The International Journal
of Not-for-Profit Law

Volume 1, Issue 2, December 1998

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

Table of Contents

Letter from the Editor

Articles

Registration of Associations in Central and Eastern Europe and the Newly Indpendent States: A Survey
Rachel L. Holmes

The Case for Intermediate Sanctions
Milton Cerny

Voluntary Organizations in Europe: The European Convention on Human Rights
Erik Denters and Wino J.M. van Veen

Improving Civil Society in Hungary
Daniel Csanády

El Proyecto de Ley N. 4690/98 (Developing State - NGO Relations in Brazil)
Anna Cynthia Oliveira

NGO Legislation in Georgia
Vasha Salamadze

Reviews

The Non-Profit Handbook (1997-1998 National Edition)
Reviewed by Karla Simon

Handbuch Stiftungen
Edited by Bertelsmann Stiftung

Case Notes

Trustees of Sahebzadi Oalia Kulsum Trust v Controller of Estate Duty [1998] 233 ITR 434

Revenue Commissioners v Sisters of Charity of the Incarnate Word

Gaudiya Mission v. Kamalaksha DAS Brahmachary

Country Reports

Asia Pacific:
Regional | Australia | China | India | Japan | Mongolia | Nepal | New Zealand | the Philippines | Thailand | Vietnam

Central and Eastern Europe:
Regional | Albania | Bosnia-Herzogovina | Bulgaria | Croatia | Czech Republic | Hungary | Latvia | Lithuania | Macedonia | Poland | Slovakia | Slovenia | Yugoslavia

Latin America and the Caribbean:
Argentina | Brazil | Ecuador | Puerto Rico | Venezuela

Middle East and North Africa:
Regional | Egypt | Jordan | Morocco

Newly Independent States:
Regional | Armenia | Azerbaijan | Belarus | Georgia | Kazakhstan | Kyrgyzstan | Moldova | Russia | Tajikistan | Turkmenistan | Ukraine | Uzbekistan

North America:
Canada | Mexico | the United States

Sub-Saharan Africa:
Regional | Ethiopia | Mauritius | South Africa

Western Europe:
Regional | England and United Kingdom | Finland | France | Germany | Republic of Ireland | Netherlands | Northern Ireland | Sweden | Turkey

International Developments:
UNESCO | Loccum Conference | Birmingham Conference

Self-Regulation Initiatives

United States - Overview of the Bishop Estate Controversy

United States - Maryland Association of Nonprofits Adopts "The Standards of Excellence"

International Grantmaking

Options for Increasing U.S. Support for Chinese Nonprofit Organizations
Robert A. Boisture

Grantmaking by Private Foundations in the International Arena
Thomas Chomicz

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Editorial Board

Subscription Information

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Voluntary Organizations in Europe: The European Convention on Human Rights

Erik Denters and Wino J.M. van Veen1

1. Introduction

One of the major changes that took place in Europe after the uplifting of the ‘Iron Curtain’ in 1989, undoubtedly was the shift from alienation and hostility between Eastern and Western Europe towards an atmosphere of mutual interest and advances. Although the division between East and West was in more than one way tangible, it was apparently artificial. Europe now is in the process of being reunited again. Given the geographical circumstances and the shared history and traditions on the European continent, this will not come as a surprise.

However, the differences in political and social culture that have evolved from the Second World War until the beginning of the 1990s cannot be expected to be wiped out in just a few years time. The end of Soviet control in the Central and Eastern European (CEE) countries has started a process of drastic changes. These processes affect in particular national politics and social, economic and legal structures in the individual CEE-countries. Especially for voluntary, non governmental organisations (hereinafter: NGOs) new opportunities and tasks present themselves: the transformation from a State-controlled society, with very limited opportunities for private initiatives, to a democratic society under the rule of law, brings a situation wherein citizens and civil organisations can (and must) participate and take responsibility for building and developing a new society.

Both the unification in Europe and the developments in the individual CEE-countries are intertwined. The course of events seems to be that the CEE-countries are bound to grow towards the Western-European models. This contribution is a tentative exploration of how ‘Europe’ may influence the development towards a democratic society under the rule of law according to European standards. In particular we focus on the impact of ‘Europe’ regarding the law on voluntary NGOs.

The reason for this is that especially non-democratic regimes have a natural tendency to be superstitious toward NGOs, particularly the not-for-profit type of NGOs. This attitude is reflected in the legislation where this type of organisations is forbidden or that such organisations are forbidden to engage in political activities. In some legislations of CEE-countries examples of provisions of this kind can be found or are taken in consideration. The question is to what extent European standards of a democratic society under the rule of law, allow restrictions with regard to the freedom of NGOs to be (politically) active in society.

The logical starting point for our exploration is the European Convention on Human Rights (hereafter: ECHR). One of the first important steps towards joining the circle of European democracies is to adhere to the ECHR. A study of the implications of the ECHR for CEE-countries is interesting for more than one reason. Obviously, the Convention will change criminal law procedures, administrative practices and generally the way State authorities treat subjects within their jurisdiction. Moreover, under the Convention's aegis democracy is more than a society with formalized procedures for decision making with a system of parliamentary control. The ECHR is also concerned with the protection of democracy in a material sense and not merely a formal sense. This implies that laws that have been adopted through all the correct formal channels and that have been approved by the Parliament, are not beyond the scrutiny of the ECHR. History has given proof that Parliamentary involvement is not a safeguard where fundamental human rights are at stake. Hitherto, many CEE-countries have already adopted the ECHR.2 Here we are particularly concerned with the need to adapt domestic laws to grant NGOs the rights protected in the ECHR. In particular, we will focus on the possible effects of the ECHR with regard to regulations that prohibit NGOs to engage in political activities.

The question is thus whether or not NGOs as such, and not just individual citizens, can exercise the rights that are granted under the ECHR and if so, what consequences this may have for the laws governing NGOs. This leads to the second reason that justifies careful attention to the implications of the ECHR: the ECHR provides for potentially fairly effective means to sanction and prevent violation of the rights protected. The failure to fully meet the obligations under the Convention will be clearly exposed and may have political repercussions for the parties concerned. Adherence to the Convention is not only a step towards more effective human rights protection but also a sine qua non for joining the major European institutions. Thus membership of the Council of Europe can only be awarded after the applicant has demonstrated to be able and willing to fulfil the provisions for membership, i.e. ‘acceptance of the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedom’.3  Ratification of the ECHR also appears to be a prerequisite for membership of the EU. Furthermore, as we shall demonstrate, the ECHR plays a role in the activities of the European Bank for Reconstruction and Development. In the final analysis, therefore, the conclusions of this contribution are not only relevant for nonprofit organisations but also for-profit NGOs and natural persons.

In this contribution we briefly discuss the ECHR’s history and some current developments. (para. 2). Further, some unique features and the Convention's relationship to other human rights treaties and documents will be dealt with. We will also address the question whether the ECHR applies only to natural persons or also to legal persons (par 3). Subsequently, we describe the ‘liberty’ of ECHR-States to put restrictions regarding the initiation of and participation in political activities (par, 4). Here we make a distinction regarding the nature of the activity and the nature of the restriction and subsequently discuss the key-elements of the freedom of speech and the freedom of association. In paragraph 6 we pay attention to the instruments and sanctions that are designed to enforce the ECHR. Paragraph 5 deals with some existing and newly drafted laws in a few CEE-countries, with an occasional reference to some Western-European countries, that are suspect of violation fundamental rights under the ECHR. Finally, conclusions are presented in paragraph 7.

