FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44158/98 by Jerzy GORZELIK and others against Poland

The European Court of Human Rights (Fourth Section), sitting on 17 May 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 18 June 1998 and registered on 29 October 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the parties’ oral submissions at the hearing on 17 May 2001,

Having deliberated, decides as follows:

THE FACTS

The applicants are Polish nationals. The first applicant, Mr Jerzy Gorzelik , born in 1971, is a university teacher residing in Katowice. The second applicant, Mr Rudolf Ko ł odziejczyk, born in 1940, is an economist residing in Rybnik.  The third applicant, Mr Erwin Sowa, born in 1944, is a steelworker residing in Katowice. They are represented before the Court by Mr S. Waliduda, a lawyer practising in Wroc ł aw, Poland .

The respondent Government are represented by their Agent, Mr K. Drzewicki of the Ministry of Foreign Affairs, assisted by Ms R.Kowalska, counsel and Mr K.W. Czaplicki and Mr D. Rzemieniewski, advisers.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On an unspecified date the applicants (who all describe themselves as “Silesians”), together with one hundred and ninety other persons, decided to form an association ( stowarzyszenie ) called the “Union of People of Silesian Nationality” ( Związek Ludności Narodowości Śląskiej ). On an unspecified date a memorandum of association was adopted and the applicants were elected to the provisional management committee ( Komitet Założycielski ) and authorised to proceed with the registration of the association.

On 11 December 1996 the applicants, acting on behalf of the provisional management committee of the “Union of People of Silesian Nationality”, lodged an application for the registration of their association with the Katowice Regional Court ( Sąd Wojewódzki ).  They relied on, inter alia , Section 8 (2) of the Law of 7 April 1989 on Associations (hereinafter referred to as the “Law on Associations”). They submitted the memorandum of association along with other documents required by the Law on Associations.  The memorandum of association read, insofar as relevant:

“§ 1. The present association shall be called the “Union of People of Silesian Nationality” (hereinafter referred to as the “Union”).

§ 2. The Union shall conduct its activity on the territory of the Republic of Poland; it may establish local branches.

...

§ 6 (1) The Union may join other domestic or international organisations if the aims pursued by [the latter] correspond to the aims pursued by the Union.

...

§ 7. The aims of the Union are:

(1) to awaken and strengthen the national consciousness of Silesians;

(2) to restore Silesian culture;

(3) to promote knowledge of Silesia;

(4) to protect the ethnic rights of persons of Silesian nationality; [and]

(5) to provide social care for members of the Union.

§ 8. The Union shall accomplish its aims by the following means:

(1) organising lectures, seminars, training courses and meetings; establishing libraries; and clubs and carrying out scientific research;

(2) organising cultural and educational activities for members of the Union and other persons;

(3) carrying out promotional and publishing activities;

(4) promoting the emblems and colours of Silesia and Upper Silesia;

(5) organising demonstrations or [other] protest actions;

(6) organising sporting events ... and other forms of leisure activities;

(7) establishing schools and other educational establishments;

(8) cooperating with other organisations;

(9) conducting business activities for the purpose of financing the aims of the Union; this may include establishing commercial entities and co-operating with other [commercial] entities;

(10) establishing other entities or [legal] persons with a view to achieving the aims of the Union; and

(11 any other activities.

§ 9. There shall be two categories of members of the Union, namely, ordinary members and supporting members.

§ 10. Any person of Silesian nationality may become an ordinary member of the Union.

...”

Paragraph 15 read, insofar as relevant:

“A person shall cease to be a member of the Union if:

…

2. (a) the board of auditors submits a motion proposing that he be deprived of membership and giving grounds, and if the management board so decides;

(b) the board of auditors may base its motion on such reasons as the fact that the member in question has not fulfilled the requirements set out in the memorandum of association for becoming a member or has failed to perform the duties of members as specified in § 14.

...

Paragraph 30 provided:

“The Union is an organisation of the Silesian national minority.”

On an unspecified date the Katowice Regional Court, pursuant to Section 13 § 2 of the Law on Associations, served a copy of the applicants’ application, together with the copies of the relevant enclosures, on the Katowice Governor ( Wojewoda ).

On 27 January 1997 the Katowice Governor, acting through the Department of Civic Affairs ( Wydział Obywatelski ), submitted his comments on the application to the court.  These comments contain lengthy arguments against allowing the association to be registered, the main thrust of which is as follows:

“(i) It cannot be said that there is a “Silesian” (Ślązak), in the sense of a representative of a distinct “Silesian nationality”.  “Silesian” is a word denoting a representative of a local ethnic group, not a nation.  This is confirmed by § 7 (1) of the memorandum of association, which aims merely at “awakening and strengthening the national consciousness of Silesians”. …

(ii) Social research relied on by the applicants to demonstrate the existence of a “Silesian nationality” does not accord with numerous other scientific publications.  Polish sociology distinguishes between two concepts of “homeland”, i.e. a “local homeland” and a “ideological homeland”.  In German, this distinction is expressed by the terms “Heimat” (local homeland) and “Vaterland” (ideological homeland).  The research relied on by the applicants merely refers to the self-identification of the inhabitants of Silesia, indicating that their local self-identification takes precedence over their national self-identification. …

(iii) The memorandum of association states in § 10 that any person of Silesian nationality may become an ordinary member of the association but does not clearly specify the criteria for establishing whether or not a given person fulfils this condition.  This absence of unambiguous criteria is contrary to Section 10 §§ (1) and (4) of the Law on Associations.  Moreover, it renders § 15 (2) (b) of the memorandum unlawful, for that provision allows the board of management to deprive a member of his membership in the event that he does not fulfil the conditions set out in the memorandum of association. …

