CASE OF VEREIN GEGEN TIERFABRIKEN SCHWEIZ (VgT) v. SWITZERLAND (No. 2)

Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection dismissed (lack of jurisdiction);Violation of Art. 10

Alvina Gyulumyan;András Sajó;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giorgio Malinverni;Isabelle Berro-Lefèvre;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Ledi Bianku;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Mihai Poalelungi;Päivi Hirvelä;Renate Jaeger;Snejana Botoucharova

NORP The applicant association is dedicated to animal protection , campaigning in particular against animal experiments and battery farming .

NORP In response to various advertisements produced by the meat industry , the applicant association made a television commercial lasting TIME , consisting of CARDINAL scenes .

The first scene showed a sow building a shelter for her piglets in the forest . With soft music playing in the background , the voiceover referred , among other things , to the GPE sense of family . The second scene showed a noisy hall with pigs in small pens , gnawing nervously at the iron bars . The voiceover compared the conditions in which pigs were reared to concentration camps , and added that the animals were pumped full of medicines . The advertisement concluded with the exhortation : “ Eat less meat , for the sake of your health , the animals and the environment ! ”

Permission to broadcast the commercial on the channels of ORG ( Schweizerische Radio- und Fernsehgesellschaft ) was refused on DATE by the company responsible for television advertising ( ORG ( ORG für das LOC ) , now called ORG ) and , at final instance , by ORG , which dismissed an administrative - law appeal by the applicant association on DATE .

In respect of the applicant association ’s complaint under LAW , ORG found that the prohibition of political advertising laid down in section PERSON ) of ORG pursued various aims ; in particular , it was designed to prevent financially powerful groups from obtaining a competitive political advantage , to protect the formation of public opinion from undue commercial influence , to bring about a certain equality of opportunity among the different forces of society , and to contribute towards the independence of radio and television broadcasters in editorial matters .

On DATE the applicant association lodged an application with ORG under former LAW .

The application was transmitted to ORG on DATE , when Protocol No . CARDINAL to the LAW came into force ( LAW ) .

In a decision of DATE , the ORG declared the application partly admissible .

In a judgment of DATE , ORG held that the refusal by the relevant NORP authorities to broadcast the commercial in question infringed the right to freedom of expression guaranteed by LAW ( see ORG gegen PERSON v. GPE , no . CARDINAL , ORG CARDINALVI ) .

The ORG found that the measure taken had been “ prescribed by law ” and had pursued a legitimate aim for the purposes of LAW .

As to whether the measure had been “ necessary in a NORP society ” within the meaning of that provision , the ORG noted , in particular , that it had not been established that the applicant association itself constituted a powerful financial group pursuing the aim of restricting the broadcaster ’s independence , unduly influencing public opinion or endangering equality of opportunity among the different forces of society . On the contrary , it had simply intended to participate in an ongoing general debate on the protection and rearing of animals . Accordingly , in the ORG

The ORG also found that there had been no violation of LAW and CARDINAL of the Convention . As to the application of Article CARDINAL , it ordered GPE to pay the sum of MONEY ( CHF ) ( MONEY ( ORG ) DATE ) for costs and expenses . However , it made no award to the applicant association for non - pecuniary damage .

On DATE the applicant association again applied to ORG for permission to broadcast the same commercial with the addition of a comment referring to the ORG ’s judgment and criticising the conduct of ORG and the NORP authorities .

In a letter of DATE , ORG refused the application .

On DATE , on the basis of the ORG ’s judgment , the applicant association applied to ORG for the final judgment given at domestic level to be reviewed , in accordance with section ORG ) of the former LAW ( see paragraph CARDINAL below ) . The application was worded and substantiated as follows :

“ In the case of ORG gegen GPE ( PERSON ) , PERSON , v. ORG , ORG and ORG , ORG ) :

I hereby request on behalf of ORG that ORG judgment of DATE be reviewed and that the administrative - law appeal of DATE be allowed .

Reasons : In its judgment of DATE , ORG upheld an application challenging ORG judgment of which I am seeking a review ( see Annex CARDINAL ) . The judgment was served on DATE ( see FAC ) ; this application for review has therefore been lodged in time .

Yours faithfully ... ”

ORG , Energy and Communication and ORG submitted in their respective observations of DATE and DATE , which were duly transmitted to the applicant association , that the application to reopen the proceedings should be dismissed .

In a judgment of DATE , ORG dismissed the application to reopen the proceedings . It held that the applicant association had not provided a sufficiently detailed explanation of the nature of “ the amendment of the judgment and the redress being sought ” , a formal requirement imposed by CARDINAL of the former LAW ( see paragraph CARDINAL below ) . It observed , in particular , that the applicant association had been unable to show that redress was possible only through the reopening of the proceedings . It further noted that the association had not sufficiently shown that it still had an interest in broadcasting the original commercial , which now appeared out of date almost eight years after it was initially intended to have been broadcast . Lastly , ORG considered that the fresh refusal by ORG , the competent authority in such matters , to sign a new agreement to broadcast the commercial should have formed the subject of separate proceedings . The relevant passages of the judgment read as follows :

CARDINAL Section CARDINAL of the Federal Judicature Act provides that an application for review must indicate , with supporting evidence , the ground relied on for the reopening of proceedings and whether it has been raised in due time . It is not enough simply to claim that the ground exists ; it is also necessary to explain why , and to what extent , the operative provisions must be amended as a result ( PERSON , ‘ Revision und Erläuterung’ , note CARDINAL , in LAW , PERSON , CARDINALnd ed . , PERSON ) .

CARDINAL The application to reopen the proceedings in the instant case does not meet these formal requirements . The applicant association has sought the review of ORG judgment without explaining the extent to which this is necessary following ORG judgment of DATE . PERSON evidently assumes that ORG decision against GPE in itself makes the reopening of the proceedings necessary , but that is not the case . The mere fact that the ORG , ruling on an individual application , has found a violation of the ORG does not mean that the ORG judgment in issue must automatically be reviewed in accordance with domestic law ( see judgment ORG DATE in the LOC case , point CARDINAL / cc ; PERSON , ‘ EMRK - Verletzung und bundesrechtliche Revision nach Art . PERSON , in recht DATE , p. CARDINAL ; PERSON , op . cit . , p. CARDINAL ; ORG , op . cit . , p. CARDINAL ; BBl DATE II CARDINAL , p. CARDINAL ) . Being a subsidiary remedy , reopening is justified only if it appears to remain necessary notwithstanding the compensation awarded by ORG and constitutes the only means of obtaining redress ( see PERSON , op . cit . , p. CARDINAL ; PERSON , op . cit . , p. CARDINAL ) . The application to reopen the proceedings must give at least a broad indication of how redress may be obtained only by this means ( see judgment ORG in the LOC case , point CARDINAL / cc ) .

CARDINAL ...

ORG evidently once again refused to conclude an advertising agreement with ORG , which appealed against the refusal to ORG ; the proceedings are still pending . By taking this action , PERSON itself proves that it is not continuing to suffer any practical adverse effects that can only be redressed by reopening the proceedings . It does not claim that it still has an interest in having the original commercial broadcast ; it is , moreover , unlikely that this is the case , since ORG ’s primary objective is no longer ( solely ) to encourage a decline in meat consumption and to denounce the conditions in which animals are reared ( which are also likely to have changed in DATE since the commercial was intended to have been broadcast ) , but to publicise ORG finding of a violation of its freedom of expression . It is thus no longer the same commercial that is under discussion DATE . The consequences of the Convention violation committed at the time were redressed as a result of the judgment against GPE and the award of just satisfaction under LAW ; the new agreement which ORG now wishes to conclude must form the subject of separate proceedings .

CARDINAL NORP In its judgment of DATE , ORG held that PERSON ’s commercial was subject to the public - law prohibition on political advertising set forth in section PERSON ) of ORG and could provide ORG , or rather ORG , with a valid reason for not concluding the advertising agreement . ORG did not share this view and held that there was no justification in a NORP society for refusing to broadcast a commercial on the ground that it constituted political advertising , which was banned on television . ORG did not express an opinion on whether and to what extent GPE , by not ensuring that the commercial could be broadcast , had breached any positive obligations resulting from the extension of the LAW safeguards to relations between private entities ( see paragraph CARDINAL of the ORG ’s judgment ) . The subject of ORG judgment was the finding by the authorities that ORG ’s commercial could be considered ‘ political’ within the meaning of ORG and that the refusal to broadcast it could be justified on this public - law ground alone . The judgment did not deal with the question whether ORG had boycotted PERSON , whether the company dominated the advertising market and whether , on that account , it would have been under an obligation to conclude an advertising agreement . These ( civil law ) aspects of an obligation to contract must be addressed in the appropriate form of civil proceedings ( concerning cartel law , competition law or the general law relating to personality rights ) and not under the law governing trading licences . This argument , which GPE put forward , was not contested by ORG .

