The Constitutional Tribunal claimed that articles 11, 13 and 14 of the European Convention on Human Rights had been violated, stressing the role of the public authority as a guarantor of the right to assemble. The role is that of ensuring an assembly would take place on the date and time set by the organiser. The violation of article 13 of the Convention lied in the fact that the organisers of the Warsaw Pride Parade in 2005 did not receive the decision of an organ of II instance concerning the appeal against the ban put on the assembly before the date of the planned assembly. Thus, it was impossible for them to effectively question the ban on the assembly before an independent body (court) in time.
The Tribunal claimed that the date of an assembly is one of the essential matters, considering the right to assemble, and so, the country’s procedure should provide for the possibility of settling contentious issues by an independent body before the date of an assembly.
Not until the middle of December 2009 did the Ministry of Internal Affairs and Administration publish a draft of an amendment to the Assembly Act and to the petty offences’ code, which aim at executing this sentence, as well as the sentence by the Constitutional Tribunal concerning spontaneous assemblies (10 July 2008, ref. no. P15/08). It was a sentence in the case of the assembly organised by Dariusz Szwed in a view to protect the Rospuda Valley.
The changes are heading in the right direction. The category of spontaneous assemblies will be introduced, and there will be an obligation of providing places in which organising public assemblies will not require any notification (hyde parks). However, the most important idea is that of improving the procedure of notifying about an assembly. Up till now, the organiser was bound to notify the municipality about the intention of organising an assembly not earlier than 30 days and not later than 3 days before the date of the assembly. If the municipal authority found any reasons to issue a ban, then it was supposed to be delivered to the organiser within three days, but not later than 24 hours before the beginning of the assembly.
These stiff time limits could lead to a situation when, before the planned date of the assembly, the organiser had only the decision of the body of I instance and could not make an effective complaint to the provincial governor (or the court). That’s because the Assembly Act does not impose an obligation on the provincial governor to hear the appeal before the date of the assembly. At the same time, the ban issued by the municipal authority remained in force. That’s why the problem of the assembly’s lawfulness occurred. In such situations organisers usually called off the assembly, being afraid of the reaction of the police or the municipal police.
The draft prepared by MSWiA assumes changes in the time limits of notifying about an assembly. The minimum time for notification will be increased from three to four days. In case of a ban, the municipal authority will be obliged to deliver it to the organiser not later than within 24 hours from the notification. The organiser will have 24 hours for an appeal, which will be handed to the provincial governor on the same day. The provincial governor will be obliged to issue a decision not later than 24 hours before the planned assembly. It’s worth to point out that the final decision about a ban on a regular assembly will make it impossible to call a spontaneous assembly with the same purpose. This way, the drafter wants to prevent attempts at eluding the law.
MSWiA is convinced that ensuring the closing of a procedure before the date of a planned assembly will guarantee the complete realisation of the constitutional right to assemble. However, this statement can be argued. International standards of protection of the right to assemble are one step further and assume the possibility of examining the lawfulness of court’s decision about a ban before the date of an assembly. In the instructions issued by the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OBWE/ODIHR) gathered in the "Guidelines on freedom of peaceful assembly" in paragraph 94, there is a categorical instruction which says that the time period between notifying about an assembly and the date of the assembly should not be too long (this ought to be understood as a few days), but should be sufficient for hearing an appeal in order to examine its lawfulness.
MSWiA, however, does not consider it necessary to introduce changes in the procedure of appealing against a decision of the provincial governor to a judicial authority. Currently, the organiser may file an appeal to the Voivodeship Administrative Court within three days from the delivery of the provincial governor’s decision, and the court is obliged to assign a date for the trial within seven days from the delivery of an appeal. Thus, the procedure before administrative courts will not necessarily close before the date of a planned assembly.
Due to running time, proceedings will usually be pointless on the stage of hearing of a complaint by an administrative court. That is because the sentences will be issued after the date of an assembly and will have purely interpretative meaning. In most cases, they will not influence the decision of the administrative authorities.
This is why, regarding the special constitutional aspect of executing the right to assemble as an element of a public debate, it is worth to consider changing the competence of administrative courts when it comes to complaints about a decision concerning a ban on an assembly in favour of the Supreme Court, which would hear such a case in one instance. Such a solution has been applied, for example, in Israel. An appeal against a ban by the police chief, concerning lawfulness of an assembly, is heard by the supreme court. Many times sessions of this court, that dealt with appeals against bans on assemblies, were called within a few hours from the time of applying. Thanks to that, the Israeli Supreme Court stresses the special importance of the freedom of organising peaceful assemblies for the development of democracy.
A case concerning an appeal against a ban on an assembly does not require the analysis of complicated factual or legal state. It seems that the most appropriate body for hearing such cases would be the Labour Law, Social Security and Public Affairs Chamber of the Supreme Court. It adjudicates in cases concerning complaints about decisions of e. g. imposing punishment by the Chairman of the National Broadcasting Council, or the President of the Office of Competition and Consumer Protection. It also examines cases where the subject of a decision is the effectiveness of direct democracy mechanisms – the legitimacy of election protests or general election. Nothing stands in the way of recognising an act of appeal against a decision by a provincial governor about a ban on an assembly (which is an element of direct democracy) as a public matter, and thus placing it within the competence of this Chamber.
Assigning this competence to the Supreme Court would have a large significance considering the establishment of a uniform interpretation of the freedom guaranteed by article 57 of the Constitution of the Republic of Poland. Regardless of where the assemblies take place, cases concerning all bans would be directed to the Supreme Court, which would be the only court adjudicating in such cases.
Opponents of such a solution may claim that the court proceedings will lose their two instance character. However, it needs to be remembered that even now some cases are adjudicated by the Supreme Court as the only court (e.g. validity of a national referendum). Apart from that, before reaching the Supreme Court, the case would have to be heard by a body of II instance, that is the provincial governor. Finally, maintaining the system of two instances in court proceedings might be difficult, if not totally impossible, bearing in mind very short periods of time between the date of notifying about an assembly and its organisation.
We believe that MSWiA cannot remain indifferent towards our proposition, since the proposed amendment to the Assembly Act halts halfway. In our opinion, strict determination of short statutory time limits is not enough, it is rather the model of hearing appeals against the decisions forbidding assemblies that requires changes. The draft did not reach the lower chamber of the Polish parliament, so there is still time for debate and for appropriate changes in the prepared legislative proposal.
*Adam Bodnar – Doctor of Law, adjunct in the Department of Human Rights at the Faculty of Law and Administration of the University of Warsaw, Secretary of the Board of Helsinki Foundation for Human Rights
Artur Pietryka – trainee solicitor, lawyer in the Strategic Litigation program of the Helsinki Foundation for Human Rights
