This post contains an excerpt from the report “A year of devastation of the rule of law”, published by the Ordo Iuris Institute on December 13, 2024. The full report can be found at https://en.ordoiuris.pl/civil-liberties/year-of-devastation-of-rule-of-law-in-poland
Main theses:
Article 57 of the Polish Constitution guarantees everyone the freedom to organize and participate in peaceful assemblies.
For months, the actions of politicians from the coalition that has been governing in Poland since December 13, 2023, that is, first and foremost, Justice Minister Adam Bodnar, the Governor of Mazovia Mariusz Frankowski, Interior Minister Tomasz Siemoniak, and Warsaw’s Mayor Rafał Trzaskowski – whether acting personally or through officers subordinate to them – aimed at unduly restricting the constitutional freedom of assembly of the organizers and participants of the largest Polish (and European) patriotic demonstration of the 21st century, Warsaw’s yearly Independence March.
These actions were in line with the demands formulated for the March by Adam Bodnar when he was still Poland’s Commissioner for Human Rights.
Currently, freedom of assembly and freedom of association in Poland after December 13, 2023 are not guaranteed by default, as the Polish Constitution would have it, but selectively, and entities that ideologically disagree with representatives of the ruling camp are sometimes forced to engage in months-long struggles to secure these freedoms.
1. The Independence March – the largest patriotic demonstration of the 21st century in Europe
This largest Polish patriotic manifestation of the 21st century takes place every year in Warsaw on November 11 – National Independence Day, commemorating the anniversary of the end of World War I in Europe and the culmination of Poland’s regaining of independence after 123 years of partition. The first anniversary demonstration of this type took place on November 11, 2006. Since 2010, after the Smolensk air disaster and the involvement of a much larger number of patriotic and right-wing entities in its organization, it has become a mass demonstration with tens of thousands to hundreds of thousands of participants, often going there with entire families.
2. Resumption of proceedings against organizers of 2017 Independence March after 7 years
The Independence March was also held on November 11, 2017, the 99th anniversary of Poland’s independence. Three days later, on November 14, Adam Bodnar, who is now Poland’s Justice Minister but was Commissioner for Human Rights at the time, reacted to the march[1], sending a letter to the Regional Public Prosecutor in Warsaw, in which he stated that the Independence March allegedly featured “slogans and symbols of a racist nature, presented in the course of the gathering by some of its participants”[2], which, in his opinion, could constitute features of a crime under Article 256 § 1 of the Criminal Code[3], in connection with which he requested the submission of information on the status of the prosecution’s case, pursuant to Article 13(1)(3) of the Act on the Commissioner for Human Rights[4]. With an analogous inquiry, the then CHR addressed the Commander of the Warsaw Metropolitan Police[5]. On April 26, 2018, the CHR, in turn, reported that “the prosecutor’s office has appointed an expert to issue an opinion on determining the full and real meaning of the symbols and slogans presented during the Independence March and their possible connection with fascism or another totalitarian state system, taking into account the context, place and time of their presentation.”[6] In June 2018. The CHR also conveyed that “in response to the CHR’s request to draw consequences against the officers, the Commander in Chief wrote back on May 25, 2018 that the subordinate departments had made the relevant findings and analyses. They show that the response of the police in terms of actions against participants in the Independence March was in accordance with the adopted tactics, resulting from planned actions.”[7] A decision of the Public Prosecutor of the Regional Prosecutor’s Office in Warsaw dated December 20, 2019. (ref. PO I Ds.292.2017) discontinued the investigation in this case, but the CHR filed a complaint against this decision[8].
