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

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

In response to various advertisements produced by the meat industry, the applicant association made a television commercial lasting fifty-five seconds, consisting of two 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 pigs’ 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 the Swiss Radio and Television Company (Schweizerische Radio- und Fernsehgesellschaft) was refused on 24 January 1994 by the company responsible for television advertising (the Commercial Television Company (AG für das Werbefernsehen), now called Publisuisse SA) and, at final instance, by the Federal Court, which dismissed an administrative-law appeal by the applicant association on 20 August 1997.

In respect of the applicant association’s complaint under Article 10 of the Convention, the Federal Court found that the prohibition of political advertising laid down in section 18(5) of the Federal Radio and Television Act 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 13 July 1994 the applicant association lodged an application with the European Commission of Human Rights under former Article 25 of the Convention.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

In a decision of 6 April 2000, the Court declared the application partly admissible.

In a judgment of 28 June 2001, the Court held that the refusal by the relevant Swiss authorities to broadcast the commercial in question infringed the right to freedom of expression guaranteed by Article 10 of the Convention (see VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR 2001VI).

The Court found that the measure taken had been “prescribed by law” and had pursued a legitimate aim for the purposes of Article 10 § 2.

As to whether the measure had been “necessary in a democratic society” within the meaning of that provision, the Court 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 Court’

The Court also found that there had been no violation of Articles 13 and 14 of the Convention. As to the application of Article 41, it ordered Switzerland to pay the sum of 20,000 Swiss francs (CHF) (approximately 13,300 euros (EUR) today) for costs and expenses. However, it made no award to the applicant association for non-pecuniary damage.

On 31 October 2001 the applicant association again applied to Publisuisse SA for permission to broadcast the same commercial with the addition of a comment referring to the Court’s judgment and criticising the conduct of the Swiss Radio and Television Company and the Swiss authorities.

In a letter of 30 November 2001, Publisuisse SA refused the application.

On 1 December 2001, on the basis of the Court’s judgment, the applicant association applied to the Federal Court for the final judgment given at domestic level to be reviewed, in accordance with section 139(a) of the former Federal Judicature Act (see paragraph 28 below). The application was worded and substantiated as follows:

“In the case of Verein gegen Tierfabriken Schweiz (VgT), 9546 Tuttwil, v. Swiss Radio and Television Company, Publisuisse SA and the Federal Department of Environment, Transport, Energy and Communication (DETEC):

I hereby request on behalf of VgT that the Federal Court’s judgment of 20 August 1997 be reviewed and that the administrative-law appeal of 18 June 1996 be allowed.

Reasons: In its judgment of 28 June 2001, the European Court of Human Rights upheld an application challenging the Federal Court judgment of which I am seeking a review (see Annex 1). The judgment was served on 25 October 2001 (see Annex 2); this application for review has therefore been lodged in time.

Yours faithfully ...”

The Federal Department of Environment, Transport, Energy and Communication and the Swiss Radio and Television Company submitted in their respective observations of 10 January and 15 February 2002, which were duly transmitted to the applicant association, that the application to reopen the proceedings should be dismissed.

In a judgment of 29 April 2002, the Federal Court 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 section 140 of the former Federal Judicature Act (see paragraph 29 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, the Federal Court considered that the fresh refusal by Publisuisse SA, 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:

3.1 Section 140 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 (Elisabeth Escher, ‘Revision und Erläuterung’, note 8.28, in Geiser/Münch, Prozessieren vor Bundesgericht, 2nd ed., Basle 1998).

3.2 The application to reopen the proceedings in the instant case does not meet these formal requirements. The applicant association has sought the review of the Federal Court’s judgment without explaining the extent to which this is necessary following the European Court’s judgment of 28 June 2001. VgT evidently assumes that the Strasbourg Court’s decision against Switzerland in itself makes the reopening of the proceedings necessary, but that is not the case. The mere fact that the Court, ruling on an individual application, has found a violation of the Convention does not mean that the Federal Court judgment in issue must automatically be reviewed in accordance with domestic law (see judgment 2A.363/2001 of 6 November 2001 in the Boultif case, point 3a/cc; Martin Philip Wyss, ‘EMRK-Verletzung und bundesrechtliche Revision nach Art. 139a OG’, in recht 1999, p. 100; Schürmann, op. cit., p. 100; Hottelier, op. cit., p. 749; BBl 1991 II 465, p. 529). Being a subsidiary remedy, reopening is justified only if it appears to remain necessary notwithstanding the compensation awarded by the European Court of Human Rights and constitutes the only means of obtaining redress (see Schürmann, op. cit., p. 102; Wyss, op. cit., p. 99). 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 2A.363/2001 of 6 November 2001 in the Boultif case, point 3b/cc).

3.3 ...

Publisuisse SA evidently once again refused to conclude an advertising agreement with VgT, which appealed against the refusal to the Federal Office of Communication; the proceedings are still pending. By taking this action, VgT 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 VgT’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 the almost eight years since the commercial was intended to have been broadcast), but to publicise the Court’s finding of a violation of its freedom of expression. It is thus no longer the same commercial that is under discussion today. The consequences of the Convention violation committed at the time were redressed as a result of the judgment against Switzerland and the award of just satisfaction under Article 41 of the Convention; the new agreement which VgT now wishes to conclude must form the subject of separate proceedings.