CARDINAL In this connection , by enacting the relevant ( civil ) legislation and establishing judicial remedies to implement it , GPE has complied with its positive obligation under LAW to ensure the appropriate realisation among private entities of the rights guaranteed by the LAW . The rules of competition and cartel law or the possibility of asserting a civil - law obligation to contract are intended to encourage a means of implementing fundamental rights that is fair and strikes a balance between the various interests at stake in the sphere of economic relations between private entities . ORG is free to use this legal remedy in seeking to have its commercial broadcast , provided that , contrary to what has been said above , it still has a real interest in the broadcast ; in that eventuality , due regard will have to be had in the proceedings to its constitutional rights and the principles enshrined in LAW ( see LAW ) . The judgment of ORG does not conflict with this view ; however , all that can be inferred from the judgment is that the classification of the commercial as ‘ political advertising’ did not justify refusing to broadcast it , or that the broadcasting of the commercial by ORG , on the basis of LAW , should not have had any consequences for the broadcaster under the law relating to trading licences . ORG rightly points out that the judgment can not be construed as requiring it to broadcast the commercial in issue in breach of the existing legal rules ( such as the provisions of LAW ) , since ORG did not address the corresponding questions , limited itself to examining the issue of ‘ political’ advertising and did not state any position on ORG ‘ NORP freedom of expression . Since the ORG ’s judgment simply finds that the prohibition of political advertising on television must not stand in the way of broadcasting the commercial , ORG must seek to have it broadcast through recourse to the civil courts and not through the reopening procedure , should ORG , or rather ORG , still refuse to broadcast it ( see ORG , PERSON ideeller PERSON i m GPE , dissertation , GPE DATE , pp . CARDINAL et seq . ; PERSON , ‘ PERSON , in ORG Zimmerli ( eds . ) , PERSON , PERSON , note CARDINAL ; PERSON , ‘ ORG für Werbung und ORG , in ORG , pp . CARDINAL et seq . , in particular p. CARDINAL , footnote CARDINAL ) .

CARDINAL NORP ORG can not be directly ordered to broadcast the commercial in issue , since ORG has no power in public law to give such an order . The applicant association had requested ORG to issue a declaratory order to the effect that , under LAW , PERSON was entitled to have its commercial broadcast ( ‘ right to broadcast ORG ) . ORG acknowledged from a procedural point of view that a right to have such an order issued existed ( LAW in conjunction with LAW ) but ruled in the instant case – wrongly in ORG view – on the basis of section PERSON ) of ORG that there was no right of access to television for political advertising . If ORG had decided in the same way as ORG , it would have had to limit itself to finding that ORG had not been entitled to refuse to broadcast the commercial on the ground that it was political in nature , or rather that reliance on this ground for the refusal was contrary to LAW . On the other hand , given the lack of legal basis , ORG could not have ordered ORG to broadcast the commercial in the context of proceedings governed by broadcasting legislation ( see PERSON , op . cit . , note CARDINAL ) . PERSON is now seeking such an order solely by way of the reopening procedure , but it can not obtain it in relation to the decision to be reviewed . ORG can not make an order , following a judgment of ORG , that it was not empowered to make in the original proceedings ( see judgment CARDINAL of DATE in the PERSON case , point CARDINAL / bb , published in ORG DATE , p. CARDINAL ) .

On DATE ORG dismissed an appeal by the applicant association against ORG decision of CARDINAL DATE refusing permission to broadcast the commercial featuring the additional comment .

ORG , which had not been informed either by the applicant association or by the Government that ORG had dismissed the application for review , concluded its examination of application no . CARDINAL on DATE by adopting PERSON , the relevant parts of which read :

Having regard to the Rules adopted by ORG concerning the application of LAW ;

Whereas during the examination of the case by ORG , the Government of the respondent ORG gave the ORG information about the measures taken preventing new violations of the same kind as that found in the present judgment ; this information appears in the appendix to this resolution ;

Declares , after having taken note of the information supplied by the Government of GPE , that it has exercised its functions under LAW in this case .

Appendix to ORG ResDH(CARDINAL)CARDINAL

Information provided by the Government of GPE during the examination of ORG gegen PERSON case by ORG

As regards individual measures , the judgment was transmitted to the applicant , who was entitled to request the revision of ORG judgment of DATE .

Concerning general measures , the judgment has been sent out to ORG , ORG , ORG , and ORG and to ORG .

In addition , the ORG ’s judgment has been published in the journal Jurisprudence des autorités administratives de la Confédération no . CARDINAL/IV(CARDINAL ) , and can be consulted on the following website : ... The judgment has also been mentioned in ORG on the NORP activities at ORG in DATE , which has been published in the GPE fédérale no . CARDINAL/CARDINAL .

The Government of GPE considers that , given the information mentioned above , there will no longer exist a risk of a repetition of the violation found in the present case and , consequently , GPE has satisfied its obligations under LAW § CARDINAL of the LAW . ”

In a letter of DATE , the applicant association informed ORG refusal to review the judgment of DATE following the ORG ’s finding of a violation of LAW .

On DATE ORG informed the applicant association that it did not consider it advisable to conduct a fresh examination of the matter alongside the ORG ’s consideration of the application lodged in DATE in the present case .

Sections CARDINAL et seq . of the former LAW , which was in force until DATE , concerned , inter alia , the review of judgments of ORG . Section CARDINAL(a ) provided :

“ CARDINAL . A decision of ORG or of a lower court may be reviewed if ORG has granted an individual application on account of a breach of LAW DATE for ORG and its Protocols , and redress is possible only through such a review .

NORP If ORG determines that a review is called for , but a lower court has jurisdiction , it shall refer the case to the lower court to reopen proceedings in the matter .

NORP The cantonal court shall then decide on the application for a review even if cantonal law does not envisage such a ground for the reopening of proceedings . ”

Section CARDINAL of the Act provided :

“ The application for review must indicate , with supporting evidence , the ground relied on for the reopening of proceedings and whether it has been raised in due time ; it must also state the nature of the amendment of the judgment and the redress being sought . ”

Thus , on the basis of section CARDINAL , ORG on DATE partly revised CARDINAL of its judgments after the ORG had found a violation in GPE v. GPE ( DATE , Reports of Judgments and Decisions CARDINALVI ) . It held , in particular :

“ ... The judgment of ORG may afford the applicant satisfaction and , through the award of CHF CARDINAL , financial compensation for the cost of the proceedings . But it does not remove the restrictions imposed on the applicant by ORG and confirmed by ORG in its judgment of DATE . These restrictions may be upheld only within the bounds of necessity as defined by ORG . Since those restrictions may be lifted or limited only by means of an appeal to ORG , the requirement of section ORG ) of MONEY is met ... ”

Section CARDINAL of LAW of DATE , in force since DATE , reproduces the content of section ORG ) of the former ORG . It provides :

“ An application for review of a judgment of ORG on account of a violation of LAW DATE for ORG may be submitted if the following conditions are satisfied :

( a ) ORG , in a final judgment , has found a violation of the ORG or its Protocols ;

( b ) compensation can not remedy the effects of the violation ;

( c ) the review is necessary to remedy the effects of the violation . ”

In a judgment of DATE ORG granted an application to reopen the proceedings following the ORG ’s finding of a violation of LAW and Others v. GPE ( no . CARDINAL/CARDINAL , DATE ) , and set aside its judgment of CARDINAL DATE . The relevant parts of ORG judgment read as follows :

“ As to the law :

By virtue of CARDINAL ) of LAW , an application for review of a judgment of ORG on account of a violation of the ORG may be submitted if ORG , in a final judgment , has found a violation of the LAW or its Protocols . In such an event , the application for review must be lodged with ORG DATE after ORG judgment has become final within the meaning of LAW ( section CARDINAL(CARDINAL)(c ) of LAW ) . Having been parties to the proceedings that resulted in the impugned judgment , the applicants have locus standi . The judgment became final on DATE ; the application has therefore been lodged in time . The application also states the ground relied on for reopening the proceedings and the nature of the amendment of the judgment being sought ; it should therefore be considered on the merits .

The submission that the ORG should be ordered to pay the applicants the sums awarded by ORG in respect of non - pecuniary damage and costs and expenses can not , however , be dealt with in the present review proceedings . Accordingly , it is inadmissible .