Over four years later, Adam Bodnar, already as Justice Minister and Prosecutor General, announced on May 14, 2024, that he had “commissioned, among other things, a study into the legitimacy of substantive decisions made in dozens of cases involving the possibility of crimes against and by participants in marches organized by socially active organizations between 2016 and 2023. The survey covered marches organized by the Committee for the Defense of Democracy or the All-Poland Women’s Strike, but also the 2017 Independence March. […] A lack of justification for the decision to discontinue the proceedings, as well as errors in the due process of the proceedings were also found in the discontinued case concerning public propagation of a totalitarian state system by the organizer and participants of the Independence March in 2017.”[9] On May 21, the Independence March Association] issued a statement saying that “Adam Bodnar’s decision is scandalous and motivated by resentment against manifestations of Polishness and patriotism, so alien to the current left-liberal government,” and that “the resumption of proceedings is unjustified” because both the organizer of the Independence March and its participants “are alien to the concepts of a totalitarian system.”[10]
3. Searches and forcible entry into the headquarters of the organizers of the 2018 Independence March – Violation of Article 224 of the Code of Criminal Procedure
Also after the 2018 Independence March. Adam Bodnar’s main focus as CHR was to seek out at all costs and expose marginal incidents that did not actually impinge on the entirety of the march of several hundred thousand people. On November 13, he asked “what steps have been taken to prevent the participation in the march of people associated with organizations that propagate a totalitarian state system and preach hatred on ethnic, racial or religious grounds.”[11] The Warsaw Regional Prosecutor’s Office opened an investigation into the case on January 4, 2019[12], but it was discontinued on May 14, 2020, for lack of finding of features of a crime. After more than 4 years, on September 4, 2024, the Warsaw-Praga Regional Prosecutor’s Office, which is subordinate to Adam Bodnar – already in his capacity as Prosecutor General – reported that “the investigation revealed, among other things, a video in which one of the marchers directs a criminal threat of violence against another person. The perpetrator’s attire and behavior indicate his affiliation with the Guard of the Independence March,” and “after the investigation was reactivated in 2024, it was determined that the Independence March website operated an electronic form for reporting to serve in the guard – so volunteer data must have been collected. In view of the above, the prosecutor, in order to detect the perpetrator, ordered the Headquarters of the Warsaw Metropolitan Police to search and secure documents and electronic data storage media at the disposal of the organizers of the 2018 Independence March.”[13]
On September 4, 2024, at 06:00 in the morning, police officers reporting to Minister of the Interior and Administration Tomasz Siemoniak appeared with prosecutorial search warrants at the residences of Independence March Association board member Matthew Marzoch and former chairman Robert Bąkiewicz. The officers also summoned the association’s current chairman, Bartosz Malewski, to appear within an hour for questioning, during which he was informed of the prosecutor’s decision to forcibly enter the association’s headquarters. The chairman made his way to the headquarters, where the commander in charge of the police action, when asked if the owner of the premises, which is the Przemysł II Association, had been informed of the whole affair, replied that it was enough that he informed the building administrator. Nor were the other social organizations that are based there or use the premises notified of the police’s actions. None of the representatives of these organizations were allowed to participate in these activities. Immediately prior to forcibly proceeding with the drilling of the locks, contrary to earlier assurances as to the possession and serving of an order from the Regional Prosecutor’s Office granting a search warrant for the premises, no such document was served. Eventually, entry to the premises was gained forcibly, as the person who held the keys to the premises was not in Warsaw that day.
The locks inside the premises to the recording studio and storage room were broken, despite a clear indication that the rooms in question did not contain materials that the police would be looking for. A folder titled “Training Materials” and 4 laptops owned by the Independence March Association were seized, as well as a cell phone and a desktop computer, which representatives of the Independence March Association clearly indicated were not owned by the organization, as it did not possess any such devices.
Article 224 § 1 of the Code of Criminal Procedure[14] clearly indicates that a person on whose premises the search is to be conducted shall be notified before the commencement of the search of its objective and summoned to surrender the objects sought, but this was not done. “Searching and seizing objects shall be conducted in accordance with the objective of the action, with moderation and respect for the dignity of the persons to whom the action relates, and without unnecessary damage or hardship. The search of the Association’s headquarters was a completely disproportionate action, with items significantly beyond the subject matter of the investigation being demanded and secured. This type of action, in our view, violates the constitutional freedom of assembly and association guaranteed by Articles 57 and 58 of the Polish Constitution” – pointed out President Malewski’s attorney, Adv. Magdalena Majkowska[15]. In the end, the Independence March Association filed a complaint against the order to search and seize items and the manner in which the action was carried out[16]. On November 20, however, it was reported that the District Court for Warsaw-Prague North in Warsaw did not uphold any of the complaints[17].