4.2 In its judgment of 20 August 1997, the Federal Court held that VgT’s commercial was subject to the public-law prohibition on political advertising set forth in section 18(5) of the Federal Radio and Television Act and could provide the Swiss Radio and Television Company, or rather Publisuisse SA, with a valid reason for not concluding the advertising agreement. The European Court of Human Rights did not share this view and held that there was no justification in a democratic society for refusing to broadcast a commercial on the ground that it constituted political advertising, which was banned on television. The Court did not express an opinion on whether and to what extent Switzerland, by not ensuring that the commercial could be broadcast, had breached any positive obligations resulting from the extension of the Convention safeguards to relations between private entities (see paragraph 46 of the Court’s judgment). The subject of the Federal Court’s judgment was the finding by the authorities that VgT’s commercial could be considered ‘political’ within the meaning of the Radio and Television Act 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 the Swiss Radio and Television Company had boycotted VgT, 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 Switzerland put forward, was not contested by the European Court.

4.3 In this connection, by enacting the relevant (civil) legislation and establishing judicial remedies to implement it, Switzerland has complied with its positive obligation under Article 10 of the Convention to ensure the appropriate realisation among private entities of the rights guaranteed by the Convention. 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. VgT 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 Article 10 of the Convention (see Article 35 of the Federal Constitution). The judgment of the European Court of Human Rights 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 the Swiss Radio and Television Company, on the basis of Article 10 of the Convention, should not have had any consequences for the broadcaster under the law relating to trading licences. The Swiss Radio and Television Company rightly points out that the judgment cannot be construed as requiring it to broadcast the commercial in issue in breach of the existing legal rules (such as the provisions of the Federal Unfair Competition Act), since the European Court did not address the corresponding questions, limited itself to examining the issue of ‘political’ advertising and did not state any position on the Swiss Radio and Television Company’s ‘negative’ freedom of expression. Since the Court’s judgment simply finds that the prohibition of political advertising on television must not stand in the way of broadcasting the commercial, VgT must seek to have it broadcast through recourse to the civil courts and not through the reopening procedure, should the Swiss Radio and Television Company, or rather Publisuisse SA, still refuse to broadcast it (see Ulrike Preissler, Die Zulässigkeit ideeller Werbung im Fernsehen, dissertation, Bonn 1994, pp. 113 et seq.; Martin Dumeruth, ‘Rundfunkrecht’, in Koller/Müller/Rhinow/ Zimmerli (eds.), Schweizerisches Bundesverwaltungsrecht, Basle 1996, note 126; Rolf H. Weiss, ‘Rechtliche Grundlagen für Werbung und Sponsoring’, in SMI 1993, pp. 213 et seq., in particular p. 226, footnote 58).

4.4 The Swiss Radio and Television Company cannot be directly ordered to broadcast the commercial in issue, since the Federal Court has no power in public law to give such an order. The applicant association had requested the Federal Office of Communication to issue a declaratory order to the effect that, under Article 10 of the Convention, VgT was entitled to have its commercial broadcast (‘right to broadcast advertising’). The Federal Court acknowledged from a procedural point of view that a right to have such an order issued existed (section 25 of the Federal Administrative Procedure Act in conjunction with Article 13 of the Convention) but ruled in the instant case – wrongly in the European Court’s view – on the basis of section 18(5) of the Federal Radio and Television Act that there was no right of access to television for political advertising. If the Federal Court had decided in the same way as the European Court, it would have had to limit itself to finding that the Swiss Radio and Television Company 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 Article 10 of the Convention. On the other hand, given the lack of legal basis, the Federal Court could not have ordered the Swiss Radio and Television Company to broadcast the commercial in the context of proceedings governed by broadcasting legislation (see Dumermuth, op. cit., note 491). VgT is now seeking such an order solely by way of the reopening procedure, but it cannot obtain it in relation to the decision to be reviewed. The Federal Court cannot make an order, following a judgment of the Strasbourg Court, that it was not empowered to make in the original proceedings (see judgment 2A.232/2000 of 2 March 2001 in the Amann case, point 3b/bb, published in EuGRZ 2001, p. 322).

On 3 March 2003 the Federal Office of Communication dismissed an appeal by the applicant association against Publisuisse SA’s decision of 30 November 2001 refusing permission to broadcast the commercial featuring the additional comment.

The Committee of Ministers of the Council of Europe, which had not been informed either by the applicant association or by the Government that the Federal Court had dismissed the application for review, concluded its examination of application no. 24699/94 on 22 July 2003 by adopting Resolution ResDH(2003)125, the relevant parts of which read:

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46 § 2 of the Convention;

Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State gave the Committee 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 Switzerland, that it has exercised its functions under Article 46 § 2 of the Convention in this case.

Appendix to Resolution ResDH(2003)125

Information provided by the Government of Switzerland during the examination of the VgT Verein gegen Tierfabriken case by the Committee of Ministers

As regards individual measures, the judgment was transmitted to the applicant, who was entitled to request the revision of the Federal Court’s judgment of 20 August 1997.