2. The European Convention on Human Rights

2.1 History4

The drafting and adoption of the ECHR was primarily a reaction against the fascist and nazi systems, which caused so much human suffering. Shortly after the second World War it was widely recognized that an effective system of human rights protection was needed in Europe. In December 1947 prominent politicians formed the ‘International Committee for the Movements for European Unity’ and convened in May 1948 at the Congress of Europe in The Hague. This Congress adopted a resolution urging for the establishment of a Charter of Human Rights and a Court of Justice with adequate competence for the enforcement of the Charter. Simultaneously, governmental initiatives lead to the establishment of the Council of Europe in 1949, an intergovernmental organization based in Strasbourg. The aim of the Council was to `achieve a greater unity between its Members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress'. A major agenda item of the Council’s first session was the preparation of a draft text for a human rights convention. The Convention was adopted on 4 November 1950 and entered into force on 3 September 1953. Under Article 1 the `High Contacting Parties shall secure to everyone within their jurisdiction the rights and freedoms' defined in the Convention. Some parties, including the France, the Netherlands and the United Kingdom made declarations to the extent that the Convention shall also apply to overseas territories.5

The Convention included a list of ten substantive rights and the establishment of a European Commission (hereafter: ECommHR) and a European Court (hereafter: ECoHR) on Human Rights. The former was to consider the admissibility of petitions, to establish the facts, to promote friendly settlement and, if appropriate, to give an opinion as to whether or not the petitions reveal a violation of the Convention. The Court was mandated to take binding judgment on cases referred to it by the Commission or by a Contracting Party concerned. The supervisory machinery had less mandatory elements than was hoped for: the right of individuals to lodge complaints with the Commission and the jurisdiction of the Court were made optional. The right of complaint for States-parties was, however, mandatory. In addition, a Committee of Ministers was brought in as the final, politically based arbiter in cases which were not referred to the Court of Human Rights.

The dynamics of the Convention has been reflected in abundant opinions and decisions of the European Commission and the European Court. A number of protocols have also expanded the Convention's reach in the past decades. The protocols include both substantive rights as well as procedural improvements. The most recent protocol was adopted in May 19946 and makes considerable changes in procedure by upgrading the supervisory mechanism. It does not tamper with any of the rights already guaranteed in the Convention and previous protocols. The major reason for this reform was the rapidly growing number of applications and the new memberships of the CEE-countries. The procedure had to be streamlined to be able to cope with the increasing number of individual complaints.7

Protocol 11 makes two important changes: it establishes a permanent European Court of Human Rights which replaces the existing Commission and Court. Furthermore, it reduces the Committee of Minister’s powers to the supervision of the Court’s judgements. Second, it makes the right of individuals to submit applications and the jurisdiction of the Court mandatory. The latter improvement is revolutionary as it creates for the individual internationally enforceable rights, irrespective of the will of the State-party. Thus, Article 34 of the Protocol entitles any person, NGO or group of individuals, claiming to be the victim of a violation, to bring their case directly before the Court without restrictions.8

The mandatory right of individual application introduced in Protocol 11 in combination with the binding force of the European Court’s final judgement, makes the ECHR a powerful legal document. It obliges parties to take the Convention seriously and to apply the provisions directly in legal procedures. Any failure to give way to the ECHR may ultimately lead to successive convictions by the Human Rights Court. A poor record in the observance of human rights may easily damage the democratic appearance of States.

2.2 The ECHR's features

It must be underlined, that human rights obligations exist for each State irrespective of its willingness to ratify human rights conventions. State practice and doctrine confirm that the Universal Declaration of Human Rights (UDHR) sets the minimum standard which each State must observe. In spite of the fact that most provisions of the UDHR have developed into customary international law,9 its universality has been occasionally questioned because it was considered unsuitable for certain political systems. These challenges were not successful. After some heated debates on the Vienna Declaration and Programme of Action (1993)10 the international community of States now seem to accept ‘the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms’.

A major source producing world wide human rights instruments is the UN based Commission on Human Rights which has drafted the Universal Declaration on Human Rights (1948) and the Human Rights Covenants (1966). Without doubt, the adoption of the International Covenant on Civil and Political Rights (hereafter ICCPR) may be considered a major achievement of the UN. Apart from these two treaties, many other instruments were adopted by the UN. Some of the other well known are: The Convention against Torture and other Cruel, Inhuman or Degrading Treatment (1984) and the Convention on the Rights of the Child (1990). Parallel to these global developments, regional human right treaties were adopted. Apart from the Council of Europe, the Organisation of American States and the Organisation of African Unity adopted treaties which protect rights considered as characteristic for the regions political and cultural identity.11 Thus, regional identity is reflected in the African Charter on Human and Peoples’ Rights by accentuating the rights of peoples and the duties of individuals towards the family and communities. This approach contrasts with the ECHR stressing consistently the individual rights vis-a-vis the State.

Generally speaking, we may appreciate the global instruments as laying down the fundaments of human rights protection whereas the regional treaties may refine and develop human rights standards with reference to regional particularities such as historical, cultural and religious backgrounds.

Notwithstanding their different origins, the ECHR and the International Covenant on Civil and Political Rights (ICCPR) have much in common. This can be explained by the fact that the Covenant was drafted in an era (1948-1966) when Western control in the UN was still decisive. European States that just negotiated the ECHR were able to leave their footprint in the ICCPR, whereas other groups were less dominant. In that period many developing countries were still before or just over the threshold of decolonization. Moreover, former communist Eastern European countries were more interested in the ICCPR’s counterpart: i.e. the International Covenant on Economic, Social and Cultural Rights (ICESCR), also adopted by the General Assembly in 1966. It may be argued, that the Western world put much effort in the Civil and Political Covenant, the socialist/communist States stressed the importance of the Economic, Social and Cultural Covenant, whereas the developing world was still under colonization or entangled in the ideological struggle between East and West. The most notable mark developing countries left in both the Covenants was the insertion of the right to self-determination in the identical Articles 1.

Both the ECHR and ICCPR protect civil and political rights with some differences. To the ICCPR two protocols (on individual communications and the death penalty) have been added, whereas the ECHR has been complemented with as many as 11 Protocols.12 The ECHR as a regional system for protecting human rights has gained a substantial impact on the relationship between States and individuals under their jurisdiction.13 An effective system of supervision—enforced by the European Commission on Human Rights and the European Court of Justice on Human Rights—and an increasing case-law show that parties to the ECHR cannot take a free ride by ratifying the treaty on the one hand and fend themselves off from international scrutiny on the other. Apart from the mandatory system of State-complaints, peer pressure has been imposed on reluctant parties to the ECHR to recognize the competence of the European Commission on Human Rights to receive individual complaints. At present all parties have made such declaration—indefinitely or for a fixed period subject to express or tacit renewal.

The ICCPR has less impact in terms of international supervision. The Covenant allows individual communications to the Human Rights Committee complaining of a treaty violation, but not all parties have accepted such a right. Early 1997 some 85 States have accepted the right to file an individual communication by ratifying the Optional Protocol to the ICCPR. Moreover, the Covenant lacks a court that is able to take binding decisions. As may be expected, parties having a poor record in human rights protection, are reluctant to ratify the Protocol.

