GORZELIK AND OTHERS v. POLAND JUDGMENT
35
been prepared to accept it – but the content of paragraph 30 of the
memorandum of association, which corresponded to the wording of section
5 of the 1993 Elections Act. It was the provisions of the memorandum of
association, not its name, that would subsequently have been decisive for
the State Electoral College in determining whether the association
constituted a “registered organisation of a national minority”. It could be
assumed that, even if the association had been registered as an organisation
of “people of Silesian nationality” but with the disputed paragraph deleted
from the memorandum, the applicants would not have been able to take
advantage of the electoral privileges envisaged for national minorities. In
the Government's submission, the applicants had been perfectly aware of
that consequence as, otherwise, they would have accepted the Governor's
proposal for the deletion of paragraph 30.
84. The Government added that, on the basis of that provision, the
applicants would inevitably have acquired on registration of the association
an unconditional right to benefit from preferential treatment under the 1993
Elections Act. Consequently, the authorities had had to act before that risk
had become real and immediate since, at election time, all the measures
available under the Law on associations would have either been inadequate
or come too late.
85. In reality, under Polish law an association could only be dissolved if
its activities demonstrated a flagrant or repeated non-compliance with the
law or its memorandum of association. To begin with, there had been
nothing in the stated aims of the association to cast doubt on their
conformity with the law; the prime objective, which had been to obtain
minority status, had not been articulated expressly. Secondly, had the
applicants, or other members, stood for future parliamentary elections, there
would have been no legal means to prevent them from taking advantage of
the privileges under electoral law.
86. Running for election, in the legitimate exercise of a political right,
could not be considered an unlawful activity under the Law on associations.
At that stage the State Electoral College would have had no power to reject
the declaration stating that the applicants had constituted an electoral
committee of a registered organisation of a national minority, because their
status would have been confirmed officially by the content of their
memorandum of association and, in particular, paragraph 30 thereof. It
would only have had the power to ascertain whether the declaration had
been made by an authorised legal entity.
87. In sum, the Government considered that the restriction imposed on
the exercise of the applicants' right to freedom of association had been
necessary in a democratic society since it corresponded to a “pressing social
need” and had been proportionate to the legitimate aims pursued.
(c) The Court's assessment