Concerning general measures, the judgment has been sent out to the Federal Office of Communication, the Federal Department for Environment, Transport, Energy, and Communication and to the Federal Court.

In addition, the Court’s judgment has been published in the journal Jurisprudence des autorités administratives de la Confédération no. 65/IV(2001), and can be consulted on the following website: ... The judgment has also been mentioned in the Federal Council Annual Report on the Swiss activities at the Council of Europe in 2001, which has been published in the Feuille fédérale no. 8/2002.

The Government of Switzerland 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, Switzerland has satisfied its obligations under Article 46 § 1 of the Convention.”

In a letter of 12 December 2003, the applicant association informed the Council of Europe’s Directorate General of Human Rights of the Federal Court’s refusal to review the judgment of 20 August 1997 following the Court’s finding of a violation of Article 10.

On 12 January 2005 the Council of Europe’s Directorate General of Human Rights informed the applicant association that it did not consider it advisable to conduct a fresh examination of the matter alongside the Court’s consideration of the application lodged in July 2002 in the present case.

Sections 136 et seq. of the former Federal Judicature Act, which was in force until 31 December 2006, concerned, inter alia, the review of judgments of the Federal Court. Section 139(a) provided:

“1. A decision of the Federal Court or of a lower court may be reviewed if the European Court of Human Rights or the Committee of Ministers of the Council of Europe has granted an individual application on account of a breach of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms and its Protocols, and redress is possible only through such a review.

If the Federal Court 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.

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 140 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 140, the Federal Court on 2 March 1999 partly revised one of its judgments after the Court had found a violation in Hertel v. Switzerland (25 August 1998, Reports of Judgments and Decisions 1998VI). It held, in particular:

“... The judgment of the European Court of Human Rights may afford the applicant satisfaction and, through the award of CHF 40,000, financial compensation for the cost of the proceedings. But it does not remove the restrictions imposed on the applicant by the Commercial Court and confirmed by the Federal Court in its judgment of 25 February 1994. These restrictions may be upheld only within the bounds of necessity as defined by the European Court. Since those restrictions may be lifted or limited only by means of an appeal to the Federal Court, the requirement of section 139(a) of the Federal Judicature Act is met ...”

Section 122 of the Federal Court Act of 17 June 2005, in force since 1 January 2007, reproduces the content of section 139(a) of the former Federal Judicature Act. It provides:

“An application for review of a judgment of the Federal Court on account of a violation of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms may be submitted if the following conditions are satisfied:

(a) the European Court of Human Rights, in a final judgment, has found a violation of the Convention or its Protocols;

(b) compensation cannot remedy the effects of the violation;

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

In a judgment of 18 July 2008 the Federal Court granted an application to reopen the proceedings following the Court’s finding of a violation of Article 8 of the Convention in Emonet and Others v. Switzerland (no. 39051/03, 13 December 2007), and set aside its judgment of 28 May 2003. The relevant parts of the Federal Court’s judgment read as follows:

“As to the law:

By virtue of section 122(a) of the Federal Court Act, an application for review of a judgment of the Federal Court on account of a violation of the Convention may be submitted if the European Court, in a final judgment, has found a violation of the Convention or its Protocols. In such an event, the application for review must be lodged with the Federal Court no later than 90 days after the European Court’s judgment has become final within the meaning of Article 44 of the Convention (section 124(1)(c) of the Federal Court Act). Having been parties to the proceedings that resulted in the impugned judgment, the applicants have locus standi. The judgment became final on 13 March 2008; 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 Confederation should be ordered to pay the applicants the sums awarded by the European Court in respect of non-pecuniary damage and costs and expenses cannot, however, be dealt with in the present review proceedings. Accordingly, it is inadmissible.

The basis in section 122 of the Federal Court Act for reopening the proceedings is subject to several conditions. Thus, an individual application must have been upheld by the European Court in a final judgment finding a violation of a right guaranteed by the Convention (subsection (a)); compensation cannot 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 the Federal Judicature Act (section 139(a)), with the result that, in principle, the case-law under the previous legislation retains its full force.

2.1 In the instant case the European Court 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 Article 8 of the Convention. The European Court’s judgment has, moreover, been final since 13 March 2008 (section 122(a) of the Federal Court Act). 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 122(b) of the Federal Court Act). The first two conditions in section 122 of the Federal Court Act are therefore satisfied.

2.2. It remains to be ascertained whether a review of the Federal Court’s judgment is necessary to remedy the effects of the violation of Article 8 of the Convention (section 122(c) of the Federal Court Act). The mere fact that there has been a breach of the Convention does not mean that the decision referred to the European Court 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 cannot in principle be reopened. However, where the unlawful situation persists despite the European Court’s finding of a violation of the Convention, a review is possible. The proceedings are then reopened within the limits of the relevant ground (see, with reference to the Federal Judicature Act, judgment 2A.232/2000 of 2 March 2001, point 2b/bb, published in: Pra 2001 no. 92, p. 538, and the judgments cited; and, with reference to the Federal Court Act, Elisabeth Escher, in Basler Kommentar BGG, Basle 2008, note 6 on section 122; judgment 1F_1/2007 of 30 July 2007, point 3.2).

