Acquisition of Legal Personality and Registration

Gorzelik and Others v Poland, 17 February 2004 [ECtHR]

Case no 44158/98


1.  “Prescribed by law”

(i)  General principles

64. The Court reiterates that the expression “prescribed by law” requires firstly that the impugned measure should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate their conduct.
However, it is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The interpretation and application of such enactments depend on practice (see Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III, and, as a recent authority, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98,41343/98 and 41344/98, § 57, ECHR 2003-II, with further references).

65. The scope of the notion of foreseeability depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed.
It must also be borne in mind that, however clearly drafted a legal provision may be, its application involves an inevitable element of judicial interpretation, since there will always be a need for clarification of doubtful points and for adaptation to particular circumstances. A margin of doubt in relation to borderline facts does not by itself make a legal provision unforeseeable in its application. Nor does the mere fact that such a provision is capable of more than one construction mean that it fails to meet the requirement of “foreseeability” for the purposes of the Convention. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain, taking into account the changes in everyday practice (see Refah Partisi (the Welfare Party) and Others and Rekvényi, cited above).

(ii)  Application of the above principles to the present case

66. Turning to the circumstances of the present case, the Court observes that the applicants' arguments as to the alleged unforeseeablity of Polish law do not concern the legal provisions on which the refusal to register their association was actually based, namely Article 32 of the Constitution and various provisions of the Law on associations and the Civil Code (see paragraphs 32, 36, 54 and 55-58 above).
The Court notes in this respect that the Law on associations gives the courts the power to register associations (section 8) and in this context to verify, inter alia, the conformity with the law of the memorandum of association (section 16), including the power to refuse registration if it is found that the conditions of the Law on associations have not been met (section 14) (see paragraph 39 above).
In the present case the Polish courts refused registration because they considered that the applicants' association could not legitimately describe itself as an “organisation of a national minority”, a description which would give it access to the electoral privileges conferred under section 5 of the 1993 Elections Act (see paragraph 41 above), as the Silesian people did not constitute a “national minority” under Polish law.
The applicants essentially criticised the absence of any definition of a national minority or any procedure whereby such a minority could obtain recognition under domestic law. They contended that that lacuna in the law made it impossible for them to foresee what criteria they were required to fulfil to have their association registered and left an unlimited discretionary power in that sphere to the authorities (see paragraphs 56-58 above).

67. It is not for the Court to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention.
With regard to the applicants' argument that Polish law did not provide any definition of a “national minority”, the Court observes firstly, that, as the Chamber rightly pointed out, such a definition would be very difficult to formulate. In particular, the notion is not defined in any international treaty, including the Council of Europe Framework Convention (see paragraph 62 of the Chamber's judgment and paragraph 46 above and, for example, Article 27 of the United Nations International Covenant on Civil and Political Rights, Article 39 of the United Nations Convention on the Rights of the Child and the 1992 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities).
Likewise, practice regarding official recognition by States of national, ethnic or other minorities within their population varies from country to country or even within countries. The choice as to what form such recognition should take and whether it should be implemented through international treaties or bilateral agreements or incorporated into the Constitution or a special statute must, by the nature of things, be left largely to the State concerned, as it will depend on particular national circumstances.

68. While it appears to be a commonly shared European view that, as laid down in the preamble to the Framework Convention, “the upheavals of European history have shown that the protection of national minorities is essential to stability, democratic security and peace on this continent” and that respect for them is a condition sine qua non for a democratic society, it cannot be said that the Contracting States are obliged by international law to adopt a particular concept of “national minority” in their legislation or to introduce a procedure for the official recognition of minority groups.