NORP The basis in LAW for reopening the proceedings is subject to several conditions . Thus , an individual application must have been upheld by ORG in a final judgment finding a violation of a right guaranteed by LAW ( subsection ( a ) ) ; compensation can not remedy the effects of the violation ( subsection ( b ) ) ; and the review must be necessary to remedy the effects of the violation ( subsection ( c ) ) . The conditions laid down in this provision are similar to those which applied under LAW ( section ORG ) ) , with the result that , in principle , the case - law under the previous legislation retains its full force .

CARDINAL NORP In the instant case ORG found that the severing of the mother - child relationship following the child ’s adoption by her mother ’’ right to respect for family life and , on that account , a violation of LAW . ORG judgment has , moreover , been final since DATE ( section CARDINAL ) of LAW ) . Furthermore , it is clear that no award of compensation can afford redress for the loss of the mother - child relationship as a result of the adoption ( section CARDINAL(b ) of LAW ) . The first CARDINAL conditions in section CARDINAL of ORG are therefore satisfied .

It remains to be ascertained whether a review of ORG judgment is necessary to remedy the effects of the violation of LAW ( section CARDINAL(c ) of LAW ) . The mere fact that there has been a breach of the LAW does not mean that the decision referred to ORG has to be reviewed . This follows from the very nature of the reopening procedure , which is an extraordinary remedy . Accordingly , if there is another ordinary remedy that could afford redress , that remedy should be used first . The answer to this question depends on the nature of the Convention violation that has been found . Where only material interests remain at stake , the proceedings can not in principle be reopened . However , where the unlawful situation persists despite ORG finding of a violation of the LAW , a review is possible . The proceedings are then reopened within the limits of the relevant ground ( see , with reference to LAW , judgment CARDINAL of DATE , point CARDINAL / bb , published in : PERSON DATE no . CARDINAL , p. CARDINAL , and the judgments cited ; and , with reference to LAW , PERSON , in ORG , PERSON , note CARDINAL on section CARDINAL ; judgment PERSON of DATE , point CARDINAL ) .

ORG held on this point that the annulment of the adoption for lack of consent would not be able to remedy the effects of adoption at the origin of the dispute . An action to that end could not , according to ORG case - law , be regarded as an effective remedy on the basis of which a plea of inadmissibility could be raised against the applicants for failure to exhaust domestic remedies . ORG also held that the adopter and the adopted person ’s mother could not be required to marry in order to restore the adopted person ’s relationship with her mother . In the ORG ’s view , it is not for the national authorities to take the place of those concerned in reaching a decision as to the form of communal life they wish to adopt . The concept of family under LAW is , moreover , not confined to marriage - based relationships . Accordingly , unless the mother - daughter relationship is restored and an amendment to that effect is made to the civil - status register , it must be acknowledged that the unlawful situation will persist .

Accordingly , the application for review should be allowed and the judgment of CARDINAL DATE should be set aside .

On DATE , at the CARDINALth meeting of ORG , ORG Recommendation No . R ( DATE ) CARDINAL on the re - examination or reopening of certain cases at domestic level following judgments of ORG :

“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,

Considering that the aim of ORG is to bring about a closer union between its members ;

Having regard to ORG ( hereinafter ‘ the Convention’ ) ;

Noting that under LAW have accepted the obligation to abide by the final judgment of ORG ( ‘ the ORG ) in any case to which they are parties and that ORG shall supervise its execution ;

Bearing in mind that in certain circumstances the above - mentioned obligation may entail the adoption of measures , other than just satisfaction awarded by ORG in accordance with LAW and/or general measures , which ensure that the injured party is put , as far as possible , in the same situation as he or she enjoyed prior to the violation of the Convention ( restitutio in integrum ) ;

Noting that it is for the competent authorities of the respondent ORG to decide what measures are most appropriate to achieve restitutio in integrum , taking into account the means available under the national legal system ;

Bearing in mind , however , that the practice of ORG in supervising the execution of the ORG ’s judgments shows that in exceptional circumstances the re - examination of a case or a reopening of proceedings has proved the most efficient , if not the only , means of achieving restitutio in integrum ;

I. Invites , in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve , as far as possible , restitutio in integrum ;

II . Encourages the Contracting Parties , in particular , to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re - examination of the case , including reopening of proceedings , in instances where the ORG has found a violation of the LAW , especially where :

( i ) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue , which are not adequately remedied by the just satisfaction and can not be rectified except by re - examination or reopening , and

( ii ) the judgment of the ORG leads to the conclusion that

( a ) the impugned domestic decision is on the merits contrary to the LAW , or

( b ) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of .

Explanatory memorandum

Paragraph CARDINAL sets out the basic principle behind the recommendation that all victims of violations of the ORG should be entitled , as far as possible , to an effective restitutio in integrum . The Contracting Parties should , accordingly , review their legal systems with a view to ensuring that the necessary possibilities exist .

Paragraph CARDINAL of the Report by ORG of ORG on execution of judgments of ORG . DATE , DATE ) reads as follows :

“ Since the ORG does not tell GPE how to apply its decisions , they must consider how to do so themselves . The obligation to comply with judgments is an obligation to produce a specific result – to prevent further violations and repair the damage caused to the applicant by the violation . ... ”

On DATE , at the ORG meeting of ORG , ORG for the supervision of the execution of judgments and of the terms of friendly settlements :

“ Rule CARDINAL

The exercise of the powers of ORG under LAW to CARDINAL and LAW of LAW is governed by the present Rules .

Rule CARDINAL : Information to ORG on the execution of the judgment

When , in a judgment transmitted to ORG in accordance with LAW , the ORG has decided that there has been a violation of the LAW or its Protocols and/or has awarded just satisfaction to the injured party under LAW , the ORG shall invite ORG concerned to inform it of the measures which ORG has taken or intends to take in consequence of the judgment , having regard to its obligation to abide by it under LAW .

NORP When supervising the execution of a judgment by ORG concerned , pursuant to LAW , ORG shall examine :

( a ) NORP whether any just satisfaction awarded by the ORG has been paid , including as the case may be , default interest ; and

( b ) if required , and taking into account the discretion of ORG concerned to choose the means necessary to comply with the judgment , whether :

( i ) individual measures have been taken to ensure that the violation has ceased and that the injured party is put , as far as possible , in the same situation as that party enjoyed prior to the violation of the Convention ;

( ii ) general measures have been adopted , preventing new violations similar to that or those found or putting an end to continuing violations .

Rule CARDINAL : Control intervals

Until the High Contracting Party concerned has provided information on the payment of the just satisfaction awarded by the ORG or concerning possible individual measures , the case shall be placed on the agenda of each human rights meeting of ORG , unless the ORG decides otherwise .

NORP If ORG concerned informs ORG that it is not yet in a position to inform the ORG that the general measures necessary to ensure compliance with the judgment have been taken , the case shall be placed again on the agenda of a meeting of ORG taking place DATE , unless the ORG decides otherwise ; the same rule shall apply when this period expires and for each subsequent period .

Rule CARDINAL : Access to information

The provisions of this Rule are without prejudice to the confidential nature of ORG deliberations in accordance with LAW .

NORP The following information shall be accessible to the public unless the ORG decides otherwise in order to protect legitimate public or private interests :

( a ) information and documents relating thereto provided by a High Contracting Party to ORG pursuant to LAW ;

( b ) information and documents relating thereto provided to ORG , in accordance with the present Rules , by the injured party , by non - governmental organisations or by national institutions for the promotion and protection of human rights .

Rule CARDINAL : Communications to ORG

ORG shall consider any communication from the injured party with regard to payment of the just satisfaction or the taking of individual measures .

ORG shall be entitled to consider any communication from non - governmental organisations , as well as national institutions for the promotion and protection of human rights , with regard to the execution of judgments under LAW .

The ORG shall bring , in an appropriate way , any communication received in reference to paragraph CARDINAL of this Rule , to the attention of ORG . It shall do so in respect of any communication received in reference to paragraph CARDINAL of this Rule , together with any observations of the delegation(s ) concerned provided that the latter are transmitted to the ORG within DATE of having been notified of such communication .

Rule no . CARDINAL : Interim resolutions

In the course of its supervision of the execution of a judgment or of the terms of a friendly settlement , ORG may adopt interim resolutions , notably in order to provide information on the state of progress of the execution or , where appropriate , to express concern and/or to make suggestions with respect to the execution .