The European Court 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 the European Court’s 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. The European Court 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 Court’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 Article 8 of the Convention 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 28 May 2003 should be set aside.

On 19 January 2000, at the 694th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights:

“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

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

Having regard to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’);

Noting that under Article 46 of the Convention ... the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights (‘the Court’) in any case to which they are parties and that the Committee of Ministers 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 the Court in accordance with Article 41 of the Convention 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 State 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 the Committee of Ministers in supervising the execution of the Court’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 Court has found a violation of the Convention, 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 cannot be rectified except by re-examination or reopening, and

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

(a) the impugned domestic decision is on the merits contrary to the Convention, 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 1 sets out the basic principle behind the recommendation that all victims of violations of the Convention 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 35 of the Report by the Parliamentary Assembly of the Council of Europe on execution of judgments of the European Court of Human Rights (doc. 8808, 12 July 2000) reads as follows:

“Since the Court does not tell States 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 10 May 2006, at the 964th meeting of the Ministers’ Deputies, the Committee of Ministers adopted Rules for the supervision of the execution of judgments and of the terms of friendly settlements:

“Rule 1

The exercise of the powers of the Committee of Ministers under Article 46 §§ 2 to 5 and Article 39 § 4 of the European Convention on Human Rights is governed by the present Rules.

Rule 6: Information to the Committee of Ministers on the execution of the judgment

When, in a judgment transmitted to the Committee of Ministers in accordance with Article 46 § 2 of the Convention, the Court has decided that there has been a violation of the Convention or its Protocols and/or has awarded just satisfaction to the injured party under Article 41 of the Convention, the Committee shall invite the High Contracting Party concerned to inform it of the measures which the High Contracting Party has taken or intends to take in consequence of the judgment, having regard to its obligation to abide by it under Article 46 § 1 of the Convention.

When supervising the execution of a judgment by the High Contracting Party concerned, pursuant to Article 46 § 2 of the Convention, the Committee of Ministers shall examine:

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

(b) if required, and taking into account the discretion of the High Contracting Party 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 7: Control intervals

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

If the High Contracting Party concerned informs the Committee of Ministers that it is not yet in a position to inform the Committee 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 the Committee of Ministers taking place no more than six months later, unless the Committee decides otherwise; the same rule shall apply when this period expires and for each subsequent period.

Rule 8: Access to information

The provisions of this Rule are without prejudice to the confidential nature of the Committee of Ministers’ deliberations in accordance with Article 21 of the Statute of the Council of Europe.

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

(a) information and documents relating thereto provided by a High Contracting Party to the Committee of Ministers pursuant to Article 46 § 2 of the Convention;

(b) information and documents relating thereto provided to the Committee of Ministers, 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 9: Communications to the Committee of Ministers

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

The Committee of Ministers 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 Article 46 § 2 of the Convention.

The Secretariat shall bring, in an appropriate way, any communication received in reference to paragraph 1 of this Rule, to the attention of the Committee of Ministers. It shall do so in respect of any communication received in reference to paragraph 2 of this Rule, together with any observations of the delegation(s) concerned provided that the latter are transmitted to the Secretariat within five working days of having been notified of such communication.

Rule no. 16: Interim resolutions

In the course of its supervision of the execution of a judgment or of the terms of a friendly settlement, the Committee of Ministers 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. 17: 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, the Committee of Ministers shall adopt a resolution concluding that its functions under Article 46 § 2 or Article 39 § 4 of the Convention have been exercised.”

Article 35 of the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts (adopted by the General Assembly of the United Nations at its 53rd session (2001), and reproduced in Official Records of the General Assembly, 56th Session, Supplement No. 10 (A/56/10)) is worded as follows:

“A State 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 26 of, and the third paragraph of the Preamble to, the Vienna Convention of 23 May 1969 on the Law of Treaties, which entered into force in respect of Switzerland on 6 June 1990, 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, Ms Slavica Ibrulj and Ms Irma Ibrulj, are Croatian citizens who were born in 1941 and 1966, respectively, and live in Zagreb. They are represented before the Court by Mr Ranko Radović, a lawyer practising in Zagreb. The respondent Government are represented by their Agent, Ms Lidija Lukina-Karajković.

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 15 December 1972 their husband and father, H.I. died in a hospital in Zagreb.

On 8 November 1976 the applicants instituted civil proceedings in the Zagreb Municipal Court (Općinski sud u Zagrebu) 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 Convention entered into force in respect of Croatia (i.e. before 5 November 1997) the case was several times decided at different levels. After the Supreme Court (Vrhovni sud Republike Hrvatske) quashed the first and second instance judgments on 16 November 1989, the case was remitted to the Zagreb Municipal Court as the court of first instance, which before to 5 November 1997 held three hearings.

On 5 November 1997 the court invited the applicants to pay an advance for the costs of an additional medical expertise.

On 25 May 1998 the Faculty of Medicine in Zagreb (Medicinski fakultet u Zagrebu) submitted its expertise to the court.