The authoritative status of the ICCPR as a binding legal instrument has been damaged by inaction against serious and persistent violators. Political repression, torture and other abuses by parties too often go unexamined by the Human Rights Committee. This inaction is due to the lack of competence of the Human Rights Committee to consider such complaints. Equally worrying is the considerable number of reservations made by parties when ratifying the Covenant. These reservation may have such a limiting effect that ratification is hardly more than an empty gesture. Without doubt the US ratification of the ICCPR hit the rock bottom by rejecting the self-executing character of the Covenant, adding numerous reservations, understandings and declarations and failing to ratify the Optional Protocol.14 Ratifications of this restrictive kind clearly are not meant to advance the legal position of individuals, but rather to upgrade the States’ outward appearance for the international community.

In contrast, a watering down of treaty obligations by extensive reservations, would be unacceptable to the parties to the ECHR. Reservations are made by the ECHR parties, but these are mainly very limited in scope.15

3. NGOs-rights protected and international standing

The ECHR allows ‘any person, non-governmental organisation or group of individuals claiming to be the victim of a violation’ to submit an application after meeting the admissibility criteria (Article 25 ECHR).16 From this we may conclude that the fundamental rights under the ECHR also exist for NGOs17; it would not make sense to create a right to complaint without creating substantive rights for such organization. Therefore, it must be assumed that references in the ECHR to 'everyone' may in principle refer to natural and legal persons, including NGOs. Indeed, many decisions by the ECoHR confirm NGO rights and their standing under the Convention.18 An NGO must be a private organisation not exercising public power or State controlled activities in the field of public services.19 It is not required that an NGO is a legal person according to domestic law although most NGOs have that status.

Despite the fact that the provisions of the ECHR apply in principle to both (groups of) individuals and NGOs, not all the rights in the ECHR can be invoked by NGOs. Much depends on the character of the NGO and the rights invoked. Some rights by their nature do not apply for legal persons, such as the right to life (Article 2), personal freedom and safety (Article 5), right to family life (Article 8), marriage (Article 12) etc. Likewise, the right to education and the right not to be subjected to degrading treatment or punishment cannot be exercised by NGOs. As a general rule NGOs can only invoke rights which directly apply to them. NGOs, such as associations have no capacity to bring representative applications, i.e. invoke rights which basically protect individual members of the organisation.20 Therefore, an organisation for the protection of the rights of homosexuals cannot successfully invoke the rights to family life or privacy on behalf of its members.21 In particular cases a distinction between the rights of the association and the rights of the members which make up the association, is considered an artificial one. The ECommHR has accepted applications of churches claiming a violation of the freedom of religion.22

In some cases the NGOs legal structure and statutory purposes are decisive of the rights to be invoked.23

Given the spirit in which the ECHR is developed as described in paragraph 2.1 above, the question arises on how restrictions on political activities relate to the fundamental rights provided for in the ECHR. To start with, an exhaustive definition of political activities, is hard to give. These activities may include inter alia:

This list is only meant to be illustrative. It serves to give some points of reference when discussing the fundamental rights. Clearly the fundamental rights that are most involved are the freedom of assembly and association and the freedom of speech. Here we will examine these particular rights more closely, describing the conditions for restrictions.

4.2 The freedom of expression and the freedom of assembly and association

Key-articles

Article 10

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of judiciary.

Article 11

  1. Everyone has the right to freedom of peaceful assembly and freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
  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 interest of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Article 17

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Article 18

The restrictions under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

The concept of a democratic society necessarily implies that citizens can freely join elections, both actively and passively. Also, following from Article 10, it is beyond doubt that all citizens have the right to make their opinions known and to join public debate. Therefore, everybody must be allowed to form, support and join political parties and pressure movements to effectively enjoy to their rights to make their political thoughts known.

A very important issue is that minorities can make their opinions known and criticize the majority. The rights of minorities draw attention to groups of people and problems that tend to be overlooked by the majority. Pluralism in opinions is essential for a healthy and democratic society.

The freedom of expression and the freedom of assembly and association are considered to be the fundamentals of a democratic society. They form an essential element in the political and social "life" and thus are foundations of a democratic society.24 Because the ECHR is very much linked to the concept of a "democratic society" and what is needed to form and preserve such a society, Article 10 ECHR covers not only the freedom of expression but also the freedom to provide or receive information.

The freedom of peaceful assembly,25 not only covers static meetings but also public demonstrations26 and processions.27 Article 11 covers both "private" meetings as well as meetings in "public" thoroughfares.28 Article 11 in our opinion not only applies to meetings with a political character but also to meetings of a social nature. There are no justifiable arguments to reserve the freedom of assembly for meetings where public matters are explicitly in discussion and opinions are formed.29 Social meetings are just as well valuable for a democratic society and thus should be protected. Moreover, the danger would exist that a restriction regarding social meetings could be used as an instrument to detect "allowed" political meetings.30

Member-states may impose restrictions but the liberty to do so is limited by the ECHR. These limitations play a crucial role in determining whether or not a member-state is violating the ECHR.

4.3 Restrictions regarding restrictions

4.3.1 Restriction 1: a restriction must be prescribed by law

Every restriction must be prescribed by law.31 This condition is related to the objective of the ECHR to strengthen the character of the democratic state under the rule of law.32 The notion of law encompasses law in substantive rather than a formal sense, meaning that it not only regards laws created by the formal legislator,33 but also regulations of a lower legal status,34 unwritten laws, and conventions.35

A rule only qualifies as a law under the ECHR36 if it meets certain quality requirements. The rule must be of a general nature, publicly known, and the outcome must be sufficiently predictable.37 Restrictions therefore are only allowed if they are comprised in a general rule that applies to an unlimited number of cases.

To be prescribed by law, a restriction must also have a basis in the national law of the member state. It is not sufficient that it is not in conflict with the national law.38 Furthermore, in order to allow individuals to be able to determine their behavior, the restrictions must be sufficiently clear39 and be made publicly known.40 This is necessary in a state under the rule of law in order to be able to predict with reasonable certainty the range of the restrictions.41 Citizens must know what rules they have to deal with. This also implies that restrictions can not be imposed retroactively.42

Prescribed by law, implies that safeguards against misuse are incorporated in the rule or system of rules, containing the restriction.43 Here clearly the quality of the law is involved. Interference with the freedom of citizens should in a state under the rule of law, be subject to a form of effective control.44 This is especially important when the government is given a discretionary competence.

4.3.2 Restriction 2: limited grounds for restriction45

Restrictions are only allowed in the interest of national security, territorial integrity or public safety, to prevent disorder and penal acts, the protection of public health of good morals,46 the good name or rights of others, to prevent the disclosure of information received in confidence or to guarantee the authority and impartiality of the courts.

The list of grounds mentioned in the ECHR is limited. Apart from this, the interpretation of these grounds, in the spirit of the ECHR, is restrictive. For instance, restrictions on behalf of the national security and territorial integrity, are meant to prevent and/or punish high treason, collaboration,47 incitement of insubordination and desertion among soldiers, and terrorist activities. It is explicitly not allowed to deprive national (ethnic) minorities of their human rights on the grounds of the territorial integrity.48

Restrictions in the interest of public safety is understood to encompass that the member-states can impose restrictions to assure the internal safety and the internal sovereignty of the state and its organs.49 This may include measures to insure the functioning of democratic institutions, such as the parliament, for instance by forbidding a demonstration within a certain zone from the building where parliament is convening. Also the system of public order maintenance should be able to function properly.50 Under circumstances it is allowed to punish by public summon the approval of violence or the advocation of illegal activities.51

Public order in the perspective of the ECHR means the order in a physical sense. Restrictions are allowed on handing out of pamphlets on public roads,52 free installation of slogans along the road, activities that may induce riots etc. It does not imply, however, that every public breach on the legal order or summons to do so, should be prevented.53 Restrictions to maintain order in international communication networks are also accepted under Article 10, section 2 ECHR.54 Compulsory authorization for public demonstrations is allowed, but only to enable the authorities to ensure the peaceful nature of a meeting.55 In several countries56 authorization is abolished and replaced by notification.