Rule no . CARDINAL : Final resolution

After having established that the High Contracting Party concerned has taken all the necessary measures to abide by the judgment or that the terms of the friendly settlement have been executed , ORG shall adopt a resolution concluding that its functions under LAW or LAW have been exercised . ”

Article CARDINAL of ORG of ORG on ORG ( adopted by ORG of ORG at its CARDINALrd session ( DATE ) , and reproduced in ORG of ORG , CARDINALth Session , Supplement No . CARDINAL ( A/CARDINAL/CARDINAL ) ) is worded as follows :

“ A ORG responsible for an internationally wrongful act is under an obligation to make restitution , that is , to re - establish the situation which existed before the wrongful act was committed , provided and to the extent that restitution :

( a ) is not materially impossible ;

( b ) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation . ”

Article CARDINAL of , and the third paragraph of the Preamble to , LAW of CARDINAL DATE on ORG , which entered into force in respect of GPE on DATE , sets forth the principle of pacta sunt servanda :

“ Every treaty in force is binding upon the parties to it and must be performed by them in good faith . ”


“ An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it .

This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks .

The person concerned may freely withdraw consent at any time . ”


The applicants , ORG and PERSON , are NORP citizens who were born in DATE and DATE , respectively , and live in GPE . They are represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent , PERSON .

The facts of the case , as submitted by the parties , may be summarised as follows .

The first applicant is the mother of the second applicant . On DATE their husband and father , GPE died in a hospital in GPE .

On DATE the applicants instituted civil proceedings in ORG ( PERSON ) against the hospital , alleging that their husband and father had died due to the hospital personnel ’s negligence and sought non - pecuniary damages .

Before the ORG entered into force in respect of GPE ( i.e. before DATE ) the case was several times decided at different levels . After ORG ( PERSON ) quashed the first and second instance judgments on DATE , the case was remitted to ORG as the court of first instance , which before to CARDINAL DATE held QUANTITY hearings .

On DATE the court invited the applicants to pay an advance for the costs of an additional medical expertise .

On DATE ORG in GPE ( PERSON fakultet u GPE ) submitted its expertise to the court .

On DATE and CARDINAL DATE the parties submitted their comments on the medical expertise .

On DATE the defendant filed additional submissions .

At the hearing on DATE the ORG counsel asked the court to adopt a partial judgment .

At the hearing on DATE the court ordered that yet another additional medical expertise be carried out .

At the next hearing on DATE the court heard CARDINAL medical experts and adopted partial judgment awarding the applicants’ claim in part and rejecting it in part .

On DATE the defendant appealed against the judgment .

It appears that the proceedings are presently pending before the appellate court .

The relevant parts of LAW of LAW on LAW ( entered into force on DATE , published in ORG no . CARDINAL of CARDINAL May CARDINAL - hereinafter “ LAW on the LAW ” - Ustavni zakon o Ustavnom sudu PERSON ) read as follows :

( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...

( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...

( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment .


On an unknown date the applicants ( who all describe themselves as “ NORP ” ) , together with CARDINAL other persons , decided to form an association ( stowarzyszenie ) entitled “ ORG ” ( ORG ) . The founders subsequently adopted a memorandum of association . The applicants were elected to the provisional management committee ( PERSON ) and were authorised to proceed with the registration of the association .

On DATE the applicants , acting on behalf of the provisional management committee of the “ ORG ” , lodged an application for the registration of their association with ORG ( Sąd Wojewódzki ) . They relied on , inter alia , section CARDINAL(CARDINAL ) of GPE Associations ( hereinafter referred to as the “ Law on Associations ” ) . They submitted the memorandum of association along with the other documents required by ORG . The relevant parts of the memorandum of association read :

“ CARDINAL . The present association shall be called ORG ” ( hereinafter referred to as the “ Union ” ) .

NORP The Union shall conduct its activity within the territory of GPE ; it may establish local branches .

CARDINAL ( CARDINAL ) . The Union may join other domestic or international organisations if the aims pursued by [ the latter ] correspond to the aims pursued by the ORG .

The aims of the ORG are :

( CARDINAL ) to awaken and strengthen the national consciousness of NORP ;

( CARDINAL ) to restore NORP culture ;

( CARDINAL ) to promote knowledge of GPE ;

( CARDINAL ) to protect the ethnic rights of persons of NORP nationality ; [ and ]

( CARDINAL ) to provide social care for members of the ORG .

The Union shall accomplish its aims by the following means :

( CARDINAL ) NORP organising lectures , seminars , training courses and meetings , establishing libraries and clubs , and carrying out scientific research ;

( CARDINAL ) NORP organising cultural and educational activities for members of the Union and other persons ;

( CARDINAL ) carrying out promotional and publishing activities ;

( CARDINAL ) promoting the emblems and colours of GPE and GPE ;

( CARDINAL ) organising demonstrations or [ other ] protest actions ;

( CARDINAL ) organising sporting events ... and other forms of leisure activities ;

( CARDINAL ) setting up schools and other educational establishments ;

( CARDINAL) NORP cooperating with other organisations ;

( CARDINAL ) conducting business activities for the purpose of financing the aims of the Union – this may include establishing commercial entities and co - operating with other [ commercial ] entities ;

( CARDINAL ) establishing other entities or [ legal ] persons with a view to achieving the aims of the ORG ; and

( CARDINAL ) any other activities .

There shall be CARDINAL categories of members of the Union , namely ordinary members and supporting members .

Any person of NORP nationality may become an ordinary member of the Union .

Paragraph CARDINAL read , in so far as relevant :

“ A person shall cease to be a member of the ORG if :

NORP ( a ) on a reasoned motion by the board of auditors , the management board decides to deprive him of his membership ;

( b ) the relevant motion of the board of auditors may be based on such reasons as the fact that the member in question has not fulfilled the requirements set out in the memorandum of association for becoming a member or has failed to perform the duties of members as specified in paragraph CARDINAL .

Paragraph CARDINAL provided :

“ The ORG is an organisation of the NORP national minority . ”

On DATE ORG , pursuant to LAW , served a copy of the applicants’ application , together with copies of the relevant enclosures , on the GPE Governor ( Wojewoda ) .

On DATE the GPE Governor , acting through ORG ( PERSON ) , submitted his comments on the application to the court . These comments contain lengthy arguments against allowing the association to be registered , the main thrust of which is as follows :

“ ( i ) It can not be said that there is a ‘ Silesian’ ( ORG ) , in the sense of a representative of a distinct ‘ Silesian nationality’ . ‘ Silesian’ is a word denoting a representative of a local ethnic group , not a nation . This is confirmed by paragraph CARDINAL ( CARDINAL ) of the memorandum of association , which aims merely to ‘ awake and strengthen the national consciousness of Silesians’ . …

( ii ) Social research relied on by the applicants to demonstrate the existence of a ‘ Silesian nationality’ does not accord with numerous other scientific publications . NORP sociology distinguishes between CARDINAL concepts of ‘ homeland’ , i.e. a ‘ local homeland’ and a ‘ ideological homeland’ . In NORP , this distinction is expressed by the terms PERSON ( local homeland ) and PERSON ( ideological homeland ) . The research relied on by the applicants merely refers to the self - identification of the inhabitants of GPE , indicating that their local self - identification takes precedence over their national self - identification . …

( iii ) Paragraph CARDINAL of the memorandum of association states that any person of Silesian nationality may become an ordinary member of the association , but does not clearly specify the criteria for establishing whether or not a given person fulfils this requirement . This absence of unambiguous criteria is contrary to section CARDINAL ( CARDINAL ) and ( CARDINAL ) of the Law on Associations . Moreover , it renders paragraph CARDINAL ( CARDINAL ) ( b ) of the memorandum unlawful , for that provision allows the board of management to deprive a person of his membership in the event of failure to satisfy the conditions set out in the memorandum of association . …

( iv ) Paragraph CARDINAL of the memorandum of association , which calls the ORG an “ organisation of the NORP national minority ” , is misleading and does not correspond to the facts . There is no basis for regarding the NORP as a national minority . Recognising them as such would have been in breach of ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of the [ old ] LAW , which guarantee NORP citizens equal rights . In particular , under the relevant provisions of the PERSON of CARDINAL DATE on ORG ( hereinafter referred to as the “ Law on Parliamentary Elections ” ) ( ORG wyborcza do PERSON ) , registration of the Union would give it a privileged position in respect of the distribution of seats in ORG . The ORG would obtain privileges and rights guaranteed to national minorities in respect of education in their native language and access to the media . Registration of the association would have been to the detriment of other ethnic groups in GPE , such as PERSON ( PERSON ) , NORP ( GPE ) and NORP ( NORP ) ; this would have amounted to a return to the tribalism ( podziały plemienne ) which had existed prior to the formation of the NORP State . …

( v ) We therefore propose that the memorandum of association should be amended so as to reflect the above observations . In particular , the misleading name of the association should be changed , the criteria for membership should be set out in an unambiguous manner and paragraph CARDINAL should be deleted . In our opinion , these are the conditions for registration of the association . ”

On DATE the applicants filed a pleading in reply to those arguments . They asserted that the fact that the majority of NORP failed to recognise the existence of a NORP nation did not mean that there was no such nation . They cited various scientific publications and went on to explain that the fact that the NORP formed a distinct group had already been acknowledged at DATE ; moreover , the NORP had always sought to preserve their identity and had always formed a distinct group , regardless of whether ORG had belonged to GPE or to GPE . Consequently , any comparison between them and the PERSON or ORG was totally unjustified because the latter groups neither regarded themselves as a national minority , nor had they ever been perceived as such in the past . Finally , the applicants cited certain letters of ORG , which had been published by the press and which explained that ORG PERSON had explicitly stated that a “ declaration that a person belongs to a minority shall not be questioned or verified by the public authorities ” .