On 13 July and 18 September 1998 the parties submitted their comments on the medical expertise.

On 9 October 1998 the defendant filed additional submissions.

At the hearing on 13 April 1999 the applicants’ counsel asked the court to adopt a partial judgment.

At the hearing on 21 February 2002 the court ordered that yet another additional medical expertise be carried out.

At the next hearing on 4 June 2002 the court heard two medical experts and adopted partial judgment awarding the applicants’ claim in part and rejecting it in part.

On 5 July 2002 the defendant appealed against the judgment.

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

The relevant parts of Section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 - hereinafter “the 2002 Constitutional Act on the Constitutional Court” - Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) read as follows:

(1) 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 ...

(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...

(3) In a decision under paragraph 2 of this Article, 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 State budget within a term of three months from the date when the party lodged a request for its payment.


On an unknown date the applicants (who all describe themselves as “Silesians”), together with one hundred and ninety other persons, decided to form an association (stowarzyszenie) entitled “Union of People of Silesian Nationality” (Związek Ludności Narodowości Śląskiej). The founders subsequently adopted a memorandum of association. The applicants were elected to the provisional management committee (Komitet Założycielski) and were authorised to proceed with the registration of the association.

On 11 December 1996 the applicants, acting on behalf of the provisional management committee of the “Union of People of Silesian Nationality”, lodged an application for the registration of their association with the Katowice Regional Court (Sąd Wojewódzki). They relied on, inter alia, section 8(2) of the Law of 7 April 1989 on Associations (hereinafter referred to as the “Law on Associations”). They submitted the memorandum of association along with the other documents required by the Law on Associations. The relevant parts of the memorandum of association read:

“1. The present association shall be called the “Union of People of Silesian Nationality” (hereinafter referred to as the “Union”).

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

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

The aims of the Union are:

(1) to awaken and strengthen the national consciousness of Silesians;

(2) to restore Silesian culture;

(3) to promote knowledge of Silesia;

(4) to protect the ethnic rights of persons of Silesian nationality; [and]

(5) to provide social care for members of the Union.

The Union shall accomplish its aims by the following means:

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

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

(3) carrying out promotional and publishing activities;

(4) promoting the emblems and colours of Silesia and Upper Silesia;

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

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

(7) setting up schools and other educational establishments;

(8) cooperating with other organisations;

(9) 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;

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

(11) any other activities.

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

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

Paragraph 15 read, in so far as relevant:

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

(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 14.

Paragraph 30 provided:

“The Union is an organisation of the Silesian national minority.”

On an unknown later date the Katowice Regional Court, pursuant to section 13 (2) of the Law on Associations, served a copy of the applicants’ application, together with copies of the relevant enclosures, on the Katowice Governor (Wojewoda).

On 27 January 1997 the Katowice Governor, acting through the Department of Civic Affairs (Wydział Obywatelski), 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 cannot be said that there is a ‘Silesian’ (Ślązak), 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 7 (1) 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. Polish sociology distinguishes between two concepts of ‘homeland’, i.e. a ‘local homeland’ and a ‘ideological homeland’. In German, this distinction is expressed by the terms Heimat (local homeland) and Vaterland (ideological homeland). The research relied on by the applicants merely refers to the self-identification of the inhabitants of Silesia, indicating that their local self-identification takes precedence over their national self-identification. …

(iii) Paragraph 10 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 10 (1) and (4) of the Law on Associations. Moreover, it renders paragraph 15 (2) (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 30 of the memorandum of association, which calls the Union an “organisation of the Silesian national minority”, is misleading and does not correspond to the facts. There is no basis for regarding the Silesians as a national minority. Recognising them as such would have been in breach of Articles 67 § 2 and 81 § 1 of the [old] Constitution, which guarantee Polish citizens equal rights. In particular, under the relevant provisions of the Law of 28 May 1993 on Parliamentary Elections (hereinafter referred to as the “Law on Parliamentary Elections”) (Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej), registration of the Union would give it a privileged position in respect of the distribution of seats in Parliament. The Union 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 Poland, such as Cracovians (Krakowiacy), Highlanders (Górale) and Mazurians (Mazurzy); this would have amounted to a return to the tribalism (podziały plemienne) which had existed prior to the formation of the Polish 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 30 should be deleted. In our opinion, these are the conditions for registration of the association.”

On 13 March 1997 the applicants filed a pleading in reply to those arguments. They asserted that the fact that the majority of Poles failed to recognise the existence of a Silesian 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 Silesians formed a distinct group had already been acknowledged at the end of the First World War; moreover, the Silesians had always sought to preserve their identity and had always formed a distinct group, regardless of whether Upper Silesia had belonged to Germany or to Poland. Consequently, any comparison between them and the Cracovians or Highlanders 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 the Ministry of the Interior, which had been published by the press and which explained that the National and Ethnic Minorities Bill had explicitly stated that a “declaration that a person belongs to a minority shall not be questioned or verified by the public authorities”.