(iv) Paragraph 30 of the memorandum of association, which calls the Union an “organisation of the Silesian national minority”, is misleading and does not correspond to the facts.  There is no basis for regarding the Silesians as a national minority.  Recognising them as such would have been in breach of Articles 67 § 2 and 81 § 1 of the [old] Constitution, which guarantee Polish citizens equal rights.  In particular, under the relevant provisions of the Law of 28 May 1993 on Parliamentary Elections (hereinafter referred to as the “Law on Parliamentary Elections”) (Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej), registration of the Union would give it a privileged position in respect of the distribution of seats in Parliament.  The Union would obtain privileges and rights guaranteed to national minorities in respect of education in their native language and access to the media.  The registration of the association would have been to the detriment of other ethnic groups in Poland, such as Cracowians (Krakowiacy), Highlanders (Górale) and Mazurians (Mazurzy); this would have amounted to a return to the tribalism (podziały plemienne) which had existed prior to the formation of the Polish State. …

(v) We therefore propose that the memorandum of association should be amended so as to reflect the above observations.  In particular, the misleading name of the association should be changed, the criteria for membership should be set out in an unambiguous manner and § 30 should be deleted.  In our opinion, these are the conditions for registration of the association.”

On 13 March 1997 the applicants submitted a pleading in reply to these arguments.  They asserted that the fact that the majority of Poles failed to recognise the existence of a Silesian nation did not mean that there was no such nation.  They cited various scientific publications and went on to explain that the fact that the Silesians formed a distinct group had already been acknowledged at the end of the First World War; moreover, the Silesians had always sought to preserve their identity and had always formed a distinct group, regardless of whether Upper Silesia had belonged to Germany or to Poland. Consequently, any comparison between them and the Cracowians or Highlanders was totally unjustified because the latter groups neither regarded themselves as a national minority, nor had they ever been perceived as such in the past. Finally, the applicants cited certain letters of the Ministry of the Interior, which had been published by the press and which explained that the National and Ethnic Minorities Bill had explicitly stated that  a “declaration that a person belongs to a minority shall not be questioned or verified by the public authorities”.

On 9 April 1997 the Katowice Governor submitted a pleading to the court. He maintained his previous position. On 14 April 1997 he produced two letters from the Ministry of the Interior (dated 4 February and 10 April 1997 respectively, and addressed to the Department of Civic Affairs of the Office of the Katowice Governor). The relevant parts of the letter of 4 February 1997 read:

“We share your doubts as to whether certain inhabitants of Silesia should be deemed to be a national minority.  We therefore propose that you submit your observations to the court, pointing out these doubts, and that you request the court to grant you leave to join the proceedings as a party.

We propose that you rely on the fact that the Framework Convention for the Protection of National Minorities has not been ratified by Poland, so that its provisions [do not apply in the domestic legal system]. ...

In our view, neither historical nor ethnographical circumstances justify the opinion that the inhabitants of Silesia can be recognised as a national minority.”

The relevant parts of the letter of 10 April 1997 read as follows:

“In reply to your letter of 2 April 1997 ... we inform you that we maintain the position expressed in our letter of 4 February 1997.

The arguments advanced by the provisional management committee of the association [in their pleading of 13 March 1997] do not contain any new elements; [in particular] ... the Framework Convention is not applicable law in Poland.

Likewise, the letters of the Ministry of the Interior [on the interpretation of the National and Ethnic Minorities Bill] do not change the situation.

The sense of belonging to a nation falls within the realm of personal liberties; it does not in itself entail any legal consequences.  [By contrast,] the formation of an organisation of a national minority is a legal fact which entails legal consequences such as, for instance, those referred to in the Law on Parliamentary Elections.

In the circumstances, the registration of the association called  the “Union of People of Silesian Nationality” could be allowed provided that the existence of such a nation had been established.”

On 28 April 1997 the applicants submitted a further pleading to the court.  They criticised the arguments of the Ministry of the Interior, pointing out that the latter had failed to indicate any legal basis for rejecting their request for registration of their association.  In particular, the authorities had not demonstrated that any provision of the memorandum of association was contrary to the law whereas, under Section 2 of the Law on Associations, “the exercise of the right to association may be subject only to such limitations as are prescribed by statute and are necessary for ensuring the interests of national security or public order, for the protection of health or morals, or for the protection of rights and freedoms of others”.  Finally, the applicants stated that they refused to amend the memorandum of association in the manner proposed by the authorities, in particular in respect of the name of the association and the content of § 30.  They accepted, however, to amend § 10 of the memorandum and phrased it as follows:

“Everyone, who is a Polish citizen and who has submitted a written declaration stating that he is of Silesian nationality, may become an ordinary member [of the Union].”

On 23 May 1997 the Katowice Regional Court held a so-called “preliminary session” ( posiedzenie wyjaśniające ) aimed at obtaining comments and explanations from the parties and settling the matters in dispute.

On 27 May 1997 the applicants submitted a pleading to the court, maintaining that in the course of the above-mentioned session the authorities had “ de facto acknowledged that a Silesian nation exists”, in particular by accepting the name of the association and certain provisions of the memorandum (i.e. § 7 (1) and (4) and § 10)”. They stressed however that the authorities’ insistence on deleting § 30 was “unjustified and illogical” and, consequently, refused to alter or delete this provision.

Later, on 16 June 1997, the Katowice Governor submitted a further pleading to the court, opposing the registration of the association.

On 24 June 1997 a single judge, sitting in camera as the Katowice Regional Court, granted the applicants’ application and registered their association under the name of the “Union of People of Silesian Nationality”.  The reasons for this decision read, insofar as relevant:

“... There was a dispute between [the parties] over the concepts “nation” and “national minority”.  Finally [the authorities concerned] pleaded that the application for registration of the association should be dismissed.

This court has found that the application is well-founded [and as such should be granted].

In the Preamble to the Law on Associations, the legislator guarantees [everyone] a cardinal right, the right to freedom of association, which enables citizens, regardless of their convictions, to participate actively in public life and to express different opinions, and to achieve individual interests.

Freedom of association is one of the natural rights of a human being.  [For this reason,] Section 1 (1) of the Law on Associations does not establish the right to freedom of association but merely sets out the manner and limits of its exercise, thus reflecting Poland’s international obligations [i.e. those undertaken under Article 22 of the International Covenant on Civil and Political Rights and Article 11 of the European Convention for the Protection of Human Rights].