On DATE the GPE Governor filed a pleading with the court . He maintained his previous position . On DATE he produced CARDINAL letters from ORG ( dated DATE and DATE respectively , and addressed to ORG GPE Governor ) . The relevant parts of the letter of CARDINAL DATE read :

“ We share your doubts as to whether certain inhabitants of GPE should be deemed to be a national minority . We therefore propose that you submit your observations to the court , indicating those doubts , and that you ask the court to grant you leave to join the proceedings as a party .

We propose that you rely on the fact that LAW has not been ratified by GPE , so that its provisions [ do not apply in the domestic legal system ] . ...

In our view , neither historical nor ethnographical circumstances justify the opinion that the inhabitants of LOC can be recognised as a national minority . ”

The relevant parts of the letter of DATE read as follows :

“ ... The arguments advanced by the provisional management committee of the association [ in their pleading of DATE ] do not contain any new elements ; [ in particular ] ... LAW does not constitute the law applicable in GPE .

Likewise , the letters of ORG [ on the interpretation of ORG PERSON ] do not change the situation .

The sense of belonging to a nation falls within the realm of personal liberties ; it does not in itself entail any legal consequences . [ By contrast , ] the formation of an organisation of a national minority is a legal fact which entails legal consequences such as , for instance , those referred to in the Law on Parliamentary Elections .

In the circumstances , the registration of the association called ORG ” could be allowed provided that the existence of such a nation had been established . ”

On DATE the applicants submitted a further pleading to the court . They criticised the arguments of ORG , pointing out that the latter had failed to indicate any legal basis for rejecting their application . In particular , the authorities had not shown that any provision of the memorandum of association was contrary to the law whereas , under section CARDINAL ( CARDINAL ) of ORG , “ the exercise of the right to association may be subject only to such limitations as are prescribed by statute and are necessary for ensuring the interests of national security or public order and for the protection of health or morals , or for the protection of the rights and freedoms of others ” . Lastly , the applicants stated that they would not to amend the memorandum of association in the manner proposed by the authorities , in particular in respect of the name of the association and the content of paragraph CARDINAL . They agreed , however , to amend paragraph CARDINAL of the memorandum and phrased it as follows :

“ Everyone who is a NORP citizen and who has submitted a written declaration stating that he is of NORP nationality may become an ordinary member [ of the ORG ] . ”

On DATE ORG held an “ explanatory session ” ( posiedzenie wyjaśniające ) aimed at obtaining comments and clarifications from the parties and settling the matters in dispute .

On DATE the applicants lodged a pleading with the court , maintaining that in the course of the above - mentioned session the authorities had “ de facto acknowledged that a Silesian nation exists ” , in particular by accepting the name of the association and certain provisions of the memorandum ( i.e. paragraph CARDINAL ( CARDINAL ) and ( CARDINAL ) and paragraph CARDINAL ) ” . They stressed however that the authorities’ insistence on deleting paragraph CARDINAL was “ unjustified and illogical ” and , consequently , refused to alter or delete that provision .

Later , on DATE , the GPE Governor submitted his final pleading to the court , opposing the registration of the association .

On DATE a single judge , sitting in camera as ORG , granted the applicants’ application and registered their association under the name of ORG ” . The reasons for that decision read , in so far as relevant :

“ ... There was a dispute between [ the parties ] over the concepts ‘ nation’ and ‘ national minority’ . Finally [ the authorities concerned ] pleaded that the application for registration of the association should be dismissed .

This court has found that the application is well - founded [ and as such should be granted ] .

In the LAW to the Law on Associations , the legislature guarantees [ everyone ] a cardinal right , the right to freedom of association , which enables citizens , regardless of their convictions , to participate actively in public life and to express different opinions , and to achieve individual interests .

Freedom of association is CARDINAL of the natural rights of a human being . [ For this reason , ] section CARDINAL ) of the Law on Associations does not establish the right to freedom of association but merely sets out the manner and limits of its exercise , thus reflecting GPE ’s international obligations .

Under LAW ) of ORG , the right to form an association may be subject only to such limitations as are prescribed by statute either in the interests of national security or public safety , or in the interests of public order , or for the protection of health and morals , or for the protection of the rights and freedoms of others . No other restrictions may be placed on the exercise of the right to associate with others .

As recently as DATE , in their pleading , the authorities advanced the argument that the registration of the present association would infringe the rights and freedoms of others because it would result in an unequal treatment of other local communities and would diminish their rights .

This argument is unconvincing since it does not emerge from the content of the memorandum of association that the future activities of the association are aimed at [ diminishing ] the rights and freedoms of others .

Pursuant to paragraph CARDINAL of the memorandum of association , the aims of the association are [ , for example , ] to awaken and strengthen the national consciousness of NORP , to restore NORP culture , to promote knowledge of GPE and to provide social care for members of the association . None whatsoever of these aims is directed against the rights and freedoms of others . The means to be used for accomplishing these aims are not directed against the rights and freedoms of others either . Those means include organising lectures and seminars , carrying out scientific research , establishing libraries , organising cultural and educational activities for members and other persons , carrying out promotional and publishing activities , promoting the emblems and colours of GPE and GPE , organising demonstrations and protest actions , organising sporting events , setting up schools and other educational establishments , conducting business activities and co - operating with other organisations .

In sum , the argument that the association would infringe the rights and freedoms of others must definitely be rejected . Moreover , it should be noted that this argument refers to [ a mere possibility ] because only practical action taken by the association could possibly demonstrate whether , and if so to what extent , the [ future ] activities of the association would necessitate the use of measures aimed at protecting the rights of others .

As regards the terms ‘ Silesian nationality’ or ‘ NORP national minority’ , the problems involved in the determination of their proper meaning can not be examined by this court in detail .

This court must , pursuant section CARDINAL(CARDINAL ) of the Law on Associations , rule on the present application within a period not exceeding DATE from the date on which it was lodged . It is therefore not possible [ in the course of the present proceedings ] to determine such complicated issues ( which involve problems falling within the sphere of international relations ) .

It is , however , possible to assume , for the purposes of making a ruling in these proceedings , that the nationality of an individual is a matter of choice for him ; moreover , it is a matter of common knowledge that the original inhabitants of LOC constitute a minority in GPE DATE at least for anyone who has ever spent some time in this region and has been willing to perceive this fact . After all , the authorities , although they rend their garments [ sic ] , complaining that the applicants dared to establish an association , do not contest the fact that [ the NORP ] are an ethnic minority .

In view of the foregoing this court , finding that the provisional management committee complied with the requirements laid down in sections CARDINAL ) , CARDINAL and DATE , read in conjunction with section CARDINAL ( CARDINAL ) of ORG and LAW , holds as in the operative part of the decision ” .

On DATE the GPE Governor lodged an appeal with ORG ( Sąd Apelacyjny ) , asking that the first - instance decision be quashed , that the case be remitted to the court of first instance , and that expert evidence be obtained in order to determine the meaning of the terms “ nation ” and “ national minority ” . In his appeal , he alleged that the court of first instance had violated sections CARDINAL ) and CARDINAL of the Law on Associations and unspecified provisions of LAW . The reasons for the appeal read , in so far as relevant :

“ [ The court of first instance ] formally recognised and legally sanctioned the existence of a distinct NORP nation constituting a ‘ NORP national minority’ .

In our opinion , such an important and unprecedented ruling , which is of international significance , could not and should not be given without defining the concepts of ‘ nation’ and ‘ national minority’ . ORG , leaving this issue aside – merely because of certain statutory time - limits –simplified the proceedings in an unacceptable manner . This led , in itself , to a failure on the part of the court to establish all the circumstances relevant to the outcome of the case and , furthermore , provided a sufficient basis for this appeal .

The appellant admits that NORP law does not define the terms ‘ nation’ and ‘ national minority’ . This , however , does not justify the conclusion of ORG that ‘ the nationality of an individual is a matter of choice for him’ .