On 9 April 1997 the Katowice Governor filed a pleading with the court. He maintained his previous position. On 14 April 1997 he produced two letters from the Ministry of the Interior (dated 4 February and 10 April 1997 respectively, and addressed to the Department of Civic Affairs of the Office of the Katowice Governor). The relevant parts of the letter of 4 February 1997 read:

“We share your doubts as to whether certain inhabitants of Silesia 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 the Framework Convention for the Protection of National Minorities has not been ratified by Poland, 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 Silesia can be recognised as a national minority.”

The relevant parts of the letter of 10 April 1997 read as follows:

“... The arguments advanced by the provisional management committee of the association [in their pleading of 13 March 1997] do not contain any new elements; [in particular] ... the Framework Convention does not constitute the law applicable in Poland.

Likewise, the letters of the Ministry of the Interior [on the interpretation of the National and Ethnic Minorities Bill] 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 the “Union of People of Silesian Nationality” could be allowed provided that the existence of such a nation had been established.”

On 28 April 1997 the applicants submitted a further pleading to the court. They criticised the arguments of the Ministry of the Interior, 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 1 (2) of the Law on Associations, “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 30. They agreed, however, to amend paragraph 10 of the memorandum and phrased it as follows:

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

On 23 May 1997 the Katowice Regional Court held an “explanatory session” (posiedzenie wyjaśniające) aimed at obtaining comments and clarifications from the parties and settling the matters in dispute.

On 27 May 1997 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 7 (1) and (4) and paragraph 10)”. They stressed however that the authorities’ insistence on deleting paragraph 30 was “unjustified and illogical” and, consequently, refused to alter or delete that provision.

Later, on 16 June 1997, the Katowice Governor submitted his final pleading to the court, opposing the registration of the association.

On 24 June 1997 a single judge, sitting in camera as the Katowice Regional Court, granted the applicants’ application and registered their association under the name of the “Union of People of Silesian Nationality”. 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 Preamble 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 one of the natural rights of a human being. [For this reason,] section 1(1) 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 Poland’s international obligations.

Under section 1(2) of the Law on Associations, 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 16 June 1997, 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 7 of the memorandum of association, the aims of the association are [, for example,] to awaken and strengthen the national consciousness of Silesians, to restore Silesian culture, to promote knowledge of Silesia 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 Silesia and Upper Silesia, 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 ‘Silesian national minority’, the problems involved in the determination of their proper meaning cannot be examined by this court in detail.

This court must, pursuant section 13(1) of the Law on Associations, rule on the present application within a period not exceeding three months 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 Silesia constitute a minority in Upper Silesia – 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 Silesians] 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 8(4), 12 and 16, read in conjunction with section 13 (2) of the Law on Associations and Article 516 of the Code of Civil Procedure, holds as in the operative part of the decision”.

On 2 July 1997 the Katowice Governor lodged an appeal with the Katowice Court of Appeal (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 1(1) and 2 of the Law on Associations and unspecified provisions of the Code of Civil Procedure. 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 Silesian nation constituting a ‘Silesian 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’. The Regional Court, 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 Polish law does not define the terms ‘nation’ and ‘national minority’. This, however, does not justify the conclusion of the Regional Court 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-Polish nation – and whether it is admissible in law to create a ‘Silesian national minority’.

In the appellant’s opinion, there are no objective arguments in favour of the finding that a distinct Silesian 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 Silesian culture, promoting knowledge of Silesia 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 30 ... . In addition, the applicants were not prevented from incorporating the above-mentioned aims into the memorandum of an existing association called the ‘Movement for the Autonomy of Silesia’ (Ruch Autonomii Śląska), 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 ‘Silesian national minority’, clearly demonstrates what their real objective is. In fact, their objective is to circumvent the provisions of the Law of 28 May 1993 on Parliamentary Elections, under which parties or other organisations standing in elections must reach a threshold of 5% or 7% of the vote in order to obtain seats in the Parliament. ...

Legal acts – including the act of adopting a memorandum of association – are null and void under Article 58 § 1 of the Civil Code if they aim at evading or circumventing the law. Legal theory formulates the opinion that defects in legal acts, as defined in Article 58 of the Civil Code, may constitute a basis for refusing to register an association.

Sanctioning the rights of the ‘Silesian 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 Article 67 § 2 of the Constitution. …”

The Katowice Court of Appeal heard the appeal on 24 September 1997. The Katowice Prosecutor of Appeal (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 Katowice 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 the same day 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 30 of the memorandum of association, which states that the Union is an organisation of the Silesian national minority. We therefore agree with the appellant that the Union, on the basis of the above-mentioned paragraph, would have the right to benefit from the statutory privileges laid down in section 5 of the Law on Parliamentary Elections. ...

Furthermore, recognising the Silesians 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 Silesians constitute a national minority in Poland; it is not necessary to obtain expert evidence in that connection.

Under Article 228 § 1 of the Code of Civil Procedure, 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 group’ 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.

Polish ethnographic science of the 19th and 20th centuries describes ‘Silesians’ as an autochthonous population of Polish origin residing in Silesia – 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 German-speaking population, linked with Silesia by [such factors as] birth, residence and tradition (see the Encyclopaedia published by the Polish Scientific Publishers in 1996). ...

