July 23, 2012
Polish Parliament is currently discussing the amendments to the Law on Assemblies proposed in November 2011 by the President of Poland, which, if adopted, will substantially limit the freedom of assemblies. The draft is a result of the events that took place in Warsaw on 11 November 2011, when a number of assemblies turned into regular riots and police forces had to intervene. The amendments were adopted by the Lower Chamber of the Parliament (Sejm) on 28 June 2012. Currently, they are the subject of consideration by the Higher Chamber of the Parliament (Senat) Notification, remedy, spontaneous assemblies
First of all, the draft extends the minimal time that needs to pass between the notification of the assembly and the day when the assembly is planning to take place – from 3 to 6 days. Such an extension will undermine the possibility to react quickly to important public issues and to present someone’s views in public sphere.
This change was justified by the need to implement the ECtHR judgement in the case Bączkowski v. Poland (application no. 1543/06) stating that the organizer of the assembly should receive the final ruling in the case of banning the assembly before the planned assembly. A mechanism aimed at that was introduced by the amendments, however it still does not provide any guarantees that proceedings before the independent court will be initiated before the date of the assembly, and that a final verdict in the case will be received. Term “final ruling” should not be limited to the “final decision” issued by the administrative authority.
Situation when, firstly, the deadline for submitting the motion of notification was prolonged from 3 to 6 days before the date when the assembly is scheduled, and at the same time, there is no guarantee to receive a final ruling in the case, will definitely aggravate the status of so the called spontaneous assemblies. They are still not regulated by the Polish Law on Assemblies and the lack of any draft law dealing with this issue in the last few years shows that there is no political will to regulate this aspect of the freedom of assembly.
First come, first served
Further, the draft introduced dangerous collision norm applicable in case of the so called simultaneous assemblies, when two assemblies are planned to be organized in the same place and at the same time. According to drafted Article 7a (1) if it is not possible to separate them or for them to take place in such a way that their conduct does not endanger life or health of persons or property to a large extent, the municipality immediately summons the organizer of the assembly for which the notification was provided later to amend the time and place of the assembly or the walking route of the participants. Such provision is not only superfluous (since the Law on Assemblies already provides that the municipal authority shall prohibit a public assembly if the organisation of that assembly may pose a threat to the life or health of individuals or to property of considerable value) but this norm also weakens the right to counter-demonstrate. By such a regulation, the State creates a mechanism which does not fulfill the State’s positive obligation to facilitate assemblies, in particular those simultaneous.
Also new penal provisions introduced to Law on Assemblies are dangerous. The draft law provides a fine (up to 7.000 PLN, approx. 2,000 EUR) if the organiser does not manage to maintain public order. It also introduces a possibility of a fine (up to 10,000 PLN, approx. 2,500 EUR) if someone does not comply with the recommendations of the leader of the assembly. In this case, the possible fine of up to 10,000 PLN (approx. 2,500 EUR) may become a source of chilling effect for potential supporters of the views presented at the assembly who, because of the risk of a fine, may abstain from taking active part in the assembly.
While the draft was discussed in the Parliament, the Head of the Parliamentary Human Rights Committee invited the OSCE-ODHIR to comment on the new text of the amendments. In its Note on the Draft Law Amending the Law on Assemblies ODHIR presented in details its legal opinion pointing out all relevant drawbacks of the draft. This triggered the preparations of an Open Letter to the Speaker of the Polish Parliament – Ewa Kopacz, signed in June 2012 by more than 30 non-governmental organizations (until July the letter was signed by more than 160 organizations). It highlighte disadvantages of the draft law, however it did not influence the Members of the Lower Chamber of the Parliament (Sejm), who adopted the law on 28 June 2012.
On 18 and 19 July 2012 the draft was discussed by three Senat Commissions. Two of them recommended its refusal. The plenary discussion and voting in Senat will take place on 25 July 2012.
Barbara Grabowska, coordinator of the “Monitoring of the legislative process” at the Helsinki Foundation for Human RightsAuthor : Europe of Human Rights