1 and 2 of the Convention.

12 . The applicant alleged that her arrest had been unlawful because none of the prerequisites stipulated in Article 45 § 1 of the CPAO were met in her case. The police claimed that the applicant had not been arrested, but simply “remained at the police disposal”, but this condition was unknown to the Polish law and accordingly the deprivation of liberty on that basis was unlawful.

13 . The applicant also argued that her arrest had not been properly carried out. No record of her arrest was made, she was not informed about the reasons for her arrest and of her rights. She was further prevented from the possibility of informing her relatives of her whereabouts and of speaking to a lawyer. She also argued that her arrest lasting more than two hours was also unjustified in the circumstances of the case.

14 . On 11 September 2017 the Warsaw- Śródmieście District Court dismissed the applicant ’ s appeal against her arrest as unjustified. It relied on the information about the events of 10 June 2017 as submitted by the police.

15 . The court found that on 10 June 2017 the applicant had taken part in a blockade intended to prevent the planned march of the recurrent assembly. The applicant and other protesters did not follow the orders given by the chairman of recurrent assembly and by the police. Accordingly, the police decided to unblock the planned march route since the protesters ’ actions matched the features of administrative offences specified in Articles 52 § 3 (2) and 52 § 2 (1) of the Code of Administrative Offences (“the CAO”). The police removed the protesters to a safe location where their identity and their listing in police databases could be verified. The verification process was obstructed by supporters of the protesters gathered in the vicinity and was time-consuming for that reason.

16 . The court found that the police had carried out their actions in an appropriate manner. It did not agree with the applicant ’ s argument that her removal had been unjustified. The applicant had sat down on the ground after having been surrounded by a police cordon. In the court ’ s view, such behaviour could not be regarded as otherwise than intentional obstruction of a lawful assembly. The applicant ’ s and other protesters ’ behaviour had also delayed the planned march of the recurrent assembly. The court found that the conduct of recurrent assembly had been thwarted.

17 . The court further found that the police actions had legal basis, inter alia in the Police Act, and thus there were no grounds to conclude that their actions had been unlawful, unwarranted or irregular.

18 . The court found, contrary to the applicant ’ s submissions, that in the circumstances of the case there had been no arrest within the meaning of the CPAO. It considered that the state in which the applicant had been prevented from moving freely was justified by the necessity to establish her identity. The length of that state was prolonged by objective reasons, such as the necessity to make checks in the relevant police databases, the large number of such checks to be carried out at the same time and the obstruction of the process by other persons supporting the protestors.

19 . No further appeal lay against the court ’ s decision.

20 . On an unspecified date the applicant was charged with an administrative offence ( wykroczenie ) under Article 52 § 3 (2) of the CAO in conjunction with Article 19 § 5 of the Act on Assemblies for having refused to respect orders of the chairman of the recurrent assembly to leave the route of the march. She was further charged under Article 52 § 2 (1) of the CAO for having obstructed the conduct of recurrent assembly by standing and sitting down on the planned march route of the assembly and by shouting.

21 . On 26 April 2018 the Warsaw- Śródmieście District Court discontinued the proceedings against the applicant since her actions had not made out the elements of the impugned administrative offences.

22 . The court established that before 8 p.m. on 10 June 2017 the applicant and other persons had participated on Krakowskie Przedmie Å› cie Street in a counter-demonstration to the recurrent assembly commemorating victims of the Smolensk crash. The members of the counter-demonstration protested against violating their constitutional right to the freedom of assembly by affording privileged status to recurrent assemblies in the amended Act on Assemblies. The protesters decided to express their dissent symbolically by sitting down on the street and passively awaited to be removed by the police. The court noted that the applicants had publicly exercised their right to freedom of expression and that this fact had been disregarded by the police.

23 . The court noted that the protesters ’ actions had been motivated by disapproval of the privileged status of recurrent assemblies and not by the intention of thwarting the conduct of the Smolensk commemorative march. It noted that the protesters ’ actions had a minimal impact on the conduct of the commemorative march as it only delayed it by a few minutes. The court also noted that the removal of the protesters by the police in order to enable the continuation of the commemorative Smolensk march was an adequate reaction to their behaviour. However, the institution of proceedings against them could not be regarded as a proportionate reaction of the authorities, having regard to the circumstances in which the protesters acted and the consequences of their actions.

24 . On an unspecified date the prosecutor appealed against the discontinuation of the proceedings.

25 . On 30 August 2018 the Warsaw Regional Court set aside the first-instance decision and remitted the case. The proceedings appear to be pending before the first-instance court.

26 . 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”.

27 . The Amended Act on Assemblies introduced and regulated the institution of recurrent assemblies.

28 . 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

29 . The applicant complains under Article 5 § 1 that the situation in which the police prevented her from moving freely constituted unjustified deprivation of her liberty for a period of two hours and did not have a legal basis. This deprivation of liberty did not correspond to any exceptions set out in Article 5 § 1.

30 . The applicant alleges a breach of Article 10. She complains that the authorities disregarded her special status of a journalist and failed to release her promptly from the police cordon.

31 . The applicant complains under Article 11 that the authorities prevented her from taking part in a peaceful counter-demonstration and, by doing so, from expressing disagreement with the participants of the commemorative event. To this end, the authorities resorted to depriving the applicant of liberty and eliminated from the public forum views unfavourable to them. In addition, the amended Act on Assemblies hinders expression of views conflicting with those presented during the Smolensk commemorative events. It further affords privileged status to recurrent assemblies and renders impossible the holding of any other simultaneous assembly.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within any of the paragraphs of this provision?

2. Has there been a violation of the applicant ’ s right to freedom of expression, in particular her right to impart information and ideas, contrary to Article 10 of the Convention?

3. Has there been a violation of the applicant ’ s right to freedom of peaceful assembly, contrary to Article 11 of the Convention (cf. Plattform “ Ärzte für das Leben ” v. Austria , 21 June 1988, Series A no. 139; and Öllinger v. Austria , no. 76900/01, ECHR 2006 ‑ IX?

4 . In particular, did the measure complained of interfere with the applicant ’ s freedom of peaceful assembly, rather than her right to freedom of expression (see Tatár and Fáber v. Hungary , nos. 26005/08 and 26160/08, § 39, 12 June 2012; Karademirci and Others v. Turkey , nos. 37096/97 and 37101/97, § 26, ECHR 2005 ‑ I)?