4. Refusal by the Mazovia governor to grant the 2024 Independence March the status of a cyclical assembly and maneuverings by Warsaw Mayor Rafał Trzaskowski
On November 17, 2017 Adam Bodnar, in his capacity as CHR at the time, expressed an opinion in which, with regard to the Independence March, he “expressed doubt as to whether, in light of Article 57 of the Polish Constitution and the provisions of the Law on Assemblies, permission to hold a cyclical assembly for the next three years should be upheld.”[18] On December 29, the Governor of Mazovia at the time concluded that none of the statutory grounds for a possible ban on the assembly existed[19]. Six years later, on December 11, 2023, the Independence March Association submitted an application under Article 26a of the Law on Assemblies for approval to hold cyclical assemblies on November 11 in 2024-2026. De facto, it was a matter of extending this status for the next statutory period, as the Independence March already had this status for 2021-2023.
However, in response to the application, the new Governor of Mazovia – Mariusz Frankowski, who has been affiliated with PM Donald Tusk’s Civic Platform party since 2014 – issued a decision of refusal on January 31, 2024, on the grounds that, in his opinion, the Association was not responsible for the organization of the 2021 Independence March. In fact, the Association was then responsible for all the practical organizational aspects that ensured that the march, like every year, went smoothly and peacefully. Only formally was the organizer at the time exceptionally a public authority – the Office for War Veterans and Victims of Repression, which, however, chose a different place for the end of its march, so that it cannot be identified with the Independence March[20]. On February 2, the Regional Court reversed the governor’s decision[21]. Then on February 4 the Court of Appeals reversed the Regional Court’s decision[22]. On February 6 the Regional Court again revoked the governor’s decision[23], and on February 8 the Court of Appeals again revoked the decision of the court of first instance[24], this time validly upholding the decision of the governor in force[25]. On June 25, after the local and European Parliament elections, the Independence March Association resubmitted its application, but on July 2 the Mazovia governor again issued a decision of refusal, and then on July 4 the Regional Court dismissed the Association’s appeal. Finally, on July 6 the Court of Appeals dismissed the complaint against the decision of the court of first instance[26].
Finally, due to the confrontational attitude of the governor, the Independence March Association filed a notice within the statutory deadline to hold a regular, non-cyclical assembly covering November 11. The organizers were forced to report as many as six gatherings because Warsaw Mayor Rafał Trzaskowski, vice-chairman of PM Donald Tusk’s Civic Platform, did not post information about any of the gatherings in the Public Information Bulletin, which gave no assurance that the demonstrations could take place. At the same time, the organizers of the March wanted to avoid a situation in which someone else would report a gathering at the same place and time in order to prevent the March participants from passing through the streets of Warsaw. Trzaskowski on October 14 issued a decision of refusal[27], arguing that the Association’s actions were aimed at gaining an “advantage” over other gatherings that could possibly take place in Warsaw at that time, which would supposedly “limit the constitutional freedom” of the organizers of those demonstrations. The organization of the Independence March would also allegedly lead to “traffic paralysis” and create “a real threat to the safety of people in other areas and regions of Warsaw.” The Mayor also stated that “holding these gatherings in the manner specified by the organizer may endanger the life or health of people or property of significant size.”
Lawyers of the Ordo Iuris Institute, representing the Association, pointed out in the appeal that Mayor Rafał Trzaskowski, contrary to the regulations in force in Poland, did not allow the Independence March Association to actually participate in the administrative proceedings, and he did not inform it of his intention to close the investigation, thereby preventing it from taking a position and referring to the opinions obtained by the Mayor. He also failed to hold an administrative hearing on the matter, during which the authority could clarify any doubts, if, in his opinion, there were any. According to Ordo Iuris, the Warsaw Mayor’s action was incompatible with Article 32 (1) and (2) of the Polish Constitution. By his actions, Rafał Trzaskowski commited discrimination and violation of the right to equal treatment of the organizer of demonstrations and their participants on the basis of his personal worldview and political opinions[28].
