The International Journal
of Not-for-Profit Law

Volume 1, Issue 1, September 1998

A quarterly publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Article

Legal Mechanisms to Encourage Development Partnerships
By Karla W. Simon and Leon E. Irish

Review

Handbuch Stiftungen
Edited by Bertelsmann Stiftung, Germany
Reviewed by Karla W. Simon

Case Notes

European Court of Human Rights Holds Right to Form Associations is Fundamental Human Right

Country Reports

Asia Pacific:
Region | Australia | China | India | Pakistan

Central and Eastern Europe:
Region
| Albania | Bosnia-Herzegovina | Bulgaria | Croatia | Estonia | Hungary | Latvia | Lithuania | Macedonia | Poland | Romania | Slovakia | Yugoslavia

Latin America:
Region | Belize | Brazil | Chile | Trinidad & Tobago | Venezuela

Newly Independent States / Central Asia:
Region
| Armenia | Azerbaijan | Belarus | Georgia | Kazakhstan | Kyrgyzstan | Moldova | Tadjikistan | Turkmenistan | Ukraine | Uzbekistan

Middle East and North Africa:
Egypt
| West Bank/Gaza | Yemen

North America:
Canada
| United States

Sub-Saharan Africa:
Cameroon | South Africa | Tanzania

Western Europe:
Region | England and Wales | Germany | Ireland | Italy

Self-Regulation Reports

New Zealand
By David Robinson

Kenya
by Edward A. Adiin Yaansah

Ethiopia

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Editorial Board

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European Court of Human Rights Holds Right to Form Associations is Fundamental Human Right

Freedom of association has been recognized as an international right for 50 years -- in Article 20 of the Universal Declaration of Human Rights of 1948, in Article 11 of the European Convention on Human Rights ("ECHR"), which entered into force in 1953, and in Article 22 of the International Convention on Civil and Political Rights ("ICCPR"), which entered into force in 1976. Until recently, however, it was one of the least developed of fundamental freedoms.

In a landmark decision, the European Court of Human Rights unanimously held in July 1998 that the refusal by Greek courts to register a Macedonian cultural association was an interference with the applicants' exercise of their right to freedom of association. The Court stated unequivocally that "the right to form an association is an inherent part" of the right to freedom of association. "That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which the right would be deprived of any meaning." (The full opinion in this case, Sidiropoulos & Others v. Greece, is available on the website of the International Center for Not-for-Profit Law: http://www.icnl.org.)

Of nearly equal importance is the January 1998 decision of the European Court of Human Rights holding that the action by the Government of Turkey to dissolve the United Communist Party of Turkey was a violation of Article 11 of the ECHR. The Court stated that "the Convention was designed to maintain and promote the ideals and values of a democratic society." Since "political parties make an irreplaceable contribution to political debate, which is at the vary core of the concept of a democratic society," they can be shut down only for "convincing and compelling reasons." Furthermore, political parties are essential to the protection of the freedom of speech guaranteed in Article 10 of the ECHR. (The full opinion in this case, United Communist Party of Turkey v. Turkey, is available on the publications page of the website.)

These decisions under the ECHR are of global significance, for Article 11 of the ECHR, protecting freedom of association, is essentially the same as Article 22 of the ICCPR. Thus, decisions of the European Court for Human Rights, which are final and not subject to review, are directly relevant to interpreting and applying Article 22 of the ICCPR, a convention that has been ratified by 140 nations.

Under both the ECHR and the ICCPR, the freedom of association can be restricted only (i) in the interests of national security or public safety, (ii) for the prevention of disorder or crime, (iii) for the protection of health or morals, or (iv) for the protection of the rights or freedoms of others. Any restrictions must be "prescribed by law, " and they must be "necessary in a democracy" to achieve one of the four listed objectives. In both the Sidiropoulos and Communist Party cases, the Court emphasized that exceptions must be "construed strictly," that only "clear and compelling" reasons can justify restrictions, that any restrictions must be "proportional to the legitimate end pursued," and that there must be "relevant and sufficient" evidence and "decisions based on an acceptable assessment of the relevant facts" before a restriction can be justified.

Finally, the Court in the Communist Party case held that the freedom of association would be largely theoretical and illusory if it were limited to the founding of an association, since the government could immediately disband it. "It follows that the protection afforded by Article 11 lasts for an association's entire life and that dissolution of an association by a country's authorities must accordingly satisfy the requirements" of Article 11 of the ECHR.

Although many questions remain, the Sidiropoulos and Communist Party cases provide strong international law protection for the freedom of association and the right to form legal entities to pursue that freedom. They also articulate very tough rules that must be satisfied before the freedom of association can be interfered with or restricted.

 

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