Freedom of expression may be restricted also on behalf of the rights of others such as the good reputation of someone else. Restrictions are also allowed when prohibiting the use of private walls for publication of opinions.57 The right to correct information may also justify restrictions on the freedom of expression.58 A restriction on this ground is acceptable in cases where the freedom of expression itself or the reaction of others to the expression, poses a clear and present danger to the goods, rights or freedom of others that the government seeks to protect.59 The "clear and present danger test" thus can assist to define whether or not a restriction is necessary.60 Domestic courts should, in a concrete case, investigate whether or not an unrestricted freedom could create circumstances wherein a clear and present danger threatens one of the mentioned issues in the ECHR.

Attempts to again reintroduce a totalitarian regime are clearly restricted. This is on behalf of the rights and freedoms of others.61 The appeal to freedom of association to form a political party and to organize and operate it in order to undermine the democratic society is an activity meant by Article 17 ECHR and thus not protected under Article 10 or 11 ECHR. This applies for associations that seek to achieve their goals violently as well as in peaceful ways.62

In case a government wants to forbid an action, it must be necessary in a democratic society. In this respect the proportionality test is relevant. Important criteria are the length of the measure and the area involved. A general prohibition is only seldom allowed. A general prohibition is allowed only under specific circumstances, in the sense that the danger of public disorder cannot be prevented by more moderate measures. A more general prohibition was allowed in the case of Christians against racism and fascism,63 where experience showed that heavy violent actions were to be expected, and that massive police-action was not sufficient to prevent damage. The prohibition of the whole of London was allowed because people of the National Front would go to other area’s where there was no prohibition-order.

4.3.3 Restriction 3: restrictions are only acceptable when ‘necessary in a democratic society’

Apart from the fact that the restrictions must be "provided by law," there is a second condition determining whether or not a restriction is accepted: restrictions are only allowed if they are necessary in a democratic society. This is the key notion in the second section of the mentioned articles.64 A restriction is not just acceptable because it serves the public order or good morals etc., rather it is permitted only if it serves the public order, good morals etc. belonging to a democratic society.65 This may have different meanings.

First of all the ECommHR has decided in several cases that a democratic society is characterized by pluralism, tolerance and open mindedness.66 This means that opinions that may hurt, choke or discomfort a nation or a group of its population, are protected by the freedom of expression.67 Especially the press should enjoy great freedom, particularly when government or governmental officials are involved. Politicians know that, given their public tasks, they are subject to more scrutiny. This implies that they should exercise tolerance. On matters of public debate, the freedom expression should be overprotected rather than underprotected. There is a "preferred position of the freedom of speech."68 Freedom of expression covers information on radio and television programs,69 and also protects commercial interest.70

Second, the condition that a restriction is only accepted when it is necessary in a democratic society, does not require that the restriction is indispensable. On the other hand, it is not enough that the restriction is reasonable.71 Decisive is the nature of the restriction in relation to its purpose. As the Human Rights Court has stated, the principle of proportionality "is one of the factors to be taken into account when assessing whether a measure of interference is ‘necessary."72

When a restriction is not proportional in relation to the purpose it serves, for instance if it is too general in character, it is considered not to be necessary in a democratic society. A less radical method should be chosen. Thus, any restriction in general terms, forbidding the initiation or support of political activities in general terms, are prone to fail the necessary in a democratic society test.

Restrictions regarding electoral activities are admissible in the interest of honest, correct and orderly conducted affairs. In this perspective it is questionable whether or not the status as a political party can only be acquired by associations, thus excluding foundations and other organizational forms as is the case in several countries. One could argue that this restriction is either too general and thus not necessary in a democratic society or that it is discriminating and thus in violation with article 14 of the ECHR (see paragraph 4.3.4). If a legal system offers a legal form to obtain legal personality, it should not seek to deprive this legal form from the fundamental rights provided by the ECHR. The founders and other natural persons involved should be free to chose this legal form if they feel it is the best available vehicle to exercise their fundamental human rights.

4.3.4 Restriction 4: Article 14

Restrictions on the rights and freedoms provided for in the ECHR that are in violation of Article 14 ECHR are not allowed. Article 14 ECHR forbids discrimination.73 The discrimination criteria mentioned in Article 14 are indicative and not limitative.74 In itself the restriction may be allowed under the rules of the ECHR, such that it is provided by the law and necessary in a democratic society, but if the restriction results in unequal rights, it violates Article 14 ECHR. The member state then has the choice to either drop the restriction completely, or widen its portent to every person, regardless of race, gender etc.75

4.3.5 Restrictions versus positive action

Under specific circumstances the government may find itself in a situation in which the demands for public order and fundamental right of expression and/or assembly are in conflict. For instance, when there is a threat of violent counter demonstrations. The question is whether in such a situation a demonstration can be forbidden.

The answer is that the threat of violent counter demonstrations or the possibility that extremists with violent intentions who are not members of the organizing association, will join the demonstration, cannot, as such, take away the right of peaceful assembly.76 As said before, the ECHR is designed to guarantee that the subject can effectively enjoy the envisaged rights. This implies that the government takes positive action. Article 11 sometimes implies that room for assembly should be provided for, in order to ensure effective enjoyment of the right provided.77 The same can apply in a situation where third parties may react violently to a demonstration (counter-demonstration). In order to enjoy freedom of assembly, the government may have to act in order to protect the peaceful assembly rather than forbidding the demonstration.78 Thus the Court has held:79

In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate. Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a pure negative conception would not be compatible with the object and purpose of Article 11. Like Article 8, Article 11 sometimes require positive measures to be taken, even in the sphere of relations between individuals, if need be.

5. The ECHR and the law on NGOs: some examples

In this paragraph we discuss some provisions found in the existing and newly drafted laws in a few CEE-countries with an occasional reference to some Western-European countries, that are suspected of violating fundamental rights under the ECHR. The CEE-countries include Bulgaria,80 Croatia,81 and Slovakia.82 It should be noted that we did not always have a certified translation at our disposal, and that in some cases it concerns draft-legislation, some of which at the time of publication of this article may have been amended and/or enacted. Therefore, reference to a particular provision should not be read as to imply automatically that the relevant law is an infringement of the ECHR on this point. The discussion merely serves to indicate that the ECHR has its implications and can play a significant role in drafting NGO law.

The regime laid down in each of the mentioned (draft) laws varies significantly, from fairly benevolent in the case of the Bulgarian law, to outright confronting in the cases of Slovakia and Croatia.83 Here we will not discuss the relevant laws in detail to illustrate the restrictive regime to nonprofits in general.84 Instead we will focus on some selected fundamental rights as protected under the ECHR.

5.1 The freedom of association

Freedom of association recognizes the right of individuals—and legal persons—to organize themselves on a voluntary basis for the realization of a specific purpose. Restrictions are allowed only under specific conditions and on specific grounds, as was described above (para. 4.3). Freedom of association does not imply the right to obtain legal personality. However, the law cannot restrict the freedom of association, merely because the association has not (yet) been granted legal personality, e.g. forbid the formation of informal associations.

