Author: Eliza Rutynowska, PhD candidate, Doctoral School of Social Sciences, Criminal Law Faculty – University of Warsaw, Trainee Advocate at the Warsaw Bar Association, Lawyer at Civil Development Forum (FOR)
The COVID-19 pandemic has made it quite clear and undisputable that certain measures of safety regulations would have to be put in place by legislators in order to prevent the spread of the disease. This includes i.e. regulations regarding the obligatory wearing of masks which cover the nose and mouth. However, social distancing measures run the risk of being implemented to a de facto assault on the freedom of peaceful assembly. Regardless of the fact that citizens should focus on protecting their own health and that of third parties, the pandemic cannot become a comfortable excuse for abuse of power and the limitation of freedom of speech, which it has become – as per the Polish example.
Constitutionally-sane reasons for the limitation of the freedom to assembly
According to Article 57 of the Polish Constitution freedom of peaceful assembly and the act of participation in such assemblies shall be ensured to everyone. Limitations can be imposed solely on the basis of a statute1. However, even in such an event, according to Article 31 sec. 3 of the Constitution, any limitation upon the exercise of constitutional freedoms and rights may be imposed not only solely by statute, but also only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Even then any such limitations cannot violate the essence of the restricted freedoms and rights2.
The one exception to the above appears when regular, constitutional mechanisms prove insufficient in terms of dealing with an emergency situation and the introduction of extraordinary measures has to be considered. According to Article 228 sec. 1 of the Constitution, in situations of particular danger, if ordinary constitutional measures are inadequate, the following appropriate extraordinary measures may be introduced: martial law, a state of emergency or a state of natural disaster. However, one has to simultaneously recognize that according to sec. 5 of the same provision, actions undertaken as a result of the introduction of any extraordinary measure must be proportionate to the degree of threat and are intended to achieve the swiftest restoration of conditions allowing for the normal functioning of the State3.
Due to the above, even though extraordinary measures can be taken to combat existing threats by the State and legislature, they should be governed by good reason. Hence the existence of statues regulating i.e. the permissible restrictions to be issued in the particular, mentioned states. Seeing as the pandemic amounts to a natural catastrophe – the most adequate of the three mentioned states would be that of a natural disaster4. What therefore remains crucial is the fact that the Statute on the state of natural disaster does not permit for the prohibition or suspension of the Statute on Assemblies, which regulates both registered gatherings as well as spontaneous ones5, which do not require to be previously stated for the record, but may happen in reaction to a sudden social need and would senseless if conducted at a different time or place.
It is only once a state of emergency were to be introduced, could a ban on the right to organize and conduct assemblies of any kind be effectively implemented. However, a state of emergency can only be declared in the case of a particular threat to the constitutional system of the State, citizens’ security or public order, including threats caused by terrorist activities or activities in cyberspace, which cannot be dealt with by using ordinary, constitutional measures6. This however does not relate to a health crisis the country is experiencing at the moment. Naturally, this might be subject to change should the situation develop unexpectedly, but authorities have the obligation under Polish constitutional law to act within the given boundaries and should react to current situations, not ones that could – but might equally not – happen.
Nonetheless – neither a State of Emergency, nor a State of Natural Disaster was declared by the competent authorities. Therefore, regular laws on assemblies apply.
In the place of using constitutionally-sane mechanisms, where certain regulations of civil rights and liberties could have been declared, public authorities continue to abuse the powers providing them with the right to issue regulations. Regulations, according to the Constitution, can only be issued on the basis of specific authorization contained in, and for the purpose of implementation of, statutes by the organs specified in the Constitution. Such authorization shall specify the organ appropriate to issue a regulation and the scope of matters to be regulated as well as guidelines concerning the provisions of such act7. However, they cannot, in themselves, interfere in citizens’ rights and freedoms by creating bans on gatherings in public, as they have done. Such activity on the side of the legislators led, in effect, to a ban on any sort of demonstrations, labelling them as illegal, due to reasons of the pandemic and the need for social distancing. Only a public gathering of up to 5 people may be recognized as legal, if participants keep a 1,5 m. distance away from third parties, and have registered the assembly. The distance between different assemblies must not amount to less than 100 m8.
