The Act on Assemblies K 44/12
Six of the challenged provisions of the Act on Assemblies are inconsistent with the Constitution.
At the hearing on 18 September 2014 at 9 a.m., the Constitutional Tribunal considered joined applications, submitted by two groups of Sejm Deputies and the Polish Ombudsman, with regard to the provisions of the Act on Assemblies which specified inter alia rules of procedure in the case of several assemblies taking place at the same time or in the same location, a time-limit for notifying about a public assembly to be held as well as the scope of responsibility of the head of a given assembly for the course of the assembly.
The Constitutional Tribunal adjudicated that:
1) Article 1(2) of the Act on Assemblies in the part comprising the phrase ‘no fewer than 15’ was inconsistent with Article 57 in conjunction with Article 31(3) of the Constitution;
2) Article 3(1) of the above Act, insofar as it ruled out the right to hold assemblies by persons who did not have full legal capacity, was consistent with Article 57 in conjunction with Article 31(3) of the Constitution, Article 29(a) of the Convention on the Rights of Persons with Disabilities as well as Article 15 of the Convention on the Rights of the Child;
3) Article 7(1) of the above Act, insofar as it specified the obligation to notify a competent authority in a given commune about the holding of an assembly no later than 3 working days before the date of an assembly, was inconsistent with Article 57 in conjunction with Article 31(3) of the Constitution;
4) Article 7(2)(3) of the above Act, insofar as it required that notification about a public assembly should include information on the duration of the assembly, was consistent with Article 57 in conjunction with Article 31(3) of the Constitution, Articles 11 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms as well as Article 21 of the International Covenant on Civil and Political Rights;
5) Article 6(2b), Article 7(1) and Article 7(2)(3), Article 7a, Article 8(2), Article 9(1), Article 10(3) and (4), Article 12(2) as well as Article 13a of the above Act were not inconsistent with Article 20 of the Constitution;
6) Article 6(2b) and Article 7a of the above Act were consistent with Article 32, Article 57 in conjunction with Article 31(3) and Article 78 of the Constitution, Articles 11 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms as well as Article 21 of the International Covenant on Civil and Political Rights;
7) Article 7a(1) of the above Act in the part comprising the phrase ‘for which advance notice was given later’ was inconsistent with Article 2 of the Constitution;
8) Article 7a(2) of the above Act in the part comprising the phrase ‘for which advance notice was given earlier’ was inconsistent with Article 2 of the Constitution;
9) Article 8(2) of the above Act was inconsistent with Article 2 of the Constitution;
10) Article 9(1) and (4) of the above Act, as regards time-limits set out in those provisions for actions to be taken by competent organs of public authority, were inconsistent with Article 78 in conjunction with Article 57 of the Constitution;
11) Article 10(3) of the above Act, construed as one that did not constitute the basis of financial liability of the head of a given assembly with regard to damage caused by the participants of the assembly, was consistent with Article 2 and Article 57 of the Constitution;
12) Article 10(4) of the above Act was consistent with Article 57 in conjunction with Article 31(3) of the Constitution, Articles 11 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms as well as Article 21 of the International Covenant on Civil and Political Rights;
13) Article 12(2) of the above Act was consistent with Article 57 in conjunction with Article 31(3) of the Constitution, Articles 11 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms as well as Article 21 of the International Covenant on Civil and Political Rights;
14) Article 13a of the above Act was consistent with Article 2, Article 57 in conjunction with Article 31(3) of the Constitution, Articles 11 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms as well as Article 21 of the International Covenant on Civil and Political Rights.
The provisions enumerated in points 3, 7, 8 and 10 within the scope indicated therein will cease to have effect after the lapse of 12 months after the date when the judgment is published in the Journal of Laws.
As to the remainder, the Tribunal discontinued the review proceedings.
The doubts concerning constitutionality of the provisions that were raised in the applications pertained to a considerable part of the Act on Assemblies. What was indicated as the subject of the allegation was two general provisions in chapter I of the Act. Another set of challenged provisions comprised regulations about a procedure concerning assemblies. Moreover, the applicants challenged regulations which pertained to the holding of assemblies in the same venue and at the same time. The applications also regarded provisions that constituted a legal basis of a prohibition against holding public assemblies. Also, the applicants raised allegations of the unconstitutionality of provisions on obligations assigned to the heads of a public assembly. The last set of issues related to procedural matters in the context of assemblies concerned a procedure for dispersing a public assembly.
The Constitutional Tribunal pointed out that the essence of the freedom enshrined in Article 57 of the Constitution is to allow everyone to freely determine the cause which a given public assembly will concern as well as the selection of the time and place for the assembly. The subject of Article 57 of the Constitution is every case of a peaceful gather of persons wishing to publicly and jointly express their views or convictions or manifest their attitudes concerning the realm of the common good. The freedom of assembly plays the role of a mechanism for advance warning by allowing the public and elective organs of public authority notice the existing sources of social tensions causing some members of the public to protest against particular solutions adopted within the scope of the public realm.
