JOINT CONCURRING OPINION OF JUDGES COSTA AND ZUPANČIČ JOINED BY JUDGE KOVLER

(Translation)

1. It was after much hesitation that we decided to join our colleagues in the Grand Chamber in finding that Poland had not violate d Article 11 of the Convention in the instant case by refusing to register the association with the name “Union of People of Silesian Nationality”.

2. Freedom of association is one of the most fundamental political freedoms and , in States that profess democratic values , the courts protect it, usually by according it constitutional status (examples include, in France: the Conseil d ' E tat ' s judgment of 11 July 1956, Amicale des Annamites de Paris , and the decision of the Constitutional Council no. 71-44 of 16 July 1971; and , in the United States: Supreme Court judgments such as In re Primus , 436 United States Reports 412 (1978) , and Roberts v. United States J a ycees , 468 United States Reports 609 (1984).

3. The European Court of Human Rights itself views freedom of association as meriting special protection and considers that the limitations set out in paragraph 2 of Article 11 of the Convention must be construed narrowly (see, among other authorities , United Communist Party of Turkey and Others v. Turkey , judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, p . 22, § 46 , and Sidiropoulos and Others v. Greece , judgment of 10 July 1998, Reports 1998-IV, p . 1614 , § 40; in both cases, the Court held unanimously that there had been a violation of Article 11).

4. So what is the present case about? It concerns an association that was formed with the name “Union of People of Silesian Nationality” and whose aims as stated in its memorandum of association included: “to awaken and strengthen the national consciousness of Silesia ns; to restore Silesian culture ; to promote knowledge of Silesia ; to protect the ethnic rights of persons of Silesian nationality ... ”. The memorandum of association afford ed the Union very broad - ranging means with which to accomplish its aims, without, however, expressly giving it a right to put forward candidates for election. Lastly, paragraph 10 of the memorandum of association provide d : “Any person of Silesian nationality may become an ordinary member of the Union ” , and paragraph 30 add ed : “The Union is an organisation of the Silesian national minority”. It is important to note these points, since, behind its innocuous appearance as an ordinary association, the Union saw itself in practice as the incarnation of the “national” Silesian minority and it is this factor that helps to explain the reaction of the authorities of the respondent State.

5. The applicants sought to register the association. Under the Polish Law on a ssociations, the decision whether or not to register is taken by the regional court with jurisdiction for the area in which the association has its headquarters , in this case, the Katowice Regional Court . The R egional C ourt granted registration. However, on an appeal by the Governor (in whom a supervisory power is vested by the Law on a ssociations), the C ourt of A ppeal overturned that order and rejecte d the application for registration of the Union . The Supreme Court then dismissed a n appeal on points of law by the applicants against the C ourt of A ppeal ' s judgment. Having exhausted domestic remedies, the applicants then turned their hopes to Strasbourg .

6. Both the Court of Appeal and the Supreme Court based their reasoning on the realities behind the appearances (a practice to which we are not averse on principle, provided of course that it does not lead to accusations on the basis of supposed intentions). They found that for the purposes of domestic and international law no Silesian national minority existed (however, as they acknowledged, there is no definition of a national minority in any international instrument, not even the Council Europe Framework Convention for the Protection of National Minorities, which Poland has signed and ratified). They also found that, through its choice of name and certain paragraphs in its memorandum of association, essentially paragraphs 10 and 30 cited above, the Union was effectively seeking to establish itself as the representative of that alleged national minority. Lastly, they were satisfied that the aim of the requested registration and its automatic consequence would be to enable the association to rely on section 5 of the 1993 Elections Act, in other words to gain an “advantage” at elections, as it would have an unchallengeable right to seats without having to reach the threshold which electoral lists were normally required to attain under the Act.

7. There is certainly room for doubt about these various points.

8. Admittedly, we would not venture to contest the argument regarding the lack of a Silesian “nation”, or the C ourt of A ppeal ' s view that , in order to constitute a “national” minority, a group must be linked to a majority from outside Poland , such as the Germans, Ukrainians, Lithuanians or others. That is a political choice and a matter on which an international court could not dictate to a Contracting State without infringing upon the subsidiarity principle. Besides which, even though the Permanent Court of International Justice delivered two famous judgments concerning Polish Upper Silesia in 1926 and 1928 ( Germany v. Poland , 25 May 1926, Series A n o. 7, and 26 April 1928, Series A n o. 15), questions relating to national minorities are complex and still somewhat vague.