Under Section 1 (2) of the Law on Associations, the right to form an association may be subject only to such limitations as are prescribed by statute either in the interests of national security or public safety, or in the interests of public order, or for the protection of health and morals, or for the protection of rights and freedoms of other persons.  No other restrictions can be placed on the exercise of the right to associate with others.

As late as 16 June 1997, in their pleading, the authorities advanced the argument that the registration of the present association would infringe rights and freedoms of others because it would result in an unequal treatment of other local communities and would lead to diminishing their rights.

This argument is unconvincing since it does not emerge from the content of the memorandum of association that the future activity of the association is aimed at [diminishing] rights and freedoms of others.

Pursuant to § 7 of the memorandum of association, the aims of the association are [, for example,] to awaken and strengthen the national consciousness of Silesians, to restore Silesian culture, to promote knowledge of Silesia and to provide social care for members of the association.  None, certainly none of these aims is directed against the rights and freedoms of others.  The means to be used for accomplishing these aims are not directed against the rights and freedoms of others either.  Thus, those means comprise organising lectures and seminars, carrying out scientific research, establishing libraries, organising cultural and educational activities for members and other persons, carrying out promotional and publishing activities, promoting the emblems and colours of Silesia and Upper Silesia, organising demonstrations and protest actions, organising sporting events, setting up schools and other educational establishments, conducting business activities and co-operating with other organisations.

In sum, the argument that the association would infringe the rights and freedoms of others must definitely be rejected.  Moreover, it should be noted that this argument refers to [a mere possibility] because only practical action taken by the association could demonstrate whether, and if so to what extent, the [future] activity of the association would require the recourse to measures aimed at protecting the rights of others.

As regards the terms “Silesian nationality” or “Silesian national minority”, the problems involved in the determination of their proper meaning cannot be examined by this court in detail.

This court must, under Section 13 (1) of the Law on Associations, rule on the present application within a period not exceeding three months from the date on which it was lodged.  Therefore, it is not possible [in the framework of the present proceedings] to determine such complicated issues (which involve problems falling within the area of international relations).

It is, however, possible to assume, for the purposes of making a ruling in these proceedings, that the nationality of an individual is a matter of choice for him; moreover, it is a matter of common knowledge that the original inhabitants of Silesia constitute a minority in Upper Silesia - at least for anyone who has ever spent some time in this region and has been willing to perceive this fact.  After all, the authorities, although they rend their garments [sic], complaining that the applicants dared to establish an association, do not contest the fact that [the Silesians] are an ethnic minority.

Therefore this court, finding that the provisional management committee complied with the requirements laid down in Sections 8 (4), 12 and 16, read together with Section 13 (2) of the Law on Associations and Section 516 of the Code of Civil Procedure, holds as in the operative part of the decision”.

On 2 July 1997 the Katowice Governor lodged an appeal with the Katowice Court of Appeal ( Sąd Apelacyjny ), requesting that the first-instance decision be quashed, that the case be remitted to the court of first instance, and that expert evidence be obtained in order to determine the meaning of the terms “nation” and “national minority”.  In his appeal, he alleged that the court of first instance had violated Sections 1 (1) and 2 of the Law on Associations and unspecified provisions of the Code of Civil Procedure.  The reasons for the appeal read, insofar as relevant:

“[The court of first instance] formally recognised and legally sanctioned the existence of a distinct Silesian nation constituting a “Silesian national minority”.

In our opinion, such an important and unprecedented ruling, which is of international significance, could not and should not be given without defining the concepts of “nation” and “national minority”.  The Regional Court, leaving this issue aside - merely because of certain statutory time-limits - simplified the proceedings in an unacceptable manner.  This led, in itself, to a failure on the part of the court to establish all the circumstances relevant for the outcome of the case and, furthermore, provided a sufficient basis for this appeal.

The appellant admits that Polish law does not define the terms “nation” and “national minority”.  This, however, does not justify the opinion of the lower court that “the nationality of an individual is a matter of choice for him”.

The appellant does not contest the right of a person to decide freely on belonging to a national minority; however, a precondition for making such a choice is the existence of a “nation” with which that person identifies himself.

The decision appealed against proclaims the opinion that the subjective feelings of the person concerned suffice for the purposes of creating a “nation” or a “nationality”.  Having regard to the social repercussions which may result from such an approach, it is not possible to agree with it.

In these circumstances, prior to making any decision on the registration of the “Union of People of Silesian Nationality”, it is necessary to determine whether a “Silesian nation” exists - a distinct, non-Polish nation - and whether it is admissible in law to create a “Silesian national minority”.

In the appellant’s opinion, there are no objective arguments in favour of the finding that a distinct Silesian nation exists.  In case of doubt, ... this question should be resolved by obtaining evidence from experts.

In the contested decision, the lower court in principle focused on determining whether the aims of the association and the means of accomplishing those aims were lawful. …  The appellant does not contest the majority of these aims; it must be said that such activities as restoring Silesian culture, promoting knowledge of Silesia or providing social care for members of the association are worthy of respect and support.  However, these aims can fully be accomplished without the contested provision of the memorandum of association, i.e. § 30 ... .  In addition, the applicants were not prevented from incorporating the above-mentioned aims into the memorandum of an existing association called the “Movement for the Autonomy of Silesia” (Ruch Autonomii Śląska), the more so as the applicants belong to influential circles of the latter organisation.

The fact that the applicants have failed to do so but [,instead,] are creating a new association, and are describing themselves as a “Silesian national minority”, clearly demonstrates what is their real objective.  In fact, their objective is to evade the provisions of the Law of 28 May 1993 on Parliamentary Elections, under which parties or other organisations standing in elections must reach a threshold of 5% or 7% of the vote in order to obtain seats in the Parliament.  This issue was already touched on in the pleading of 27 January 1997 and during the sitting held on 23 May 1997.