Occasionally, a provision that seems to be in direct conflict with the freedom of association can be found. For example the Croatian Law Relating to Associations, seems particularly suspect where it prohibits an informal association from performing activities prior to registration, required for obtaining legal personality.85 A violation of this prohibition is fined.86 A provision of this nature, probably inspired by a fear for non-governmental action, quite seriously restricts the freedom of association. In our opinion, it can hardly be sustained that in a democratic society, it is necessary to require legal personality as a prerequisite for the freedom of association to be exercised.87 Therefore, a provision of this kind, in our opinion, will not survive under the regime of the ECHR.

Distrust in non-governmental voluntary organizations, which, by the way, is not exclusively found in CEE-countries, surfaces particularly in the provisions that regulate the influence of the government in the establishment, operation and supervision of voluntary organizations. In itself, government involvement in order to prevent, trace and punish criminal, fraudulent and otherwise unacceptable practices is justifiable. However, the competencies of the government should not be overextended and particularly, should not allow for harassment of voluntary organizations and other forms of unduly chilling the effective enjoyment of the fundamental freedoms.

Provisions that are particularly suspect in this context are those that declare that the operations of associations are open to public inspection and that the public can only exceptionally be excluded from the meetings of bodies of the association in cases provided by the constitution of the association.88 Apparently, this provision is meant to promote transparency of associations. However, it also infringes deeply upon the freedom of association, which includes the freedom to decide who will be a member and thus, ultimately, who has a right to attend the association's meetings and activities.

The obligation to allow the public, including the media and the government, to attend meetings, puts a strain on the freedom of association and, particularly for organizations that are active in fields where they might oppose the government or industry or that are otherwise active on behalf of minority-rights or unpopular cause, run a serious risk of being hampered in their right to effectively enjoy the freedom of association. Again, there seems no objective justification for these infringements, as demanded by a democratic society. Purposes of transparency can be sufficiently served by other, less intrusive methods, such as the publication of annual accounts and reports. The provisions in the present law do not seem to be sufficiently narrowly tailored to serve their objective.

Another type of provisions that is open to objection, is the one that authorizes governmental bodies to visit and audit an organization at any time to find out whether or not it acts in accordance with the law or the requirements for its legal status.89 Naturally, government should have investigatory powers, necessary to enforce the law. However, these powers should be incorporated in a legal framework that respects the fundamental freedoms of its subjects. Stipulations of the nature mentioned in this example allow unlimited and undefined government discretion to investigate a particular organization. This creates the opportunity to harass organizations that have purposes that are not popular with the supervizing body, or the government in general. There are no objections against an inspection of annual reports and the like. However, for more intrusive forms of investigation, guarantees against arbitrary interference or intimidation should be provided for in the law.

5.2 The freedom of association and the right to privacy

An interesting question is to what extent a voluntary organization can invoke the right to privacy, as protected under Article 8 of the ECHR. The ECoHR has declared that the expansion of the words "private life" and "home" as mentioned in Article 8 ECHR, to professional or business activities or premises is "consonant with the essential object and purpose of Article 8, namely to protect the individual against arbitrary interference by the public authorities."90 Accepting that Article 8 ECHR applies to professional and business activities and premises, there can be little doubt that this article can be invoked by voluntary, nonprofit organizations.

Applicability of this provision supports our opinion that government should have no arbitrary authority to visit meetings of bodies of an organization91 or to investigate an organization in an intrusive way, such as entering its office or the homes of its (board)member as was discussed in paragraph 5.1 above.

Similarly, objections can arise against obligations to supply government authorities with (possibly) confidential data, such as names and addresses of donors of the organization,92 or a list of members.93 Obviously, obligations of this nature may be, in a climate of political unrest, particularly detrimental to organizations with (unpopular) advocacy purposes. The former obligation may effectively inhibit making contributions to such "suspect" organizations for fear of getting into trouble. The latter chills the willingness to become a member of such an organization for exactly the same reason. Requirements of this nature therefore are objectionable in relation to the freedom of expression, the freedom of association, and also infringe on the right of privacy of the donors, and respectively, the members.

5.3 Freedom of expression

As illustrated above, the freedom of speech as such also applies to voluntary organizations, with or without legal personality. This implies that an organization cannot be unduly refrained from expressing its views and opinions. Restrictions are only allowed when necessary in a democratic society and when they are justified on limited grounds. In NGO law occasionally a provision surfaces that raises questions regarding the freedom of expression.

An example of this is found in Article 6 of the Slovak Law on Foundations prohibiting that the property of a foundation be "used for financing the activities of political parties and political movements." The wording of this text leaves room for wide interpretation. If a foundation issues pamphlets stating a particular view that is constant with the views of a particular political party, is the foundation then violating this rule? Or is a foundation that performs an advocacy role that inevitably has political implications, using its property to finance activities of a political movement? These and other questions will inevitably cross the minds of the board members of a random foundation any time they have expenses related to politically sensitive issues.94

The freedom of expression of the foundation clearly is chilled, even when it regards expressing views and opinions that are within their statutory purposes. The Slovak law may even frustrate initiating or supporting any public debate on social issues.95 The question is whether or not this restriction is admissible under the ECHR. Given the number of questions that arise from the restriction, regarding its exact meaning, one could argue that the restriction is too general to be clear in its consequences, and therefore, not prescribed by law in the system of the ECHR (see paragraph 4.3.1). If there are reasons to fear (political) abuse of foundations, the law should be sufficiently narrow to exclude certain (forms of) activities that are undermining public order, safety or other grounds that may justify restrictions on the fundamental freedoms (paragraph 4.3.2), when necessary in a democratic society.

5.4 Prescribed by law, due process and fair trial

Government frequently plays a role in nonprofit laws. For example in the process of registration, in order to obtain legal personality. State authorities may also have competence to investigate and file a suit for dissolution of a particular organization. In some cases the legal position of the (founders of a) foundation seems particularly weak. For example the Slovak Law on Foundations, Article 11, states that registration is required to obtain legal personality. The competent authority to decide on registration, is the Ministry of Interior. The Ministry can refuse registration, inter alia, on the grounds that the foundation's purpose, is not `generally beneficial'.96

The types of purposes that are eligible for the legal form of a foundation are listed exhaustively in Article 3 of the Law.97 Apparently, the Ministry may decide, within the scope of this list, whether or not in a particular case, a foundation is generally beneficial. That it is not desirable that the government should have this competence goes without saying.98 What deserves particular attention is that there should be adequate legal protection against governmental decisions.99 An administrative review in itself does not qualify to meet the requirements of Article 6 of ECHR. The European Court has specifically stated that ultimately a case should be decided by an impartial and independent body. This should be an independent court of law, and not a body that is part of the administration.100 It is doubtful whether the Slovak law meets this requirement as the law on foundations does not prescribe an adequate legal procedure.101

5.5 Foreign nonprofit organizations

Many of the newly drafted laws hold provisions regarding foreign nonprofit organizations. As a general rule those laws stipulate that foreign organizations cannot perform activities in the relevant country other than under the same conditions and to the same extent as the nonprofit organizations constituted according the relevant law.102 Thus, the provision in Art. 9 of the German Constitution "Alle Deutschen haben das Recht, Vereine und Gesellschaften zu bilden" prima facie collides with the ECHR inasmuch the same right is denied to foreigners. Another restriction found is that a foreign organization may only open a branch in the relevant country when the purposes of its activities are not in conflict with the public policy in this country.103

The question that is raised here, is to what extent the ECHR protects foreign organizations. The answer to this question is that the provisions of the ECHR are secured to "everyone within the jurisdiction" of the member-states.104 Thus, a foreign NGO may not be excluded from the fundamental rights protected under the ECHR, when it operates under the jurisdiction of a member-state. It is not allowed to try and stifle foreign organizations or groups of individuals on other grounds than are allowed under the ECHR. Public policy is not one of those grounds, public order, on the other hand, is. The fact that they have a foreign origin, is not relevant in this perspective.

