Long way ahead for new Assemblies Act

In October some of the key provisions of the Assemblies Act will lose their legal force. However, the Ministry of Administration and Digitisation prepared a new draft law on the issue only at the end of March. It needs though to go through the entire legislative path including the Government, the Sejm and the Senate. “We have concerns about the new Assemblies Bill”, says Dr Adam Bodnar, HFHR Deputy President.

In mid-September 2014, the Constitutional Tribunal entered a ground-breaking judgment on the freedom of assembly. Poland’s constitutional court challenged the then-applicable laws. It pointed to the provisions regulating spontaneous assemblies, the absence of an effective procedure for cancelling an order that prohibits the organisation of an assembly, and regulations that obliged municipal bodies to separate several assemblies that take place simultaneously.

The Tribunal’s judgment rendered certain provisions of the Assemblies Act ineffective as from early October 2015. It was not until recently when the Ministry of Administration and Digitisation presented a draft of the new law, which effectively enforces the constitutional ruling. At the request of the Ministry, the Helsinki Foundation has presented an opinion regarding the draft.

The proposed law introduces a division between marches and stationary assemblies. Both types of public gatherings are to be subject to separate sets of organisational procedures. A major novelty proposed in the draft is the shortened time-limit for notifying a stationary assembly to a municipal authority, which is not less than 12 hours before the start of the assembly.

“With this time-limit shortened, stationary assemblies will be treated much like spontaneous assemblies, and the Foundation has been long advocating for the legal recognition of the latter”, observes Michał Szwast, a lawyer working with the HFHR. Still, the HFHR thinks that the submission time frame should additionally be shortened to six hours, which would realise organisers’ right to spontaneous demonstration and, at the same time, give the Police more than enough time to prepare as this type of assembly does not typically require any diversion of road traffic.

The Foundation has also expressed concerns over certain regulations that apply to marches. For instance, the HFHR argues that the definition of a march is defective as it fails to consider a key element of the march, namely the movement of marchers on public highways that affects local road traffic.

“Pursuant to the draft law, the definition of the march will apply equally to people marching in the woods, a park or car-free city zones. There is no need to regulate such marches in a law on assemblies, for example to oblige their organisers to abide by the six-day official notice rule”, Dr Bodnar says.

The HFHR also criticises the procedure governing appeals against decisions issued by local authorities that prohibit a march. Although the newly proposed rules guarantee that the organiser’s appeal is decided by a province governor before the date of the planned assembly, as Michał Szwast observes, “the new law offers no such guarantee in respect of judicial review decisions, whereas the case law of the European Court of Human Rights and Guidelines of the Organisation for Security and Cooperation in Europe are adamant that interested parties must be given an opportunity to have decisions prohibiting an assembly to be judicially reviewed before the planned date of the assembly”.