69. In Poland the rules applicable to national or ethnic minorities are not to be found in a single document, but are divided between a variety of instruments, including the Constitution, electoral law and international agreements. The constitutional guarantees are afforded to both national and ethnic minorities. The Constitution makes no distinction between national and ethnic minorities as regards their religious, linguistic and cultural identities, the preservation, maintenance and development of their language, customs, traditions and culture, or the establishment of educational and cultural institutions (see paragraph 37 above). In contrast, electoral law introduces special privileges only in favour of “registered organisations of national minorities” (see paragraph 41 above). It does not give any indication as to the criteria a “national minority” must fulfil in order to have its organisation registered.
However, the Court considers that the lack of an express definition of the concept of “national minority” in the domestic legislation does not mean that the Polish State was in breach of its duty to frame law in sufficiently precise terms. Nor does it find any breach on account of the fact that the Polish State chose to recognise minorities through bilateral agreements with neighbouring countries rather than under a specific internal procedure. The Court recognises that, for the reasons explained above, in the area under consideration it may be difficult to frame laws with a high degree of precision. It may well even be undesirable to formulate rigid rules. The Polish State cannot, therefore, be criticised for using only a general statutory categorisation of minorities and leaving interpretation and application of those notions to practice.

70. Consequently, the Court does not consider that leaving to the authorities a discretion to determine the applicable criteria with regard to the concept of “registered associations of national minorities” underlying section 5 of the 1993 Elections Act was, as the applicants alleged, tantamount to granting them an unlimited and arbitrary power of appreciation. As regards the registration procedure, it was both inevitable and consistent with the adjudicative role vested in them for the national courts to be left with the task of interpreting the notion of “national minority”, as distinguished from “ethnic minority” within the meaning of the Constitution, and assessing whether the applicants' association qualified as an “organisation of a national minority” (see paragraph 65 above).

71. In reviewing the relevant principles, the Supreme Court and the Court of Appeal took into consideration all the statutory provisions applicable to associations and national minorities as well as social factors and other legal factors, including all the legal consequences that registering the applicants' association in the form they proposed might entail (see paragraphs 32 and 36 above).
Contrary to what the applicants have alleged, those courts do not appear to have needlessly transformed the registration procedure into a dispute over the concept of Silesian nationality. Rather, it was the statement in paragraph 30 of the memorandum of association that made it necessary to consider that issue in the proceedings (see paragraphs 22, 25 and 28 above). The applicants must have been aware, when that paragraph was drafted, that the courts would have no alternative but to interpret the notion of “national minority” as it applied in their case.
Having regard to the foregoing, the Court is satisfied that the Polish law applicable in the present case was formulated with sufficient precision, for the purposes of paragraph 2 of Article 11 of the Convention, to enable the applicants to regulate their conduct.


3.  “Necessary in a democratic society”

(c)  The Court's assessment


   (ii)  Application of the above principles to the present case

      (α)  Pressing social need

97. The Court will first determine whether there could be said to have been, at the relevant time, a “pressing social need” to take the impugned measure – namely the refusal to register the association with the description in paragraph 30 of its memorandum of association (see paragraph 22 above) – in order to achieve the legitimate aims pursued.

The principal reason for the interference thereby caused with the applicants' enjoyment of their freedom of association was to pre-empt their anticipated attempt to claim special privileges under the 1993 Elections Act, in particular an exemption from the threshold of 5% of the votes normally required to obtain seats in Parliament and certain advantages in respect of the registration of electoral lists (see paragraphs 32, 36 and 41 above).

The applicants, for their part, asserted that the impugned restriction was premature and that the authorities had based their decisions on unfounded suspicions as to their true intentions and on speculation about their future actions. They stressed that running for elections was not one of the aims stated in their memorandum of association (see paragraphs 78-79 above).

98. It is true that the applicants' intentions could not be verified by reference to the conduct of the association in practice, as it was never registered. It is also true that the aim of securing representation in Parliament was not explicitly stated in the memorandum of association and that any unstated intention that the applicants may have had to secure electoral privileges would have depended on a combination of future events (see paragraphs 19, 32, 36 and 41-43 above).

