The Peaceful Assembly Act Kp 1/17
‘The freedom of peaceful assembly constitutes one of vital components of the modern standard of a democratic state within the scope of basic civil rights and freedoms. The legislator has discretion as regards shaping a legal framework for the realisation of the freedom of peaceful assembly. As long as the law-giver does not exceed the limits of admissible interference in the exercise of constitutional rights and freedoms, one may not challenge the validity of a given legislative solution,’ stated the Constitutional Tribunal.
On 16 March 2017 at 9 a.m., the Constitutional Tribunal (full bench) considered an application submitted by the President of the Republic of Poland with regard to the Peaceful Assembly Act.
The Constitutional Tribunal adjudicated that:
1) Article 1(4) of the Act of 13 December 2016 amending the Peaceful Assembly Act, which adds Chapter 3a entitled “The Procedure for holding periodic assemblies” (Arts. 26a-26e), is consistent with Article 32(1) and Article 57 of the Constitution;
2) Article 2 of the amending Act of 13 December 2016, referred to in point 1, is consistent with Article 2 of the Constitution.
Moreover, the Constitutional Tribunal decided to discontinue the proceedings as to the remainder.
The ruling was adopted by a majority vote.
Dissenting opinions were filed by the following judges of the Tribunal: Judge Leon Kieres, Judge Piotr Pszczółkowski (with regard to the discontinuance of the proceedings), Judge Małgorzata Pyziak-Szafnicka (with reference to the entire ruling) and Judge Sławomira Wronkowska-Jaśkiewicz (with reference to the ruling).
As regards the first of the allegations included in the application of the President of Poland, which concerned the introduction of a new category of assemblies, namely periodic assemblies, the Constitutional Tribunal stated that the freedom of peaceful assembly constituted one of vital components of the modern standard of a democratic state within the scope of basic civil rights and freedoms.
The Tribunal indicated that the legislator had discretion as regards shaping a legal framework for the realisation of the freedom of peaceful assembly. As long as the law-giver does not exceed the limits of admissible interference in the exercise of constitutional rights and freedoms, one may not challenge the validity of a given legislative solution.
The Tribunal pointed out that the introduction of the new type of assemblies (i.e. periodic assemblies) was a new and additional way of specifying the legal framework for the realisation of the freedom of peaceful assemblies. It was of importance that the legislator interfered in the said freedom by indicating certain requirements that needed to be met to deem that an assembly was held periodically.
The Tribunal stressed that this was interference in the freedom of peaceful assembly which was proportional and constitutionally admissible, for it had been specified by statute and was meant for the realisation of certain values such as the security of the state and public order. The said interference also made it possible to shape certain civic attitudes.
When analysing whether the introduced changes were necessary, the Tribunal took account of both its previous jurisprudence as well as the rulings of the European Court of Human Rights in Strasbourg in the context of the freedom of peaceful assembly and the standards arising therefrom. The Tribunal particularly focused on the fact that it was the state’s obligation to ensure that assembly participants had the right to manifest their convictions.
Moreover, the Tribunal took account of the positive obligation to protect those who exercise their right to the freedom of peaceful assembly against any interference in the exercise of that right by a counter-demonstration or counter-demonstrators; the said obligation is clearly emphasised in the ECHR’s jurisprudence.
As to the third of the allegations, the Tribunal held that – by introducing, in the challenged provision, the rule that the new law was to apply to a peaceful assembly with regard to which notification had already been issued prior to the entry into force of the amending Act – the legislator had applied transitional provisions which were retroactive in character.
The new provisions make it possible to realise the freedom of peaceful assembly for persons who have notified a commune about their intention to hold an assembly. Indeed, there is no obstacle preventing those persons from holding their assembly in a different place or at a different time. Nor does the amending Act rule out holding a spontaneous assembly.
By discontinuing the proceedings within the scope of the second allegation raised by the President of Poland – namely the possibility of appealing a substitute order issued by a voivode to ban an assembly if authorities in a commune have failed to issue a decision to ban the assembly on the basis of the new requirement (i.e. when a given assembly is to be held in a place and at a time when other assemblies are held periodically) – the Tribunal deemed that the amending Act introduced no clear prohibition against appealing a voivode’s substitute order to ban such an assembly.
This entails that the challenged provisions may be interpreted in such a way that the right to appeal the said order of the voivode by competent authorities has not been ruled out by the amending Act. This is the only interpretation that is consistent with the Constitution. According to the Tribunal, the arguments raised by the Applicant refer to the normative context of the introduced category of assemblies, and not to the norm indicated as the subject of the review before the Tribunal.
The hearing was presided over by the President of the Constitutional Tribunal, Julia Przyłębska, and the Judge Rapporteur was Judge Mariusz Muszyński.