W.P. AND OTHERS v. POLAND
Inadmissible
Georg Ress;Mark Villiger
The applicants, W.P., K.K., M.M., H.M., J.F. and D.F., are Polish nationals who were born in 1966, 1959, 1955, 1957, 1941 and 1952 respectively. Their occupations are respectively as follows: a police officer, a farmer, a police officer, a tailor, a teacher and a pensioner. M.M. and H.M. are married to each other, as are J.F. and D.F. The respondent Government were represented by Ms S. Jaczewska, Acting Government Agent, and subsequently by Mr J. Wołąsiewicz, Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 22 February 1995 W.P., M.M. and H.M. informed the Kalisz Regional Office (Urząd Wojewódzki) that they had decided to form an ordinary association (stowarzyszenie zwykłe) called the Association of Persecuted Functionaries of the Ministry of Internal Affairs (Stowarzyszenie Represjonowanych Funkcjonariuszy Resortu Spraw Wewnętrznych). They submitted a copy of the memorandum of association, which listed the following objectives: “1. Allowing association of former and present functionaries of the Ministry of Internal Affairs and members of their families who are victims of different forms of repression, persecution, harassment and discrimination. 2. Identification of a phenomenon of persecution, repression, harassment and discrimination in the Ministry of Internal Affairs. 3. Taking action aimed at improving the conditions of service and social conditions of the functionaries of the Ministry of Internal Affairs. 4. Responding to all apparent instances of lawbreaking, abusing authority, harassing, repressing, persecuting and discriminating. 5. Taking action aimed at redressing damage caused to victims. 6. Taking action aimed at obtaining the prosecution of persons responsible for persecution, repression, harassment and discrimination. 7. Co-operating with the public authorities, organs of state administration, national and patriotic organisations, Christian unions and associations. 8. Spreading national and patriotic values. 9. Expressing opinions on public matters.” On 17 March 1995 the Kalisz Governor (Wojewoda Kaliski) applied to the Kalisz Regional Court (Sąd Wojewódzki) for a decision prohibiting the formation of the association. He submitted that its name was misleading as it suggested that persecution was taking place in the Ministry of Internal Affairs. Poland was governed by the rule of law and since 1989 numerous regulations had been introduced to protect the rights of police officers. Finally, the Governor agreed with the opinion of the Kalisz Regional Police Commissioner (Komendant Wojewódzki Policji) that the association’s name defamed the Ministry of Internal Affairs. On 19 September 1995 the Kalisz Regional Court allowed the application and prohibited the formation of the association. It considered that the applicants had not complied with section 45 of the Associations Act 1989, which required them to agree with the Minister of Internal Affairs the association’s objectives concerning the protection of public order. The applicants appealed to the Łódź Court of Appeal (Sąd Apelacyjny) but on 20 February 1997 it dismissed their appeal. The appellate court agreed with the Regional Court’s conclusion that the applicants had breached section 45 of the Associations Act since they had not agreed with the Minister of Internal Affairs the association’s objectives concerning the protection of public order. In addition, the association’s name suggested the existence of persecution in the Ministry of Internal Affairs and therefore defamed a public institution. On 25 June 1996 W.P., M.M., H.M., J.F. and D.F. informed the Kalisz Regional Office that they had decided to form an ordinary association called the National and Patriotic Association of Persecuted Police Officers and Teachers (Stowarzyszenie Narodowo-Patriotyczne Represjonowanych Policjantów i Nauczycieli). On 10 July 1996 the Kalisz Governor applied to the Kalisz Regional Court for a decision prohibiting the formation of the association. On 9 October 1996 the applicants requested that the proceedings be conducted by a judge who had in the past been persecuted by the authorities. On 15 October 1996 the Kalisz Regional Court held a hearing. The applicants failed to attend it despite the fact that they had been served with summonses. The court asked the applicants to clarify whether their request of 9 October 1996 had been filed in order to challenge the presiding judge for bias. On 20 October 1996 the applicants repeated their request of 9 October 1996. On 14 April 1997 the Regional Court dismissed the requests lodged on 9 and 20 October 1997. The court scheduled a hearing for 25 April 1997. The applicants submitted that as a result of “Jewish and Bolshevik reforms” they could not afford to attend the hearing. On 29 April 1997 the applicants asked the Regional Court “to serve them with a reasoned decision taken by the court on 25 April 1997”. On 30 April 1997 the Kalisz Regional Court gave a decision prohibiting the formation of the association. On 30 March 1998 the Regional Court dismissed the applicants’ request of 29 April 1997. It pointed out that they had requested a copy of a non-existent decision, as the court had prohibited the formation of the association by a decision taken on 30 April 1997. Moreover, the applicants had failed to lodge a request for a reasoned decision within one week after that date, i.e. within the time allowed by the Code of Civil Procedure. On 20 April 1998 the applicants received a copy of the Regional Court’s decision of 30 April 1997 prohibiting the formation of the association. On 27 April 1998 the applicants challenged the decision of 30 March 1998 and on 4 May 1998 they appealed against the decision of 30 April 1997. However, their application of 27 April 1998 was dismissed on 3 September 1998. On 20 January 1998 W.P., K.K., M.M., H.M., J.F. and D.F. informed the Kalisz Regional Office that they had decided to form an ordinary association called the National and Patriotic Association of Polish Victims of Bolshevism and Zionism (Stowarzyszenie Narodowo-Patriotyczne Polaków Poszkodowanych przez Bolszewizm i Syjonizm). They submitted a copy of the memorandum of association, which listed the following objectives: “1. Allowing association of Polish victims of Bolshevism/Bolsheviks and Zionism/Zionists. 