The Polish paradox: Freedom of association as the supreme value even at the expense of adequate supervision

Filip Cyuńczyk

SWPS University

Association as a basic platform for democratic education?

When in 2014, the District Court in Białystok dismissed the prosecutor's application to outlaw the association of the local football club's fans, in its ruling, it not only emphasised the fundamental value of associations in a democratic state but also underscored the importance of protecting these freedoms. This case, which dates back to the beginning of the second decade of the 21st century, was a conflict that occurred between football fans in Poland and the Government at the time. The context of the case was the organisation of EURO 2012 in Poland and Ukraine, and an intensified pressure for enforcement of the restrictive laws regarding football games. Audits and reviews of members of so-called fans' associations had begun. In the case of the Białystok association, it was uncovered that its members were being prosecuted for committing various criminal acts (i.e., involvement in fights, prostitution and drug trafficking) which were not directly related to the association's membership. This was enough for the local prosecutor's office to apply for its outlawing. While the prosecutor's office was entitled to file such a motion, the dismissal of the application by the Court highlighted the Court's commitment to protecting civil liberties and democratic values.

The judge's decision is a direct result of the highly formalistic approach of the Polish legislator to freedom of association. This approach has its origins in Poland's historical experience, which includes a 250-year period of partitions, wars, occupations, national authoritarianism, and communism imposed from the East. This complex history has led to an intriguing state of affairs, where after the democratic transition of 1989, laws on various forms of association (i.e., political parties, trade unions and associations) were enacted. At that time, it was believed that the remedy for the lack of a democratic culture would be legislating their activities in as much detail as possible.

Legislation to safeguard the functioning of associations

The Polish historical experience is visible in the legislation concerning the three forms of association: political parties, trade unions, and other associations. This is also the consequence of the extended constitutional regulation, in which the freedom of association (and its ideological limitations) in the framework of the mentioned types of organisations is defined in five provisions (Articles 11, 12, 13, 58 and 59). Articles 11 and 12 are particularly crucial. They are concerned with the state's role in creating the associations. For, unlike in the times of the Polish People's Republic, "the Republic of Poland [only - FC] guarantees the freedom to establish and run" political parties (Article 11), as well as other forms of association (Article 12).

Dedicated legislation is characterised, above all, by extensive regulation in ordinary legislation. This has its positive and negative aspects. Nevertheless, analysing it, in particular the provisions relating to the role of the state supervisory organs, will help understanding (to some extent) the judge's decision to refuse outlawing.

According to the relevant legislation, all three forms of association are supposed to be characterised primarily by voluntary membership. The most significant restrictions on the possibility of joining are mainly related to age and citizenship, and concern political parties. Nevertheless, in all types of organizations (associations, trade unions, political parties), the issue of voluntariness is closely linked to the organisational self-governance of the associations. Importantly, according to the Constitution, when it comes to state supervision, the Republic of Poland assumes only the passive role of protector of freedom of association. Therefore, state intervention in the operations of specific parties, trade unions and other forms of association can only occur in exceptional cases.

For political parties, supervision occurs at the stage of registration. Indeed, suppose the registry court doubts whether the party's objectives fit into the axiology of the political community. In that case, it is obliged to suspend the proceedings to ask the Constitutional Court to examine the charter of the future party (Article 14 of the Political Parties Act). The main issue in this case is whether there has been a violation of Article 13 of the Constitution, which expressly prohibits any form of association that refers to communist and fascist ideology. The court of jurisdiction is also a platform for keeping basic information about political parties and changes to it. However, the court only becomes active when the party violates any of its information obligations under the statute (Article 19(2) of the Political Parties Act). The same situation arises in the case of its liquidation. The basic principle in this case is its self-dissolution by resolution of the party's competent organ (Article 45(1)). The state's preferred form of terminating its activities is an operation based on the autonomous will of the members. According to the second point of the provision, the state (or rather the judicial authority) may intervene only in strictly defined cases. In the current state of the law, there are three such possibilities. Firstly when, according to Article 20 of this statute, a political party, despite the court's reminders, continues to evade its information obligation. Secondly, when the Constitutional Court finds the party's charter unconstitutional (Article 21(2)). Thirdly, when the Constitutional Court finds that the party's political objectives and activities are incompatible with the Constitution (Article 42).

Similar norms are applied in the Trade Union Act. In this act the registration court is the only body able to ascertain law violations and to take remedial measures. The procedure and the subsequent supervision of trade unions' activities are similar to the solutions adopted under the law on parties. The court registers the trade union, collects information about it, supervises the fulfilment of information obligations and, in exceptional cases, punishes or liquidates the union. The conditions that must precede the removal of a union from the register by the court are set out in Article 36. It should be emphasised that this is a last resort. It is preceded by a series of steps taken by the court to correct the trade union's wrongful activities as a priority.

In the case of other forms of associations, both the catalogue of the supervisory authorities and their role are broader, but this does not entirely change the legislator's intention. In the case of political parties and trade unions, the judiciary is practically the only branch of power that can influence such associations. Still, in the case of other associations, the supervisory powers are also extended to the administration (both governmental and self-governmental). However, this does not mean that they decide on the most important matters concerning the vital needs of the associations. Here, the final word - as the case of the supporters' association has shown - is still reserved for the courts.

In the case of associations, the court decides both on their registration and their deletion from the register, and it also sees that they comply with their information duties. The law strictly defines the scope of supervision of associations. According to Article 25 of the Law on Associations, it can only audit its activities in terms of respecting the law and the provisions of the association's charter. However, the supervisory organ cannot punish an association for activities not complying with the law or the charter. This competence is only given to the judicial authority (Article 26). The same applies to the dissolution of an association for illegal activities. The court assesses whether there are prerequisites for improvement or whether the association should be dissolved. The court cannot examine this issue ex officio. A request from the supervisory authority or the public prosecutor must precede its action. For the association to be outlawed, the prerequisites of Article 29 must be cumulatively fulfilled. Specifically, a) its activities must violate the provisions of the laws; b) the conditions for the remedy of such a state of affairs do not exist.

Conclusion: The Polish paradox, association is an ultimate value

The case briefly mentioned at the beginning of this text shows a rather interesting paradox concerning Polish legislation implementing the constitutionally guaranteed freedom of association. First of all, freedom of association is a strictly protected - and, consequently, legally regulated - value of the Polish democratic political community. The statutory conditions for state supervision of individual forms of association indicate that the legislator's aim is primarily to be sure that the law effectively ensures such freedom. The only value overriding freedom of association is the principle of the rule of law (Article 2 of the Constitution). As a result, if a particular type of association does not blatantly and obtrusively violate the law, it is almost impossible for the state to influence its activities. This was evident in the case of the football fans' association. It was irrelevant to the court that its members had legal problems. What was crucial was whether the outlawing addresses the relevant statutory grounds for or not. This may be because the experience of historical liberty deficits has led to a situation in which any form of state interventionism, even in a potentially just cause, is a greater threat than the questionable activity of individuals.

Dr. Filip Cyuńczyk is an Assistant Lecturer at SWPS University in Warsaw, Poland

Suggested citation: Filip Cyuńczyk, ‘The Polish paradox: Freedom of association as the supreme value even at the expense of adequate supervision’ IACL-AIDC Blog (24 September 2024) The Polish paradox: Freedom of association as the supreme value even at the expense of adequate supervision — IACL-IADC Blog (blog-iacl-aidc.org)