Information Note on the Court’s case-law 61

February 2004

Gorzelik and Others v. Poland [GC] - 44158/98

Judgment 17.2.2004 [GC]

Article 11

Article 11-1

Freedom of association

Refusal to register an association characterising itself as an organisation of a national minority: no violation

Facts : The applicants, together with other people, formed an association – the Union of People of Silesian Nationality – whose m ain aims were to awaken and strengthen the national consciousness of Silesians and to restore Silesian culture. They applied to the Regional Court for the association to be registered. The regional governor argued that there was no distinct Silesian nation ality, that the Silesians were a local ethnic group and could not be regarded as a national minority and that recognising them as such would afford them rights and privileges to the detriment of other ethnic groups. In order to avoid this, he asked for the association’s name to be changed so that it was no longer described as an “organisation of the Silesian national minority”. The Regional Court allowed the application for registration but, on an appeal by the governor, the Court of Appeal set aside that d ecision and dismissed the application. It held that the Silesians were not a national minority and that the association could not legitimately describe itself as an “organisation of a national minority”, a description that would grant it unwarranted rights – in particular, electoral privileges – which would place it at an advantage in relation to other ethnic organisations. The Supreme Court dismissed an appeal on points of law by the requérantapplicants.

Law : Article 11 – The interference with the applican ts’ right to freedom of association had had a basis in domestic law. As to the requirement of “foreseeability”, the lack of an express definition of the concept of a “national minority” in domestic legislation did not mean that the Polish State had been in breach of its duty to frame the law in sufficiently precise terms. In such matters, it could be difficult to frame laws with a high degree of precision; indeed, it could be undesirable to formulate rigid rules. The Polish State could therefore not be crit icised for using only a general statutory categorisation of minorities and leaving interpretation and application of those notions to practice. Furthermore, the relevant domestic law did not grant the authorities unlimited and arbitrary powers of discretio n. In short, the Polish legislation applicable in the present case had been formulated with sufficient precision to enable the applicants to regulate their conduct. The interference in question had been intended to prevent disorder and to protect the right s of others. As to whether it had been necessary in a democratic society, under Polish law the registration of the applicants’ association as an “organisation of a national minority” had been capable by itself of granting it electoral privileges, subject o nly to voluntary action being taken to that end by the association and its members. The appropriate time for countering that risk, and thereby ensuring that the rights of other persons or entities participating in parliamentary elections would not be infri nged, had been at the moment of the association’s registration. The national authorities had therefore not overstepped their margin of appreciation in considering that there had been a pressing social need, at the moment of registration, to regulate the fr ee choice of an association to call itself an “organisation of a national minority”, in order to protect the existing democratic institutions and election procedures in Poland. As to whether the measure had been proportionate, the refusal to register the a ssociation as an “organisation of a national minority” had not been a comprehensive, unconditional one directed against the cultural and practical objectives that the association wished to pursue. The authorities had not prevented the applicants from formi ng an association to express and promote distinctive features of a minority but from creating a legal entity which, through registration under the legislation on associations and the description it had given itself in its memorandum of association, would i nevitably have been able to claim a special electoral status. Given that the national authorities had been entitled to consider that the interference in question had met a “pressing social need”, and given that the interference had not been disproportionat e to the legitimate aims pursued, the refusal to register the association had been “necessary in a democratic society”.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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