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Objectives and Activities

W P and Others v Poland (decision), 2 September 2004 [ECtHR]

Case no 42264/98

2.  The applicants further complained of a breach of Article 11 of the Convention ...

i.  The Association of Persecuted Functionaries of the Ministry of Internal Affairs

The Court considers that the impugned interference with the applicants’ right to freedom of association, which was based on Chapter 6 of the Associations Act, was “prescribed by law”. Moreover, it pursued the legitimate aim of the protection of “national security” and “the rights and freedoms of others”.

As to whether the measure was necessary in a democratic society, the Court reiterates that this implies the existence of a “pressing social need” and that the States have a certain margin of appreciation in this field (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48).

In that connection, the Court notes that certain provisions of the memorandum of association were held to be contrary to the law. In particular, the Kalisz Regional Court considered that the applicants’ failure to agree with the Minister of Internal Affairs the association’s objectives listed in the memorandum and concerning the protection of public order was in breach of section 45 of the Associations Act. That decision was upheld by the Łódź Court of Appeal. Admittedly, the applicants appeared to dispute those findings but that is a question of interpretation of domestic law and the Court cannot substitute its judgment in this field for that of the domestic courts. Its exclusive task is to examine whether the disputed measures were compatible with the requirements of the Convention and, in particular, whether the grounds on which the domestic courts took those decisions were relevant and sufficient in relation to the criteria set out in Article 11 of the Convention (see, mutatis mutandis, A.C.R.E.P. v. Portugal, no. 23892/94, Commission decision of 16 October 1995, Decisions and Reports 83-B, p. 57).

Taking into consideration the grounds on which the domestic courts based their decision, and in view of the association’s objectives defined in its memorandum, the Court considers that the impugned decision to prohibit the formation of the association can be considered necessary in a democratic society, taking into account the margin of appreciation which States have in this field.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4. (...)

iii.  The National and Patriotic Association of Polish Victims of Bolshevism and Zionism

Article 17 of the Convention provides:

 

“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

The Court observes that the general purpose of Article 17 is to prevent totalitarian groups from exploiting in their own interests the principles enunciated by the Convention. To achieve that purpose, it is not necessary to take away every one of the rights and freedoms guaranteed from persons found to be engaged in activities aimed at the destruction of any of those rights and freedoms. Article 17 covers essentially those rights which, if invoked, will facilitate the attempt to derive therefrom a right to engage personally in activities aimed at the destruction of any of the rights and freedoms set forth in the Convention (see J. Glimmerveen and J. Hagenbeek v. the Netherlands, nos. 8348/78 and 8406/78, Commission decision of 11 October 1979, Decisions and Reports 18, p. 187; Roger Garaudy v. France (dec.), no. 65831/01, 24 June 2003).

Turning to the facts of the present case, the Court notes that the memorandum of association of the National and Patriotic Association of Polish Victims of Bolshevism and Zionism included in points 6, 12 and 15 statements alleging the persecution of Poles by the Jewish minority and the existence of inequality between them. The Court agrees with the Government that these ideas can be seen as reviving anti-Semitism. The applicants’ racist attitudes also transpire from the anti-Semitic tenor of some of their submissions made before the Court. It is therefore satisfied that the evidence in the present case justifies the need to bring Article 17 into play (cf. United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, § 60).

The applicants essentially seek to employ Article 11 as a basis under the Convention for a right to engage in activities which are contrary to the text and spirit of the Convention and which right, if granted, would contribute to the destruction of the rights and freedoms set forth in the Convention.

Consequently, the Court finds that, by reason of the provisions of Article 17 of the Convention, the applicants cannot rely on Article 11 of the Convention to challenge the prohibition of the formation of the National and Patriotic Association of Polish Victims of Bolshevism and Zionism.

3. The applicants further complained under Article 14 of the Convention taken together with Article 11 that “the judiciary of the so-called Third Republic of Poland controlled by Jewish interests” prohibited the formation of associations by ethnic Poles.

The Government submitted that the facts of the case did not disclose discrimination against the applicants.

The Court again notes that by making the above complaint, whose wording is anti-Semitic and offensive, the applicants essentially seek to use Article 14 taken together with Article 11 to provide a basis under the Convention for a right to engage in activities which are contrary to the text and spirit of the Convention and which right, if granted, would contribute to the destruction of the rights and freedoms set forth in the Convention.

Consequently, the Court finds that, by reason of the provisions of Article 17 of the Convention, the applicants cannot rely on Article 14 taken together with Article 11 of the Convention.

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