Making reference to the allegations raised in the applications, the Tribunal stated that the statutory definition of a public assembly as a gathering of no fewer than 15 persons, introduced a constructive element that had not been provided for in the Constitution. The term ‘a public assembly’ also comprised those peaceful gatherings where the number of participants did not meet that criterion. In the view of the Tribunal, the introduction of a required number of participants did not constitute a necessary restriction in a democratic state. The Tribunal stressed that the legislator had been granted some freedom when determining obligations related to public assemblies, depending on the character of assemblies. However, that might not lead to the complete deprivation of public assemblies of legal protection.
In the opinion of the Tribunal, an organiser of a public assembly may only be a person who is able to take legal responsibility for his/her actions or lack of action within the scope of his/her role as the said organiser. For that reason, the introduction of restrictions imposed on the freedom of peaceful assembly should be deemed justified, considering the need to protect public security or public order, the natural environment, public morals, or the freedoms and rights of other persons (Article 31(3) of the Constitution).
In the view of the Tribunal, extending the time-limit for providing advance notice to at least 3 working days (Article 7(1) of the Act on Assemblies) is not necessary in a democratic state ruled by law. The purpose of notification, related to the need to guarantee the peaceful course of a given demonstration and to ensure the protection of its participants, may be achieved in a shorter period, in particular when one takes account of the continuous working hours of law enforcement services (the police, security services). Such a time-limit for the said notification excludes a larger number of assemblies initiated at shorter notice as a reaction to current events in the public realm than this was previously regulated by statute.
The statutory mechanism concerning two or more assemblies to be held in the same location and at the same time should be applied by way of exception, only in the situations of a real threat to public security or public order. The mechanism may be used when there is an actual conflict between particular subjects exercising the said freedom of assembly, and the resolution thereof is only possible by changing the time, location or route of one of the planned assemblies. It is the obligation of the organs of public authority to prove that in given circumstances we deal with an insurmountable conflict within the scope of exercising the same freedom.
A call for the change of the time or location of an assembly, or the route of a march, is addressed to the organiser of the assembly, or march, “for which advance notice was given later” (Article 7a(1) of the Act on Assemblies). The said call should include information on another assembly or other assemblies “for which notice was given earlier” (Article 7a(2) of the Act). Due to the lack of precision, the indicated wording of the provisions poses a risk that the organs of public authority may arrive at varying interpretations in that respect. As a result, this may cause serious doubts as to who exactly should be the addressees of the said call. For this reason, within the scope of the two above-mentioned phrases, the Tribunal held that the provisions were inconsistent with the principle of appropriate legislation (Article 2 of the Constitution).
The Tribunal stated that the statutory procedure for lodging an appeal against a decision prohibiting the holding of a public assembly was ineffective. The defectiveness of that procedure arises from incorrect time-limits set for the organs of public authority to take action within that scope. What is meant here is the time-limit provided for the service of the decision prohibiting an assembly – no later than 24 hours prior to the date of holding the assembly (Article 9(1) of the Act on Assemblies) and the time-limit for considering an appeal against the said decision – within 24 hours of the receipt of the appeal (Article 9(4) of the Act). The application of the two provisions results in a situation where the time remaining between the issuance of the decision by a competent authority in a given commune and the planned date of the public assembly in question is entirely used up. This takes place regardless of the activity of a person whom this concerns. Even filing an appeal against the decision forthwith may in practice have no effect on as regards determining the case of the person within the time-limit that would be adequate as regards the protection of the freedom of assembly.
The legislator has imposed a criminal sanction on the organiser of an assembly for deliberately refraining from taking action to make a person leave the assembly when the said person is breaching the law, attempting to prevent the assembly from taking place or disrupting it. The sanction also comprises the act of deliberately refraining from taking action to disperse an assembly in a situation where its participants do not obey the instructions of the organiser or where the course of the assembly does not comply with the statutory provisions. In the view of the Tribunal, the introduction of such a sanction into the said Act serves the fulfilment of the role assigned to the organiser of an assembly, namely to ensure that the course of the assembly complies with the law. It does not constitute a disproportionate restriction imposed on the freedom of assembly (Article 57 in conjunction with Article 31(3) of the Constitution).
The Tribunal deferred the date when the unconstitutional provisions of the Act would cease to be binding by 12 months. This does not pertain to the provision containing the definition of a public assembly (Article 1(2) of the Act) as well as the regulation providing for the issuance of a prohibition against holding an assembly if the organiser of the assembly has not changed the time or location of the assembly, or the route in the case of a march, for which advance notice was given later (Article 8(2) of the Act). The said provisions will cease to be universally binding as of the date when the Tribunal’s judgment is published in the Journal of Laws.
The hearing was presided over by Judge Andrzej Wróbel, and the Judge Rapporteur was Judge Marek Zubik.