The applicants derive the rights they claim from the principles set out in the [Framework Convention for the Protection of National Minorities], 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 European 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 centuries 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 Silesians 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 Silesia unequivocally demonstrates that autochthonous inhabitants [of this region] have preserved their distinct culture and language (the latter having Polish roots from an ethnic point of view,), even though their territories were not within the borders of the Polish State and even though they were under strong German influence. They are therefore Silesians – in the sense of [inhabitants of the] region, not in the sense of [their] nationality. Thus, Upper Silesia, in its ethnic roots [sic], remained Polish; that was, without a doubt, demonstrated by three uprisings. The role played by the Silesians in building and preserving the Polish character of Silesia, 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 Polish citizens, both the Silesians and other regional groups or communities [e.g. Highlanders or Mazurians] are perceived merely in terms of local communities. In the international sphere Poland and, similarly, France and Germany, are perceived as single-nation States, regardless of the fact that there exist distinct ethnic groups (e.g. the inhabitants of Alsace or Lorraine in France, or the inhabitants of Bavaria in Germany).

On the whole, sociologists agree that the Silesians constitute an ethnic group and that the autochthonous inhabitants [of Silesia] 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 Poland national minorities do constitute only a small part of the society, that is to say about 3-4%. They comprise – and this has never been denied – Germans, Ukrainians, Belarusians, Lithuanians, Slovaks, Czechs, Jews, Roma, Armenians and Tatars.

In the Polish tradition, national minorities are perceived as groups linked to a majority outside Poland; 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 State can be deemed to be national minorities. Accordingly, for a long time the Roma 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 10 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 Silesia and who had become members of the Union solely to gain an advantage for themselves. Undoubtedly, such groups of members cannot [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 1994 in Katowice Province. Indeed, the research demonstrates that 25% of persons requested to declare their ethnic and regional identity replied that they were Silesians. However, it transpires from [the material collected in the course of another piece of sociological research of 1996 which was submitted by the applicants during the appellate hearing] that two years later the number of persons considering themselves to be Silesians had decreased to 12.4% and that, moreover, the majority of inhabitants of Katowice Province considered themselves to be Poles (i.e. 81.9%, including 18.1% who stated that they were ‘Polish Silesians’; only 3.5% of inhabitants considered themselves to be Germans, including 2.4 % who stated that they were ‘German Silesians’).

In the light of the above research it cannot be said that such a poorly established self-identity of a small (and decreasing) group of Silesians, as demonstrated by their refusal to declare that they belong to the [Polish] nation, provides a basis for recognising that all Silesians (who have lived in Silesia for generations and state that they belong to the Polish 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. Article 5 of the Civil Code. Thus, the application is aimed at registering an organisation of a minority which cannot be regarded as a national minority and at circumventing the provisions of the Law on Parliamentary Elections 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 section 14 of the Law on Associations and Article 58 of the Civil Code, read in conjunction with Articles 386 § 1 and 13 of the Code of Civil Procedure and section 8 of the Law on Associations, the appeal must be allowed ... .”

On 3 November 1997 the applicants lodged a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy). They alleged that the Katowice Court of Appeal had wrongly interpreted the relevant provisions of the Law on Associations and that the impugned decision had contravened Article 84 of the Constitution, Article 22 of the International Covenant on Civil and Political Rights and Article 11 of the Convention. Their arguments may be summarised as follows:

“The principal issue to be determined by the Court of Appeal 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 8(2), 25 et seq.] provided for various means whereby the activity of an association could be supervised by the competent State authorities or, in the event that its activity was unlawful, the association could be dissolved.

However, the Court of Appeal, instead of assessing formal requirements of the registration, firstly decided that the core issue in the proceedings was to establish whether a Silesian 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 ‘Silesian nation’. It did so without any effort to obtain expert evidence in respect of such an important matter.”

On 27 November 1997 the Katowice Governor filed a pleading in reply to the applicants’ 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 30 of the memorandum of association and alter the name of their association by deleting the word ‘nationality’. Those arguments were based on section 10(1)(1) of the Law of Associations, 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 14(1).

It must be stressed that even in the explanatory report to the Framework Convention for the Protection of National Minorities 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 Silesians] with a view to achieving political aims.”

On 28 November 1997 the Katowice Prosecutor of Appeal 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 Silesians could not be regarded as a minority of that kind. The Silesians, 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 18 March 1998 a panel of three judges, sitting as the Administrative, Labour and Social Security Chamber of the Supreme Court, dismissed the applicants’ 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 Poland.

In the present case the Court of Appeal 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 ‘Silesian nation’ and ‘Silesian national minority’.

We agree with the opinion [of the Court of Appeal]. ‘National minority’ is a legal term (Article 35 of the Constitution of 2 February 1997) although it is not defined either in Polish law, or in the conventions relied on in the cassation appeal. However, the explanatory report to the Framework Convention for the Protection of National Minorities 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 the Court of Appeal 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 Silesians 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 30 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 at least 5% of the vote, which is a prerequisite for obtaining seats in Parliament ... [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 at least five electoral constituencies [whereas the general requirement is to register an electoral list in at least a half of the electoral constituencies in the whole of Poland].

