COUNTER TERRORISM AND CIVIL SOCIETY LAW

1
COUNTER TERRORISM AND CIVIL SOCIETY LAW

• Dragan Golubovic
• Istanbul, 18.11.2005

2
COUNTER TERRORISM AND CIVIL SOCIETY LAW

• On September 28, 2001, UN Security Council
  adopted Resolution 1373, under Chapter VII of the
  UN Charter, obliging state to implement more
  effective counter terrorist measures at the
  national level and to increase international in
  struggle against terrorism.
• In resolution 1456 (2003) the Security Council
  declared that States must ensure that any
  measure taken to combat terrorism combat with all
  their obligations under international law, in
  particular international human rights, refugee
  and humanitarian law.

3
COUNTER TERRORISM AND CIVIL SOCIETY LAW

• INTERNATIONAL HUMAN RIGHTS INSTRUMENT PERTINENT
  TO FREEDOM OF ASSOCIATION
• UN International Covenant on Civil and Political
  Rights.
• Intra-American Convention on Human Rights.
• European Convention on Human Rights.
• Wording of all the three instruments with
  respect to freedom of association similar.

4
EUROPEAN CONVENTION ON HUMAN RIGHTS / ECHR

• THE FIRST COMPREHENSIVE INTERNATIONAL TREATY IN
  THE FIELD OF HUMAN RIGHTS (FREEDOM OF ASSOCIATION
  INCLUDED).
• 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 (FREEDOM OF
  ASSOCIATION CASES INCLUDED).

5
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.

6
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.

7
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.

8
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 ARTICLE 11 of ECHR.

9
THE RIGHTS OF CSOs UNDER ECHR

• Once formed CSOs enjoy certain rights as
  protected by ECHR
• Right to make opinions known and to join public
  debate / Freedom of speech (Article 10).
• 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.

10
THE RIGHTS OF CSOs UNDER ECHR

• Particularly strong connection between freedom of
  association and freedom of speech (Article 10)
  demonstrated in a number of cases involving
  prohibition or dissolution of political parties
  and other organizations with political
  purposes.
• Freedom of speech is applicable not only to
  information or ideas that are favorable
  received, but also to those that offend, shock
  or disturb.. The fact that their activities form
  part of a collective exercise of freedom of
  expression in itself entitles political parties
  to seek protection under Article 10 and 11..
• (The United Communist Party of Turkey v. Turkey
  (1998))

11
THE RIGHTS OF CSOs UNDER ECHR

• In the process of registration, in reviewing the
  founding documents and the status of an
  organization, the authority must rely on what is
  written in the document, and not what it might be
  imagined to involve the principle basis for
  control over associations must be their deeds
  once they are registered (United Communist Party
  of Turkey and Others v. Turkey).

12
THE RIGHTS OF CSOs UNDER ECHR

• Legitimate aims as stipulated in the
  organizations founding documents include calls
  for changes in the constitution to the extent
• 1) the means for that end must in every respect
  be legal and democratic
• 2) the change proposed must itself be
  compatible with fundamental democratic principles
  (Refah Partisi and Others v. Turkey)

13
INTERNATIONAL EFFORTS TO FACILITATE
COMPLIANCE OF ANTI-TERROR LEGISLATION WITH IHR

• Digest of Jurisprudence of the UN and Regional
  Organizations on the Protection of Human Rights
  While Countering Terrorism (2003), prepared by
  Office of High Commissioner for Human Rights.
• Digest of universal and regional standards with
  respect to human rights, including pertinent case
  law.

14
INTERNATIONAL EFFORTS TO FACILITATE
COMPLIANCE OF ANTI-TERROR LEGISLATION WITH IHR

• DRAFT RECOMMENDATIONS TO MEMBER STATES REGARDING
  A CODE OF CONDUCT FOR NGOs, PREPARED BY THE
  EUROPEAN COMMISSION (2005).
• GOAL TO CURB TERRORIST FINANCING AND OTHER
  CRIMINAL ABUSE OF CSOs.

15
INTERNATIONAL EFFORTS TO FACILITATE
COMPLIANCE OF ANTI-TERROR LEGISLATION WITH IHR

• Two parts of Recommendations
• Proposal to Member States of specific measures to
  meet the goal of Recommendations (including more
  vigorous oversight mechanisms, educational
  programs to prevent abuse of NGOs for terrorist
  financing, etc).
• Promoting voluntary code of conduct for NGOs
  acting in EU.

16
INTERNATIONAL EFFORTS TO FACILITATE
COMPLIANCE OF ANTI-TERROR LEGISLATION WITH IHR

• ECNL Comments to Recommendations
• The purpose and scope of the Draft
  Recommendations should be clear as to whether the
  intent is to address counter-terrorism concerns
  through oversight mechanisms (at the national or
  supra-national level) or to more broadly promote
  the transparency and accountability of NGOs
  through a code of conduct.
• If the intent is to support a voluntary code of
  conduct, then the code should be the end result,
  and not the beginning, of a long process of
  education and consultation within the NPO sector.

17
Contact information

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