The brief reviews, among other things, the relevant case law developed by international courts – including the European Court of Human Rights – and highlights the standards of freedom of assembly developed by the Organisation for Security and Cooperation in Europe.
“Having reviewed the international standards, we came to a conclusion that Polish laws on public assemblies are quite flawed”, says Michał Szwast, HFHR’s lawyer.
The Foundation noted that a key problem relating to the exercise of freedom of assembly in Poland was the ineffective procedure for complaining against local government decisions prohibiting the organisation of a public assembly. “The statutory time-limits provide no guarantee that the decision of the appellate body is delivered to the organiser before the assembly takes place. Also, effective judicial review of such decisions is practically impossible”, explains Mr Szwast.
The issue has been criticised by the European Court of Human Rights in Bączkowski and Others v. Poland. For almost seven years, Polish lawmakers have failed to enforce the Strasbourg judgment.
In its amicus curiae brief, the HFHR also pointed to the provisions which prevent persons without full legal capacity (such as minors between 13 and 18 years of age) from organising assemblies, calling such regulations unconstitutional. “The Constitution affords everybody the freedom to organise and participate in public assemblies so any limitation of this freedom should be necessary to protect other important constitutional values”, observes Mr Szwast.
The Foundation further noted that the Polish Act failed to include a category of “spontaneous assemblies”, exempted from the requirement of notification, even though the European Court of Human Rights has many times referred how important such assemblies are for public debate. The statutory language, which requires that an assembly be notified at least three days before its planned date, prevents the holding of assemblies in response to important social events. Public authorities often treat assemblies organised without notification as illegal gatherings. Pursuant to the Petty Offences Code, both organisers of and participants in such gatherings may be held responsible.
The Constitutional Tribunal is yet to set court dates for hearing the applications.