Women’s Strike on pandemic streets and the law
The unconstitutional restriction on the right to freedom of assembly was already widely imposed by public authorities in Poland when the politicized Constitutional Tribunal issued its decision on the 22nd of October 2020, effectively banning abortion in cases of damage or illness of the fetus. This in turn led to massive, spontaneous street protests. In effect, they have lasted over a month and continue to spread through the country. Protesters are continuously deterred from participating in the gatherings, even though they remain spontaneous in their nature and – as it has been mentioned – it is impossible to effectively suspend the application of the Statute on Assemblies without introducing a State of Emergency.
According to existing European Court of Human Rights case-law, States not only have the obligation not to interfere in the legal execution of rights and freedoms, but should also ensure the possibility for citizens to express their views – this remains especially crucial when faced with unpopular views9. Even if no charges were to be held against protesters or were they to be effectively dropped i.e. should a court find a ban on assemblies unconstitutional, one must remember that a chilling effect may remain in place due to the fact of the prosecution itself having discouraged protesters from taking part in similar meetings10.
Instead of figuring out a way to conduct public gatherings in a COVID-19-regulated way, public authorities in Poland have taken to using the epidemic to stifle any protests. This has been made especially clear once the National Prosecutor’s Office issued a document addressed to prosecutors conducting or supervising cases relating to the gatherings officially considered as illegal, ordering them to be assessed in the context of the risk of posing a threat to the health and life of multiple persons. All this was meant to serve as a way to potentially increase the possible penalties which the protesters could potentially face11.
Brute police force was also used12 to disperse those gathering on multiple occasions, including the usage of the ‘kettling’ method. It must hereby be mentioned that the UN Special Rapporteur on freedom of assembly and association noted that the ‘kettle-lock’ tactic remains inherently detrimental to the possibility of exercising freedom of assembly as it is massive and disproportionate13. Moreover, the European Court of Human Rights also pointed out that the tactic of detaining protesters behind a police cordon may have a deterrent effect on the exercise of the right to freedom of assembly, as citizens may choose not to participate in peaceful demonstrations for fear of getting caught in a “kettle”14.
The pandemic as an invalid excuse for abuse of power
Recent protests taking place in Poland have highlighted the need for safeguarding the rule of law in seemingly democratic societies. When faced with a crisis situation, such as the pandemic, citizens should be able to place their trust in the government not overstepping the boundaries set out by their laws and constitutions. Poland’s example has come to prove how inefficient constitutional mechanisms may prove, should public authorities decide against implementing them and opt for the abuse of powers instead. The recent pandemic should therefore serve as a stark reminder of how crucial rule of law institutions and independent courts may prove in extraordinary times.
 Article 57 of the Polish Constitution, https://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm, access: 20 November 2020
 Article 31 section 3 of the Polish Constitution, Ibidem.
 Article 228 sec.1 and 5 of the Polish Constitution, Ibidem.
 Article 3 sec. 1.1 of the Statute on the State of Natural Disaster, Dz. U. 2002 No. 62, pos. 558, Dz. U. 2017, pos 1897
 Article 3 of the Statute on Assemblies, Dz. U. 2015 pos. 1485, Dz. U. 2019, pos. 631
 Article 2 of the Statute on the State of Emergency, Dz. U. 2002, No. 113, pos. 985, Dz. U. 2017, pos. 1928
 Article 92 of the Polish Constitution, op. cit.
 Regulation of the Council of Ministers on the establishment of certain restrictions, orders and bans in connection with the pandemic, Dz. U. 2020, pos. 1758
 See: Baczkowski & others v. Poland, Application no. 1543/06, Kudrevičius and Others v. Lithuania, Application np. 37553/05
 See: Nurettin Aldemir and Others v. Turkey, Applications nos. 32124/02, 32126/02, 32129/02, 32132/02,
32133/02, 32137/02 and 32138/02)
 A/HRC/23/39/Add.1, par. 37 [in:] https://amnesty.org.pl/wp-content/uploads/2020/08/Raport-zgromadzenia.pdf
 See: Austin & Others v. GB, nos. Application nos. 39692/09, 40713/09 i 41008/09