FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12575/02 
by Marek CIESIELCZYK 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 5 September 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr M. Pellonpää
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Šikuta, judges, 
and Mr T.L. Early, Section Registrar,

Having regard to the above application lodged on 7 November 2000,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Marek Ciesielczyk, is a Polish national who was born in 1957 and lives in Tarnów, Poland.

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

On 7 May 1999 the applicant, relying on the 1990 Law on Assembly, informed the Tarnów Municipality Office (Urząd Miasta) of his intention to hold a demonstration in order to “protest against the personal responsibility of Mr A.S. for the antisocial policy of AWS.” At the material time, the applicant was the Tarnów City Councillor (Radny Rady Miejskiej) and Mr A.S. was a member of the Senate (the Polish Parliament consists of two Houses: Sejm and Senate). The programme of the planned demonstration included speeches by the organiser and the participants, the number of which he described as between 100 and 150 persons. The demonstration was to be held on 31 May 1999 at 4.15 p.m. for about 45 minutes on a pavement and a parking lot in front of an apartment block in Ułańska Street. The applicant finally requested the presence of the Municipal Guards (Straż Miejska) and the police, in addition to security agents provided by him.

On 10 May 1999 the Mayor of Tarnów (Prezydent Miasta Tarnowa) gave a decision in which he prohibited the demonstration. The Mayor took into consideration a written complaint (protest) submitted by 48 adult inhabitants of the apartment block in question, who protested against the planned demonstration alleging that it would disturb their peace and violate their rights. The Tarnów Mayor concluded that the demonstration should be prohibited for the protection of the rights and freedoms of others.

The applicant lodged an appeal against this decision arguing that it was against the principles embodied, inter alia, in the Polish Constitution and in the European Convention. He also submitted that, having regard to previous demonstrations, an assembly of about 100 persons would not cause any disturbance.

On 12 May 1999 the Małopolski Governor (Wojewoda Małopolski) dismissed his appeal and upheld the impugned decision.

On 13 May 1999 the applicant lodged a complaint with the Supreme Administrative Court (Naczelny Sąd Administracyjny). On 9 July 1999 the Supreme Administrative Court gave a decision in which it dismissed the complaint. The court established that freedom of assembly is not absolute and can be restricted by the public authorities after diligent examination of the facts of the case.

Subsequently, the applicant requested the Ombudsman (Rzecznik Praw Obywatelskich) to lodge on his behalf an extraordinary appeal (rewizja nadzwyczajna) with the Supreme Court (Sąd Najwyższy). On 28 February 2000 the Ombudsman granted his application. In the extraordinary appeal the Ombudsman submitted that the authorities had failed to assess diligently the evidence in the case, in particular, the degree of disturbance which could have been caused by the assembly.

On 5 January 2001 the Supreme Court allowed the extraordinary appeal, quashed the Supreme Administrative Court’s judgment and remitted the case. The Supreme Court established that the Supreme Administrative Court decided the case arbitrarily and had wrongly assessed the evidence. The court considered that the authorities should have examined in detail, on the one hand, the legal interests of the inhabitants and, on the other, those of the organiser of the demonstration. In case of conflict between those interests, they should have decided according to the principles of a democratic State governed by the rule of law. That was not done in this case as the authorities based the prohibition solely on the complaint made by the inhabitants.

On 11 September 2001 the Supreme Administrative Court quashed the decisions of both the Tarnów Mayor and the Małopolski Governor. In the light of the Supreme Court’s judgment, the court found that both decisions had been taken in violation of proper procedures in that the authorities had failed to assess carefully the evidence and to balance the competing interests.

COMPLAINTS

The applicant complained that the length of the proceedings in this case was excessive and that the facts of the case disclosed a violation of Articles 10 and 11 of the Convention in that he was prevented from organising a peaceful assembly and from expressing his opinion.

THE LAW

On 8 June 2006 the Court received the following declaration signed by the applicant:

“I, Marek Ciesielczyk, note that the Government of Poland are prepared to pay me the sum of PLN 10,000 (ten thousand Polish zlotys) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

On 20 June 2006 the Court received the following declaration signed by the respondent Government:

“I declare that the Government of Poland offer to pay PLN 10,000 (ten thousand Polish zlotys) to Mr Marek Ciesielczyk with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

The Court takes note of the agreement reached between the parties and considers that the matter has been resolved (Article 37 § 1 (b) of the Convention). Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued. Accordingly, the application to the case of Article 29 § 3 of the Convention should be discontinued and the case struck out of the list.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.

T.L. Early Nicolas Bratza 
 Registrar President

CIESIELCZYK v. POLAND DECISION


CIESIELCZYK v. POLAND DECISION