34
GORZELIK AND OTHERS v. POLAND JUDGMENT
of activity, the authorities could have interfered at that stage, under sections
28 and 29 of the Law on Associations. Next, the committee would have had
to submit to the State Electoral College a declaration under section 5 of the
1993 Elections Act. The College would have examined that declaration
thoroughly so as to ascertain whether it had been submitted by an entity
entitled to make such a declaration. In case of doubt, it could have ordered
the committee to produce supporting evidence.
In consequence, the State Electoral College would have had the ultimate
power to acknowledge or reject their claim to privileges under the 1993
Elections Act, as was apparent not only from section 5 but also from the
general provisions of the Act, which obliged the College to ensure
compliance with its provisions.
80. The applicants said that, in any event, it had not been necessary for
the authorities to have recourse to so drastic a measure as preventing the
very existence of the association. Under the Law on associations, they had a
number of powerful legal tools at their disposal for regulating the activities
of an existing association. They could reprimand its officers, annul any
unlawful resolution passed by the association or even dissolve it under
section 29. In contrast to a preventive restriction on registration in
anticipation of a particular scenario, such measures could be regarded as
acceptable under Article 11 as their application depended on the actual
conduct and actions of the association.
Accordingly, without needing to resort to a refusal of registration, the
authorities could have effectively corrected or put an end to the association's
future activity if the need to “prevent disorder” or to “protect the rights of
others” had in fact arisen.
81. In view of the foregoing, the applicants concluded that the contested
restriction had been disproportionate to the aims relied on by the authorities
and could not, therefore, be regarded as necessary in a democratic society.
(ii) The Government
82. The Government maintained that the authorities' intention was not to
put a preventive restraint on the applicants' right to associate freely with
others in order to maintain distinctive features of Silesians or to promote
Silesian culture. Their primary purpose had been to forestall their likely
attempt to use the registration of the association as a legal means for
acquiring special status under electoral law.
The authorities had not acted, as the applicants asserted, on unfounded
suspicions as to their concealed intentions but on the basis of an objective
assessment of the relevant facts and the legal consequences of the
registration of an association that declared itself to be an organisation of a
national minority.
83. Thus, the crucial issue between the applicants and the authorities
was not the intended name of the association – as the latter had eventually