On each last Friday of the month, participants of Critical Masses get on their bikes and, giving themselves to their passion, inform the public about the problems related to local government policies for cycling infrastructure. These events take the form of gatherings. A ride can take place if a prior notice, including details of the planned route, is given to the competent head of the commune (wójt) or mayor.
Yet, the idea of organising these special rides has been lately strongly undermined by the local authorities of Poznań. In June, they refused to recognise ‘The Great Bike Ride’ as a public assembly within the meaning of the Assemblies Act. The authorities argued that Article 7(2)(3) of the Assemblies Act requires that the participants in an assembly ‘walk’ rather than ‘ride’. Consequently, the Poznań Critical Mass could not have been recognised as an assembly within the meaning of Article 57 of the Constitution of the Republic of Poland. Instead, it was qualified as ‘other event’ under Article 65 of the Road Traffic Act. Such qualification of the ride forced the organisers to obtain a consent in the form of an administrative decision which is being issued in a formalised procedure governed by the Road Traffic Act. Thus, the Poznań event was treated in the same way as rallies and child or adult cycling races, that is events held for competition and recreational purposes and not as a voice in the public debate covering important social subjects. Reacting to the dislike of local authorities, the participants of the June event decided to walk with their bikes rather than ride them on the planned route.
In such circumstances, the organisers of the ride scheduled for the end of July asked the Helsinki Foundation for Human Rights for help. The Foundation responded by submitting the letter to Ryszard Grobelny, Mayor of Poznań, asking for recognising the event as an assembly within the meaning of the Assemblies Act.
Initiating the events whose aim is to attract public attention to a given social problem, in this case rights of cyclists, should be understood as exercising freedom of assembly. The idea laying behind the rides, namely reminding the authorities of insufficient cycling infrastructure in cities, lack of parking spaces for cyclists or advocating the use of environmentally friendly means of transportation, obliges the authorities to ensure that all the participants are able to exercise freedom of assembly guaranteed in Article 57 of the Constitution and Article 11 of the European Convention on Human Rights. The role of that kind of cycling initiatives cannot be overestimated because of their material political significance. The sound of bike bells and flashes of bicycle lights is the way in which the cyclist community reminds local authorities that problems connected with municipal transportation have to be solved. Therefore, without any doubt, the Critical Mass should be recognised as an assembly in the full constitutional meaning of the word.
The issue of municipal authorities being unable to grasp the difference between assemblies and rallies, child sport competitions and sporting events is nothing new. It was considered by the Constitutional Tribunal in the case decided in the wake of the prohibition of the 2005 Warsaw Equality Parade. At the time, Warsaw local government requested that the organisers of the Parade obtain a permit for using a road lane, invoking the very Article 65 of the Road Traffic Act. It its judgement of 18 January 2006 (case file K 21/05), the Tribunal clearly indicated the difference between assemblies (which usually are of political character and organised to express a given view) and competitions, races or rallies (perceived as recreational events of no political meaning).
The aforementioned division has specific administrative consequences. As an expression of exercising a constitutional freedom, assemblies enjoy a privileged status since they can be organised quickly, on the basis of a submitted notice. Furthermore, unlike in the case of sporting or recreational events, administrative authorities have no discretion over giving consent to assemblies; they in fact must submit to the will of organisers of an assembly provided a proper notice has been given.
Also, it is worth remembering that for Critical Mass participants a bike is not a mean of recreation but an item symbolising the addressed problem (difficulty of using the same in the municipal space). That viewpoint corresponds with the former decisions of the Constitutional Tribunal. In the judgment of 10 July 2004 (Kp 1/04) the Tribunal addressed the issue of using facemasks by manifestation participants. It was held that they can use certain items as means of expression of their position towards a given problem, situation or fact. However, only the items which use is not legally prohibited can be used (as opposite to, for instance, weapons and other dangerous devices). Consequently, using a bike by assembly participants is a legally permitted behaviour.
If the Assemblies Act is construed strictly, as in the case of the Poznań event, a constitutional freedom will be restricted. The term ‘walk’ used in Article 7 of the Act does not require the participants in an assembly to move only on foot. If it was the case, the participants would be prohibited from using all kinds of vehicles (including wheelchairs and platforms used in street theatres and parades). Furthermore, it must be noted that the Article in question has been operating in an unaltered form since 1990, the time of birth of the idea of cyclists gatherings.
Since the participants of cyclist assemblies use their bikes on municipal roads, the rides may affect traffic and road safety. However, organisers of the rides have been recently introducing many positive practices to deal with these issues. First of all, the rides are organised on the basis of special regulations stipulating, among other things, that the participants may not ride faster than 12 kph or brake suddenly and requesting them to inform the organisers about inappropriate conduct of persons participating in the ride. In addition, the organisers attempt to provide medical assistance. Considering the above, any action taken to hinder organisation of cyclist assemblies for road safety reasons is illegal.
Cyclists, like any other social group, have the right to voice the problems related to governmental transportation policy, using all legally permitted means, including assemblies, to attain this end. On the other hand, the authorities are obliged to allow cyclists to use such legal measures. We can only hope that this message will reach the municipal authorities and the Foundation will not have to yet again remind anybody about the obligations resulting from Article 57 of the Constitution.
Adam Bodnar, PhD, Artur Pietryka, MA
The Helsinki Foundation for Human Rights
