Communicated on 7 September 2020 Published on 28 September 2020

FIRST SECTION

Application no. 26821/17 ASSOCIATION OF PEOPLE OF SILESIAN NATIONALITY (IN LIQUIDATION ) against Poland lodged on 29 March 2017

STATEMENT OF FACTS

The applicant association, Association of People of Silesian Nationality (in liquidation) ( Stowarzyszenie Osób Narodowości Śląskiej w likwidacji ) (“the applicant association”), is a Polish association that went into liquidation in 2016. It is represented before the Court by Mr W. Murek , a lawyer practising in Katowice.

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

Silesia ( ÅšlÄ…sk ) is a historic region situated in south ‑ western Poland. It was originally a Polish province, then became a possession of the Bohemian Crown and was taken over by Prussia. In 1922 its larger part was passed over to Poland. After the Second World War, all of former German Silesia was incorporated into Poland, while only a small sector of Lower Silesia remained within the former East German Land of Saxony.

In 2011 the National Population and Housing Census ( Spis Powszechny ) was carried out in Poland. According to the census report, 36,522,200 people declared themselves Polish nationals, 430,798 people declared both Polish and “Silesian” nationality and 375,635 declared only “Silesian” nationality.

On 21 December 2011 the Opole District Court registered the applicant association as the Association of People of Silesian Nationality ( Stowarzyszenie Osób Narodowo ś ci Ś l ą skiej ). The court noted that registration was possible since the memorandum of association did not include the terms: “Silesian nation” and “Silesian national minority” but only referred to “Silesian nationality”. Moreover, the memorandum also contained a phrase confirming that the applicant association was not going to register electoral lists ( listy wyborcze ).

On the same date the applicant association was registered in the National Court Register and acquired legal personality.

The relevant provisions of the memorandum of the applicant association, as amended by the general assembly of its members ( Walne Zgromadzenie Cz ł onk ó w ) on 27 April 2013, read as follows:

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

2. (1) The Association shall conduct its activity within the territory of the Republic of Poland.

...

5. The Association shall not register an electoral committee in the parliamentary elections.

...

8. The aims of the Association are:

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

(2) to restore Silesian culture;

(3) to promote knowledge of Silesia;

(4) to create and develop active attitude amongst the Silesians (...);

(5) to participate in contemporary integration of all groups living in Silesia;

(6) to support cultural contacts between Silesians notwithstanding their residence and to facilitate the return of economic emigrants;

(7) to promote and create a positive image of Silesia and Silesians;

(8) to preserve the material and spiritual heritage of Silesia.

9. The Association 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 Association and other persons;

(3) carrying out promotional and publishing activities;

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

(5) organising demonstrations and protest actions;

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

(7) setting up 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 cooperating with other [commercial] entities.”

On an unknown date, the Opole Regional Prosecutor lodged an appeal with the Opole Regional Court against the decision of 21 December 2011. The prosecutor submitted that the applicant association had been registered despite the fact that its memorandum of association was contrary to the law. In particular, it was in breach of section 2 of the Act on National and Ethnic Minorities and Regional Language (hereinafter “the 2005 Act”), as it referred to “Silesian nationality” and subjected the membership in the association from making a declaration of belonging to a nationality which did not exist in the [Polish] legal system.

On 7 September 2012 the Opole Regional Court dismissed the prosecutor ’ s appeal and upheld the first-instance decision. It noted that the decision to register the applicant association did not create a “Silesian nationality” or a national minority which had not existed under domestic law. Moreover, registration of the applicant association would not cause Silesians to benefit from privileges conferred on electoral committees of registered national minorities. Firstly, the memorandum of the applicant association contained an explicit statement that the association would not register electoral committees. Secondly, an association of people declaring affiliation to a nationality not listed in the 2005 Act, would not be an association of “a national minority” as provided by Article 197 of the Electoral Code.

The Opole Regional Prosecutor appealed to the Supreme Court relying on Article 32 of the Constitution and Article 197 of the Electoral Law ( Kodeks Wyborczy ).

On 5 December 2013 the Supreme Court quashed the decision of 7 September 2012 and remitted the case to the Opole Regional Court. It noted that the court registering an association was obliged to examine conformity of that association ’ s memorandum with the law, and also whether certain formal requirements had been met.

The Supreme Court further agreed that the choice of the association ’ s name was left to its founders. At the same time, it stressed that this name should not be misleading and should not interfere with other people ’ s rights. In the present case, following the registration of the applicant association, articles in the media had appeared implying that the existence of a “Silesian nation” had been judicially confirmed. Therefore, the applicant association ’ s name was misleading and certain interferences could be drawn from that name. In particular, the privileges granted by the Electoral Code to national minorities, such as an exemption from the requirement that a party or other organisation standing in elections should get at least 5% of the votes in order to obtain seats in Parliament.

The court further referred to its previous case-law and stressed that freedom of choice of nationality could be exercised only in respect of nations which existed objectively, and which had been created throughout a historical process. It relied on the Court ’ s judgment given in the case of Gorzelik and Others v. Poland ([GC], no. 44158/98, ECHR 2004 ‑ I) and its previous judgments given in respect of that association (Union of People of Silesian Nationality).