6. Enforcing the Convention

Parties to the ECHR are bound by the pacta sunt servanda principle and must observe the rights protected.105 Moreover, Article 27 of the Vienna Convention on the Law of Treaties (1969) states that "a State party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." This means that there cannot be an excuse for a failure to enforce the ECHR. All domestic legislation on political and other fundamental freedoms of NGOs, must, therefore, yield to ECHR’s prescriptions. Apart from the Law of Treaties, other incentives may force particularly the CEE countries to carefully observe the rights protected in the ECHR. Increasingly, human rights observance appear to be a condition for economic cooperation.

6.1 EU admissibility criteria

A considerable number of CEE countries have applied for membership to the European Union. By early 1997, the EU had received requests from Bulgaria, the Czech Republic, Hungary, Poland, Slovakia, Romania, Latvia, Lithuania and Estonia. The European Union Council has announced that it will consider these applications as soon as the Intergovernmental Conference on amending the Treaty of European Union is completed. At the 1993 Copenhagen meeting of the European Council, it was agreed that so-called "Europe Agreements" between candidates and the EU would be required as a prelude for membership. These agreements give the signatories CEE countries associate status and cover both political and economic relations. As a political condition a successful candidate country must have achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for the protection of minorities.

Furthermore, Article F of the European Union Treaty106 leaves little doubt that being a party to the ECHR is a precondition for membership of the European Union. It is difficult to conceive how the Union can respect fundamental rights, as guaranteed by the European Convention if it would allow membership of CEE Countries which are not party to the ECHR or consistently fail to observe the Convention. The relationship between EU-membership and the need to observe the ECHR is not always recognized. A resolution accompanying the Slovak law on foundations stated that "Movement in the direction of membership in the European Union does not address the issue of foundations."107

6.2 EBRD human rights conditionality

Human rights conditionality refers to the inclusion of human rights considerations in economic relationships. Many industrialized countries see the promotion of human rights as an integral part of their relationship with developing countries.108 The US has consistently attempted to insert human rights arguments in the decision-making process in international financial institutions.109

The policies of human rights conditionality in international financial institutions are divergent. The Bretton Woods institutions (IMF and World Bank) appear lukewarm to consider human rights in their lending policies,110 whereas the London based European Bank for Reconstruction and Development (EBRD) is instructed, through it Statutes, to observe human performance as an integral part of it lending practice.

The EBRD was established to promote the transition of market-oriented economies and private and entrepreneurial initiative in the CEE countries. A prime purpose of the EBRD is to promote, among other things, human rights, according to the preamble of its constitution:111

The contracting parties,

Committed to the fundamental principles of multiparty democracy, the rule of law, respect for human rights and market economics (...)

Welcoming the intent of Central and Eastern European countries to further the practical implementations of multiparty democracy, strengthening democratic institutions, the rule of law and respect for human rights and their willingness to implement reforms in order to evolve towards market-oriented economies

Further, Article 1 and Article 8 para. 3 stipulate:

In contributing to economic progress and reconstruction, the purpose of the Bank shall be to foster the transition towards open market-oriented economies and to promote private and entrepreneurial initiative in the Central and Eastern European Countries committed to and applying the principles of multiparty democracy, pluralism and market economics

In cases where a member might be implementing policies which are inconsistent with Article 1 of this Agreement, or in exceptional circumstances, the Board of Directors shall consider whether access by a member to Bank resources should be suspended or otherwise modified (...)

The question here is whether human rights violations may lead to suspension of access to resources of the Bank, given that Article 1, unlike the preamble, makes no mention of human rights. In an unpublished memorandum of the EBRD112 it is stated that civil and political rights are essential elements of "multiparty democracy, pluralism and market economics," as described in Article 1 and therefore must be fully considered. In contrast, other rights such as economic and social rights are not within the ambit of Article 1, although they are included in the ensemble of "human rights" listed in the preamble. It may be concluded that violations of civil and political rights can be a reason for suspending provision. The same does not, however, hold for economic and social rights. The EBRD nevertheless has a duty to promote these rights.

Thus, the EBRD is unmistakenly mandated to assess both political and economic progress. The assessment refers to the political aspects of the Bank’s purpose as set out in Article 1. These include, inter alia:113

To be able to make a proper assessment on the human rights performance of its members, in 1992, the EBRD concluded an agreement with the Council of Europe on the exchange of information and mutual consultation.114 This agreement does not suggest in any way that a finding by the Council of Europe of serious human right violations will have automatic effects for decision-making in the EBRD. The Board of Directors of the EBRD will keep its discretion to decide on the consequences of human rights violations when decisions on loans are made. The Bank has also Stated that membership of the Council of Europe and ratification of the ECHR would be positive indications of a country’s continued commitment to the EBRD’s.

7. Conclusions

This contribution discusses the relevance of human rights for NGOs as protected by the European Convention of Human Rights. The existence of NGOs is vital for a democratic, pluriform society in which citizens can participate and develop themselves intellectually and socially. Particularly, in the CEE countries NGOs play a crucial role in the transformation of a state-controlled society to a democratic society under the rule of law, in which citizens and civil organizations take responsibility for building and developing a new society.

Ample jurisprudence of the European Court of Human Rights indicate that, apart from individual citizens, NGOs enjoy rights protected under the ECHR. In this sense the ECHR is unique in character; the International Covenant on Civil and Political rights does not contain enforceable rights for NGOs. Moreover, just like individuals, NGOs may bring their case directly before the Human Rights Court.

Which rights are relevant for NGOs? Regarding political activities of NGOs, two of the most prominent fundamental rights of the ECHR are the freedom of expression and the freedom of assembly. The freedom of expression encompasses among other things, the right to collect and provide information in any form, and also applies for commercial purposes. The freedom of assembly, if not the freedom of expression, encompasses the right to organize meetings and public demonstrations. Thus political activities in the broad sense of the word, are covered effectively by the ECHR. Other substantial rights, such as the right to fair trial, also protect NGOs against undue interference.

The fundamental rights guaranteed by the ECHR, are carefully protected. Restrictions are possible, but the discretion to do so is limited. First of all the restriction must be found in the law (paragraph 4.2). This, however, is not enough. A restriction is only allowed if it is necessary in a democratic society. In this respect the proportionality test is crucial: a restriction that is too general, is considered over-kill and therefore not necessary in a democratic society. A general prohibition on supporting political activities is an example of a rule that is too general of character and contents and thus in violation with the ECHR.

The bottom line is that domestic legislation curtailing the freedoms of expression and assembly of NGOs, would constitute a violation of the Convention. It is therefore recommended that legislation concerning the not-for-profit type of NGOs be carefully evaluated, before ratification of the ECHR takes place. International law requires that State parties to a treaty adapt their laws and practices in order to comply with treaty obligations. In case of the ECHR this means that CEE countries, before becoming a party to the ECHR, must upgrade domestic law to be able to secure the rights and freedoms guaranteed. Moreover, a failure to ratify or observe the ECHR may compromise the application for EU membership of CEE countries.

