26
GORZELIK AND OTHERS v. POLAND JUDGMENT
In that connection, the Court also notes that the central issue underlying the
applicants' grievance is the refusal to register their association as an
“organisation of the Silesian national minority” (see paragraphs 22, 48 and
50 above).
B. Whether the interference was justified
53. The impugned restriction will not be justified under the terms of
Article 11 unless it was “prescribed by law”, pursued one or more of the
legitimate aims set out in paragraph 2 of that Article and was “necessary in
a democratic society” for the achievement of those aims.
1. “Prescribed by law”
(a) The Chamber's judgment
54. The Chamber, finding that the refusal to register the applicants'
association was based on a number of legal provisions, including Article 32
of the Constitution, Articles 5 and 58 of the Civil Code and sections 8, 10(1)
(i) and (iv) and 14 of the Law on associations, held that the restriction on
their freedom of association had been “prescribed by law” (see paragraph 38
of the Chamber's judgment).
(b) The parties' submissions to the Grand Chamber
(i) The applicants
55. The applicants contested the Chamber's conclusion. They argued,
first and foremost, that they had been denied the right to form an association
not because they had failed to meet the requirements for registration laid
down in the Law on associations, or because their aims or the means of their
achievement had been contrary to the law, but solely because the authorities
considered that there was no Silesian national minority in Poland.
56. That opinion was, they stressed, completely arbitrary. It was based
on purely political, not legal or factual, grounds. Thus, in reality, there had
been no possibility of ascertaining whether or not a given group constituted
a national minority, since under Polish law there was still no procedure
whereby a minority could seek legal recognition or provision defining the
notion of “national” or “ethnic” minority. They asserted that that lacuna in
the law made it impossible for them to determine how to form an
association comprising members of a minority group wishing to pursue
common goals.
They also noted that the Chamber had already found that the absence of
any such legal criteria left the authorities a degree of latitude and made the
situation of the individual uncertain. In their view, the power of appreciation