INTERNATIONAL LAW PROTECTING THE FREEDOM OF ASSOCIATON AND CSOs ACTIVITIES

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INTERNATIONAL LAW PROTECTING THE FREEDOM OF
ASSOCIATON AND CSOs ACTIVITIES

• Dragan Golubovic
• Istanbul, 18.11.2005

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EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN
RIGHTS AND BASIC FREEDOMS / ECHR

• THE FIRST COMPREHENSIVE INTERNATIONAL TREATY IN
  THE FIELD OF HUMAN RIGHTS.
• THE RIGHTS SET OUT IN THE CONVENTION AND THE
  PROTOCOLS LARGELY DERIVED FROM THE UN UNIVERSAL
  DECLARATION OF HUMAN RIGHTS (1948).
• THE FIRST TO ESTABLISH A COMPLAINT PROCEDURE AND
  AN INTERNATIONAL COURT FOR THE RESOLUTION OF
  HUMAN RIGHTS DISPUTES (EUROPEAN COURT OF HUMAN
  RIGHTS).
• THE COURT IS THE LEADING INTERNATIONAL BODY IN
  SHAPING HUMAN RIGHTS CASE LAW.

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DISTINCTIVE FEATURES OF ECHR

• ECHR PRIMARILY GUARANTEES CIVIL AND POLITICAL
  RIGHTS (EX. PROPERTY RIGHT AND RIGHT TO
  EDUCATION).
• NO HIERARCHY OF RIGHTS GUARANTEED BY ECHR,
  HOWEVER, THERE IS A DIFFERENCE BETWEEN
  UNQUALIFIED AND QUALIFIED RIGHTS.
• FREEDOM OF ASSOCIATION QUALIFIED RIGHTS
  (SUBJECT TO EXCEPTIONS AS SET FOURTH BY ARTICLE
  11).
• DOMESTIC LAW MUST GIVE FULL EFFECT TO THE RIGHTS
  GUARANTEED BY ECHR (METHODS TO IMPLEMENT
  GUARANTEES MAY VARY, BUT THE SCOPE OF THE RIGHTS
  AS GUARANTEED BY ECHR MUST BE PRESERVED).

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FREEDOM OF ASSOCIATION AND ECHR

• ARTICLE 11 ECHR
• (1) Everyone has the right to freedom of
  peaceful assembly and the freedom of association
  with others, including the right to form and to
  join trade unions for the protection of his
  interest.
• (2) No restrictions shall be placed on the
  exercise of these rights other than such as are
  prescribed by law and are necessary in a
  democratic society in the interests of national
  security or public safety, for the prevention of
  disorder or crime, for the protection of the
  rights and freedoms of others..

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FREEDOM OF ASSOCIATIONARTICLE 11 ECHR

• THE NOTION OF EVERYONE
• Freedom of association pertains primarily to
  individuals.
• Protocol 11 of ECHR acknowledged the right of
  any person, NGO, or group of individuals
  claiming to be the victim of a violation of ECHR
  to submit an application after meeting the
  admissibility criteria.
• From this one might conclude that the fundamental
  rights of the ECHR also exist for CSOs/NGOs why
  create right to complain unless the underlying
  substantive rights apply?
• Some rights by their nature do not apply to legal
  entities (right to life, personal freedom and
  safety, family life and marriage, etc ).
• As a general rule, CSOs can only invoke those
  rights which apply to them (CSOs have no capacity
  to bring representative applications, i.e, invoke
  rights which protect their members).

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ARTICLE 11 ECHR CASE LAW

• FREEDOM OF ASSOCIATION INCLUDES
• The right to establish an association to pursue
  any legitimate (public or mutual benefit) goals.
• The right to form a legally recognized
  association and that such an association, once
  formed, enjoys the full protection in the
  exercise of the freedom of association that an
  individual has.
• The right to decide who will be a member of an
  association.
• The right not to join an association (negative
  freedom of association).

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ARTICLE 11 ECHR CASE LAW

• ANY INTERFERENCE TO FREEDOM OF ASSOCIATION MUST
  BE
• PRESCRIBED BY LAW.
• SERVE LEGITIMATE AIM.
• BE NECESSARY IN A DEMOCRATIC SOCIETY.

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FREEDOM OF ASSOCIATION ARTICLE 11 ECHR CASE LAW

• WHAT IS PRESCRIBED BY LAW?
• THE INTEREFERENCE MUST HAVE BASIS IN LAW.
• THE LAW HAS TO BE BOTH ACCESSABLE AND FORESEABLE.
• FORSEABILITY TEST THE LAW HAS TO BE OF A CERTAIN
  QUALITY HAS TO BE WRITTEN IN A CLEAR AND
  UNAMBIGOUS LANGUAGE.

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FREEDOM OF ASSOCIATION ARTICLE 11 ECHR CASE LAW

• WHAT IS LEGITIMATE AIM?
• THE INTERFERENCE MUST BE WITHIN THE AMBIT OF
  ARTICLE 11, PARA 2 (in the interests of national
  security or public safety, for the prevention of
  disorder or crime, for the protection of the
  rights and freedoms of others).
• THE LIST OF LEGITIMATE INTERFERENCE IN PARA 2
  EXHAUSTIVE, NOT ILUSTRATIVE.

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FREEDOM OF ASSOCIATION ARTICLE 11 ECHR CASE LAW

• WHAT IS NECESSARY IN A DEMOCRATIC SOCIETY?
• THE STATE HAS TO PROVE THAT THE INTEFERENCE WITH
  FREEDOM OF ASSOCIATION WAS THE MINIMUM NEEDED TO
  SECURE LEGITIMATE AIM (PROPORTIONALITY TEST).
• IN MOST CASES, THE APPLICATION OF PROPROTIONALITY
  TEST HAS ULITMATELY DETERMINED WHETHER THERE WAS
  VIOLATION OF FREEDOM OF ASSOCIATION.

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THE RIGHTS OF CSOs UNDER ECHR

• Once formed CSOs enjoy the following rights as
  protected by ECHR and five additional Protocols
• Right to make opinions known and to join public
  debate / Freedom of speech (Article 10) /
  particularly strong connection between Article 10
  and 11 ECHR.
• Right to privacy (Article 8) The terms private
  life and home have been extended to cover
  business (private) premises, to protect
  individuals against arbitrary interference by the
  public authorities.
• Right to use and dispose of property without
  undue restrictions/Article Protocol 1 of ECHR,
  Art. 1 (non-distribution constrain).
• ECHR AND CSO LEGISLATION IN CEE COUNTRIES
• BEST PRACTICE IN CENTRAL AND EASTERN EUROPE
  PROGRESSIVE INTERPRETATION OF MINIMUM STANDARDS
  AS PRESCRIBED BY ECHR
• MINIMUM NUMBER OF FOUNDERS (2-10).
• LEGAL ENTITIES PERMITTED TO BE FOUNDERS OR
  MEMBERS OF AN ASSOCIATION.
• EFFICIENT REGISTRATION PROCEDURE (15 instead of
  30 days).
• EFFICIENT APPEALING PROCEDURE AGAINST DECISION TO
  DENY REGISTATION (15 instead of 30 days).

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Contact information

• Apaczai Csere Janos u.17, 1st floor,
• Budapest 1052,Hungary
• phone [phone]
• fax [phone]  
• www.icnl.org/ecnl
• Email dragan_at_ecnl.org.hu