Published on 6 December 2021

FIRST SECTION

Application no. 39750/20 Marek JAROCKI against Poland lodged on 31 August 2020 communicated on 17 November 2021

STATEMENT OF FACTS

1. The applicant, Mr Marek Jarocki, is a Polish national, who was born in 1972 and lives in Lędziny.

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

3. On 21 August 2020 the applicant notified the Mayor of Warsaw (“the Mayor”) that on 29 August 2020 he was planning to hold a two-hour long walking protest against an unlawful police action (i.e. during a demonstration on 16 May 2020 the police had taken away the applicant’s national ID card). The protest was to take place in the street and the applicant expected up to a thousand participants.

4. On 25 August 2020 the Mayor issued a decision (no. WV/5310/ZG/9/2020) forbidding the assembly. The Mayor relied on Section 14 (2) of the 2015 Law on Assemblies ( Ustawa o zgromadzeniach ) which made it possible to prohibit any demonstration threatening the life or health of the public, as well as on the Council of Ministers’ Ordinance of 7 August 2020 on Limitations, Restrictions and Obligations Introduced in the State of Pandemic ( Rozporządzenie Rady Ministrów w sprawie ustanowienia określonych ograniczeń nakazów i zakazów w związku z wystąpieniem stanu epidemii , “the August 2020 Ordinance”). The Mayor concluded that, given the epidemiological situation, the assembly of a thousand people would undoubtedly threaten the health and even the life of the participants and the public.

5. The applicant appealed arguing, inter alia , that Covid-19 infections were low in number in the Warsaw region and, consequently, the total ban on larger assemblies that directly affected his protest was unjustified and disproportionate. The applicant also argued, relying on the interventions made by the Polish Human Rights Commissioner, that the ban was unlawful because the August 2020 Ordinance was unconstitutional.

6. On 27 August 2020 the Warsaw Regional Court ( Sąd Okręgowy ) dismissed the applicant’s appeal against the Mayor’s decision. On 28 August 2020 the Warsaw Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant’s further appeal. No other appeal was available under the applicable law.

7. The domestic courts held that the applicant’s assembly was contrary to the law, namely Section 25 of the August Ordinance that prohibited assemblies of over 150 participants. The courts also observed that, leaving aside the question of whether or not the August Ordinance was constitutional, the applicant’s protest was also contrary to the higher-ranking Section 14 (2) of the Law on Assemblies that authorised the prohibition of gatherings posing a risk to health or life. The courts also held that, given the up-to-date indicators, the risk of the spread of Covid-19 was real and had to be minimised, for example, by banning larger public assemblies.

8. It appears that, at the relevant time (Summer 2020) various Covid-19- related restrictions on rights and liberties were loosened across Poland or limited only to regions with a high number of Covid-19 cases.

9. In the wake of the Covid-19 pandemic, from 8 August until 10 October 2020, a general ban on public assemblies exceeding 150 participants was in force in Poland on the basis of the August 2020 Ordinance. This Ordinance was based on the Law of 5 December 2008 on the prevention and the combatting of human infections and illness ( Ustawa o zapobieganiu i zwalczaniu zakażeń i chorób u ludzi ).

COMPLAINT

10. The applicant submits detailed calculations of the risk of infection with Covid-19 during a distanced open-air gathering of a thousand people and alleges that the refusal to authorise the demonstration that he wished to hold on 29 August 2020 breached his right to freedom of assembly guaranteed by Article 11 of the Convention.

QUESTION TO THE PARTIES

Has there been a violation of the applicant’s right to freedom of peaceful assembly, contrary to Article 11 of the Convention?