Legal acts – including the act of adopting a memorandum of association - are null and void under Section 58 (1) of the Civil Code if they aim at evading the law.  Legal theory formulates the opinion that defects in legal acts, as defined in Section 58 of the Civil Code, may constitute a basis for refusing to register an association.

Sanctioning the rights of the “Silesian national minority” amounts to discrimination against other regional and ethnic groups or societies.  This will be the case at least in the sphere of election law and will be contrary to Article 67 § 2 of the Constitution. …”

On 24 September 1997 the Katowice Court of Appeal held a hearing. The Katowice Prosecutor of Appeal ( Prokurator Apelacyjny ) appeared before the court and requested it to grant him leave to join the proceedings as a party intervening on behalf of the authorities. The leave was granted. Further, the court heard the appellant, the prosecutor (who requested the court to set aside the first-instance decision and dismiss the applicant’s request) and the applicants. On the same day the court gave a decision setting aside the first-instance decision and dismissing the applicants’ application for their association to be registered. The reasons for this decision read, insofar as relevant:

“... The lower court, by registering the association called the “Union of People of Silesian Nationality”, approved § 30 of the memorandum of association, which states that the union is an organisation of the Silesian national minority.  Therefore, we agree with the appellant that the Union, on the basis of the above-mentioned paragraph, would have the right to benefit from the statutory privileges laid down in Section 5 of the Law on Parliamentary Election [these include an exemption from the requirement to obtain not less than 5% (in respect of regional lists of candidates)  or 7% (in respect of national lists of candidates) of vote in order to obtain seats in the Parliament]. ...

Furthermore, recognising the Silesians as a national minority may also imply further claims on their part [for privileges] granted to national minorities by other statutes. ...

Contrary to the opinion expressed by the lower court, it is possible to determine whether or not the Silesians constitute a national minority in Poland; it is not necessary to obtain expert evidence in this respect.

Under Article 228 § 1 of the Code of Civil Procedure, facts which are a matter of common knowledge, i.e. those which every sensible and experienced citizen should know, do not need to be proved.  Common knowledge includes historical, economical, political and social phenomena and events.

It is therefore clear that at present there exists no legal, commonly accepted in international relations, definition of “nation” and “national minority”. ...

On the other hand, an “ethnic group” is understood as a group which has a distinct language, a specific culture and a sense of social links, which is aware of the fact that it differs from other groups, and which has its own name.

Polish ethnographic science of the 19th and 20th centuries describes “Silesians” as an autochthonous population of Polish origin residing in Silesia - a geographical and historical region.  At present, due to political and social changes, the term “Silesians” equally refers to immigrant inhabitants who have been residing in this territory for several generations and who have been identifying themselves with their new region of residence.  It also refers to the German-speaking population, linked with Silesia by [such factors as] birth, residence and tradition (see the Encyclopaedia published by the Polish Scientific Publishers in 1996). ...

The applicants derive their claimed rights from the principles contained in the [Framework Convention for the Protection of National Minorities], stating that every person belonging to a national minority shall have the right freely to choose to belong or not to belong to such a minority. ... In invoking European standards, they fail, however, to remember that a national minority with which a given person identifies himself must exist.  There must be a society, established on the basis of objective criteria, with which this person wishes to identify.  No one can determine his national identity in isolation from a fundamental element, which is the existence of a specific nation.

It emerges from the above-mentioned definition of “nation” that a nation is formed in a historical process which may last for centuries and that the crucial element which forms a nation is its self-identification, that is to say its national awareness established on the basis of the existing culture by a society residing on a specific territory.

Certainly, the Silesians belong to a regional group with a very deep sense of identity, including their cultural identity; no one can deny that they are distinct.  This does not, however, suffice for them to be considered as a distinct nation.  They have never commonly been perceived as a distinct nation and they have never tried to determine their identity in terms of [the criteria for a “nation”].  On the contrary, the history of Silesia unequivocally demonstrates that autochthonous inhabitants [of this region] have preserved their distinct culture and language (the latter having, from the ethnic point of view, Polish roots), even though their territories were not within the borders of the Polish State and even though they were under strong German influence.  They are therefore  Silesians - in the sense of [inhabitants of the] region, not in the sense of [their] nationality.  Thus, Upper Silesia, in its ethnic roots [sic], remained Polish; this was, without a doubt, demonstrated by three uprisings.  The role played by the Silesians in building and preserving the Polish character of Silesia, even though they remained isolated from their homeland, is unquestionable.

However, a given nation exists where a group of individuals, considering themselves a “nation”, is in addition accepted and perceived as such by others.  In the common opinion of Polish citizens, both the Silesians and other regional groups or communities [e.g. Highlanders or Mazurians] are perceived merely in terms of local communities.  In the international area Poland and, similarly, France and Germany, are perceived as single-nation States, regardless of the fact that there exist distinct ethnic groups (e.g. the inhabitants of Alsace or Lorraine in France, or the inhabitants of Bavaria in Germany).

On the whole, sociologists agree that the Silesians constitute an ethnic group and that the autochthonous inhabitants [of Silesia] do have some features of a nation but that those features are not fully developed.  This ... means that the awakening of their national identity is still at a very early stage.  A nation exists only when there are no doubts as to its right to exist. ... In Poland national minorities do constitute only a small part of the society, that is to say about 3-4%.  They comprise - and this has never been denied - Germans, Ukrainians, Belorussians, Lithuanians, Slovaks, Czechs, Jews, Roma, Armenians and Tartars.

In the Polish tradition, national minorities are perceived as groups linked to a majority outside Poland; in other words, a minority is an ethnic group which has support amongst a majority [residing] abroad.  Moreover, traditionally, our society has not considered that groups which preserve a distinct culture but which do not belong to any State can be deemed to be national minorities.  For this reason and for a long time the Roma people were regarded as an ethnic, not a national group. ...

