Shaping the Freedom of Assembly -
– Counter-Productive Effects of the Polish Road
towards Illiberal Democracy
Adam Bodnar[*]
FREE TO PROTEST: CONSTITUENT POWER AND STREET DEMONSTRATIONS
Central European University, Budapest, 1-2 June 2007
DRAFT
I. Introductory remarks
For many years following the collapse of the Communist regime, Poland did not have any special problems with guarantees of the freedom of assembly. Handbooks dedicated to freedom of assembly were relatively short.[1] The Assemblies' Law, adopted in 1990 just after the change of regime, has been amended only a few times so far. Courts were not overloaded with cases.[2] When the new Constitution was discussed not enough attention was put to this issue. Freedom of assembly was only reflected in Article 57 of the Constitution, resembling Article 11 of the European Convention on Human Rights.
Freedom of assembly has seldom been raised as an issue of public interest – when neo-Nazi groups marched through the streets of Warsaw, when big ”pro-life” demonstrations walked from one of the churches to the Polish Parliament, or when blue-collar employees (miners, steel-workers) protested and at the same time ”greeted” Police forces with various heavy spare parts or pieces of the pavement. Nevertheless, assemblies were relatively seldom banned.
Freedom of assembly became a hot constitutional issue after the year 2000 and emancipation of the LGBT movement in Poland. Following numerous ”coming outs”, the first Equality Parade (typical gay pride) was organised in Warsaw in 2001. At first Equality Parades attracted only a moderate public attention. However, in 2004, the then President of Warsaw, Lech Kaczyński, decided not to allow the Equality Parade to take place and banned it. Although it was broadly commented in the press, organisers did not undertake any legal action against the ban and were of the opinion that a public protest against the ban was a sufficient way of redress. However, the ban on Equality Parade in 2005 became a truly hot issue because of the media involvement and the instrumental use of the ban to get votes in the oncoming elections. The public interest in the issue was also connected with rise in the popularity of the ”Law and Justice” (Prawo i Sprawiedliwość) political party, which openly started to refer to the morality issues in the public discourse. The ban on the Equality Parade in 2005 was a sign of new times in the Polish politics.
In June 2005, most of the people believed that the ban on the Equality Parade was only a strategic move, to attract right-wing voters. Following the elections in September 2005, it turned out, however, that it was nothing but an incident. It was a part of the greater strategy based on the questioning of achievements of former governments, including constitutional guarantees of rights. According to Prof. Wiktor Osiatyński it is a process of establishing a illiberal democracy in Poland [3], which soon became not only the Polish characteristics but involved other new Member States of the European Union.[4]
The movement towards illiberal democracy in Poland showed its teeth soon after winning the elections. In November 2005, the LGBT groups in Poznan wanted to organize the Equality March. President of Poznań and the Governor of the Wielkopolskie Voivodship banned the demonstration, despite massive protests of different NGOs and politicians. Despite the ban, the demonstration took place as an act of civil disobedience, which was brutally dispersed by the Police. The police showed disproportional brutality, but the then Minister of Interior Affairs and Administration Ludwik Dorn named this action as ”exemplary”. One week later Poland witnessed a series of demonstrations under the name of ”Reanimation of Democracy - the Equality March Continues.” The civil society movement showed that there will be no consent for violating this basic fundamental freedom in Poland.
Both bans on equality marches (in Warsaw and in Poznań) resulted in the institution of set of legal proceedings. The ban on the Equality Parade in Warsaw has been declared as a violation of Article 11, 13 and 14 of the Convention by the European Court of Human Rights[5]. Due to the ban also the Ombudsman referred certain provisions of the Road Traffic Law to the Polish Constitutional Court which declared those provisions unconstitutional[6]. Finally, the decisions of the authorities in Poznań were quashed as ill-founded first by the Regional Administrative Court in Poznań[7], and then – upon cassation appeal of the President of Poznań - by the Supreme Administrative Court[8]. Accordingly, in all the cases courts admitted that constitutional freedom of assembly was violated by the state authorities.
Despite Poznan events various right-wing politicians still claim that the homosexuals may not enjoy the freedom of assembly. There was, however, any more bans Equality Parades in Poland. There might be a reason to it. First – ”real politics”. Right-wing politicians finally understood that they could lose politically more than they could earn by banning homosexuals' demonstrations. Firstly, it was especially visible abroad, when the Prime Minister had to explain his attitude towards sexual minorities and later the lecture of his brother – Lech Kaczyński - at Humboldt University was interrupted by Berlin LGBT groups. Secondly, the courts started to take rights seriously. In a couple of judgements referred above, the Polish courts (and recently the ECtHR) reaffirmed the high value of the freedom of assembly and quashed respective administrative decisions. Thirdly – public opinion was disclosed and the respect for sexual minorities shown. There were polls showing that following bans of gay prides in Poland, the level of public acceptance and respect for sexual minorities is growing in Poland. Such results would, in majority of cases, deter politicians from adopting similar strategies.