Notes

1 About the Authors: Erik Denters and Dr. Wino J.M van Veen [w.j.m.veen@rechten.vu.nl]are Associate Professors at the Vrije Universiteit Amsterdam, Faculty of Law.

2 As of October 1997 not all CEE-countries that joined the European Council (such as the Russian Federation) are party to the ECHR.

3 See the opinion of the Parliamentary Assembly on the Russian application for membership. The text of the opinion was adopted on 25 January 1996.

4 For recent general literature on the ECHR see e.g.: D.J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on Human Rights, London, Dublin, Edinburgh: Butterworth, 1995. P. van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, Deventer: Kluwer, 1990; Francis G. Jacobs and Robin C.A. White, The European Convention on Human Rights, Oxford: Clarendon Press, 1996.

5 The Council of Europe updates all declarations and reservations to the Convention contained in the instruments of ratification in http://www.coe.fr/tablconv/reservdecl/dr5e.htm.

6 Protocol 11 and explanatory report appeared in 33 ILM (1994), pp. 943 et seq.

7 For a discussion and explanation on Protocol 11: Andrew Drzemczewski and Jens Meyer-Ladewich, ‘Principal Characteristics of the New ECHR Control Mechanism as established by Protocol No. 11, signed on 11 May 1994’, 15 Human Rights Law Journal (1994) No. 3, pp. 81-136.

8 After meeting the admissibility criteria of Art. 35.

9 Argued in: Filartiga v. Pena-Irala, 630F. 2md 876 (1980), United States Court of Appeals. Printed in Martin Dixon and Robert McCorquodale, Cases and Materials on International Law, Blackstone Press Limited, 1995, pp. 210-211.

10 In 32 ILM (1993), p. 1661.

11 See F. Tesón, ‘International Human Rights and Cultural Relativism’, 25 Virginia Journal of International Law (1985).

12 The rights protected in the original ECHR/ICCPR are: right to life (Art. 2/6), freedom from torture (Art. 3/7); freedom from slavery (Art. 4/8); right to liberty (Art. 5/9 and 10); right to fair trial (Art. 6/14); freedom from retroactive criminal laws (Art. 7/15); right to privacy (Art. 8/17); freedom of thought, conscience and religion (Art. 9/18); freedom of expression (Art. 10/19); freedom of assembly and of association (Art. 11/21 and 22); right to marry and found a family (Art. 12/23); right to an effective remedy before national authorities against abuse of rights (Art. 13 ECHR) and freedom from discrimination (Art. 14/26). The Protocols to the ECHR include: right to property (Art. 1 Prot 1); right to education (Art. 2 Prot. 1); right to free elections (Art. 3 Prot. 1); freedom from imprisonment for non-fulfilment of a contactual obligation (Art. 1 Prot. 4); freedom of movement within a State and freedom to leave its territory (Art. 2 Prot. 4); right of national not to be expelled and to enter territory (Art. 3 Prot. 4); freedom of aliens from collective expulsion (Art. 4 Prot. 4); freedom from death penalty (Prot. 6); freedom of aliens from arbitrary expulsion (Art. 1 Prot. 7); right to review in criminal cases (Art. 2 Prot. 7); right to compensation for miscarriages of justice (Art. 3 Prot. 7); ne bis in idem (Art. 4 Prot. 7); and equality of rights of spouses (Art. 5 Prot. 7).

13 On the Convention's proven track record see Drzemczewski and Ladewich, supra note 7, pp. 81-82.

14 See Senate Committee on Foreign Relations Report on the ICCPR in 31 ILM (1992), pp. 645 et seq.

15 Cf. Jacobs and White supra note 5, p. 325.

16 Under Art. 44 of the American Convention on Human Rights (under the aegis of the Organization of American States) a right of NGOs to complaint is also recognized: `Any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party'. For a comment see Cecilia Medina, `The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights: Reflections on a Joint Venture', 12 Human Rights Quarterly (1990), pp. 439 et seq.

17 A.L.J. van Strien, `Rechtspersonen en mensenrechten', Rechtsgeleerd Magazijn Themis (1996) No. 1.

18 See Tom Zwart, The Admissibility of Human Rights Petitions, Dordrecht: Martinus Nijhoff Publishers, 1994, pp. 41 et seq.

19 Van Strien, supra note 18, p. 14, also for other references.

20 Olivier de Schutter, `Sur l'émergence de la société civile en droit international: le rôle des associations devant la Cour européenne des droits de l'homme', 7 European Journal of International Law, (1996) No. 3, pp. 372 et seq. De Schutter discusses ways to bypass this restriction for NGOs.

21 Norris and National Gay Federation v. Ireland (App. 10581/83), 16 May 1984, 44 Decisions and Reports of the European Commission on Human Rights (hereinafter: DR) (1984), pp. 132 et seq.

22 Pastor X and the Church of Scientology v. Sweden (App. 7805/77), 5 May 1979, Yearbook of the European Convention on Human Rights (1979), p. 244.

23 H. Golsong, ‘La Conventions Européenne des Droits de l’Homme et les Personnes Morales’, in: Les Droits de l’Homme et les Personnes Morales, Premier Colloque du Département des Droits de l’Homme, Université Catholique de Louvain, Bruxelles 1970, p. 15 at 26; R.A.R.S. Finaly, `Grondrechtsbescherming van Rechtspersonen', 16 NJCM (1991) No. 2, pp. 112 et seq.

24 Golsong, supra note 24, pp. 25-27.

25 Autronic AG v. Switserland, Judgement of 22 May 1990, Series A, No. 178, 12 EHRR (1990), paras. 5-7.

26 UN Doc. A/2929, Chapt. VII para. 66. Emphasis ours.

27 Dominic McGoldrick, The Human Rights Committee, Oxford: Clarendon Press, 1991, p. 170.

28 Also S. Marcus-Helmons, ‘Les Personnes Morales et le Droit International’, in: Les Droits de l’Homme et les Personnes Morales, Premier Colloque du Département des Droits de l’Homme, Bruxelles: Université Catholique de Louvain, 1970, p. 59.

29 S. Griffioen/T. de Boer, Pluralisme: Cultuurfilosofische Beschouwingen, Amsterdam: Boom, 1995. The political philosphy may differ, see T.J. van der Ploeg, `Introduction to the ‘Dutch model’ of government-non-governmental organizations relation', in: T.J. van der Ploeg & J.W. Sap (eds.), Rethinking the balance, Amsterdam: VU University Press, 1995, pp. 17 et seq.

30 Although the justification of other regulations is also questionable, for instance the rule in the Netherlands Law on Elections, stating that only associations with full legal competence can be recognized as political parties. See T.J. van der Ploeg, in M.C.P. van Eijk et al. (eds.), `Gesloten of open overlegstelsel, de rechtspersoonsvorm als entreebewijs?', The Hague: SDU Legal & Fiscal Publishers, 1993, pp. 86 et seq.

31 Law of the Slovak National Council, 22 may 1996, on Foundations, section 15, 1, sub c. Before deciding on the abolishment, the court can determine a term for elimination of the reason for which the abolishment was proposed (Section 15, 2). Unofficial translation of 1996.

32 Including the European Commission, Review and Recommendations, proposed Slovak law on Foundations, 10 May 1996.

33 Also the media commented on this particular law. See e.g. The Slovak Spectator, January 17, 1996, pp. 1-3 and June 5-18, 1996, pp. 1-3.