On October 16, the Regional Court in Warsaw dismissed the appeal filed by the Association’s attorneys[29]. However, it conceded to them that the Law on Assemblies does not preclude the organization of multi-day gatherings, and, consequently, the Association met the statutory deadline for filing a notice of demonstrations. But the court agreed with the Mayor’s position that the Independence March would entail a significant threat to human life and health and to property. Lawyers of the Ordo Iuris Institute filed a complaint in this case with the Court of Appeals in Warsaw, which upheld the position of the Regional Court[30]. Ordo Iuris, together with the Independence March Association, also prepared a petition to stop unlawful attacks on the March. Finally, in late October, the Mayor of Warsaw, having come under public pressure, published in the Public Information Bulletin a notice regarding the November 11 assembly[31]. Only thanks to mass public action was the Independence March able to go ahead in full compliance with state laws. The course of the march was peaceful, and by arousing a public attitude of contrariness toward Civic Platform (PO) politicians fighting the March, it also proved to be a victory in terms of turnout, mobilizing some 250,000 people[32].
5. Summary
Article 57 of the Polish Constitution stipulates that “the freedom of peaceful assembly and participation in such assemblies shall be ensured to everyone,” and Article 58(1) stipulates that “the freedom of association shall be guaranteed to everyone.”[33] The Independence March Association’s chairman, Bartosz Malewski, pointed out that “no one cares more than us – the organizers of the Independence March – that Independence Day is a day celebrated with dignity and that the course of the event is peaceful and safe.”[34] Meanwhile, the actions of politicians from the coalition that has been governing in Poland since December 13, 2023, that is, first and foremost, Justice Minister Adam Bodnar, the Governor of Mazovia Mariusz Frankowski, Interior Minister Tomasz Siemoniak, and Warsaw’s Mayor Rafał Trzaskowski – whether acting personally or through officers subordinate to them – aimed at unduly restricting the constitutional freedom of assembly of the organizers and participants of the largest Polish and European patriotic demonstration of the 21st century, Warsaw’s yearly Independence March. These actions were surprisingly in line with the demands formulated for the March by current Justice Minister Adam Bodnar when he was still Poland’s Commissioner for Human Rights. This leads us to believe that trying to make the Independence March as difficult as possible may have been a matter of personal satisfaction for him. In the end, Rafał Trzaskowski bowed to enormous public pressure, and the 2024 Independence March went ahead legally, without controversy, mobilizing as many as a quarter of a million Poles. Nonetheless, the course of events described above shows that freedom of assembly and freedom of association in Poland after December 13, 2023 are not guaranteed by default, as they would be under the Constitution, but selectively, and entities that ideologically disagree with representatives of the ruling camp are sometimes forced to undertake a months-long struggle to secure these freedoms.
Nikodem Bernaciak
[1] What the Celtic cross and the black sun mean – CHR analysis for the Regional Prosecutor’s Office after the November 11, 2017 demonstration in Warsaw, 15/11.2017, https://bip.brpo.gov.pl/pl/content/krzyz-celtycki-i-czarne-slonce-analiza-rpo-dla-prokuratury-po-demonstracji-11-11-2017 (accessed: 10/12/2024).
[2] Letter from the Commissioner for Human Rights to the Regional Prosecutor in Warsaw dated November 14, 2017, ref.: XI.518.90.2017.MS, https://bip.brpo.gov.pl/sites/default/files/RPO%20do%20Prokuratury%20Okr%C4%99gowej%20%20w%20sprawie%20hase%C5%82%20i%20transparent%C3%B3w%2011.11.17.pdf (accessed: 10/12/2024).
