Constitutional Tribunal: amendments to Assemblies Act constitutional despite all objections

A panel of 11 judges of the Constitutional Tribunal has ruled that the provisions granting privileges to cyclical assemblies are constitutional. 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 organised on an annual basis within last three years or at least four times a year. A province governor, who is an official of the government administration, will decide whether a given assembly is deemed cyclical.

The amendment raised considerable opposition. Almost 200 non-governmental organisations pledged the President to refuse to sign the amendment into law. NGOs warned that the introduction of cyclical amendment contravenes the civic nature of the constitutional freedom of assembly and may be used as a tool for abusing powers 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 entered in the participation of persons incorrectly appointed to judicial posts. Judge Pyziak-Szafnicka argued that other four judges had been recused from the case without cause, the four including judge Stanisław Biernat, ordered to take a leave of absence by Tribunal’s President Julia Przyłębska. Judge Wronkowska-Jaśkiewicz presented her assessment of the recusal of the judges named in a request of the Prosecutor General from January 2017, which concerned the appointments of judges Marek Zubik, Piotr Tuleja and Stanisław Rymar.

HFHR comments
“We disagree with the Tribunal’s ruling”, says Barbara Grabowska-Moroz of the Foundation’s legal team. “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”, Ms Grabowska-Moroz explains.

According to Barbara Grabowska-Moroz, the composition of the Constitutional Tribunal’s adjudicating panel is not without significance. “The judgment that was pronounced by persons devoid of the judge’s status in the consequence of unlawful appointment. It thus may reasonably be argued that this judgment can be deemed non-existent”, Ms Grabowska-Moroz says.

In late January, the HFHR issued a statement in which the Foundation emphasised 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).

Organisers 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.