The applicants’ opinion that the mere choice of the individual concerned is decisive for his nationality is reflected in § 10 of the memorandum of association.  The acceptance of this opinion would consequently lead to a situation in which the aims pursued by the association could be accomplished by groups of members who do not have any connection or links with Silesia and who have become members of the Union solely to gain an advantage for themselves.  Undoubtedly, such groups of members cannot [be allowed] to accomplish the aims of an association of a national minority. ...

The applicants have relied on the results of  sociological research carried out in 1994 in Katowice Province.  Indeed, the research demonstrates that 25% of persons requested to declare their ethnic and regional identity replied that they were Silesians.  However, it transpires from [the material collected in the course of another piece of sociological research of 1996 which was submitted by the applicants during the appellate hearing] that two years later the number of persons considering themselves as Silesians decreased to 12.4% and that, moreover, the majority of inhabitants of Katowice Province considered themselves as Poles (i.e. 81.9% , including 18.1% of persons declaring that they were “Polish Silesians”; only 3.5% of inhabitants considered themselves as Germans, including 2.4 % declaring that they were “German Silesians”).

In the light of the above research it cannot be said that such weakly established self-identity of a small (and decreasing) group of Silesians, demonstrated by their refusal to declare that they belong to the [Polish] nation, provides a basis for recognising that all the Silesians (residing in Silesia for generations and declaring that they belong to the Polish nation) do constitute a separate nation.  This would be contrary to the will of the majority; the will well known to the applicants.

Therefore, we find that the appellant is right in submitting that granting the applicants’ request for their association to be registered is unjustified because the memorandum of association is contrary to the law, i.e. Section 5 of the Civil Code.  Thus, the request is aimed at registering an organisation of a minority which cannot be considered as a national minority and at evading the provisions of the Law on Parliamentary Elections and other statutes conferring particular privileges on national minorities.  Granting such a request could lead to granting the association concerned unwarranted rights.  This would moreover advantage their organisation to the detriment of other regional or ethnic organisations.

In these circumstances, under Section 14 of Law on Associations and Article 58 of the Civil Code, read together with Articles 386 § 1 and 13 of the Code of Civil Procedure  and Section 8 (4) of the Law on Associations, the appeal must be allowed ... .”

On 3 November 1997 the applicants lodged a cassation appeal ( kasacja ) with the Supreme Court ( Sąd Najwyższy ).  They alleged that the Katowice Court of Appeal had wrongly interpreted the relevant provisions of the Law on Associations and that its decision had contravened Article 84 of the Constitution, Article 22 of the International Covenant on Civil and Political Rights and Article 11 of the Convention.  Their arguments may be summarised as follows.

“The principal issue to be determined by the Court of Appeal was whether the memorandum of the applicants’ association complied with the statutory requirements since a refusal to register an association could be justified only if a given activity as specified in the memorandum of association was banned by the law.  This was clearly not the case as the court’s fear that the registration of the applicants’ association would in the future lead to discrimination against other national or ethnic minorities was based on mere speculation.  In any event, the Law on Associations [in Sections 8 (2), 25 et seq.] provided for various means whereby the activity of an association could be supervised by the competent State authorities or, in the event that its activity was in breach of law, the association could be dissolved.

However, the Court of Appeal, instead of determining formal elements conclusive for the registration, firstly decided that the core issue in the proceedings was to establish whether a Silesian nation existed.  It consequently went on to lay down its own arbitrary and controversial definition of “nation” and “national minority” and finally concluded that there was no “Silesian nation”.  It did so without any effort to obtain expert evidence in respect of such an important matter.”

On 27 November 1997 the Katowice Governor filed a pleading in reply to the applicants’ cassation appeal with the Supreme Court.  The arguments contained in the pleading may be summarised as follows:

“The refusal to register the applicants’ association was fully justified.  In the course of the proceedings in the first-instance court, the Governor eventually proposed that the applicants amend § 30 of the memorandum of association and alter the name of their association by deleting the word “nationality”.  These arguments were based on Section 10 §1 (1) of the Law of Associations, stating that a memorandum of association should enable the association in question to be differentiated from other associations.  This means that the name of an association should not be misleading.  Since the requirement set out in the above-mentioned section was not complied with, the refusal to register the applicants’ association was justified under Section 14 (1).

It must be stressed that even in the explanatory report to the Framework Convention for the Protection of National Minorities it is clearly stated that the individual’s subjective choice to belong to a national minority is inseparably linked to objective criteria relevant to the person’s identity.  This means that a given nation must exist prior to the individual making a decision to belong to this nation.  That being so, the applicants’ request must be seen as a thoughtless and incomprehensible attempt to exploit distinct characteristics [of the Silesians] with a view to achieving political aims.”

On 28 November 1997 the Katowice Prosecutor of Appeal filed a pleading in reply to the applicants’ cassation appeal.  He submitted, inter alia , that it was clear that the content of the memorandum of association was contrary to the law since it explicitly stated that the Union was an association of a national minority, which ignored the fact that the Silesians could not be considered such a minority.  The Silesians, being merely an ethnic group, could not exercise the rights conferred on national minorities, in particular those referred to in the Law on Parliamentary Elections.

On 18 March 1998, a panel of three judges, sitting as the Administrative, Labour and Social Security Chamber of the Supreme Court, dismissed the applicants’ cassation appeal. The relevant parts of the reasons for this decision read as follows:

“… [A] necessary prerequisite for the registration of an association is the conformity of its memorandum of association with the entire domestic legal order, including conformity with [the provisions of ] international treaties ratified by Poland.

In the present case the Court of Appeal had no doubts as to the lawfulness of the aims pursued by [the applicants’] association but refused to register the association for the sole reason that [the applicants], in the memorandum of association, used such terms as “Silesian nation” and “Silesian national minority”.

We agree with the opinion [of the Court of Appeal].  “National minority” is a legal term (Article 35 of the Constitution of 2 February 1997) although it is not defined either in Polish law, or in the conventions relied on in the cassation appeal.  However, the explanatory report to the Framework Convention for the Protection of National Minorities states plainly that the individual’s subjective choice of a nation is inseparably linked to objective criteria relevant to his national identity.  It means that a subjective declaration of belonging to a specific national group implies prior social acceptance of the existence of this national group. …

An individual has the right to choose his nation but this, as the Court of Appeal rightly pointed out, does not in itself lead to establishing a new, distinct nation or national minority.

