Constitutional Tribunal rules on Assemblies Act

The Constitutional Tribunal has decided on the constitutionality of provisions of the Assemblies Act. The Tribunal held that legislators might not define a public gathering in a way which would narrow the relevant definition set forth in the Constitution of the Republic of Poland. The law cannot set a minimum number of participants in a gathering who are entitled to legal protection.

“The Constitutional Tribunal’s decisions is of a fundamental nature”, says Dr Adam Bodnar, HFHR Deputy President. “Undoubtedly, this will persuade the lawmakers to change the regime of organization of public gatherings in Poland”, adds Dr Bodnar.

The Constitutional Tribunal struck down as unconstitutional the provision which obliged organisers to inform a municipal body about a gathering at least three working days in advance. Poland’s constitutional court noted that there was no justification for extending this time-limit from three days to three working days, as it was done in the amended version of the Act. The Tribunal noted that such a provision allows for a better organisation of the duties performed by the employees of public bodies, but do not necessarily translate into the protection of citizens’ freedoms.

Moreover, the Constitutional Tribunal did not challenge the laws regarding “parallel assemblies”. According to the Tribunal, the administrative procedure put in place to “separate” public gatherings taking place in the same location and at the same time stands in accordance with the provisions of the Polish Constitution. At the same time, the Constitutional Tribunal named the regulations on the priority of registration applications and the possible consequences of a later registration for the organiser of an assembly, as unconstitutional. The law does not clearly specify which entity was the first to submit a registration application. Another provision dealing with this issue was also named as unconstitutional: the Tribunal struck down the regulation which does not allow for an assembly to take place if its organiser has failed to change the place, date or route of the gathering despite having received an official request to do so.

Additionally, the constitutional court named provisions on the procedure for appealing a decision prohibiting organisation of an assembly as unconstitutional. In the opinion of the Constitutional Tribunal, the appellate procedure does not ensure that the organiser will receive the second instance administrative decision before the planned date of the gathering in question.

The Helsinki Foundation for Human Rights submitted an amicus curiae brief in the proceedings before the Tribunal. In its opinion, the Foundation noted that a key problem relating to the exercise of freedom of assembly in Poland was the ineffective appellate procedure.

“The statutory time-limits provide no guarantee that the decision of an appellate body is delivered to the organiser before the assembly takes place. Also, effective judicial review of such decisions is practically impossible. The issue has been criticised by the European Court of Human Rights in Bączkowski and Others v. Poland”, explains Michał Szwast, lawyer with the Helsinki Foundation for Human Rights.