The Foundation critically assessed several proposed solutions, for instance the face-covering prohibition applicable during assemblies. The Constitutional Tribunal found unconstitutional a similar provision of the Assemblies Act in its part where it banned individuals unidentifiable by their outward appearance from participating in assemblies. The issue of the face-covering prohibition is of crucial significance. Usually, participants in assemblies cover their faces to express themselves.
Also, the draft amendment failed to take account of changes to the procedure for appealing against a ban on an assembly. This issue was raised by the European Court of Human Rights in the judgment Bączkowski and others v. Poland. The Court argued that the timing of public meetings might be crucial for the effective enjoyment of the freedom of assembly and a domestic procedure should provide for an opportunity to resolve contentious matters by an impartial body before an assembly takes place.
In its opinion, the HFHR further urged the legislators to introduce in the Act a category of ‘spontaneous assemblies’. Spontaneous assemblies are meetings falling outside the scope of a prior registration obligation, convened in order to jointly express an opinion related to a sudden, unforeseeable event, which, if held at a later date, would be pointless or insignificant from the perspective of public debate.
Under the draft law, the leader of an assembly will be liable under the petty offences regime. The leader may be subject to a fine up to PLN 7,000 whereas the Petty Offences Code states that a fine can be imposed in the amount between PLN 20 and 5,000 unless a law provides for otherwise. The HFHR suggests adjusting the value of the fine to the system of penalties introduced by the Code.
The draft law also provides that participants in an assembly can be held liable for their failure to comply with instructions of the assembly leader. In the opinion of the HFHR such a provision violates a fundamental principle of ‘nullum crimen sine lege’ (there can be no crime without a law).
