40
GORZELIK AND OTHERS v. POLAND JUDGMENT
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).