On 3 May 2007, the European Court of Human Rights in Strasbourg made a judgment in the case Baczkowski and Others versus Poland. The Court stated that Poland violated Article 11, Article 13 and Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Applicants did not claim any compensation for damage and deemed that they will be sufficiently satisfied, if the Court states the violation of the Convention. They lodged the complaint in the public interest. (04-MAY-07)

Written by Marta Lempicka/HRH Warsaw

The case of Baczkowski and Others versus Poland concerns the ban on organizing the Equality March 2005 in the Polish capital, issued by the President of Warsaw Lech Kaczynski in May 2005. The Foundation for Equality submitted a request to organize the Equality March, intended to be a demonstration in support of equality of discriminated groups, particularly sexual minorities. The President of Warsaw, Lech Kaczynski, in accordance with his previous announcements, issued a decision refusing to grant permission to occupy a traffic lane (based on the Road Traffic Act). In connection with this, the organizers of the Equality March submitted requests to organize 8 mass assemblies. The President of Warsaw refused permission to organize 6 of these planned assemblies. On 11 June 2005, an illegal Equality March was held and became an act of civil disobedience. The decisions made by the President of Warsaw were overruled by the organs of second instance, however their judgements failed to settle the issue whether there was a violation of the rights of an individual. The verdict of the Constitutional Court of 18 June 2006 (issued based on a request submitted by the Ombudsman) related exclusively to stating that the regulations of the Road Traffic Act are unconstitutional.

Lawyers from the Helsinki Foundation for Human Rights helped to prepare a complaint to the European Court of Human Rights regarding the violation by Poland of Art. 11 (freedom of assembly), Art. 13 (right to an effective means of appeal) and Art. 14 of the Convention (ban on discrimination). Prof. Zbigniew Holda was the applicants’ plenipotentiary in the proceedings before the European Court. The complaint was lodged on 16 December 2005 and the Court in Strasbourg declared the application admissible.

The Court emphasized that it attaches particular importance to pluralism, tolerance and broadmindedness and that the State’s positive duty – in the form of ensuring actual and effective observance of freedom of association and assembly – is particularly important with reference to unpopular views and in relation to individuals belonging to minorities, because they are more vulnerable to victimisation. The Court noted that banning the demonstration could have deterred the applicants as well as other people from participating in demonstrations, because due to the lack of official permission to hold the demonstration it was deprived of official protection against potentially hostile counter-demonstrators.
With reference to Article 14 of the Convention, the Court noted that there was no sign of open discrimination in the decisions made by the President of Warsaw, because they merely concentrated on the technical aspects of organizing the demonstration and their conformity with certain requirements. However, considering the fact that the President of Warsaw expressed his opinion on the Equality March and “propaganda of homosexuality” during an interview with the daily “Gazeta Wyborcza” before the public officials issued their decision, the Court concluded that it is justified to presume that the views of the President of Warsaw, expressed publicly, influenced the decision-making process. Consequently they violated the applicants’ right to benefit from the freedom of peaceful assembly without any discrimination. Thus, the Court stated the violation of Article 14 of the Convention in connection with Article 11 of the Convention.

The judgment in the case Baczkowski and Others versus Poland is important not only in order to assess the events that took place in Warsaw two years ago, but is also the first verdict issued by the Court in Strasbourg relating to discrimination in benefiting from the freedom of peaceful assembly by individuals working in support of non-discrimination of sexual minorities. Bans concerning similar equality marches were issued in resent years also in Riga, Moscow and Jerusalem.