99. In this connection, however, there was a dispute between the parties as to the repercussions, under Polish law, of registration as regards qualification for electoral privileges. The applicants submitted that the effective – and ultimate – power to acknowledge or reject their claim to privileges under section 5 of the 1993 Elections Act was vested in the State Electoral College (see paragraph 79 above). The Government, on the other hand, contended that the College would have had no power to reject a declaration by the association notifying it that it had set up an “electoral committee of a registered organisation of a national minority” because that would have been the legal status enjoyed by the association as confirmed by documentary evidence in the form of the memorandum of their registered association and, more particularly, paragraph 30 thereof (see paragraph 86 above).

100. The Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation, the Court's role being confined to determining whether the effects of that interpretation are compatible with the Convention (see, among other authorities, Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I).

101. When considering the legal consequences of registering the association with the statement in its memorandum of association that it was “an organisation of the Silesian national minority”, the Supreme Court evidently worked on the assumption that, had the members of the association run for election, the State Electoral College would have had no choice but to accept their declaration under section 5 of the 1993 Elections Act (see paragraph 36 above). Such a reading of the relevant provisions of domestic law, limiting the role of the State Electoral College to controlling technical and formal matters, with no competence to examine substantive criteria such as the existence or not of a “national minority”, cannot, in the Court's opinion, be regarded as arbitrary. Under Polish law, as authoritatively interpreted by the Polish Supreme Court, therefore, the procedure before the State Electoral College could not – after the registration of the association – serve to prevent its members from acquiring special electoral status (see paragraphs 36 and 42-43 above).
Had registration been granted, a decision by the applicants to run as candidates in elections as members of the association would, as the Government have pointed out (see paragraph 86 above), have been no more than a legitimate exercise of their political rights. In consequence, the Court is not convinced that any of the drastic measures available under the Law on associations, such as annulment of a resolution to put up candidates in elections or dissolution of the association, which could be imposed only if “such a resolution [was] contrary to the law or the provisions of the memorandum of association” or “if its activities ... demonstrated a flagrant or repeated failure to comply with the law or with the provisions of the memorandum of association” (see paragraph 40 above), would have been applicable and, therefore, susceptible of avoiding the particular mischief which the authorities were seeking to avoid.

102. The Court will accordingly proceed on the understanding, which was the basis of the judgment by the Polish Supreme Court, that under Polish law the registration of the applicants' association as an “organisation of a national minority” was capable by itself of setting in motion a chain of further events that would lead, subject only to voluntary actions by the association and its members, to the acquisition of electoral privileges. In other words, the risk that the association and its members might claim electoral privileges was inherent in any decision that allowed them to form the association without first amending paragraph 30 of the memorandum of association.

103. That being so, the appropriate time for countering the risk of the perceived mischief, and thereby ensuring that the rights of other persons or entities participating in parliamentary elections would not actually be infringed, was at the moment of registration of the association and not later. The Court does not therefore subscribe to the applicants' analysis of the impugned measure as being one of prior restraint in anticipation of any action which the association might or might not take in future and which could as well have been controlled by the exercise of the authorities' supervisory powers under sections 25 and 26 of the Law on associations. In reality, imposing as a condition for registration of the association that the reference to an “organisation of a national minority” be removed from paragraph 30 of the memorandum of association was no more than the legitimate exercise by the Polish courts of their power to control the lawfulness of this instrument, including the power to refuse any ambiguous or misleading clause liable to lead to an abuse of the law – in the event, a clause which would create for the association and its members a capacity, which could not be impeded, to enjoy electoral privileges to which they were not entitled (see the reasoning of the Supreme Court quoted in paragraph 36 above).

Consequently, the Court accepts that the national authorities, and in particular the national courts, did not overstep their margin of appreciation in considering that there was a pressing social need, at the moment of registration, to regulate the free choice of associations to call themselves an “organisation of a national minority”, in order to protect the existing democratic institutions and election procedures in Poland and thereby, in Convention terms, prevent disorder and protect the rights of others (see paragraph 76 above).

