Freedom of assembly is for people, not state

The Sejm is currently working on an amendment to the Assemblies Act If the amendment comes into force, it will significantly restrict individuals’ ability to hold counter-demonstrations and spontaneous demonstrations.

The proposed law introduces the concept of “cyclical assemblies”, or the assemblies that are organised by the same organiser at the same place or on the same route at least four times a year or those that were organised at least once a year in the period of last three years. Sponsors of the proposed amendment state, by way of example, that the purpose of such an assembly may be to “commemorate events that are momentous and important for the history of the Republic of Poland”. A province governor will decide whether an assembly is considered “cyclical”.

According to the bill, if a province governor issues permission for the holding of a cyclical assembly at the time and place of another assembly, then a municipal authority will be obliged to prohibit the “non-cyclical” assembly.

The bill also provides that no public gatherings may be organised at the time and place of assemblies by public authorities or those organised as part of the activity of churches and other religious associations.

“The freedom of assembly is above all a ‘civic’ and not a ‘state’ freedom”, the HFHR lawyer Barbara Grabowska-Moroz notes. “The characteristics of an organiser of an assembly are irrelevant for the assessment of whether the assembly has a peaceful nature or the decision whether the assembly should be given priority over other public gatherings”, Ms Grabowska-Moroz adds.

Danuta Przywara, President of the HFHR, offers a frank assessment of the proposed measures: “If public authorities ensure that they have the priority to organise an assembly at the given time and place, this contradicts the civic right to counter-protest and freely express one’s opinions”.

Disrupting the course of an assembly is already prohibited under the Petty Offences Code, so the proposed modifications are superfluous.

“However, the bill gives priority to state, religious and then cyclical assemblies and does not require that an assessment should be made on a case-by-case basis whether the proximity of a counter-demonstration constitutes a threat to safety and peace. Such automatism is unconstitutional”, Barbara Grabowska-Moroz adds.

The Sejm plans to enact the law without any public consultation. During the plenary session of 30 November 2016, the bill had its first reading and was sent to committees, which were supposed to convene on the same day.

To view the Foundation’s opinion, follow this link.