9. More debatable, however, is the view that the Union ' s real intention was to gain electoral advantage (although that does seem probable from the case file at least), and, above all, the notion that the automatic consequence of registration of a national minority organisation was to gain exemption from the electoral “threshold” requirement. Section 5 of the 1993 Elections Act, which is cited in paragraph 41 of the judgment, is not devoid of ambiguity. Outwardly , it appears to give the State Electoral College the power to grant or refuse exemption. The Supreme Court was alert to this problem of construction. In finding that, on the contrary, the Electoral College ' s hands were tied and it was bound to grant exemption if the applicant electoral committee was a registered organisation of a national minority, it followed the authoritative interpretation given by the Polish Constitutional Court in this respect in its decision of 30 April 1997 (reproduced in paragraphs 42 and 43 of the judgment). While the Supreme Court openly acknowledged (see paragraph 36 of the judgment ) that decisions of the Constitutional Court no longer had universally binding force, it stressed the persuasiveness of the Constitutional Court ' s reasons , and that is indeed a factor that cannot be neglected.

10. At this point in our analysis, we have to admit that it would be presumptuous to contest the two highest Polish courts ' interpretation of domestic law; here, the principle of subsidiarity commands restraint. We have, therefore, overcome our initial hesitations on this point: it must be accepted that registration would have permitted the Union to acquire electoral privileges which the Constitution and law restrict to purely “national” minorities and that such privileges derogate from the constitutional principle requiring equality before the law.

11. How, though, can the present decision be reconciled with the Court ' s decisions in two other, comparatively recent, cases? In one of these, Sidiropoulos and Others , which has already been cited, the applicants had formed a “Macedonian” association and the Court found that the Greek judicial authorities ' refusal to register it had infringed Article 11 of the Convention. In the other, Stankov and the United Macedonian Organisation Ilinden v. Bulgaria ( nos. 29221/95 and 29225/95, ECHR 2001 - IX), the Court likewise found a violation of Article 11, owing to a ban on peaceful assembly. But is it the Court ' s role to treat the “Silesian minority” more severely and the “Macedonian minority” with greater indulgence?

12. That, of course, is not the issue. In Sidiropoulos and Others , the Court found that in the circumstances of the case the association did not represent a genuine danger to public order or the territorial integrity of Greece . Likewise, in Stankov , the Court considered on the facts that there was no foreseeable risk that the planned meetings would lead to violent action, incitement to violence or the rejection of democratic principles. The most important aspect for the Court, therefore, will be the factual assessment, at the risk of attracting the criticism of casuistry (which in our view is inevitable) that is often levelled at it. Ultimately, the decisive factor for us in the present case was the fact that the association would not only have existed, but also have been registered, if it had changed its name and amended paragraph s 10 and 30 of its memorandum of association, as it had been asked to do by the Governor acting in his supervisory capacity (see paragraph 24 of the judgment). While this would have deprived it of the electoral “advantage” afforded national minorities, it would have acquired full legal capacity as an association. We thus return to the starting - point of this opinion: in practice, the measures the applicants complain of constitute not so much a real interference with their freedom of association as an attempt on the part of the domestic authorities to avoid the unforeseen consequences – which would infringe the principle of equality – of the exercise of that freedom.

13. For all these reasons, we were able to accept the finding that “it was not the applicants ' freedom of association per se that was restricted by the State” (see paragraph 106 of the judgment). Indeed, in that regard, it seemed to us that Cha ' are Shalom V e Tsedek v. France ([GC], no. 27417/95, §§ 83-84, ECHR 2000-VII) might be of some relevance, mutatis mutandis . In the end, despite our initial reservations, we were able to concur with the majority in this very sensitive case, thus fully justifying its examination by the Grand Chamber of the Court.

[1] . Source: John A. Dunn, “The Slavonic Languages in the Post-Modern Era” (www.arts.gla.ac.uk).

[2] . The Sejm is the lower house of the Polish parliament.

[3] . Ultimately, that bill was never adopted by Parliament. A new bill on national and ethnic minorities in the Republic of Poland (“the 2002 National and Ethnic Minorities Bill”) was submitted to Parliament on 11 January 2002 .

[4] . See paragraphs 42-43 below.

[5] . Th is law was repealed on 31 May 2001 , the date of entry into force of the Law on e lections to the Sejm and Senate of the Republic of Poland of 12 April 2001 (“the 2001 Elections Act”) .

[6] . Section 134 of the 2001 Elections Act provides for a similar exemption from the threshold of votes. It is phrased in similar terms.