The International Human Rights Framework on the Right of Peaceful Assembly
Poland is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Poland is also a party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, Poland is a State Party to the 1950 European Convention on Human Rights. Article 11 governs freedom of assembly and association:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
The Domestic Legal Framework on the Right of Peaceful Assembly
According to Article 57 of the 1997 Constitution of the Republic of Poland:
The freedom of peaceful assembly and participation in such assemblies shall be ensured to everyone. Limitations upon such freedoms may be imposed by statute.
The primary legislation governing assemblies is the 1990 Law on Assemblies (as amended by a 2012 Law). Under the Act, a gathering of at least fifteen persons, called in order to participate in a public debate or to express an opinion on a given issue, is to be regarded as an assembly within the meaning of the Act.
Under Section 2 of the Act, freedom of assembly can be restricted only by statute and where it is necessary for the protection of national security or public safety, for the protection of health or morals, or for the protection of the rights and freedoms of others. All decisions concerning the exercise of freedom of assembly must be taken by the local authorities in the municipality where the assembly is to be held. These decisions can be appealed against to the Governor.
Under Section 3 of the Act, the municipality must be informed by the organisers of the intention to hold a public assembly not later than three days in advance. The information must include the names and addresses of the organisers, the aim and programme of the demonstration, its place, date and time, as well as information about the itinerary if the demonstration is intended to proceed from one place to another.
CIVICUS has reported that:
the new anti-terrorism law contains provisions which seriously undermine protected rights. Under the new law, where a sufficiently high "state of alarm" is declared, the Minister of Internal Affairs may order a prohibition on public assembly. Evidentiary support is not required to declare a state of alarm. The law also allows for heightened surveillance, increased police powers to search individuals, and in some cases increased power to shoot to kill.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
The primary legislation governing police use of force in Poland is the 1990 Police Act. Article 16(1) of this law authorises the police to use a range of less-lethal means to arrest or detain an individual or prevent his or her escape.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Article 17 of the 1990 Police Act governs police use of firearms. It sets out in detail the conditions under which the police may have recourse to potentially deadly force. This includes where it is necessary to defend an assault against property posing direct threat to human life, health, or freedom.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2016 Concluding Observations on Poland, the Human Rights Committee did not address the right of peaceful assembly.
In the 2017 Universal Periodic Review under the UN Human Rights Council, Canada called on Poland to
Repeal the restrictive amendments on the Law on Assemblies to restore full freedom of peaceful assembly, in keeping with Poland’s international obligations.
Bączkowski and others v. Poland (2007)
In its judgment in this case, the European Court of Human Rights found a violation of the right of peaceful assembly by Poland. The Court observed that despite the fact that the authorities had banned a planned march and several stationary assemblies in 2005, the organisers went ahead anyway. The appellate courts overrode the objections to the demonstrations, but their decisions were only rendered after the dates on which the applicants had planned to hold the demonstrations.
The Court further noted that "the applicants took a risk in holding them given the official ban in force at that time".
The assemblies were held without a presumption of legality, such a presumption constituting a vital aspect of effective and unhindered exercise of freedom of assembly and freedom of expression.
The Court stated that
the refusals to give authorisation could have had a chilling effect on the applicants and other participants in the assemblies. It could also have discouraged other persons from participating in the assemblies on the grounds that they did not have official authorisation and that, therefore, no official protection against possible hostile counter‑demonstrators would be ensured by the authorities.
Views of Civil Society
According to Freedom House's 2021 report on Poland:
Freedom of assembly is generally respected in law and in practice. Public demonstrations are held with some regularity, though local authorities can limit demonstrations in their districts on grounds of maintaining public order.
In 2020, demonstrations were initially curbed by restrictions imposed during the COVID-19 pandemic. Protesters had to find work-arounds to avoid violating the new rules, gathering to protest in cars, honking their horns, and holding signs to their windows. In May, when business owners in Warsaw held protests calling for government aid in the face of the pandemic, police intervened with force when safety rules were breached, detaining 37 people.
In August 2020, the pretrial detention of an LGBT+ rights activist, accused of assaulting an anti-abortion campaigner and damaging his vehicle, led to protests and the brief detention of a further 48 people. An investigation by Poland’s Commissioner for Human Rights found evidence of humiliating treatment of detainees by police, and that some of those detained were merely bystanders.
In October, hundreds of thousands of people protested for over a week against the Constitutional Tribunal’s decision to enforce a near-total ban on abortion. Those who gathered formed the largest demonstrations since the fall of communism in 1989.
Greater numbers of LGBT+ pride parades have taken place in Poland in recent years, with many staged in smaller and eastern cities for the first time. Authorities attempted to obstruct these events, including on grounds of safety, but in each case courts prevented authorities from stopping the organizers, arguing that freedom of assembly cannot be denied on the basis of potential violence by opponents. On a few occasions, opposition to the parades turned violent, notably in Białystok in 2019, where police detained over 120 people.