GORZELIK AND OTHERS v. POLAND JUDGMENT
27
left to the authorities was practically unlimited and the rules they would
apply were unpredictable.
57. Furthermore, the authorities had used the registration procedure
under the Law on associations as a means of denying them a minority
status. Yet that procedure could not act as an instrument for determining
whether or not a national minority existed. It was purely formal and could
serve only the purposes for which it was designed, namely to determine
whether registration was admissible under section 14 of the Law on
associations, and whether, as prescribed by section 16, the memorandum of
association was in conformity with the law and the members satisfied the
statutory requirements.
58. The applicants asserted that they had fulfilled all those conditions.
Consequently, under the relevant Law, the authorities were obliged to
register the association and, as the Katowice Regional Court rightly held,
there had been no legal basis for their refusal to do so. However, instead of
focusing on the requirements for registration, the higher courts had engaged
in speculation about whether they intended to stand in elections and had
tried the case as a dispute over the existence of Silesian nationality. In the
absence of any legal definition of the concept of “national minority” or
criteria for determining what might qualify as a “national minority”, that
approach had deprived the applicants of the ability to foresee what legal
rules would be applied in their case.
(ii) The Government
59. The Government fully agreed with the Chamber's opinion and added
that the relevant provisions were sufficiently clear, precise and accessible to
allow the applicants to determine their conduct. Consequently, they met the
standard of “foreseeability” of a “law” under the Convention.
60. At the hearing before the Grand Chamber, the Government
acknowledged that Polish legislation, as it stood at the material time, had
not defined the notions of “national” and “ethnic” minority, in particular for
the purposes of electoral law. That, in their view, did not alter the position
since it could not be said that the State had a duty to provide a definition.
The fact that some States had chosen – either in their legislation or in their
declarations under the Framework Convention – to give descriptive or
enumerative definitions of minorities did not mean that the Polish State had
to do likewise.
61. Indeed, in Poland national or ethnic minorities could be, and were,
identified by reference to various legal sources such as the bilateral treaties
on good neighbourliness and friendly cooperation it had entered into with
Germany, Lithuania, Ukraine and other neighbouring states. They were also
recognised in legal instruments, a specific example being the official report
on the implementation of the Framework Convention, submitted by the
Polish government to the Secretary General of the Council of Europe in