Crowd Control: New Verdict Threatens Freedom of Assembly in Poland

A panel of 11 judges of the Constitutional Tribunal has ruled that a new amendment creating "cyclical assemblies" is constitutional, giving the government extensive power to decided which public demonstrations are allowed.
The judgment was adopted by a majority vote, with the participation of the persons appointed to judicial posts in December 2015 without a valid legal basis.

Amendment to Assemblies Act

In December 2016, the president applied to the Constitutional Tribunal for the constitutional review of an amendment to the Assemblies Act prior to its promulgation.

The amendment introduced the concept of "cyclical assemblies," defined as assemblies organized on an annual basis within last three years or at least four times a year. A provincial governor, who is an official of the government administration, will decide whether a given assembly is deemed cyclical.

The cyclical assemblies provision will allow regional governors friendly to the national government to decide which demonstrations are acceptable.

The amendment raised considerable opposition. Almost 200 non-governmental organizations urged the president to refuse to sign the amendment into law.

They warned that the introduction of the amendment violates the civic nature of the constitutional freedom of assembly and may be used as a tool for abuse of power by public authorities.

Dissenting opinions

Three judges nominated by the previous Sejm (Sławomira Wronkowska-Jaśkiewicz, Małgorzata Pyziak-Szafnicka and Leon Kieres), along with Law and Justice’s nominee Piotr Pszczółkowski, appointed in December 2015, issued dissenting opinions to the majority judgment.

The dissenting judges disagreed with key points of the judgment. Moreover, three of the dissenters referred to the unconstitutional composition of the Tribunal’s adjudicating panel.

In his dissenting opinion, Judge Kieres wrote that the judgment had been reached with the participation of judges incorrectly appointed to their posts. Judge Pyziak-Szafnicka's opinion pointed out that four judges had been recused from the case without cause, and judge Stanisław Biernat was ordered to take a leave of absence by Tribunal’s President Julia Przyłębska.

Several judges of the Constitutional Tribunal, seen here, dissented from the majority opinion and pointed out that some of their colleagues were improperly appointed to the bench.

HFHR comments

"We disagree with the Tribunal’s ruling," said Barbara Grabowska-Moroz, a lawyer with the Helsinki Foundation for Human Rights (HFHR). "In our opinion, the amendment violates the essence of freedom of peaceful assembly. The amended Assemblies Act creates a hierarchy of assemblies, with cyclical assemblies ranking first in this hierarchy. Despite the fact that such assemblies have not been precisely defined and that determination of their status is based on a decision of the government’s representative, cyclical assemblies will have priority over other assemblies, which means restrictions on the freedom of non-cyclical assemblies."

According to Grabowska-Moroz, the composition of the Constitutional Tribunal’s adjudicating panel is not without significance. "The judgment was reached by persons devoid of the judge’s status because of their unlawful appointment. It thus may reasonably be argued that this judgment can be deemed non-existent," she said.

'Major loophole'

In late January, the HFHR issued a statement in which the Foundation emphasized that the moment when the judges appointed without a valid legal basis took up their official duties and the Tribunal’s president was illegally elected marked the emergence of "a major loophole in the human rights protection system in Poland." (More information on this subject is available here.)

Organizers of assemblies that have been banned, relocated (their venue moved at least 100 meters away from the location of a cyclical assembly) or rescheduled because of a cyclical assembly may submit an application to the European Court of Human Rights.