The appellant does not contest the right of a person to decide freely to belong to a national minority ; however , a precondition for making such a choice is the existence of a ‘ nation’ with which that person identifies himself .

The decision appealed against proclaims the opinion that the subjective feelings of the person concerned suffice for the purposes of creating a ‘ nation’ or a ‘ nationality . Having regard to the potential social repercussions of such an approach , it is not possible to agree with it .

In these circumstances , prior to making any decision on the registration of the ‘ Union of People of Silesian Nationality’ , it is necessary to determine whether a ‘ Silesian nation’ exists – a distinct , non - NORP nation – and whether it is admissible in law to create a ‘ NORP national minority’ .

In the appellant ’s opinion , there are no objective arguments in favour of the finding that a distinct NORP nation exists . In case of doubt , ... this question should be resolved by obtaining evidence from experts .

In the contested decision , the lower court in principle focused on determining whether the aims of the association and the means of accomplishing those aims were lawful . … The appellant does not contest the majority of these aims ; it must be said that such activities as restoring NORP culture , promoting knowledge of GPE or providing social care for members of the association are worthy of respect and support . However , these aims can fully be accomplished without the contested provision of the memorandum of association , i.e. paragraph CARDINAL ... . In addition , the applicants were not prevented from incorporating the above - mentioned aims into the memorandum of an existing association called ORG ( PERSON ) , the more so as the applicants belong to influential circles of the latter organisation .

The fact that the applicants have failed to do so but [ instead ] are creating a new association , and are describing themselves as a ‘ NORP national minority’ , clearly demonstrates what their real objective is . In fact , their objective is to circumvent the provisions of the PERSON of CARDINAL DATE on ORG , under which parties or other organisations standing in elections must reach a threshold of PERCENT or PERCENT of the vote in order to obtain seats in the ORG . ...

Legal acts – including the act of adopting a memorandum of association – are null and void under LAW if they aim at evading or circumventing the law . Legal theory formulates the opinion that defects in legal acts , as defined in LAW , may constitute a basis for refusing to register an association .

Sanctioning the rights of the ‘ NORP national minority’ amounts to discrimination against other regional and ethnic groups or societies . This will be the case at least as regards electoral law and will be contrary to LAW . … ”

ORG heard the appeal on DATE . ORG ( Prokurator Apelacyjny ) appeared at the hearing and asked the court to grant him leave to join the proceedings as a party intervening on behalf of the GPE Governor . The leave was granted . The court next heard addresses by the appellant , the prosecutor ( who requested the court to set aside the first - instance decision and dismiss the applicants’ application ) and the representative of the applicants . On DATE the court set aside the first - instance decision and dismissed the applicants’ application for their association to be registered . The reasons for that decision read , in so far as relevant :

“ ... The lower court , by registering the association entitled ‘ Union of People of Silesian Nationality’ , approved paragraph CARDINAL of the memorandum of association , which states that the ORG is an organisation of the NORP national minority . We therefore agree with the appellant that the ORG , on the basis of the above - mentioned paragraph , would have the right to benefit from the statutory privileges laid down in section CARDINAL of the Law on Parliamentary Elections . ...

Furthermore , recognising the NORP as a national minority may also result in further claims on their part [ for privileges ] granted to national minorities by other statutes . ...

Contrary to the opinion expressed by the lower court , it is possible to determine whether or not the NORP constitute a national minority in GPE ; it is not necessary to obtain expert evidence in that connection .

Under LAW , facts that are a matter of common knowledge , i.e. those which every sensible and experienced citizen should know , do not need to be proved . Common knowledge includes historical , economical , political and social phenomena and events .

It is therefore clear that at present no legal definition of ‘ nation’ and ‘ national minority’ is commonly accepted in international relations , . ...

On the other hand , an ‘ ethnic PERSON is understood as a group which has a distinct language , a specific culture and a sense of social ties , is aware of the fact that it differs from other groups , and has its own name .

NORP ethnographic science of DATE describes ‘ Silesians’ as an autochthonous population of NORP origin residing in GPE – a geographical and historical region . At present , as a result of political and social changes , the term ‘ Silesians’ refers equally to immigrant inhabitants who have been residing in this territory for several generations and who have been identifying themselves with their new region of residence . It also refers to the NORP - speaking population , linked with GPE by [ such factors as ] birth , residence and tradition ( see the PERSON published by ORG in DATE ) . ...

The applicants derive the rights they claim from the principles set out in the [ LAW ] , stating that every person belonging to a national minority has the right freely to choose to belong or not to belong to such a minority . ... In invoking NORP standards , they fail , however , to remember that a national minority with which a given person identifies himself must exist . There must be a society , established on the basis of objective criteria , with which this person wishes to identify . No one can determine his national identity in isolation from a fundamental element , which is the existence of a specific nation .

It emerges from the above - mentioned definition of a ‘ nation’ that a nation is formed in a historical process which may last for DATE and that the crucial element which forms a nation is its self - identification , that is to say its national awareness established on the basis of the existing culture by a society residing on a specific territory .

Certainly , the NORP belong to a regional group with a very deep sense of identity , including their cultural identity ; no one can deny that they are distinct . This does not , however , suffice for them to be considered as a distinct nation . They have never commonly been perceived as a distinct nation and they have never tried to determine their identity in terms of [ the criteria for a ‘ nation’ ] . On the contrary , the history of GPE unequivocally demonstrates that autochthonous inhabitants [ of this region ] have preserved their distinct culture and language ( the latter having NORP roots from an ethnic point of view , ) , even though their territories were not within the borders of the NORP State and even though they were under strong NORP influence . They are therefore NORP – in the sense of [ inhabitants of the ] region , not in the sense of [ their ] nationality . Thus , GPE , in its ethnic roots [ sic ] , remained NORP ; that was , without a doubt , demonstrated by CARDINAL uprisings . The role played by the NORP in building and preserving the NORP character of GPE , even though they remained isolated from their homeland , is unquestionable .

However , a given nation exists where a group of individuals , considering themselves a ‘ nation’ , is in addition accepted and perceived as such by others . In the common opinion of NORP citizens , both the NORP and other regional groups or communities [ e.g. NORP or NORP ] are perceived merely in terms of local communities . In the international sphere GPE and , similarly , GPE and GPE , are perceived as single - nation GPE , regardless of the fact that there exist distinct ethnic groups ( e.g. the inhabitants of GPE or PERSON in GPE , or the inhabitants of GPE in GPE ) .

On the whole , sociologists agree that the NORP constitute an ethnic group and that the autochthonous inhabitants [ of LOC ] do have some features of a nation but that those features are not fully developed . That ... means that the awakening of their national identity is still at a very early stage . A nation exists only when there are no doubts as to its right to exist . ... In GPE national minorities do constitute only a small part of the society , that is to say PERCENT . They comprise DATE and this has never been denied NORP , NORP , NORP , NORP , NORP , NORP , NORP , GPE , NORP and NORP .

In the NORP tradition , national minorities are perceived as groups linked to a majority outside GPE ; in other words , a minority is an ethnic group which has support amongst a majority [ residing ] abroad . Moreover , traditionally , our society has not considered that groups which preserve a distinct culture but which do not belong to any ORG can be deemed to be national minorities . Accordingly , for a long time the GPE people were regarded as an ethnic , not a national group . ...

The applicants’ opinion that the mere choice of the individual concerned is decisive for his nationality is reflected in paragraph CARDINAL of the memorandum of association . Acceptance of this opinion would consequently lead to a situation in which the aims pursued by the association could be accomplished by groups of members who did not have any connection or links with GPE and who had become members of the Union solely to gain an advantage for themselves . Undoubtedly , such groups of members can not [ be allowed ] to accomplish the aims of an association of a national minority . ...

The applicants have relied on the results of sociological research carried out in DATE in GPE . Indeed , the research demonstrates that PERCENT of persons requested to declare their ethnic and regional identity replied that they were NORP . However , it transpires from [ the material collected in the course of another piece of sociological research of DATE which was submitted by the applicants during the appellate hearing ] that DATE the number of persons considering themselves to be ORG had decreased to PERCENT and that , moreover , the majority of inhabitants of GPE considered themselves to be NORP ( i.e. PERCENT , including PERCENT who stated that they were ‘ NORP Silesians’ ; PERCENT of inhabitants considered themselves to be NORP , including PERCENT who stated that they were ‘ NORP Silesians’ ) .

In the light of the above research it can not be said that such a poorly established self - identity of a small ( and decreasing ) group of NORP , as demonstrated by their refusal to declare that they belong to the [ NORP ] nation , provides a basis for recognising that all NORP ( who have lived in LOC for generations and state that they belong to the NORP nation ) constitute a separate nation . This would be contrary to the will of the majority , a will well known to the applicants .

