K 21/05, In re Road Traffic Act, the Constitutional Tribunal of Poland (18 January 2006)
The Commissioner for Citizens’ Rights (an ombudsman) petitioned the Constitutional Court to consider the constitutionality of the Road Traffic Act 1997.
A group of individuals and the Foundation for Equality applied to hold a march in Warsaw in order to raise public awareness about discrimination against minorities, including sexual minorities. On 12 May 2005, they applied for permission to organise a march that would lead from the Parliament to Assembly Square. On 3 June 2005, the City Council Road Traffic Office, acting at the direction of the Mayor of Warsaw, denied permission for the march, stating that the organisers had failed to submit a traffic organisation plan as required under Article 65 of the Road Traffic Act.
Whether Article 65 of the Road Traffic Actinfringed the constitutional right to freedom of assembly.
Assemblies Act 1990, Article 1(2). Constitution of Poland, Article 31(3) (providing that any statutory limitation of the exercise of constitutional freedoms, including for the protection of public morals, was not to violate the essence of freedoms and rights), Article 53 (freedom of religion), and Article 57 (freedom of peaceful assembly). Road Traffic Act 1997, Article 65. K 34/99, Constitutional Tribunal of Poland, 2000 (holding that the Road Traffic Actwas not incompatible with the Constitution).
Reasoning of the Court
The Court first addressed its previous opinion in the case K 34/99 where it held that a previous – though very similar – version of the Road Traffic Act did not violate any constitutional rights. The State argued that K 34/99 barred the Court from considering the present issue because of the principle of ne bis in idem (that no legal action could be instituted twice for the same cause). The Court, however, held that the amended version of the Road Traffic Act “imposed many [new] obligations upon the organiser of such an assembly, and the failure to meet these requirements results in the refusal to issue permission”. Furthermore, and more importantly, the current Road Traffic Act transformed “the essence of freedom of assembly into the right to assemble, regulated by decisions of an organ of public administration [the police], acting on the basis of provisions whose formulation allows for excessive discretion in such decisions”. The Court highlighted the importance of the freedom of assembly, finding that it served several important purposes. It ensured people’s autonomy and developed their collective and self-identity. It was a cornerstone of democracy. It facilitated public opinion “by creating the possibility to influence the political process through criticism and protest”. Freedom of assembly could be used to protect minority groups, such as sexual orientation minorities. It also increased the “legitimacy and acceptance [of] … decisions taken by representative organs and the administrative-executive structure subordinate to them”. Finally, it acted as “an early warning mechanism” that exposed social and political tensions. The Court found that freedom of assembly played a vital role in promoting democracy and an effective legislature but that, conversely, the legislature should not have an effect on freedom of assembly: “Freedom of assembly is a constitutional value and not a value defined by the democratically legitimised political majority in power at a certain moment in time”. The Court also noted that the “public morals” protected by Article 31(3) of the Constitution were distinct from the moral views of the legislature and other political figures. As such, the moral views of legislators and other politicians could not justify restriction of freedom of assembly. The Court held that these public figures must protect groups who exercise their freedom of assembly, regardless of any controversy – including the threat of violence – that might arise from such an assembly. According to the Court, the government could permissibly limit the right to assembly only to the extent that it requested prior notification of all planned assemblies. Any further infringement would give the State too much power. The legislator could not “regulate the essence of a particular constitutional value” based on circumstances that were not constitutionally significant, such as rules for the use of public roads. Having found that the right to freedom of assembly was of paramount constitutional importance, the Court criticised the wording of Article 65 of the Road Traffic Act, which collectively characterised different types of public events as “athletic competitions, rallies, races, assemblies and other events hindering traffic”. Rejecting this characterisation, the Court held that they were: “not of the same constitutional nature. The legislature made an error by failing to account for the constitutional nature of freedom of assembly as a fundamental political freedom.” The Court noted that the legislature had already recognised the need to differentiate between different classes of public activities. The Road Traffic Act, for example, had less stringent requirements for public events that involved religious activities. This reflected the freedom of religion protection in Article 53 of the Constitution. Because freedom of assembly was also constitutionally protected, it was “unjustified to treat assemblies, whose significant common feature with events of religious nature is their constitutional rank, differently”. The Court concluded that Article 65 of the Road Traffic Act was unconstitutional. Postscript The facts of this case were also the subject of an application to the European Court of Human Rights. In Baçzowski and Others v. Poland, the European Court found violations of Articles 11 (peaceful assembly), 13 (effective remedy), and 14 (non-discrimination) of the European Convention. Application No. 1543/06, Judgment of 3 May 2007. K 21-05, In re Road Traffic Act, the Constitutional Tribunal of Poland (full text of judgment, PDF)