GORZELIK AND OTHERS v. POLAND JUDGMENT
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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.