      (β)  Proportionality of the measure

104. It remains for the Court to ascertain whether, in view of its adverse effects on the ability of the association and its members, including the applicants, to carry out their associative activities, the refusal to register the association with the description “organisation of the Silesian national minority” was proportionate to the legitimate aims pursued.
The applicants stressed the particular severity of the interference, which in their view had amounted to a preventive blanket ban on their activities. They also argued that it had not been necessary for the authorities to take such a drastic measure, because they could have corrected their future actions using the means designed by the Law on associations to regulate the latter's activities (see paragraph 80 above).
The Government maintained that the authorities had not acted in order to prohibit the formation of an association preserving Silesian cultural identity but to prevent the applicants' possible attempt to obtain, through the registration of their association, a special legal status. They further submitted that the machinery established by the Law on associations for monitoring the activities of associations would not be sufficient to prevent them from taking advantage of privileges under electoral law (see paragraphs 82-86 above).

105. The Court, on the basis of Polish law as authoritatively interpreted by the Polish Supreme Court, has already rejected the applicants' argument that the provisions on the regulation of the activities of associations in the Law on associations would have provided an alternative and less onerous means of avoiding a future abuse of electoral privileges by the applicants' association (see paragraphs 101 and 103, first sub-paragraph, above). The Court does however accept that, in its impact on the applicants, the impugned measure was radical: it went so far as to prevent the association from even commencing any activity.
However, the degree of interference under paragraph 2 of Article 11 cannot be considered in the abstract and must be assessed in the particular context of the case. There may also be cases in which the choice of measures available to the authorities for responding to a “pressing social need” in relation to the perceived harmful consequences linked to the existence or activities of an association is unavoidably limited.
In the instant case the refusal was not a comprehensive, unconditional one directed against the cultural and practical objectives that the association wished to pursue, but was based solely on the mention, in the memorandum of association, of a specific appellation for the association. It was designed to counteract a particular, albeit only potential, abuse by the association of its status as conferred by registration. It by no means amounted to a denial of the distinctive ethnic and cultural identity of Silesians or to a disregard for the association's primary aim, which was to “awaken and strengthen the national consciousness of Silesians” (see paragraph 19 above). On the contrary, in all their decisions the authorities consistently recognised the existence of a Silesian ethnic minority and their right to associate with one another to pursue common objectives (see paragraphs 32 and 36 above). All the various cultural and other activities that the association and its members wished to undertake could have been carried out had the association been willing to abandon the appellation set out in paragraph 30 of its memorandum of association.
Like the Chamber, the Grand Chamber finds it hard to perceive any practical purpose for this paragraph in relation to the association's proposed activities other than to prepare the ground for enabling the association and its members to benefit from the electoral privileges accorded by section 5(1) of the 1993 Elections Act to “registered organisations of national minorities” (see also paragraph 64 of the Chamber's judgment). The disputed restriction on the establishment of the association was essentially concerned with the label which the association could use in law – with whether it could call itself a “national minority” – rather than with its ability “to act collectively in a field of mutual interest” (see paragraph 88 above). As such, it did not go to the core or essence of freedom of association.

Consequently, for the purposes of Article 11 of the Convention and the freedom of association which it guarantees, the interference in question cannot be considered disproportionate to the aims pursued.

      (d)  The Court's conclusion

106. The Court concludes, therefore, that it was not the applicants' freedom of association per se that was restricted by the State. The authorities did not prevent them from forming an association to express and promote distinctive features of a minority but from creating a legal entity which, through registration under the Law on associations and the description it gave itself in paragraph 30 of its memorandum of association, would inevitably become entitled to a special status under the 1993 Elections Act. Given that the national authorities were entitled to consider that the contested interference met a “pressing social need” and given that the interference was not disproportionate to the legitimate aims pursued, the refusal to register the applicants' association can be regarded as having been “necessary in a democratic society” within the meaning of Article 11 § 2 of the Convention.

There has accordingly been no violation of Article 11 of the Convention.

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