We therefore find that the appellant is right in submitting that granting the applicants’ application for their association to be registered is unjustified because the memorandum of association is contrary to the law , i.e. LAW . Thus , the application is aimed at registering an organisation of a minority which can not be regarded as a national minority and at circumventing the provisions of LAW and other statutes conferring particular privileges on national minorities . Granting such a request could lead to granting unwarranted rights to the association in question . This would , moreover , place their organisation at an advantage in relation to other regional or ethnic organisations .

In these circumstances , under LAW CARDINAL of LAW , read in conjunction with Articles CARDINAL § CARDINAL and CARDINAL of the Code of Civil Procedure and section CARDINAL of the Law on Associations , the appeal must be allowed ... . ”

On DATE the applicants lodged a cassation appeal ( kasacja ) with ORG ( Sąd Najwyższy ) . They alleged that ORG had wrongly interpreted the relevant provisions of ORG and that the impugned decision had contravened LAW , LAW . Their arguments may be summarised as follows :

“ The principal issue to be determined by ORG was whether the memorandum of the applicants’ association complied with the statutory requirements . since a refusal to register an association could be justified only if an activity specified in the memorandum of association was banned by the law . That was clearly not the case and the court ’s fear that the registration of the applicants’ association would in future lead to discrimination against other national or ethnic minorities was based on mere speculation . In any event , the Law on Associations [ in sections CARDINAL(CARDINAL ) , CARDINAL et seq . ] provided for various means whereby the activity of an association could be supervised by the competent ORG authorities or , in the event that its activity was unlawful , the association could be dissolved .

However , ORG , instead of assessing formal requirements of the registration , firstly decided that the core issue in the proceedings was to establish whether a NORP nation existed . It consequently went on to lay down its own arbitrary and controversial definition of ‘ nation’ and ‘ national minority’ and finally concluded that there was no ‘ NORP nation’ . It did so without any effort to obtain expert evidence in respect of such an important matter . ”

On DATE the GPE Governor filed a pleading in reply to the ORG cassation appeal . The relevant arguments may be summarised as follows :

“ The refusal to register the applicants’ association was fully justified . In the course of the proceedings at first instance , the Governor eventually proposed that the applicants amend paragraph CARDINAL of the memorandum of association and alter the name of their association by deleting the word ‘ ORG . Those arguments were based on section CARDINAL(CARDINAL)(CARDINAL ) of ORG , which provides that a memorandum of association should enable the association in question to be differentiated from other associations . This means that the name of an association should not be misleading . Since the requirement set out in the above - mentioned section was not complied with , the refusal to register the applicants’ association was justified under section CARDINAL ) .

It must be stressed that even in the explanatory report to LAW it is clearly stated that the individual ’s subjective choice to belong to a national minority is inseparably linked to objective criteria relevant to the person ’s identity . That means that a given nation must exist prior to the individual making a decision to belong to this nation . That being so , the applicants’ application for their association to be registered must be seen as a thoughtless and incomprehensible attempt to exploit the distinct characteristics [ of the NORP ] with a view to achieving political aims . ”

On DATE ORG filed a pleading in reply to the applicants’ cassation appeal . He submitted , inter alia , that it was clear that the content of the memorandum of association was contrary to the law since it explicitly stated that the Union was an association of a national minority , and thus ignored the fact that the NORP could not be regarded as a minority of that kind . The NORP , being merely an ethnic group , could not exercise the rights conferred on national minorities , in particular those referred to in the Law on Parliamentary Elections .

On DATE a panel of CARDINAL judges , sitting as ORG of ORG , dismissed the ORG cassation appeal . The relevant parts of the reasons for this decision read as follows :

“ … [ A ] necessary prerequisite for the registration of an association is the conformity of its memorandum of association with the entire domestic legal order , including conformity with [ the provisions of ] international treaties ratified by GPE .

In the present case ORG had no doubts as to the lawfulness of the aims pursued by [ the applicants’ ] association but refused to register the association for the sole reason that [ the applicants ] , in the memorandum of association , used such terms as ‘ NORP nation’ and ‘ NORP national minority’ .

We agree with the opinion [ of ORG ] . ‘ ORG minority’ is a legal term ( LAW DATE ) although it is not defined either in NORP law , or in the conventions relied on in the cassation appeal . However , the explanatory report to LAW states plainly that the individual ’s subjective choice of a nation is inseparably linked to objective criteria relevant to his national identity . That means that a subjective declaration of belonging to a specific national group implies prior social acceptance of the existence of the national group in question . …

An individual has the right to choose his nation but this , as ORG rightly pointed out , does not in itself lead to the establishment of a new , distinct nation or national minority .

There was , and still is , a common perception that an ethnic group of NORP does exist ; however , this group has never been regarded as a national group and it has not claimed to be regarded as such . …

Registration of the association , which in paragraph CARDINAL of its memorandum of association states that it is an organisation of a [ specific ] national minority , would be in breach of the law because it would result in a non - existent ‘ national minority’ taking advantage of privileges conferred on [ genuine ] national minorities . This concerns , in particular , the privileges granted by the Law on Parliamentary Elections ... such as an exemption from the requirement that a party or other organisation standing in elections should receive PERCENT of the vote , which is a prerequisite for obtaining seats in ORG ... [ or ] ... privileges in respect of the registration of electoral lists ; thus , it suffices for an organisation of a national minority to have registered its electoral lists in CARDINAL electoral constituencies [ whereas the general requirement is to register an electoral list in CARDINAL of the electoral constituencies in the whole of GPE ] .

Pursuant to the relevant ruling of ORG ( PERSON ) on the interpretation of LAW , ... the privileges [ referred to above ] are conferred on electoral committees of registered national minorities and , in the event of any doubt [ as to whether or not an electoral committee represents a national minority ] , ORG may request evidence .

The simplest means of proving the existence of a specific national minority is to present a memorandum of association confirming that fact . It is true that under LAW resolutions of ORG on the interpretation of statutes no longer have universally binding force ; however , in view of the persuasiveness of the reasons given by ORG and the requirements of practice , [ we consider that ] a memorandum of association still remains basic evidence demonstrating the existence of a national minority .

[ Furthermore , ] conferring on the NORP , an ethnic group , the rights of a national minority would be contrary to LAW , stating that all persons are equal before the law , [ because ] other ethnic minorities would not enjoy the same rights .

The memorandum of association is contrary to section CARDINAL(CARDINAL)(CARDINAL ) of the Law on Associations , which stipulates that a memorandum of association must set out rules concerning acquisition and loss of membership , and the rights and duties of members . Paragraph CARDINAL of the memorandum provides that everyone who is a NORP citizen and has submitted a written declaration stating that he is of NORP nationality , may become a member of the ORG , whereas paragraph CARDINAL states that a person ceases to be a member of the Union if , inter alia , he has not fulfilled the membership requirements set out in the memorandum of association . Since no Silesian nation exists , no one would , lawfully , be able to become a member of the Union because his declaration of Silesian nationality would be untrue . …

Furthermore , it must be pointed out that the refusal to register the association does not contravene GPE ’s international obligations . Both LAW ... and LAW allow [ the ORG ] to place restrictions on the freedom of association , [ in particular such as ] are prescribed by law and are necessary in a NORP society in the interests of national security or public safety or for the protection of health and morals or for the protection of the rights of others .

It is contrary to the public order to create a non - existent nation that would be able to benefit from the privileges conferred solely on national minorities . Such a situation would also lead to the infringement of the rights of others , not only national minorities but also all other citizens of GPE . Granting privileges to a [ specific ] group of citizens means that the situation of the other members of society becomes correspondingly less favourable .

This is particularly so in the sphere of election law : if certain persons may become members of ORG [ because of their privileged position ] , it means that other candidates must obtain a higher number of votes than what would be required in the absence of privileges [ in that respect ] .

It also has to be noted that the essential aims of the association can be accomplished without the contested provisions of the memorandum and without the [ specific ] name of the association . Under the provisions of LAW national and ethnic minorities have equal rights as regards their freedom to preserve and develop their own language , to maintain their customs and traditions , to develop their culture , to establish educational institutions or institutions designed to protect their religious identity and to participate in the resolution of matters relating to their cultural identity ( LAW ) . … ”

DATE ( which was adopted by ORG on DATE and entered into force on DATE ) states :

“ GPE shall ensure freedom for the creation and functioning of trade unions , socio - occupational farmers’ organisations , societies , ORG movements , other voluntary associations and foundations . ”

LAW reads :

“ Political parties and other organisations whose programmes are based upon totalitarian methods or the models of nazism , fascism or communism , or whose programmes or activities foster racial or national hatred , recourse to violence for the purposes of obtaining power or to influence ORG policy , or which provide for their structure or membership to be secret , shall be forbidden . ”

Article CARDINAL of the LAW provides :

“ CARDINAL . All persons shall be equal before the law . All persons shall have the right to equal treatment by public authorities .

