Pandemic versus freedom of assembly. The European Court of Human Rights to assess a possible Poland’s infringement

The Strasbourg Court will consider an application submitted by a Polish national who alleges that COVID restrictions on the organisation of public protests violated their right to peaceful assembly. The Helsinki Foundation for Human Rights prepared an amicus curiae brief for the Court in which it compared the measures in place during the pandemic with the constitutional principles governing restrictions of freedoms and human rights.

A protest against the police that was never held

The application to the ECtHR was filed by a man who, in August 2020, notified the Mayor of Warsaw about the plans to organise an assembly of up to 1000 people to protest against the unlawful actions of the Police. However, the mayor banned the event, invoking the provisions of the Assemblies Act which enable a prohibition of holding an assembly that endangers public health. The Mayor also referred to a regulation of the Council of Ministers that banned assemblies with more than 150 participants.

The protest organiser appealed to a court, but his appeal was dismissed, and the dismissal decision was later affirmed by the court of second instance. After exhausting domestic remedies, the man submitted the application to the ECtHR, alleging that Poland violated the freedom of assembly (Article 11 of the European Convention on Human Rights).

No restriction of rights without a law

In the opening part of its brief, the Helsinki Foundation for Human Rights discusses the constitutional principles for imposing limitations on rights and freedoms of individuals. In particular, the HFHR notes that any restrictions on rights or freedoms may only be based on a law enacted by the Parliament. A violation of this requirement will always be unconstitutional.

In addition, any such restrictions must respect the principle of proportionality and the essence of the right or freedom in question.

Freedom more important than a regulation

Further in its submission, the HFHR discusses the history of restrictions on the freedom of assembly imposed during the COVID-19 pandemic. The Foundation recalls that the Polish Government has decided against introducing a state of emergency but only declared the state of pandemic emergency and later the state of pandemic. However, these measures were based solely on a law enacted by the Parliament and as such were incapable of derogating from the general constitutional principles governing the restrictions on freedoms and rights of individuals.

The HFHR also points out that the restrictions on freedom of assembly in force during the pandemic were introduced by regulations of the Council of Ministers. The restrictions have evolved considerably over time: initially, a total ban on holding assemblies was imposed, followed by the prohibition of holding assemblies with a certain number of participants (ranging from five to 150 persons, depending on the period) and unregistered assemblies. Eventually, also participation in assemblies was banned. Violations of these prohibitions were punishable as petty offences or might lead to an administrative fine being imposed.

The HFHR also points out that constitutional scholars conclude that the pandemic restrictions on freedom of assembly were incompatible with the Constitution. The above contention is based on the fact of the measures having been introduced in regulations issued by the Council of Ministers in breach of the principle of the Parliament’s exclusive power to legislate restrictions on freedoms and rights. Moreover, experts argue that the introduced limits on the number of participants violated the essence of the freedom of assembly. A similar view was expressed by the Polish Ombudsman. Also, the courts observed that restrictions on the freedom of assembly were unconstitutional. Such conclusions were expressed in decisions of the Supreme Court and common and administrative courts.

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