[3] Law of June 6, 1997. – Criminal Code, consolidated text: OJ 2024 item 17.
[4] Act of July 15, 1987 on the Commissioner for Human Rights, consolidated text: OJ 2024 item 1264.
[5] CHR asks police about racist slogans at “Independence March” and intervention against anti-fascist picket on November 11, 14/11/2017, https://bip.brpo.gov.pl/pl/content/rpo-pyta-policje-o-hasla-rasistowskie-na-marszu-niepodleglosci-i-interwencję-wobec-pikiety-antyfaszystowskiej (accessed: 10/12/2024).
[6] CHR: On November 11, 2017, police officers violated civil rights and freedoms, 26/04/2018, https://bip.brpo.gov.pl/pl/content/rpo-11-listopada-2017-r-policjanci-naruszyli-prawa-i-wolnosci-obywatelskie (accessed: 10/12/2024).
[7] Police should respond immediately to racist and fascist slogans and symbols – they must also be aware of them, 12/06/2018, https://bip.brpo.gov.pl/pl/content/policja-powinna-niezwlocznie-reagowac-na-hasla-i-symbole-rasistowskie-i-faszystowskie-musi-tez-je-znac (accessed: 10/12/2024).
[8] Investigation into the promotion of totalitarianism and incitement to hatred during the 2017 Independence March has been discontinued. CHR lodges appeal, 13/01/2020, https://bip.brpo.gov.pl/pl/content/rpo-chce-ponownego-sledztwa-ws-incydentow-na-marszu-niepodległosci-2017 (accessed: 10/12/2024).
[9] Review of proceedings on the possibility of committing crimes against and by participants in marches organized by social organizations active in the period from 2016 to 2023, 14/05/2024, https://www.gov.pl/web/prokuratura-krajowa/przeglad-postepowan-dotyczacych-mozliwosci-popelnienia-przestepstw-na-szkode-i-przez-uczestnikow-marszow-organizowanych-przez-organizacje-spoleczne-aktywne-w-latach-2016–2023 (accessed: 10/12/2024).
[10] D. Drozd, Adam Bodnar accuses the Independence March of promoting “Nazism.” Association issues statement, 24/05/2024, https://narodowcy.net/adam-bodnar-zarzuca-marszowi-niepodleglosci-promowanie-nazizmu-stowarzyszenie-wydalo-oswiadczenie/. Cf. 21/05/2024, https://x.com/StowMarszN/status/1792919488037376436 (accessed: 10/12/2024).
[11] CHR takes action after incidents during Independence Day celebrations, 13/11/2018, https://bip.brpo.gov.pl/pl/content/rpo-podejmuje-dzialania-po-incydentach-podczas-obchodow-swieta-niepodleglosci (accessed: 10/12/2024).
[12] Search of Robert Bąkiewicz’s house. Prosecutor’s office comments [NEWS], 04/09/2024, https://www.pap.pl/aktualnosci/przeszukanie-domu-roberta-bakiewicza-prokuratura-komentuje-nowe-informacje (accessed: 10/12/2024).
[13] Announcement on searches at organizers of Independence March, 04/09/2024, https://www.gov.pl/web/po-warszawa-praga/komunikat-w-sprawie-przeszukan-w-sledztwie-3042-1ds762024 (accessed: 10/12/2024).
[14] Law of June 6, 1997. – Code of Criminal Procedure, consolidated text: OJ 2024 item 37.
[15] Warsaw’s yearly Independence March, by far Europe’s biggest patriotic march, is under attack from Tusk’s left-liberal government, 24/09/2024, https://en.ordoiuris.pl/civil-liberties/warsaws-yearly-independence-march-far-europes-biggest-patriotic-march-under-attack (accessed: 10/12/2024).
[16] Association of the March for Independence files complaint about the intrusion of law enforcement agencies into its premises], 12/09/2024, https://ordoiuris.pl/wolnosci-obywatelskie/stowarzyszenie-marsz-niepodleglosci-sklada-zazalenie-na-wtargniecie-sluzb-do-lokalu (accessed: 10/12/2024).