No one shall be discriminated against in political , social or economic life for any reason whatsoever . ”

LAW provides :

“ CARDINAL . GPE shall ensure that NORP citizens belonging to national or ethnic minorities have the freedom to preserve and develop their own language , to maintain customs and traditions , and to develop their own culture .

National or ethnic minorities shall have the right to establish educational and cultural institutions and institutions designed to protect religious identity , as well as to participate in the resolution of matters relating to their cultural identity . ”

LAW , proclaiming the right to freedom of association , reads :

“ CARDINAL . NORP The freedom of association shall be guaranteed to everyone .

Associations whose purposes or activities are contrary to the LAW or statute shall be prohibited . The courts shall decide whether to register an association and/or whether to prohibit an [ activity of ] an association .

Categories of associations requiring court registration , the procedure for such registration and the manner in which activities of associations may be monitored shall be specified by statute . ”

Chapter III of the LAW , entitled “ Sources of Law ” , refers to the relationship between domestic law and international treaties .

LAW provides :

“ The sources of universally binding law of GPE shall be the LAW , statutes , ratified international treaties and ordinances . ”

Article CARDINAL states :

“ CARDINAL . As soon as a ratified international treaty has been promulgated in ORG , it shall constitute a part of the domestic legal order and shall be applied directly , unless its application depends on the enactment of a statute .

An international treaty ratified after prior consent has been given in the form of a statute shall have precedence over statutes where the provisions of such a treaty can not be reconciled with their provisions .

Where a treaty ratified by GPE establishing an international organisation so provides , the rules established by it shall be applied directly and have precedence in the event of a conflict of laws . ”

Section CARDINAL of the PERSON , in the version applicable at the material time , prescribed :

“ CARDINAL . NORP citizens shall exercise the right of association in accordance with the LAW ... and the legal order as specified by statute .

The [ exercise of the ] right of association may be subject only to such limitations as are prescribed by law and are necessary for ensuring the interests of national security or public order and for the protection of health and morals or for the protection of the rights and freedoms of others .

Associations shall have the right to express their opinion on public matters . ”

Section CARDINAL provides , in so far as relevant :

“ CARDINAL . An association is a voluntary , self - governing , stable union pursuing non - profit- making aims .

An association shall freely determine its objectives , its programmes of activity and organisational structures , and shall adopt internal resolutions concerning its activity .

Section CARDINAL , in the version applicable at the material time , stated , in so far as relevant :

“ CARDINAL . An association shall register itself in ORG , unless statute provides otherwise .

[ Subsections DATE were repealed on DATE ]

The activities of associations shall be supervised by [ the Governor of the relevant GPE ] , who shall be referred to hereinafter as ‘ supervisory ORG .

The relevant part of section CARDINAL provides :

“ CARDINAL . An association ’s memorandum shall in particular specify :

( CARDINAL ) the name of the association which shall differentiate it from other associations , organisations or institutions ;

( CARDINAL ) the conditions for the admission of members , the procedure and grounds for the loss of membership , and the rights and obligations of members . ”

Section CARDINAL reads as follows :

“ The management committee of an association shall lodge with the competent court an application for the registration of their association together with a memorandum of association , a list of the founders containing their first names , surnames , dates and places of birth , their places of residence and signatures , a record of the election of the management committee and the address of their provisional headquarters . ”

Section CARDINAL stipulates :

“ CARDINAL . A court dealing with an application for the registration of an association shall rule on such an application promptly ; a ruling should be given within DATE from the date on which the application was lodged with the court .

NORP The court shall serve a copy of the application for the registration , together with the accompanying documents specified in LAW on [ the relevant ] supervisory organ . The supervisory organ shall have the right to comment on the application within DATE from the date of service and , with the court ’s leave , to join the proceedings as a party . ”

Section CARDINAL reads :

“ The court shall refuse to register an association if it has not fulfilled the conditions laid down in [ this ] PERSON . ”

Section CARDINAL provides :

“ The court shall allow an application for registration of an association if it is satisfied that the latter ’s memorandum of association is in conformity with the law and its members comply with the requirements laid down in [ this ] PERSON . ”

Chapter CARDINAL of the PERSON , entitled “ Supervision of associations ” , provides , in sections CARDINAL et seq . , for various means of monitoring the activities of associations and lays down the conditions for the dissolution of an association .

Under LAW the relevant supervisory organ is entitled to request the management committee of an association to submit , within a specified time - limit , copies of resolutions passed by the general meeting of the association or to ask the officers of an association to provide it with “ necessary explanations ” .

In the event that such requests are not complied with , the court , under LAW and a motion from the supervisory organ , may impose a fine on the association concerned .

Under LAW , a supervisory organ , if it finds that activities of an association are contrary to the law or infringe the provisions of the memorandum of association in respect of matters referred to in section CARDINAL ) and ( CARDINAL ) , may request that such breaches cease , or issue a reprimand , or request the competent court to take measures under section CARDINAL .

Section CARDINAL provides , in so far as relevant :

“ CARDINAL . The court , at the request of a supervisory organ or a prosecutor , may :

( CARDINAL ) reprimand the authorities of the association concerned ;

( CARDINAL ) annul [ any ] resolution passed by the association if such a resolution is contrary to the law or the provisions of the memorandum of association ;

( CARDINAL ) dissolve the association if its activities have demonstrated a flagrant or repeated failure to comply with the law or with the provisions of the memorandum of association and if there is no prospect of the association reforming its activities so as to comply with the law and the provisions of the memorandum of association . ”

Section QUANTITY of the Law ( hereafter referred to as the “ DATE PERSON on Parliamentary Elections ” ) provided :

“ CARDINAL . In the distribution of seats [ in the ORG ] account shall be taken only of those regional electoral lists of electoral committees which have received PERCENT of the valid votes cast in the whole [ of GPE ] .

NORP The regional electoral lists of electoral committees referred to in section CARDINAL ) ( electoral coalitions ) shall be taken into account in the distribution of seats [ in ORG ] , provided that they have received PERCENT of the valid votes cast in the whole [ of GPE ] . ”

Section CARDINAL prescribed :

“ In the distribution of seats among national electoral lists account shall be taken only of those lists of electoral committees which have received PERCENT of the valid votes cast in the whole [ of GPE ] .

Section CARDINAL stipulated :

“ CARDINAL . Electoral committees of registered organisations of national minorities may be exempted from CARDINAL of the conditions referred to in section CARDINAL ) or in section CARDINAL , provided that , not later than the fifth day before the date of the election , they submit to ORG a declaration to that effect .

ORG shall promptly acknowledge receipt of the declaration referred to in subsection CARDINAL . This declaration shall be binding on electoral colleges . ”

Section CARDINAL provided , in so far as relevant :

An electoral committee which has registered its regional electoral lists in CARDINAL of the constituencies [ in the whole of GPE ] … shall be entitled to register a national electoral list .

Electoral committee[s ] of organisations of national minorities shall be entitled to register a national electoral list , provided that [ they ] ha[ve ] registered their regional electoral lists in CARDINAL constituencies . ”

DATE the Civil Code states :

“ No one shall exercise any right of his in a manner contrary to its socio - economic purpose or to the principles of co - existence with others ( zasady współżycia społecznego ) . No act or omission [ fulfilling this description ] on the part of the holder of the right shall be deemed to be the exercise of the right and shall be protected [ by law ] . ”

Article CARDINAL provides , in so far as relevant :

“ CARDINAL . A[ny ] act which is contrary to the law or aimed at evading the law shall be null and void , unless a statutory provision provides for other legal effects , such as the replacement of the void elements of such an act by elements provided for by statute .

Any act which is contrary to the principles of co - existence with others , shall be null and void . ”

At the material time GPE was a signatory to LAW ETS No . CARDINAL ) ; the date of signature was CARDINAL DATE . GPE ratified that LAW . It has been in force since DATE .

LAW contains no definition of the notion of “ national minority ” . Its explanatory report mentions that it was decided to adopt a pragmatic approach , based on the recognition that at that stage it was impossible to arrive at a definition capable of mustering the general support of all ORG member GPE .

A number of the member GPE made declarations setting out definitions of “ national minority ” for the purposes of LAW . GPE , at the time of the deposit of the instrument of ratification , made the following declaration :

“ Taking into consideration the fact that LAW contains no definition of the national minorities notion , GPE declares that it understands this term as national minorities residing within the territory of GPE at the same time whose members are NORP citizens . ”