2. Identification of a phenomenon of persecution, repression, harassment and discrimination in Poland. 3. Identification of a phenomenon of violation of human and civic rights in Poland. 4. Identification of a phenomenon of the holocaust of the Polish nation and the scope thereof. 5. Responding to all apparent instances of lawbreaking, abusing authority, harassing, repressing, persecuting and discriminating. 6. Taking action aimed at equality between ethnic Poles and citizens of Jewish origin by striving to abolish the privileges of ethnic Jews and by striving to end the persecution of ethnic Poles. 7. Taking action aimed at prosecuting and making financially liable tormentors and criminals responsible for the holocaust of the Polish nation. 8. Taking action aimed at prosecuting and making financially liable tormentors and criminals (including tormentors and criminals sitting behind official desks and tormentors and criminals wearing the gown of a judge or prosecutor) responsible for persecution, repression, harassment and discrimination. 9. Taking action aimed at prosecuting and making financially liable tormentors and criminals responsible for violating human and civic rights. 10. Revealing and fighting threats directed against the most important interests of the Polish nation. 11. Taking action aimed at redressing damage caused to victims. 12. Taking action aimed at improving the living conditions of Polish victims of Bolshevism/Bolsheviks and Zionism/Zionists. 13. Taking actions aimed at determined opposition to the psychological and physical murder of the Polish nation. 14. Spreading national and patriotic values. 15. Claiming veteran benefits for Polish victims of Bolshevism/Bolsheviks and Zionism/Zionists. 16. Co-operating with institutions, national and patriotic organisations, Christian, unions and associations conducting real (not feigned) activities for the good of the Polish nation. 17. Expressing opinions on public matters.” On 22 January 1998 the Kalisz Governor applied to the Kalisz Regional Court for a decision prohibiting the formation of the association. On 6 March 1998 the Kalisz Regional Court allowed the application and prohibited the formation of the association. The court considered that the memorandum of association did not comply with the law. The applicants intended to form an ordinary association which did not have legal personality. Only point 1 of the memorandum setting out the association’s objectives could be approved. The remaining objectives were either unlawful or unrealistic and could not be pursued by an ordinary association. In particular, points 2, 3, and 4 referred to objectives already realised by other institutions. Point 6 introduced a notion of inequality between citizens which did not exist. Moreover, point 8 amounted to defamation of judges and prosecutors. The applicants appealed to the Łódź Court of Appeal but on 24 July 1998 it dismissed their appeal. Article 12 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997, states: “The Republic of Poland shall ensure freedom for the creation and functioning of trade unions, socio-occupational farmers’ organisations, societies, citizens’ movements, other voluntary associations and foundations.” Article 13 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 State policy, or which provide for their structure or membership to be secret, shall be forbidden.” Section 1 of the Associations Act, in so far as relevant, reads: “1. Polish citizens shall exercise the right of association in accordance with the Constitution ... and the legal order as specified by statute. 2. 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. 3. Associations shall have the right to express their opinion on public matters.” Section 2, in so far as relevant, provides: “1. An association is a voluntary, self-governing, durable union pursuing non-profit-making aims. 2. An association shall freely determine its objectives, its programmes of activity and organisational structures, and shall adopt internal resolutions concerning its activity.” Section 45 provides: “Persons intending to form an association whose activity will be directly related to defence or State security or the protection of public order shall agree the scope of such activity with the Minister of Defence or the Minister of Internal Affairs, respectively (...).” Chapter 6 of the Act concerns ordinary associations. It provides that they do not have legal personality and are exempt from registration. Persons intending to form an ordinary association must adopt a memorandum of association and submit it to a supervisory authority, which can request a court to prohibit the formation of the association. The court can prohibit the formation of the association if its memorandum is not compatible with the law or if its founders do not fulfil the legal requirements. Article 369 provides: “§ 1 An appeal shall be lodged with the court which gave the impugned judgment within two weeks after the date on which a party was served with the reasoned judgment. § 2 If a party has not requested the reasoned judgment within a week after the delivery of its operative part, the time allowed for lodging an appeal shall run from the date on which the time allowed for requesting the reasoned judgment expired.”