Although sexual minorities may now demonstrate in Poland freely, some authors are of the opinion that that their position in the society and the attitude of some politicians resembles that of Polish anti-Semitism of 1968. They are regarded as public enemy, threat to morality, Christian values and as a symbol of the so-called ”civilization of death”. As an example, the League of Polish Families have recently prepared the draft law on prohibition of homosexual propaganda in schools. Its leader – the Minister of National Education - Roman Giertych dismissed the head of the National In-Service Teacher Training Centre (CODN) for publishing the official handbook of the Council of Europe ”The Compass – Education on Human Rights”. In the opinion of Roman Giertych, the handbook includes statements concerning homosexuality and same-sex marriages that are contrary to the Polish Constitution.[9]
Taking the above events into account, one may say that Poland has now some features of the illiberal democracy. Although gay prides are taking place now, they may still be banned at some point if politicians would need such a conflict and have a clear demarcation of their ideological lines. To some extent, the attitude towards homosexuals is considered by the right-wing parties as one of the methods of differentiation from similar political programs of their political opponents. There are also examples of restricting some other liberties. There have been spectacular examples of arrests in camera flashes, violation by highest authorities of the presumption of the principle of innocence, attacks on the independence of the judiciary, including the Constitutional Court itself. Some authors are of the opinion that the approach of the government is to create the state of permanent fear in different societal groups, and by means of this to have greater impact on the decision-making. It is a tool to silence criticism and real opposition.
In attempts to create the illiberal democracy in Poland, the current government has failed many times. Previous years prove that independent judiciary and impartial judges, as well as the international obligations of Poland (membership in the EU and the Council of Europe), have been the best safeguards of democracy and rights and freedoms.[10] The freedom of assembly is only one of the examples of constitutional rights, where the attempts to curtail the freedom, ultimately led towards the public discussion on the value of that right and brought significant judgments of the Constitutional Court, the Supreme Administrative Court and recently – the European Court of Human Rights. It is such judgments that shape the true meaning of this freedom, show its applicability, and limits of the governmental power.
The most significant example of this paradox of the Polish current constitutional affairs were events during the anniversary of the Polish Constitution of 3rd May of 1791. On this national holiday, the President of Poland Lech Kaczyński, by referring indirectly to the widely discussed problems with the newly adopted lustration law and exclusion of certain groups from the lustration proceedings, stated as follows: ”We will fight until as long as the law in Poland is really equal to everybody”. On the same day, the European Court of Human Rights announced the judgement in Bączkowski and others v. Poland[11], which condemns Poland for discrimination in the exercise of the freedom of assembly, an act committed by the President of Warsaw at that time – Lech Kaczyński.
Side-effects of the Polish road towards illiberal democracy – judgments of various courts - shaped the freedom of assembly in Poland. Different issues have been discussed, some of them quite novel, and this discussion together with the pronouncements of basic principles in some of the judgments may even influence the future generations, not only in Poland. The movement towards illiberal democracy is becoming stronger in the Central and Eastern Europe. Therefore it is now that safeguards provided by courts and standards of human rights protection are becoming especially important. The purpose of this paper is to analyse ten basic issues, that – paradoxically – are the latest Polish contribution to the democracy in Europe. The paper does not only analyse the three latest judgments dealing with the Equality Parades, but also three earlier judgments – issued in 2004 – which indicated the oncoming problems with the guarantees of the freedom of assembly, and the gradual decrease in the awareness of rights, their importance to society and commitment to democratic standards.
II. Shaping the freedom of assembly in Poland – ten basic principles
1. ”Gay people may protest as citizens but not as homosexuals”[12]
One of the most widely discussed issues with respect to the freedom of assembly is whether sexual minorities (or people being against discrimination of homosexuals) may enjoy the freedom of assembly at all. Although the answer to this question seems to be a straight forward one, it is interesting to note what kind of arguments the politicians used, and how courts reacted to this issue. The politicians voiced the following arguments:
a. public morality – in their opinion manifesting of one's sexuality is contrary to the public morality. In this respect they referred to article 31 Section 3 of the Polish Constitution, which provides a public morality as one of the grounds for limiting individual freedoms;
b. promotion of homosexuality – politicians claim also that the real purpose of the gay prides is to promote homosexuality and not to counteract discrimination. Homosexuals are of the opinion that the homosexuality is a feature that may not be promoted due to its very character;
c. obscenity by comparison – politicians referred also to gay prides taking place in other cities in the world (especially Berlin) claiming that they do not want to allow for such obscenity taking place in Warsaw. Such tactics has been used in the media – to show pictures from gay prides in other countries suggesting that the same may take place in Warsaw. Taking into account the history of Polish gay prides and the character of the event, such fears were more than ill-grounded,
d. slippery slope argument – some politicians say that gay prides are protests against discrimination, but are organized to fight for possibility of same-sex marriages and the adoption of children. On the other hand two politicians from Poznan said - ”If we allow now for demonstration of homosexuals, then we will have to allow for demonstration of pedophiles, necrophils and zoophiles”.
Polish courts did not have an obligation to give a direct answer to the question whether sexual minorities might enjoy the freedom of assembly, since the questioned decision were based on formal administrative law. Both in Warsaw and in Poznań, authorities were careful not to use arguments based on the ideological motives, but referred solely to the principles of administrative law. Nevertheless, courts had to assess the questioned decisions (or law) in a given context and they had to at least indicate what their attitude was.
The Constitutional Court in its judgement dealing with the constitutionality of the Road Traffic Law provisions reaffirmed the basic principles of the freedom of assembly. The Constitutional Court stated that the freedom of assembly may not be limited due to lack of symmetry between purposes of the freedom of assembly (or its potential results), and functions, aims or intentions of the organizers and participants in the given assembly attributed to it by media, commentators (and public officials).[13]
According to the Court, the constitutional guarantee of the freedom of assembly contains a prohibition to take away this freedom by the public authorities due to the ideological differences or when the ideas expressed by the assembly are contrary to the system of values represented by the public officials. The Court underlined that the ”moral convictions of the public officials are not a synonym for ”public morality” as a limitation to the freedom of assembly”.[14]