Gorzelik v. Poland (application No. 44158/98)
Applicants refused registration of an association as the Government contested the fact that Silesians were a ‘national minority’. The Government attempted to their anticipated attempt to claim legal exemption, as a national minority, from the 5% election threshold.
No violation of the right to freedom of association (Art. 11 ECHR). Despite an interference with the right, the Government was found to have a legitimate aim of preventing disorder and protecting the right of others, which met a pressing social need of protecting existing democratic institutions and election procedures in Poland, and its measure was proportionate to this aim.
- The Court affirmed the “direct relationship between democracy, pluralism and the freedom of association” and “ that only convincing and compelling reasons can justify restrictions on that freedom.” (§ 88)
- “Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. (§ 90)
- “Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. (§ 90)
- “Pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion.” (§ 92)
- “The Court recognises that freedom of association is particularly important for persons belonging to minorities, including national and ethnic minorities, and that, as laid down in the preamble to the Council of Europe Framework Convention, “a pluralist and genuinely democratic society should not only respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity” . Indeed, forming an association in order to express and promote its identity may be instrumental in helping a minority to preserve and uphold its rights.” (§ 92)
- “The disputed restriction on the establishment of the association was essentially concerned with the label which the association could use in law – with whether it could call itself a “national minority” – rather than with its ability “to act collectively in a field of mutual interest” (see paragraph 88 above). As such, it did not go to the core or essence of freedom of association.” (§ 105)
Despite no violation being found in Gorzelik, the Grand Chamber’s insistence on the fair and proper treatment of minorities is crucial. Indeed, the reference to the preamble of the Framework Convention on National Minorities, denotes an important component in the defence of minorities. The scope of this jurisprudence is in no way limited to cases involving freedom of association.
The Court agreed with the Government that the applicants sought exemption the 5% electoral threshold (§ 105). Furthermore, the Court felt that the Government’s decision by no means amounted to a denial of the distinctive ethnic and cultural identity of Silesians (§ 105). Gorzelik does not impact the decision of other minorities from claiming they are national minorities, but demonstrates that the Court will consider arguments that the claim has an alterior motive.
The Court’s citing of the Framework Convention on National Minorities lends jurisprudential weight to the Convention.
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