ARTICLE 19 calls upon the Polish President to reject proposed amendments to the Law on Public Assemblies, approved on Tuesday by the Parliament, which would undermine the right to protest in the country.
“The proposed amendments would enable the authorities to block protests expressing ideas with which they disagree, including criticism of government policies”, said Katie Morris, Head of Europe and Central Asia at ARTICLE 19.
“The importance of the right to protest was demonstrated earlier this year, after the Polish government withdrew a regressive anti-abortion bill, following mass demonstrations. The right to protest is essential to a healthy democracy and must be protected”, she added.
Proposed amendments
Under current Polish legislation, permission is not required to organise a public assembly. Organisers of protests should only notify local authorities about a planned assembly two – six days prior to the event, depending on the scale of the gathering. Spontaneous protests are permitted and do not require any advance notification.
The proposed amendments would, however, enable authorities to prohibit or restrict protest under certain conditions.
The amendments introduce a new concept of a “cyclical assembly” – a repeated gathering held at a specific time and place over a period of up to three years. “Cyclical assemblies” would receive special protections vis-à-vis spontaneous or one-off protests: authorities could prohibit or relocate a planned protest if the organisers of a “cyclical assembly” requested to hold a meeting at the same time and place. This would be the case even if the organisers of the original protest were the first to inform the authorities of a planned gathering.
Additionally, both planned and spontaneous counter protests would be prohibited in the same place as a “cyclical gathering”, with the amendments introducing a clause imposing a mandatory distance of at least 100 metres between two or more simultaneous gatherings.
Lastly, while anyone can apply to organise a “cyclical assembly”, it must commemorate “an important event of Polish history.” Government-appointed regional governors would be responsible for granting permissions to “cyclical assemblies”.
ARTICLE 19 is concerned that the amendments are open to abuse, enabling the authorities to ban or severely restrict protests expressing ideas with which they disagree. Major concerns include:
- First, the amendments effectively enable the authorities to block unwanted protests, by organising “cyclical assemblies”, which would take precedence over others.
- Second, spontaneous or one-off protests would be severely disadvantaged in comparison to “cyclical assemblies”. Given the lack of clarity as to which kind of assemblies may qualify as cyclical, ARTICLE 19 is concerned that only protests expressing pro-government positions will be designated as cyclical.
- Lastly, restrictions on organising simultaneous assemblies render it impossible to organise effective counter protests.
International standards on right to protest
ARTICLE 19 recalls that the right to protest engages the individual and/or collective exercise of existing and universally recognised human rights, including the rights to freedom of expression and freedom of peaceful assembly and of association. Under international human rights standards, everyone should have the freedom to take part in protests without discrimination on any grounds, and States have an obligation to respect, protect and fulfil the the right to protest.
There should be a presumption in favour of exercising the right to protest and states should abolish all legislation, regulations and practices that require, in law or effect, prior permission or licenses in order for protests to take place. Notification regimes for protests should only be voluntary.
This means that the authorities should never require protests organisers to submit a request for permission to hold a protest. For example:
- The Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies states that authorities may put in place a system of prior notification, where the objective is to allow State authorities an opportunity to facilitate the exercise of the right, to take measures to protect public safety and/or public order and to protect the rights and freedoms of others. Any notification procedure should not function as a de facto request for authorization or as a basis for content-based regulation. Notification should not be expected for assemblies that do not require prior preparation by State authorities, such as those where only a small number of participants is expected, or where the impact on the public is expected to be minimal.
- Similarly the OSCE’s Guidelines on Freedom of Peaceful Assembly specify that the authorities may require advance notification about an assembly; however, such prior notification can only be required “where its purpose is to enable the state to put in place necessary arrangements to facilitate freedom of assembly and to protect public order, public safety and the rights and freedoms of others.” Such notification procedures should never be used to prohibit or obstruct the organisation of protests.
As for counter- protests, ARTICLE 19 maintains that where notifications are given for simultaneous protests, i.e. two or more protests at the same place and time, as far as possible each should be facilitated. In the absence of such a possibility, a firstcome, first-served rule should be adopted, according to which the venue will be given to those who filed their notification first.
- The OSCE Guidelines explicitly state that if notification is provided for two or more unrelated assemblies at the same place and time, each should be facilitated as best as possible. The prohibition of a public assembly solely on the basis that it is due to take place at the same time and location as another public assembly will likely be a disproportionate response where both can be reasonably accommodated. The principle of non-discrimination requires, further, that assemblies in comparable circumstances do not face differential levels of restriction.
- The Joint report of two UN Special Rapporteurs states that where notification is submitted for two or more assemblies for the same place and time, the authorities should conduct a thorough assessment of any risks and develop strategies for their mitigation. Where it becomes necessary to impose restrictions on one or more simultaneous assemblies, those restrictions should be determined through mutual agreement or, where this is not possible, through a process that does not discriminate between the proposed assemblies.
ARTICLE 19 maintains that the proposed amendments are in violation of international law and Poland’s domestic and international human rights commitments and should be dropped immediately. We call upon the President to reject the amendments in their entirety and ensure full protections for the right to protest.
For more information on this issue, read ARTICLE 19 The Right to Protest: Principles on Human Rights in Protests here.