[17] Information on examination of complaints regarding searches in the investigation of the case concerning Independence March, 20/11/2024, https://www.gov.pl/web/po-warszawa-praga/informacja-o-rozpoznaniu-zazalen-na-przeszukania-w-sledztwie-dot-marszu-niepodleglosci (accessed: 10/12/2024).
[18] CHR doubts whether governor should uphold approval for annual Independence March until 2020]., 17/11/2017, https://bip.brpo.gov.pl/pl/content/rpo-ma-watpliwosci-czy-wojewoda-powinien-podtrzymac-zgodę-na-coroczny-marsz-niepodleglosci-do-2020-r (accessed: 10/12/2024).
[19] Letter from the Governor of Mazovia to the Commissioner for Human Rights dated December 29, 2017, ref.: WSO-I.6110.20.2017, https://bip.brpo.gov.pl/sites/default/files/Odpowiedź Wojewody Mazowieckiego na wystąpienie RPO.pdf (accessed: 10/12/2024).
[20] The battle for the Independence March continues. Appeals court strikes down freedom of assembly, 09/02/2024, https://ordoiuris.pl/komentarze/trwa-walka-o-marsz-niepodleglosci-sad-apelacyjny-uderza-w-wolnosc-zgromadzen (accessed: 10/12/2024).
[21] Order of the Regional Court of Warsaw dated February 2, 2024, ref. III Ns 18/24.
[22] Decision of the Court of Appeals in Warsaw of February 4, 2024, ref. I ACz 223/24.
[23] Order of the Regional Court of Warsaw dated February 6, 2024, ref. III Ns 19/24.
[24] Decision of the Court of Appeals in Warsaw of February 8, 2024, ref. VI ACz 361/24.
[25] Decision on the organization of the cyclical assembly on November 11, 09/02/2024, https://www.gov.pl/web/uw-mazowiecki/decyzja-ws-organizacji-cyklicznego-zgromadzenia-11-listopada (accessed: 10/12/2024).
[26] Governor of Mazovia strikes at freedom of assembly and once again denies status of cyclical assembly to Independence March, 12/07/2024, https://ordoiuris.pl/wolnosci-obywatelskie/wojewoda-mazowiecki-uderza-w-wolnosc-zgromadzen-i-kolejny-raz-odmawia (accessed: 10/12/2024).
[27] Decision of the Mayor of the City of of Warsaw dated October 14, 2024, No. WV/5310/ZG/5/2024.
[28] Poland’s ruling left-liberal coalition bans Europe’s largest patriotic march. 18/10/2024, https://en.ordoiuris.pl/civil-liberties/polands-ruling-left-liberal-coalition-bans-europes-largest-patriotic-march (accessed: 10/12/2024).
[29] Order of the Regional Court of Warsaw dated October 16, 2024, ref. II Ns 44/24.
[30] Decision of the Court of Appeals in Warsaw dated October 18, 2024, ref. V ACz 2422/24.
[31] Greenlight for Poland’s Independence March as Warsaw mayor bows to pressure, 28/10/2024, https://en.ordoiuris.pl/civil-liberties/greenlight-polands-independence-march-warsaw-mayor-bows-pressure (accessed: 10/12/2024).
[32] Safely and in numbers – 15th Independence March passes through the streets of Warsaw. Ordo Iuris observers’ report, 18/11/2024, https://ordoiuris.pl/wolnosci-obywatelskie/liczny-i-bezpieczny-15-marsz-niepodleglosci-przeszedl-ulicami-warszawy (accessed: 10/12/2024).
[33] Constitution of the Republic of Poland of April 2, 1997, OJ 1997 No. 78, item 483, as amended.
[34] Bartosz Malewski: Independence March Association on the front lines of the fight for freedom of assembly, 19/10/2024, https://ordoiuris.pl/komentarze/bartosz-malewski-stowarzyszenie-marsz-niepodleglosci-na-froncie-walki-o-wolnosc (accessed: 10/12/2024).