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The safety of major public events; the penalty of being banned from attending matches of a particular football club (a football club’s ban) K 47/14

On 19 June 2018 at 8.30 a.m., the Constitutional Tribunal publicly delivered its ruling on the Ombudsman’s application concerning the safety of major public events (the penalty of being banned from attending matches of a particular football club – a football club’s ban).

The Constitutional Tribunal adjudicated that Article 14(1), (1a) and (5) of the Act of 20 March 2009 on the Safety of Major Public Events is consistent with Article 87(1) of the Constitution as well as is not inconsistent with Article 45(1) and Article 73 in conjunction with Article 31(3) of the Constitution.

The Constitutional Tribunal discontinued the proceedings as to the remainder.

The ruling was unanimous.

The application presented a number of allegations about infringements of the Constitution by the provisions of the Act on the Safety of Major Public Events. The challenged provisions stipulate that an organiser of a football match may impose a football club’s ban which consists in banning a particular person from attending subsequent major public events held by the organiser of a football match; the said ban is imposed by the said organiser with regard to a person who has breached the rules of a sports facility (sports grounds) or the rules of a given major public event (Art. 14(1) of the Act on the Safety of Major Public Events); the ban is also valid for subsequent major public events involving the participation of the organiser’s team, held outside the organiser’s sports grounds, and it may be imposed for a breach of the rules of a sports facility (sports grounds) or the rules of a given major public event involving the participation of the organiser’s team (Art. 14(1a) of the said Act).

By contrast, Article 14(5) of the said Act states that the organiser of a football match is to specify, in its internal rules, a form, procedure and time-limit for a banned person to file a request for the re-examination of his/her case as well as a procedure and time-limit for the consideration of the request.

What weighed in favour of ruling the challenged provisions to be consistent with Article 87(1) of the Constitution is the following reasoning. The subject of the rules of a sports facility (sports grounds) and of the rules of a major public event is – to put it as generally as possible – the determination of the rules of conduct in a given sports facility (sports grounds) or during a given major public event; by contrast, internal rules set out formal requirements related to an internal verification procedure for the determination of the validity of imposing a football club’s ban by the organiser of a football match. The reliance on the aforementioned rules, as such, raises no constitutional reservations in this context, since we are not dealing here with the creation, or an attempt to create, a new category of universally binding legal acts, because matters required to be regulated in a universally binding legal act have not been allocated to be determined in the said rules, which constitute legal acts that are internal in character. Thus, it is necessary to emphasise that a football club’s ban, being a certain sanction for a breach of the rules of a sports facility (sports grounds) or the rules of a major public event, has not been provided for in those rules. In fact, the sanction has been set down in the provisions of the Act on the Safety of Major Public Events, which constitutes a universally binding legal act, with the proviso that, as regards the types of behaviour for which the ban may be imposed, the said provisions make reference to the rules.

Thus, the Ombudsman challenges the blanket nature of the Act on the Safety of Major Public Events, and the constitutional issue raised by the Ombudsman actually pertains to:

1) what consequences may be linked in law with rules issued by private parties, including what types of sanctions may be prescribed by law for breaches of such rules; as well as

2) what level of precision and detail is to be met by statutory provisions or – possibly – supplementary sub-statutory provisions, so that it would be possible to link the said consequences with the rules issued by private parties, including different types of sanctions. Consequently, the provisions under examination did not infringe Article 87(1) of the Constitution.

At the same time, the Constitutional Tribunal held that, as to the remainder of the allegations, the provisions of the Constitution indicated as higher-level norms for the review in the present case are not appropriate. Above all, it should have been noticed that the only provision of the Act on the Safety of Major Public Events concerning a football club’s ban to which the allegation about an infringement of the right to a fair trial (Art. 45(1) of the Constitution) may be referred to is Article 14(8a) of the said Act, which stipulates that a banned person has the right to file a complaint to a competent administrative court against a ruling on the imposition of the aforementioned ban.

Yet, that provision has not been challenged in the allegations. Moreover, it should have been taken into account that both the linguistic and functional interpretations of Article 73 of the Constitution do not permit to construe this provision so broadly that it could be deemed that the freedom to enjoy the products of culture also comprises participation in sports events.

By contrast, due to requirements indicated in Article 31(3) of the Constitution, the assessment of the constitutionality of a particular provision may occur only when the said provision of the Constitution is considered in conjunction with a provision of the Constitution that enshrines a relevant freedom or right of the individual referred to in legal norms under examination; this has not been the case in the matter at hand.

At the same time, the Tribunal emphasised that the judgment in the present case does not entail that the freedom to participate in public sports events is not subject to constitutional protection and that any restrictions of that freedom do not have to meet the requirements provided for in the Constitution.

However, due to formal considerations, the Tribunal was not competent to ultimately determine what higher-level norms would be adequate in this context. Leaving this matter open, it may however be noted that – assuming that a football club’s ban was to constitute a repressive sanction – a constitutional review of the provisions of the Act on the Safety of Major Public Events should be conducted in the light of Article 42(1) of the Constitution.

Still, regardless of whether a football club’s ban will be qualified as a repressive measure or a measure of another kind, it undoubtedly constitute interference in the individual’s rights and freedoms. For the evaluation of the admissibility of that interference, it would be justified to make reference to Article 41(1) or Article 31(1) in conjunction with Article 31(3) of the Constitution. Yet, the discussed higher-level norms for the review were not indicated in the Ombudsman’s application.

In addition, the Tribunal deemed it justified to notify the legislator about the need to consider the introduction of an amendment to Article 14 of the Act on the Safety of Major Public Events.

The Presiding Judge of the adjudicating bench was Judge Leon Kieres, and the Judge Rapporteur was Judge Sławomira Wronkowska-Jaśkiewicz.