Poland’s government has introduces a curfew on New Year’s Eve as part of tougher coronavirus restrictions. But leading legal voices have argued that the measure is unlawful, while former prime minister Donald Tusk compared it to the period of communist martial law in the 1980s.
Last week, the health minister unexpectedly announced that a stricter new lockdown would be introduced after Christmas, despite coronavirus infections being in decline since early November.
Among the measures is a ban on people going out between 7 p.m. on New Year’s Eve and 6 a.m. on New Year’s Day (with exceptions for work or other necessary activities). This week, the government formalised the new restrictions by publishing them as an ordinance in the Journal of Laws.
If police catch anyone breaching the rules, they can hand out on-the-spot fines of up to 500 zloty (€110). More serious violations can be referred to the sanitary inspection authorities and courts, where fines of up to 30,000 zloty (€6,600) may be issued.
However, Adam Bodnar, Poland’s human rights commissioner, has released a statement saying that the curfew is “unlawful”.
“The introduction of a prohibition on movement through an ordinance constitutes a particularly flagrant violation of the constitution, which provides everyone with freedom of movement,” wrote Bodnar. “There are no relevant statutory provisions that allow such restrictions to be imposed.”
Under current laws, the government can only impose certain restrictions on movement , such as maintaining distancing, but cannot ban it completely. Stripping Poles of their fundamental rights and freedoms, Bodnar says, should not be done by means of an ordinance. Such restrictions can be introduced exclusively under a state of emergency.
Government spokesman Piotr Müller claims, however, that temporary measures introduced for New Year’s Eve are legally binding and based on the same laws as regulations that were imposed in the spring to curb the initial spread of the virus.
Müller confirmed that the police will have the “possibility to hand fines to those who leave their house on New Year’s Eve in other than defined circumstances” (such as going to a pharmacy, shop or work). But he added that he hopes this will not be necessary as “everyone will be responsible enough to adapt to the new rules”.
“We count on responsibility, self-discipline and mutual understanding during these celebrations,” said police spokesman Mariusz Ciarka.
Yet according to Mikołaj Małecki, a legal scholar at the Jagiellonian University, not only does the New Year’s Eve curfew lack legal foundation, but so do restrictions on Christmas gatherings, which are limited to five guests from outside the household.
Such restrictions can only by introduced through a law passed by parliament, a higher-level legislative act than the ordinance issued and published by the government, he explained.
In response to Müller’s argument that the new restrictions are lawful because similar measures were introduced on the same basis in spring, Malecki argues that those previous restrictions “also had no legal foundation”.
Like Bodnar, Malecki says that without the declaration of a state of emergency there can be no lawful movement restrictions, freezing of businesses, or limits on numbers of participants during Christmas gatherings. “This is an unlawful restriction of civil liberties,” he writes
The restrictions have also drawn criticism from the opposition, most notably Donald Tusk, the former Polish prime minister and current president of the European People’s Party, who is a fierce critic of Poland’s ruling Law and Justice (PiS) party.
Tusk appeared to compare the New Year’s Eve curfew to martial law, which was imposed by the communist authorities in Poland in December 1981 and continued until 1983.
“The difference between martial law and PiS rule is that back then curfew was suspended for New Year’s Eve but now they are introducing it,” tweeted Tusk, who also noted that, despite the tough new measures, casinos are still allowed to function and churches would still be open for midnight masses at Christmas.
Różnica między stanem wojennym a rządami PiS jest taka, że wtedy na Sylwestra zawieszono godzinę policyjną, a teraz ją wprowadzają. Co do kasyn, brak danych. Pasterka bez zmian.
— Donald Tusk (@donaldtusk) December 17, 2020
In response, PiS MP Tomasz Rzymkowski noted that other EU countries have also introduced similar curfews without any criticism from Tusk. Adam Andruszkiewicz, a government minister, told state broadcaster TVP that Tusk appears to now be an “internet troll” rather than a politician.
Joanna Senyszyn, an MP for The Left, the second largest opposition group, said that the current situation is incomparable to martial law. However, she agreed that the government’s actions have been inconsistent. “If churches were closed, then Poles would sooner understand the restrictions on New Year’s Eve,” she said.
Main image credit: Szymcar/Wikimedia Commons (under CC BY-SA 3.0)
Agnieszka Wądołowska is deputy editor of Notes from Poland. She has previously worked for Gazeta.pl and Tokfm.pl and contributed to Gazeta Wyborcza, Wysokie Obcasy, Duży Format, Midrasz and Kultura Liberalna