Pursuant to the relevant ruling of the Constitutional Court (Trybunał Konstytucyjny) on the interpretation of the Law on Parliamentary Elections, ... 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], the State Electoral College 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 the new Constitution resolutions of the Constitutional Court on the interpretation of statutes no longer have universally binding force; however, in view of the persuasiveness of the reasons given by the Constitutional Court 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 Silesians, an ethnic group, the rights of a national minority would be contrary to Article 32 of the Constitution, 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 10(1)(4) 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 10 of the memorandum provides that everyone who is a Polish citizen and has submitted a written declaration stating that he is of Silesian nationality, may become a member of the Union, whereas paragraph 15 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 Poland’s international obligations. Both the International Covenant on Civil and Political Rights ... and the Convention for the Protection of Human Rights and Fundamental Freedoms allow [the State] to place restrictions on the freedom of association, [in particular such as] are prescribed by law and are necessary in a democratic 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 Poland. 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 Parliament [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 the Constitution of the Republic of Poland 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 (Article 35). …”

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 of the Constitution 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.”

Article 32 of the Constitution provides:

“1. 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.”

Article 35 of the Constitution provides:

“1. The Republic of Poland shall ensure that Polish 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.”

Article 58 of the Constitution, proclaiming the right to freedom of association, reads:

“1. The freedom of association shall be guaranteed to everyone.

Associations whose purposes or activities are contrary to the Constitution 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 Constitution, entitled “Sources of Law”, refers to the relationship between domestic law and international treaties.

Article 87 § 1 provides:

“The sources of universally binding law of the Republic of Poland shall be the Constitution, statutes, ratified international treaties and ordinances.”

Article 91 states:

“1. As soon as a ratified international treaty has been promulgated in the Journal of Laws of the Republic of Poland, 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 cannot be reconciled with their provisions.

Where a treaty ratified by the Republic of Poland 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 1 of the Law, in the version applicable at the material time, prescribed:

“1. Polish citizens shall exercise the right of association in accordance with the Constitution ... 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 2 provides, in so far as relevant:

“1. 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 8, in the version applicable at the material time, stated, in so far as relevant:

“1. An association shall register itself in the National Court Register …, unless statute provides otherwise.

[Subsections 2-4 were repealed on 20 August 1997]

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

The relevant part of section 10 provides:

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

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

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

Section 12 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 13 stipulates:

“1. 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 three months from the date on which the application was lodged with the court.

The court shall serve a copy of the application for the registration, together with the accompanying documents specified in section 12 on [the relevant] supervisory organ. The supervisory organ shall have the right to comment on the application within fourteen days from the date of service and, with the court’s leave, to join the proceedings as a party.”

Section 14 reads:

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

Section 16 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] Law.”

Chapter 3 of the Law, entitled “Supervision of associations”, provides, in sections 25 et seq., for various means of monitoring the activities of associations and lays down the conditions for the dissolution of an association.

Under section 25 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 section 26 and a motion from the supervisory organ, may impose a fine on the association concerned.

Under section 28, 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 10(1) and (2), may request that such breaches cease, or issue a reprimand, or request the competent court to take measures under section 29.

Section 29 provides, in so far as relevant:

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

(1) reprimand the authorities of the association concerned;

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

(3) 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 3 of the Law (hereafter referred to as the “1993 Law on Parliamentary Elections”) provided:

“1. In the distribution of seats [in the Parliament] account shall be taken only of those regional electoral lists of electoral committees which have received at least 5% of the valid votes cast in the whole [of Poland].

The regional electoral lists of electoral committees referred to in section 77(2) (electoral coalitions) shall be taken into account in the distribution of seats [in Parliament], provided that they have received at least 8% of the valid votes cast in the whole [of Poland].”

Section 4 prescribed:

“In the distribution of seats among national electoral lists account shall be taken only of those lists of electoral committees which have received at least 7% of the valid votes cast in the whole [of Poland].

Section 5 stipulated:

“1. Electoral committees of registered organisations of national minorities may be exempted from one of the conditions referred to in section 3(1) or in section 4, provided that, not later than the fifth day before the date of the election, they submit to the State Electoral College a declaration to that effect.

The State Electoral College shall promptly acknowledge receipt of the declaration referred to in subsection 1. This declaration shall be binding on electoral colleges.”

Section 91 provided, in so far as relevant:

An electoral committee which has registered its regional electoral lists in at least half of the constituencies [in the whole of Poland] … 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 at least five constituencies.”

Article 5 of 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 58 provides, in so far as relevant:

“1. 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 Poland was a signatory to the Framework Convention for the Protection of National Minorities (ETS No. 157); the date of signature was 1 February 1995. Poland ratified that Convention on 20 December 2000. It has been in force since 1 April 2001.

The Framework Convention 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 Council of Europe member States.

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

“Taking into consideration the fact that the Framework Convention for the Protection of National Minorities contains no definition of the national minorities notion, the Republic of Poland declares that it understands this term as national minorities residing within the territory of the Republic of Poland at the same time whose members are Polish citizens.”