In the common perception, there was and still is a belief that an ethnic group of Silesians does exist; however, this group has never been considered as a national group and it has not claimed to be considered as such. …

Registration of the association, which in § 30 of its memorandum of association states that it is an organisation of a [specific] national minority, would be in breach of the law because it would result in a non-existing “national minority” profiting from privileges conferred on [genuine] national minorities.  This concerns, in particular, the privileges accorded by the Law on Parliamentary Elections ... such as an exemption from the requirement that a party or other organisation standing in elections should receive at least 5% of vote, which is a prerequisite for obtaining seats in the Parliament ... [or] ... privileges in respect of the registration of electoral lists; thus, it suffices if an organisation of a national minority has registered its electoral lists in at least five electoral constituencies [whereas the general requirement is to register an electoral list in at least a half of the electoral constituencies in the whole of Poland].

Pursuant to the relevant ruling on the interpretation of the Law on Parliamentary Elections given by the Constitutional Court ( Trybunał Konstytucyjny ), ... the privileges [referred to above] are conferred on electoral committees of registered national minorities and, in the event of doubt [as to whether or not an electoral committee represents a national minority], the State Electoral College may request evidence.

It has to be assumed that the simplest means of proving the existence of a specific national minority is to present a memorandum of association confirming this fact.  It is true that under the new Constitution resolutions of the Constitutional Court on the interpretation of statutes no longer have universally binding force; however, in view of the persuasiveness of the reasons given by the Constitutional Court and the requirements of practice, [we consider that] a memorandum of association still remains basic evidence demonstrating the existence of a national minority.

[Furthermore,] conferring on the Silesians, an ethnic group, the rights of a national minority would be contrary to Article 32 of the Constitution, stating that all persons are equal before the law, [because] other ethnic minorities would not enjoy the same rights.

The memorandum of association is contrary to Section 10 § 1 (4) of the Law on Associations, which stipulates that a memorandum of association must set out rules concerning the acquisition and loss of membership, and rights and duties of members.  Paragraph 10 of the memorandum provides that everyone who is a Polish citizen and has submitted a written declaration stating that he is of Silesian nationality, may become a member of the Union, whereas § 15 states that a person ceases to be a member of the Union if, inter alia, he has not fulfilled the requirements set out in the memorandum of association for becoming a member.  Since no Silesian nation exists, no one would, lawfully, be able to become a member of the Union because his declaration of Silesian nationality would be untrue. …

The refusal to register the association does not contravene Poland’s international obligations.  Both the International Covenant on Civil and Political Rights ... and the European Convention for the Protection of Human Rights and Fundamental Freedoms allow [the State] to place restrictions on the freedom of association, [in particular such as] are prescribed by law and are necessary in a democratic society in the interests of national security or public safety or for the protection of health and morals or for the protection of the rights of others.

It is contrary to the public order to create a non-existent nation which would be able to profit from the privileges conferred solely on national minorities.  It also leads to the infringement of the rights of others, not only national minorities but also other citizens of Poland.  Granting privileges to a [specific] group of citizens means that the situation of the other members of society becomes correspondingly less favourable.

This is particularly so in the sphere of election law: if certain persons may become members of the Parliament [due to their privileged position], it means that other candidates must obtain a higher number of votes than what would be required in the absence of privileges [in this respect].

It has to be noted that the essential aims of the association can be accomplished without the contested provisions of the memorandum and without the [specific] name of the association; thus, the Polish Constitution affirms the equal rights of national and ethnic minorities in respect of their freedom to preserve and develop their own language, to maintain their customs and tradition, to develop their culture, to establish their educational institutions or institutions designed to protect their religious identity or to participate in the resolution of matters relating to their cultural identity (Article 35). …”

B. Relevant domestic law

1. Constitutional provisions

Article 12 of the Constitution (which was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997) states:

“The Republic of Poland shall ensure freedom for the creation and functioning of trade unions, socio-occupational farmers’ organisations, societies, citizens’ movements, other voluntary associations and foundations.”

Article 13 of the Constitution reads:

“Political parties and other organisations whose programmes are based upon totalitarian methods or the models of nazism, fascism or communism, or whose programmes or activities foster racial or national hatred, the resort to violence for the purposes of obtaining power or to influence State policy, or which provide for their structure or membership to be secret, shall be forbidden.”

Article 32 of the Constitution prescribes:

“1. All persons shall be equal before the law.  All persons shall have the right to equal treatment by public authorities.

2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.”

Article 35 of the Constitution provides:

“1. The Republic of Poland shall ensure that Polish citizens belonging to national or ethnic minorities have the freedom to preserve and develop their own language, to maintain customs and traditions, and to develop their own culture.

2. National or ethnic minorities shall have the right to establish educational and cultural institutions and institutions designed to protect religious identity, as well as to participate in the resolution of matters relating to their cultural identity.”

Article 58 of the Constitution, affirming the right to freedom of association, reads:

“1. The freedom of association shall be guaranteed to everyone.

2. Associations whose purposes or activities are contrary to the Constitution or statute shall be prohibited.  The courts shall decide whether to register an association and/or whether to prohibit an [activity of] an association.

3. Categories of associations requiring court registration, the procedure for such registration and the manner in which activities of associations may be monitored shall be specified by statute.”

Chapter III of the Constitution, entitled “Sources of Law”, refers to the relationship between domestic law and international treaties.

Article 87 § 1 runs as follows:

“The sources of universally binding law of the Republic of Poland shall be the Constitution, statutes, ratified international treaties and ordinances.”

Article 91 states:

“1. As soon as a ratified international treaty has been promulgated in the Journal of Laws of the Republic of Poland, it shall constitute a part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.

2. An international treaty ratified under prior statutory consent shall have precedence over statutes where the provisions of such a treaty cannot be reconciled with their provisions.

