Marsz Tysiąca Tóg dwa lata później. Suwerenność i praworządność – rola sądów po pandemii COVID-19
Freedom of assembly and pandemic COVID-19
Dorota Zabłudowska*
Drogie koleżanki, koledzy, goście,
During the pandemic, we suffered all kinds of limitations to our rights and freedoms, from wearing masks to COVID passports.
Today, I would like to draw your attention to one aspect of social life that suffered severe limitations during the COVID pandemic – freedom of assembly. Freedom of assembly is guaranteed in Article 57 of the Polish Constitution2. The main legal act governing the exercise of freedom of assembly is the Assemblies Law of 24 July 2015.2
There are three types of assemblies:
1) an ordinary assembly, which must be notified at least six days before its planned date (two days under the simplified procedure for an assembly that does not disrupt road traffic),
2) a regular assembly, which must be approved by the provincial governor (wojewoda) and
3) a spontaneous assembly held in connection with a sudden public event; such an assembly does not need to be approved or notified.
Under the Polish Constitution, restrictions on the freedom of assembly may be introduced by law, in compliance with the principle of proportionality and without infringing the essence of the restricted freedom. Further restrictions are only allowed under a state of emergency or martial law.
None of those were introduced in Poland in connection with the COVID-19 pandemic.
Despite that, anti-COVID-19 restrictions were introduced mainly in regulations issued by the Minister of Health and later in regulations of the Council of Ministers (based on Articles 46-46b of the Act on the Prevention and Control of Infections and Infectious Diseases in Humans of 5 December 2008).
This served as the basis for introducing a state of epidemic emergency and later a state of epidemic. These do not constitute extraordinary measures according to the Constitution.
Still, they were deemed by the government as being sufficient to adopt significant restrictions related to the coronavirus pandemic. Such restrictions can only be applied in law and not in an executive act that is a governmental regulation. Therefore, these restrictions are not legally effective and can be questioned in court, though that does not mean that they will be enforced either by the police, or the sanitary inspection.
Nobody argues against the need to introduce safety measures during a pandemic. Nevertheless, those measures have to be:
1) necessary, proportionate and non-discriminatory,
2) introduced in accordance with the law – and above all, in accordance with the Constitution,
3) only for the time of the pandemic.3
These conditions have not been followed. Furthermore, the state of a pandemic was used by the ruling party to restrict citizens’ freedoms and quash potential protests as illegal.
Governmental regulations systematically limited the right of assembly: at first to 50 people (March 2020), then there was a total ban on assemblies (April 2020), then up to 150 people (May 2020) and then limited again to practically zero, with just five people able to meet together (December 2020).
Even more importantly, all those regulations set a ban on spontaneous assemblies.
It is worth noting that the restrictions on assemblies were maintained long after restrictions on other gatherings, such as fan zones for football games, were lifted. This shows how much the government is afraid of citizens expressing their views in the streets.
Restrictions on citizens’ rights, introduced because of or under the pretext of the pandemic, can be seized upon as an opportunity to perform unpopular actions within the legal system, leading to a permanent limitation on certain rights and freedoms.
In Poland, the ruling party used the pandemic to pay off political debts to the church-related environment. On 22 October 2020, the party-controlled Constitutional Tribunal issued a decision that abolished the possibility of legal abortion due to severe and irreversible foetal impairment or an incurable life-threatening illness of the foetus.
This decision resulted in spontaneous mass protests all over the country, involving hundreds of thousands of citizens, despite the harsh COVID regulations.
Issuing this decision at the time of the autumn wave of infections was like putting a fire out with gasoline.
These protests were mercilessly squashed by the police, who performed mass ID checks and made many arrests among the protesters. The protesters were apparently beaten, detained, driven out to police stations in other locations and had limited possibility to contact lawyers.
According to information from the police, from 22 October 2020 to 3 January 2021, 3,085 tickets and 9,280 criminal citations were issued, with 22,929 ID checks being made. All these actions were performed under the pretext of the illegality of the protests.
This gives you an idea of the scale of repression against citizens for using their right of assembly. This also gives an idea of what might happen when an authoritarian regime gets additional tools like COVID restrictions.
The only hope for those citizens was the (still) independent courts, which remain the only effective guardians of the Constitution in Poland at the moment.
* Judge, SSP Iustitia.
1 Dz.U. z 1997 r. Nr 78, poz. 483.
2 Dz.U. z 2015 r. poz. 1485 (t.j. Dz.U. z 2022 r. poz. 1389).
3 K. Gajda-Roszczynialska, Przebudowa wymiaru sprawiedliwości w czasach pandemii COVID-19 ze szczególnym uwzględnieniem postępowania cywilnego, PPC Nr 1/2022, p. 14 ff.