Constitutionality of Restrictions on Freedom of Assembly during the COVID-19 Pandemic in Poland

Abstract

Since the beginning of the pandemic, the Polish government has repeatedly imposed restrictions or a total ban on the freedom of assembly. A total of five different restrictions to this right were announced during this period, from a total ban on organizing and participating in assemblies to allowing assemblies in limited groups (150, 50, 5 and 2 persons). The restrictions were introduced each time by an ordinance, a legal act of a lower rank than the law. The government, wrongly, justified the authority to introduce such restrictions with the provisions of the act on preventing and combating infections and infectious diseases among people. In this paper, the author demonstrates that the ban on the organization of and participation in assemblies was introduced without a proper legal basis – by means of an ordinance instead of a statute – and contrary to the provisions of Article 57 and Article 31(3) of the Polish Constitution. The author also points out that as a result of the defective regulation, citizens have the right to refuse to accept criminal fines imposed by the police, pursuant to Article 54 of the Petty Offence Code, during assemblies. In the author’s opinion, no circumstances, not even extraordinary ones, can justify the failure of authorities to observe the provisions of the Polish Constitution. Such a failure leads to a violation of the principle of individual trust in the state, legal certainty and security, and consequently the clause of a democratic legal state.