The text was written by Warsaw-based attorneys-at-law Jacek Dubois and Michał Zacharski after the Independence Day March in Warsaw in November 2017. The article was published at The Wiktor Osiatyński Archive in Polish on 20 November 2017. 

As a result of the last two years’ policies, there are two Polands within the Republic of Poland. Division lines are variable, and different opinions and arguments are more and more frequently presented on the streets. But are equal rules applied to everybody? We resolved to analyse this question taking the law on assemblies as an example.

The Constitution guarantees that we have a right to express our opinions, it ensures citizens’ right to organise peaceful assemblies and participate in them. However, the right to present one’s opinions is not unrestricted. It is limited by art. 13 of the Constitution which prohibits any activities by political parties and other organizations whose programmes are based upon totalitarian methods and practices of Nazism, fascism and communism, as well as those whose programmes or activities sanction racial or national hatred. These provisions are complimented by the penal code which provides for penal responsibility of persons who proclaim such ideas. Concluding, with reservation of those restrictions, all citizens of the state have a right to express their opinions in public. Quite rightly, an important role in the public discourse is played by the national philosophy.

The Constitution provides also that all citizens are equal before the law and have a right to equal treatment by the public authorities. Nobody can be discriminated against in the political, social or economic life for any reason. Let’s verify whether the authorities apply equal standards to people representing different opinions.

The Independence Day March: slogans which breach the law

The march on the 11th November was intended as celebration of independence and this was the conviction of majority of its participants. However, the joy was soon dominated by racist ideas. There were slogans glorifying the white race and calling for exclusion of people of different race, foreign origin or different religion. Can this situation match a legally organised assembly held according to the binding provisions of law?

The act on assemblies provides clear answers on what should be done. If a participant of an assembly acts in breach of law, the chair of the assembly should request this person to leave the assembly and if they don’t, the chair should ask police to help.

If participants of an assembly do not observe the chair’s orders or if the assembly breaks provisions of the penal code, the chair should dissolve such an assembly. However, if the chair does not take relevant action, the police are authorised to intervene and request a representative of the commune to dissolve the assembly.

The Independence Day March: smoke bombs and violence. No police intervention

Promoting racist and fascist slogans during the march was not the only breach of law. During the assembly, pyrotechnical devices were used, which is expressly prohibited by art. 4 of the act on assemblies. Further, participants acted violently against women who protested against promotion of racist ideas. The police didn’t intervene, they didn’t act in their authorised capacity to check identity of the offenders or apprehend them. The police did not call for cessation of illegal actions and didn’t request dissolution of the assembly, thus authorising the participants’ behaviour.

The Independence Day March: Minister Błaszczak saw nothing

It should be checked whether the officers responsible for this assembly did not neglect their duties. However, it can be hardly hoped for, considering public announcement of the Minister of Home Affairs Mariusz Błaszczak who declared he hadn’t seen any illegal slogans. Thus, the Minister has become like the three wise monkey in a figural form of the Japanese proverb: “see no evil, hear no evil, say no evil”. Such a loss of perception skills may happen in the case of a private person, but not in the case of a head of the ministry in charge of public security. The Minister’s closed eyes ensure impunity for the demonstration in breach of legal provisions, as the authorities, in a new form of solipsisim, claim that only those things exist which are perceived by the authorities themselves.

Białowieża Forest and Krakowskie Przedmieście: no more leniency from the authorities

It should be noted that the same authorities acted differently in the case of citizens who protested to defend the constitutional values. The act on assemblies allows for spontaneous assemblies organised in response to urgent situations, as holding such assemblies at a different moment would be pointless. A good example can be found in assemblies to protect Białowieża Forest and those at Krakowskie Przedmieście. In these cases, however, the authorities were not nearly so lenient. The police questioned the spontaneous nature of the assembly, they checked identity of and apprehended participants of these assemblies, also filing requests for sanctions at courts. These actions by police officers led the Ombudsman to address the Chief Police Officer concerning guarantees of civil rights and freedoms, as well as ensuring the police’s observance of legal provisions protecting these rights.

“Chilling effect” or how the authorities discourage citizens from public presentation of their opinions

It is clear that the police act differently toward different assemblies and their participants. There are no reports of at least checking identity documents of those participants of the Independence March who broke the law. Meanwhile, at assemblies organised in defence of the constitutional principles, it has become a standard that the police take action to restrict liberty of their participants, using identity verification as a pretext. Such persons are kept at police stations where identity verification takes several hours instead of minutes. This illegal restriction of liberty makes it impossible for these persons to take part in the assemblies. Similar preventive liberty restriction was used before the march, too. A group of more than forty citizens were carried to police cars and driven to a police station.

The reasons for identity verification are not related to actions of particular persons but to symbols they use. Like during the martial law in 1981-1983 the militia apprehended people with black armbands, now holding a white rose is a reason for identity verification. Participants of assembles are monitored, their images are published in press, they are called to testify and consequently charges are pressed against them, usually unrelated to their actual action, concerning rather littering in public, disturbing public order, infringement of privacy or illegal gathering.

At the moment, estimations refer to more than 1,000 penal proceedings and criminal offence proceedings concerning participation at assemblies. These actions are described as the “chilling effect”, as the many inconveniencies are designed to discourage citizens from public presentation of their opinions.

At the moment estimations refer to more than 1,000 penal proceedings and criminal offence proceedings concerning participation at assemblies.

Better treatment for those who support the authorities

Breaching the Constitution is in line with the authorities’ stand, so it is often approved of. Very significantly, the Member of the Parliament representing Law and Justice, Dominik Tarczyński declared that participants of the Independence March called fascists might count for his assistance. The MP never worried whether any of these acts actually occurred, he focused on encouraging those who could have acted this way. The Independence March, as well as so-called Smolensk mensiversaries are protected by thousands of police officers. Still, there was nobody to help women protesting against racist slogans.
The dispute concerning the assembly participants’ right to cover their faces seems a paradox. President Bronisław Komorowski motioned for a prohibition of using masks at assemblies, but the concept was rejected, as the Constitutional Tribunal ruled that the right to anonymity in public life is a larger value than making police operations easier. Today, people who may face repressive measures for their public activity show their faces at assemblies in defence of the constitutional values, while masks are used by those who are protected by the state.

It seems that the principle of equality doesn’t apply anymore. Expressing opinions opposing the authorities draws repressions. Supporting the authorities ensures impunity. Inequality of treatment becomes a fact, while penal repressions become an instrument in a political conflict. And the police become an important element of this conflict, forgetting that they are obliged to protect citizens and not authorities. Neither do they remember that according to art. 14 section 3 of the act on police, officers are obliged to respect human dignity, observe and protect human rights in all their operations.

Jacek Dubois – criminal attorney, Deputy Head of the State Tribunal (2012-2015), Chairperson of the Bronislaw Geremek Foundation and the Zbigniew Hołda Association.

Michał Zacharski – criminal attorney, PhD candidate at the Faculty of Law and Administration of the Jagellonian University in Cracow.

Translated by Małgorzata Madej