3. Where a treaty ratified by the Republic of Poland establishing an international organisation so provides, the rules established by it shall be applied directly and have precedence in the event of a conflict of laws.”

2. The Law of 7 April 1989 on Associations (as amended)

Section 1 of the Law (hereafter referred to as the “1989 Law on Associations”), in the version applicable at the material time, prescribed:

“1. Polish citizens shall exercise the right of association in accordance with the Constitution ... and the legal order as specified by statute.

2. The [exercise of the] right to association may be subject only to such limitations as are prescribed by law and are necessary for ensuring the interests of national security or public order and for the protection of health and morals or for the protection of rights and freedoms of others.

3. Associations shall have the right to express their opinion on public matters.”

Section 2 provides, in so far as relevant:

“1. An association is a voluntary, self-governing, stable union pursuing non-profit- making aims.

2. An association shall freely determine its objectives, its programmes of activity and organisational structures, and adopt internal resolutions concerning its activity.

... “.

Section 8, in the version applicable at the material time, prescribed, in so far as relevant:

“1. An association shall register itself in the National Court Register …, unless statute provides otherwise.

[Subsections 2-4 were repealed on 20 August 1997]

5. The activities of associations shall be supervised by [the Governor of the relevant Province], who shall be referred to hereinafter as “supervisory organ”.

Section 10 provides, in so far as relevant:

“1. An association’s memorandum shall in particular specify:

(1) the name of the association which shall differentiate it from other associations, organisations or institutions;

...

(4) the conditions of admission of members, the procedure and grounds for the loss of membership, and the rights and obligations of members.”

Section 12 reads as follows:

“The management committee of an association shall lodge with the competent court an application for the registration of their association together with a memorandum of association, a list of the founders containing their first names, surnames, dates and places of birth, their places of residence and signatures, a record of the election of the management committee and the address of their provisional headquarters.”

Section 13 stipulates:

“1. A court dealing with an application for the registration of an association shall rule on such an application promptly; a ruling should be given within three months from the date on which the application was lodged with the court.

2. The court shall serve a copy of the application for registration, together with the accompanying documents specified in Section 12 on [the competent] supervisory organ.  The supervisory organ shall have the right to comment on the application within fourteen days from the date of service and, with the court’s leave, to join the proceedings as a party.”

Section 14 reads:

“The court shall refuse to register an association if it has not fulfilled the conditions laid down in [this] Law.”

According to Section 16,

“[t]he court shall allow an application for registration of an association if it is satisfied that the latter’s memorandum of association is in conformity with the law and its members comply with the requirements laid down in [this] Law.”

Chapter 3 of the Law, entitled “Supervision of associations”, provides, in its sections 25 et seq., for various means of monitoring the activities of associations and specifies the conditions for the dissolution of an association.

Under section 25 the competent supervisory organ is entitled to request the management committee of an association to submit, within a specified time-limit, copies of resolutions passed by the general meeting of the association or to ask the officers of an association to provide it with “necessary explanations”.

In the event that such requests are not complied with, the court, under section 26 and upon a motion from the supervisory organ, may impose a fine on the association concerned.

Pursuant to section 28, a supervisory organ, if it finds that activities of an association are contrary to the law or infringe the provisions of the memorandum of association in respect of matters referred to in Sections 10 (1) and (2), may request that such breaches cease, or issue a reprimand, or request the competent court to take measures under Section 29.

Section 29 provides, in so far as relevant:

“1. The court, on a request from a supervisory organ or a prosecutor, may:

(1) reprimand the authorities of the association concerned;

(2) annul [any] resolution passed by the association if such a resolution is contrary to the law or the provisions of the memorandum of association;

(3) dissolve the association if its activities have demonstrated a flagrant or repeated non-compliance with the law or the provisions of the memorandum of association and if there is no prospect of the association reforming its activities so as to comply with the law and the provisions of the memorandum of association.”

3. The Law of 28 May 1993 on Parliamentary Elections (repealed after the entry into force of the Law of 12 April 2001 on Elections to the Diet and Senate of the Republic of Poland)

Section 3 of the Law (hereafter referred to as the “1993 Law on Parliamentary Elections”) ran as follows:

“1. In the distribution of seats [in the Parliament] account shall be taken only of those regional electoral lists of electoral committees which have received at least 5 % of the valid votes cast in the whole [of Poland].

2. The regional electoral lists of electoral committees referred to in Section 77 § 2 (electoral coalitions) shall be taken into account in the distribution of seats [in the Parliament], provided that they have received at least 8% of the valid votes cast in the whole [of Poland].”

Section 4 prescribed:

“In the distribution of seats among national electoral lists account shall be taken only of those lists of electoral committees which have received at least 7 % of the valid votes cast in the whole [of Poland].

Section 5 stipulated:

“1. Electoral committees of registered organisations of national minorities may be exempted from one of the conditions referred to in Section 3 § 1 or in Section 4, provided that, not later than the fifth day before the election day, they submit to the State Electoral College a declaration to that effect.

2. The State Electoral College shall promptly acknowledge receipt of the declaration referred to in § 1.  This declaration shall be binding on electoral colleges.”

Section 91 read, in so far as relevant:

“…

2. An electoral committee which has registered its regional electoral lists in at least half of the constituencies [in the whole of Poland] … shall be entitled to register a national electoral list.

3. Electoral committee[s] of organisations of national minorities shall be entitled to register a national electoral list, provided that [they] ha[ve] registered their regional electoral lists in at least five constituencies.”

4. The Civil Code

Article 5 of the Civil Code states:

“No one shall exercise any right of his in a manner contrary to its socio-economic purpose or to the principles of co-existence with others ( zasady współżycia społecznego ). No act or omission [fulfilling this description] on the part of the holder of the right shall be deemed to be the exercise of the right and shall be protected [by the law].”

Article 58 provides, in so far as relevant:

“1. A[ny] act which is contrary to the law or aimed at evading the law shall be null and void, unless a statutory provision provides for other legal effects, such as the replacement of the void elements of such an act by elements provided for by statute.