The Supreme Court held that the conclusion that a “Silesian nation” existed could not be drawn from the results of the 2011 census or from any other legal act. In particular, the 2005 Act had not listed Silesians as a national or an ethnic minority.

On 7 March 2014 the Opole Regional Court quashed the decision of 21 December 2012 and remitted the case to the Opole District Court.

On 9 January 2015 the Opole District Court dissolved the applicant association and ordered its liquidation. The court noted that dissolution of an association was possible if its activities had demonstrated a flagrant and repeated failure to comply with the law, or with the provisions of the memorandum of association, and if there was no prospect of the association reforming its activities so as to comply with the law and the provisions of the memorandum.

In the present case, the applicant association had been asked to amend the memorandum of association in order to comply with the law. In particular, it was asked to change the misleading name and modify two provisions which referred to “people belonging to Silesian nation”. However, those changes had not been made. The court referred to the Supreme Court ’ s judgment of 5 December 2013, noting that the name of the applicant association and certain provisions of the memorandum of the association suggested that a Silesian national minority existed legally. This in turn, could have implied that a Silesian nation existed, which had not been confirmed by any legal provision.

The District Court further relied on the Court ’ s judgment in the case of Gorzelik and Others v. Poland and found that the Court ’ s reasoning remained valid also in respect of the applicant association. In particular, even though the Silesians had not been recognised as an ethnic minority by any domestic legal provision the applicant association in its memorandum of association referred to “Silesian nationality”. For that reason the activity of the applicant association was in breach of the 2005 Act and the Electoral Code.

On 18 June 2015 the Opole Regional Court dismissed an appeal by the applicant association. It held that the legal and factual situation had not changed and that the applicant association had refused to make changes in its memorandum of association.

On 12 October 2016 the Supreme Court refused to entertain a further cassation appeal by the applicant association.

The relevant provisions of the Constitution are set out in the Court ’ s judgment in the case of Gorzelik and Others v. Poland [GC], no. 44158/98, §§ 37- 40, ECHR 2004 ‑ I.

Section 10 of the Law on associations of 7 April 1989, in its relevant part, provides:

“(1) An association ʼ s memorandum shall in particular specify:

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

...

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

...

(2) An association that intends to set up regional branches shall specify in its memorandum of association the structure of the organisation and the principles on which such branches shall be formed.”

Section 16 (1) provides:

“The court shall allow an application for registration of an association if it is satisfied that the latter ʼ 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 sections 25 and following for various means of monitoring the activities of associations and lays down the conditions for the dissolution of an association.

Under section 25, the relevant supervisory authority may 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 a motion from the supervisory authority, may impose a fine on the association concerned.

Under section 28, a supervisory authority, 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 section 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.

The relevant part of section 29 provides:

“(1) The court, at the request of a supervisory authority or a prosecutor, may:

( i ) reprimand the authorities of the association concerned;

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

(iii) dissolve the association if its activities have demonstrated a flagrant or repeated failure to comply with the law or with 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.”

Article 196 (1) of the Electoral Code of 2011 provides, in so far as relevant:

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

Article 197 (1) provides, in so far as relevant, as follows:

“Electoral committees of registered organisations of national minorities may be exempted from the condition referred to in Article 196 (1) provided that, not later than the fifth day before the date of the election, they submit to the State Electoral College a declaration to that effect ...”

The issues connected with the national and ethnic minorities in Poland are regulated in the Act on National and Ethnic Minorities and Regional Language of 6 January 2005 ( Ustawa o mniejszo ś ciach narodowych i etnicznych oraz o j ę zyku regionalnym ) (“the 2005 Act”).

Section 2 (1) reads as follows:

“A national minority, as defined by this Act, shall be a group of Polish citizens who jointly fulfil the following conditions:

1) is numerically smaller than the rest of the population of the Republic of Poland;

2) significantly differs from the remaining citizens in its language, culture or tradition;

3) strives to preserve its language, culture or tradition;

4) is aware of its own historical, national community, and is oriented towards its expression and protection;

5) its ancestors have been living on the present territory of the Republic of Poland for at least 100 years;

6) identifies itself with a nation organized in its own state.”

Section 2 (3) reads as follows:

“An ethnic minority, as defined by this Act, shall be a group of Polish citizens who jointly fulfil the following conditions:

1) is numerically smaller than the rest of the population of the Republic of Poland;

2) significantly differs from the remaining citizens in its language, culture or tradition;

3) strives to preserve its language, culture or tradition;

4) is aware of its own historical, national community, and is oriented towards its expression and protection;

5) its ancestors have been living on the present territory of the Republic of Poland for at least 100 years;

6) does not identify itself with a nation organized in its own state.”

It further enumerates nine national minorities (Armenians, Belarusians, Czechs, Germans, Jews, Lithuanians, Russians, Slovaks and Ukrainians) and four ethnic minorities ( Karaims , Lemkos , Roma and Tatars). Silesians are not listed as a national or ethnic minority and the Silesian language is not listed as a regional language.

Between 2012 and 2019 several amendments to the 2005 Act in order to include Silesians as an ethnic minority and/or the Silesian language as a regional language were proposed in the parliament, but to no avail.

COMPLAINTS

The applicant association complains that dissolution of the Association of People of Silesian Nationality was arbitrary and breached Article 11 of the Convention.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of association, contrary to Article 11 of the Convention?