Appealing against a ban on an assembly
During its last session concluded on June 28, 2012, the lower chamber of the Polish Parliament, the Sejm, passed the amendment to the Assemblies Act. Pursuant to the new regulations, the time limit for submitting a notification of an assembly was extended from three to six days. This modification stemmed from the obligation to implement the ECHR judgment in the case Bączkowski and Others v. Poland which requires that the final decision regarding the refusal of permission to hold an assembly must be issued before its planned date.
In HFHR’s opinion, the amendment to the Assemblies Act cannot be regarded as a correct implementation of the ECHR judgment. Pursuant to international standards, the final decision regarding the refusal of permission to hold an assembly should be made by way of a court decision. The amendment to the Assemblies Act, however, grants this right to the Province Governor who is a public administration body. This regulation fails to satisfy the criterion of independence. As a result, the amendment to the Assemblies Act, passed by the Sejm, does not solve the problem raised in the case Bączkowski and Others v. Poland, and in fact lowers the standards pertaining to holding peaceful assemblies.
The proper standard for appealing against the bans on assemblies is in force e.g. in Germany. In the case of being confronted with a refusal to hold an assembly, the organisers have the right to appeal to the Federal Constitutional Court which, by way of a temporary order, may revoke the unfavourable decision before the assembly’s planned date.
The Helsinki Foundation for Human Rights has drawn up a detailed paper (authored by Robert Rybski) on German standards pertaining to the procedure of appealing against bans on assemblies. HFHR hopes that this paper will be helpful in the works on the amendment to the Assemblies Act undertaken by the Senate of the Republic of Poland.
HFHR is of the opinion that giving the right shape to the system of appellate measures requires a departure from the current model. We suggest that the appeals against the refusal of permission to hold an assembly should be submitted to the Supreme Court. The Supreme Court should have a possibility to issue an order before the planned date of the assembly.