2. Any act which is contrary to the principles of co-existence with others, shall be null and void.”

COMPLAINT

The applicants complained, under Article 11 of the Convention, that the Polish courts, by their arbitrary refusal to register their association, had violated their right to associate with others.

THE LAW

The applicants complained that their right to associate with others had been violated and alleged a violation of Article 11 of the Convention which, in its relevant part, provides:

“ 1. Everyone has the right to ... freedom of association with others ... .

2. No restrictions shall be placed on the exercise of [this right] other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

The Government submitted that the application should be declared inadmissible as being manifestly ill-founded.

They accepted that the refusal to register the association constituted an interference with the exercise of the applicants’ right to associate with others, within the meaning of paragraph 2 of Article 11. They considered, however, that that interference was fully justified.

To begin with, they stressed that there could be no doubt as to the fact that it was “prescribed by law” because the authorities’ decisions had been based on a number of domestic legal provisions, in particular sections 14 and 16 of the 1989 Law on Associations.  Under the latter section, a court should refuse to register an association if it did not satisfy the conditions laid down in that Law.  Also, constitutional provisions forbade the registration of associations whose purposes or activities were contrary to the Constitution or statutes.

Furthermore, as to the quality of the law on which the impugned judicial decisions had been based, the Government pointed out that the provisions governing the registration of associations were sufficiently clear and precise to allow a person to regulate his or her conduct and, undoubtedly, met the criteria for the “foreseeability” of the “law” for the purposes of the Convention.

The Government next pointed out that the interference in question had been “necessary in a democratic society” for the prevention of disorder and for the protection of the rights and freedoms of others.

In that context, they argued in the first place that the applicants had used the legal procedure designed for the registration of associations to obtain “national minority” status.  That should not, in the Government’s view, be an avenue through which persons could seek to have themselves recognised as a “national minority”.

Secondly, they stressed that – as the relevant courts had correctly held in their decisions – the registration of the applicants’ association as an organisation of a national minority would have had very serious legal consequences. It would have accorded the Silesians – who were not a “nation” – several privileges granted by Polish law to genuine national minorities.  Most notably, the applicants’ association would have acquired the special rights provided for by the 1993 Law on Parliamentary Elections which stated, for instance, that electoral committees of registered organisations of national minorities had a right to be exempted from the 5 per cent threshold of votes required to participate in the distribution of seats in Parliament.

What was more, had the Silesian ethnic group acquired the status of national minority through the procedure for the registration of their association, the principle of equality before the law would have been infringed. Other ethnic groups of Polish citizens, for instance Highlanders, Kashubians or Mazurians, would evidently have been discriminated against.

The Government accepted that an individual had a right to choose whether or not he or she wanted to belong to a minority group. Yet that could not endow the chosen group with the status of national minority and, as the Supreme Court and the Court of Appeal had held, such a choice had to relate to an existing nation or nationality.  That was not the case of the Silesians, who were an ethnic group.

It was true, the Government further maintained, that the exceptions set out in Article 11 had to be construed strictly and that only convincing and compelling reasons justified restrictions on the freedom of association. However, the States had a certain margin of appreciation in that sphere and they had to be satisfied that a given association’s aims and activities were in conformity with the national law.

Turning to the circumstances of the present case, the Government put much emphasis on the fact that the applicants had refused to amend – even slightly – their memorandum of association.  Had the applicants deleted the disputed paragraph 30 of the memorandum, their association would have been registered and they could have sought to achieve the objectives they set for themselves.

In the Government’s submission, it had not been disproportionate to require that the applicants delete that single phrase. In consequence, the interference with their freedom of association could not be deemed to be in breach of Article 11.

The applicants disagreed with the Government on all points.

In their view, the interference with their right to associate with others had not been “prescribed by law”.

It was true, they maintained, that under the 1989 Law on Associations and the constitutional provisions courts might refuse to register an association if they found that there were doubts as to whether its memorandum of association was in conformity with the law.

Yet such doubts could not be of a general character. The courts were obliged to rely on specific legal provisions, which were, or would have been, infringed by the content of the memorandum of association submitted to them. In the applicants’ submission, neither the courts dealing with their case nor the Government invoked such provisions.

Referring to the Government’s argument that the interference in question had pursued the aims of upholding the principle of equality before the law and of preventing discrimination against other ethnic or regional groups, the applicants submitted that that line of reasoning was based on several presumptions and hypotheses, rather than on documentary evidence produced by the provisional management committee of the Union of People of Silesian Nationality before the Polish courts.

They stressed that the Government had no basis to assume that the founders of the Union had in reality sought to obtain judicial recognition of a national minority with the aim of profiting from privileges granted by Polish law to such minorities.

Moreover, in the applicants’ opinion, anticipating a situation where members of other ethnic minority groups would be discriminated against depended on additional prerequisites. First, those minorities would have had to declare aspirations similar to those of the Union of People of Silesian Minority. Second, their aspirations would have had to be rejected. Only in such circumstances could one speak of the infringement of the principle of equality before the law. The applicants therefore considered that the arguments adduced by the relevant courts and the Government amounted to mere speculation.

In that context, recalling the Court’s case-law on the subject, the applicants also maintained that what should have been relevant for a decision on whether or not to register their association was the content of documents produced by them. For instance, their memorandum of association had conclusively shown that they were not going to stand for parliamentary elections.  There had been no evidence to demonstrate that their true intentions had been different from those declared, or incompatible with the principles of the democratic state and rule of law.

In any event, the applicants added, if their Union had not complied with the law or the provisions of its memorandum of association, the authorities could have had recourse to such measures as the annulment of any unlawful resolution passed by the association or the dissolution of their organisation, pursuant to section 29 of the 1989 Law on Associations.

In the light of the foregoing, the applicants considered that the impugned interference with their right to associate with others had not been necessary in a democratic society.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.  No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Vincent Berger Georg Ress Registrar President