Regional Court revoked Province Governor’s order prohibiting public assembly
On 10 May, the Regional Court in Warsaw revoked the Province Governor’s order on the prohibition of an assembly, which was based on the amended Assemblies Act. The Helsinki Foundation for Human Rights, represented by Mr Marcin Szwed and Adam Ploszka, joined in the proceedings pending in this case.
In Mid-April 2017, a man connected with the “Tama” Association notified the President of Warsaw of his intention to hold a “simplified” assembly on 10 May 2017 in Hoover’s Square in Warsaw. A few days later the assembly was entered in the list available in the Public Information Bulletin of the Warsaw City Council. However, on 8 May 2017, the Mazovia Province Governor issued a replacement order prohibiting the assembly. He stated that at the same time and place a periodic assembly aimed to pay a tribute to victims of the Smolensk tragedy would be held. Consent to such periodic assemblies was issued by the Province Governor at the end of April. Both the organiser of the first-mentioned assembly and the President of the Capital City of Warsaw appealed against the Province Governor’s decision to the Regional Court.
At a hearing of 10 May, the assembly’s organiser, attorney for the President of the Capital City of Warsaw and the HFHR’s attorneys indicated that the Province Governor’s order was unlawful because the Assemblies Act did not provide for an option to prohibit simplified assemblies, that is such assemblies which did not disrupt road traffic and hence are subject to a simplified and accelerated notification procedure.
Consequently, only an ordinary assembly can be prohibited by a decision. “In this case, a prohibition of an assembly would contravene Article 11 of the European Convention on Human Rights that guarantees the right to the freedom of assembly”, says Marcin Szwed. He continues saying: “The Constitutional Tribunal has not yet reviewed the constitutionality of the Assemblies Act, which means that the court should consider this issue and refuse to apply provisions that are against the Convention under Article 91(2) of the Constitution. In the light of this Article, a ratified international agreement has priority over the Act if the Act cannot be reconciled with the agreement”.
In its decision, the Regional Court has supported the arguments on the violation of the provisions of the Act and revoked the Province Governor’s order. In the justification for its decision, the Court noted that no provision of the assemblies’ law allowed a municipal authority or the Province Governor to prohibit the holding of an assembly.
On top of that, the Act’s provisions cannot be interpreted extensively, because the Act governs political freedoms that are of primary importance. In such a situation, the Court must have found the Province Governor’s order to be unlawful and revoked the same.
The Court’s decision is not final and binding. However, it is immediately enforceable, which means that the scheduled assembly could take place.