34 Rassemblement Jurassien and Unité Jurassienne v. Switzerland, (App. 8191/78), 17 DR (1979), p. 119. Same as in Handyside-case regarding freedom of expression, Handyside v. United Kingdom, Judgement of 7 December 1976, Series A, No. 24, 1 EHRR (1979-80), para. 50.

35 F.W. Wachinger, Das Versammlungsrecht nach der Europäischen Menschenrechtkonvention, München: Schön, 1975. A.E. Schilder, Het Recht tot Vergadering en Betoging, Arnhem: Gouda Quint, 1989. pp. 34 et seq.

36 Rassemblement Jurassien and Unité Jurassienne, p. 118; Christians against Racism and Fascism v. England, (App. 8440/78), 16 July 1980, 21 DR (1981), p. 148. For a dubious decision see: Applications 9278/81 and 9415/81 (G. and E. v. Norway), 35 DR (1983), p. 37.

37 Christians against Racism and Fascism, p. 148.

38 Rassemblement Jurassien and Unité Jurassienne, p. 119.

39 There are authors who defend this, see e.g. U. Hoffmann-Remy, Die Möchlichkeiten der Grundrechtseinschränkung nach den Art. 8-11 Abs. 2 der Europäischen Menschenrechtskonvention, Berlin, 1976, p. 191.

40 Same Schilder supra note 36, p. 246.

41 To be found in Art. 8, 9, 10, 11 and references in Art. 2, 5, 6 and 12 ECHR. See e.g. Hoffmann Remy, supra note 38, p. 38; M.C.B. Burkens, Beperkingen van Grondrechten, Deventer: Kluwer, 1971, p. 52.

42 See J. Velaers, De Beperkingen van de Vrijheid van Meningsuiting, Antwerpen-Apeldoorn: Maklu-publishers, 1991, pp. 262 et seq.

43 This is necessary to allow the UK, having a common law tradition, to impose restrictions. Sunday Times v. United Kingdom, Judgment of 26 April 1979, Series A, No. 30, 2 EHRR (1979-80), para. 47.

44 See e.g. Golder v. United Kingdom, Judgment of 21 February 1975, Series A, No. 18, 1 EHRR (1979-80), para. 45.

45 Groppera Radio AG and others v. Switserland, Judgement of 28 March 1990, Series A, No. 173, 12 EHRR (1990), para. 68; Autronic AG, para. 57.

46 Verlaers supra note 43, pp. 265 et seq.

47 See e.g. Sunday Times, para. 49; Silver and others v. United Kingdom, Judgement of 25 March 1983, Series A, No. 61, 5 EHRR (1983), para. 87-88; Malone v. United Kingdom, Judgement of 2 August 1984, Series A, No. 82, 7 EHRR (1985), para. 66; Groppera Radio AG and others v. Switserland, para. 68; Autronic AG, para. 57.

48 See e.g. Sunday Times, para. 47; Silver, para. 86; Malone, para. 66; Kruslin, para. 27.

49 This is necessary not only because of the legal certainty, but also to assure that the fundamental rights are no more restricted than absolutely necessary. Verlaers supra note 43, p. 268. The expertise of the party involved plays an important role in this respect: e.g. Groppera, para. 68; Autronic AG, para. 57; Sunday Times, para. 49; Silver, para. 88; Malone, para. 67.

50 This does not necessarily imply that the rule must be published through the official journal. Depending on the contents of the text, the area involved and expertise of the concerned, availability on order can be sufficient: Groppera, para. 68 and Autronic AG, para. 57.

51 The fact that the restriction leaves room for interpretation, does not imply that the restriction is not provided by law or is not sufficiently clear. The impartiality, independence and expertise of courts guarantee misuse of the freedom interpretation. See E.A. Alkema, `Advocaat en mensenrechter', Advocatenblad (1981), pp. 297 et seq. Olsson v. Sweden, Judgement of 24 March 1988, Series A, No. 130, 11 EHRR (1989), para. 62. Velaers supra note 43, p. 263; Malone, para. 68; Silver, para. 88. Not allowed is a restriction of which a person of normal intelligence can only guess at its meaning and differ at its application. Compare: J.A. Peters `Het Primaat van de Vrijheid van Meningsuiting, Vergelijkende Aspecten Nederland Amerika', Ars Aequi libri, Rechten van de mens, 4, Nijmegen, 1981, p. 187. L.H. Tribe, American Constitutional law, Foundation Press, 1978, p. 718.

52 Sunday Times, para. 49. Also see Art. 7 ECHR with regard to penal law.

53 Silver, para. 90; Malone, para. 67.

54 It is not necessary to incorporate this mechanism of control in the same law that provides for the restriction.

55 General literature, see e.g. Velaers supra note 43, J.E.C. Fawcett, The Application of the European Convention on Human Rights, Oxford, 1987; P. Verhaegen/R. Pelloux, in: Les Clauses Échappatoires au Matière d’instruments Internationaux Relatifs aux Droits de l’homme, Quatrième colloque du Département des Droits de l’homme, Brussels, 1982.

56 With regard to artistic expression, the court should be extremely reserved and not impede artistic freedom unduly: Müller and others v. Switserland, Judgment 24 May 1988, Series A, No. 133, 13 EHRR (1991), para. 33.

57 De Becker v. Belgium App. 214/56), Report of 8 January 1960, Series B, No. 2, p. 212; X. v. UK (App. 6084/73) 1 October 1975, 3 DR (1976), p. 62; M. v. France (App. 10078/82), 13 December 1984, 41 DR (1985), p. 103.

58 Travaux Preparatoires, IV, p. 262-263.

59 W.J. Ganshof van der Meersch, Organisations Européennes, Brussels/Paris: I. Bruylant, 1966, pp. 281 et seq.

60 Application 4121/69, 16 March 1970, Rec. Déc. 1970, No. 33, pp. 23, 26.

61 X. v. Austria (App. 5321/71), 14 December 1972, 42 Rec. Déc. (1973), p. 105; X. v. UK (App. 6084/73), 1 October 1975, 3 DR (1976), p. 62.

62 Netherlands Supreme Court, 19 September 1977, Nederlandse Jurisprudentie (1978) p. 516: prohibition on behalf of public order to take to the streets after sunset with pamphlets and glue, is acceptable.

63 Van Bemmelen, `Openbare Orde en Demonstratievrijheid', Nederlands Juristenblad (1966), p. 1079.

64 Groppera, para. 70 and Autronic, para. 59.

65 Rassemblement Jurassien and Unité Jurassienne, p. 119.

66 Such as the Netherlands and Germany, see Schilder, supra note 36, p. 293.

67 N. v. Switzerland (App. 9870/82), 13 October 1983, 34 DR (1983), p. 208.

68 Pastor X and the Church of Scientology v. Sweden, 16 DR (1979), p. 68.

69 See Velaers supra note 43, p. 275, who found his inspiration on the case law regarding the first amendment.

70 Peters supra note 52, pp. 28-30, pp. 194 et seq.

71 Application 1747/62, 13 December 1963, 13 Rec. Déc (1964), p. 42 concerning National Socialist party in Austria. See Y. Tajima, `Protection of freedom of expression by the European Convention', Revue des droits de l’homme (1969), pp. 678 et seq. Also Application 6741/74, 21 May 1976, 5 DR (1976), p. 83, regarding fascists party in Italy.

72 See reports of the ECommHR—during the ‘Cold War’: KDP v BRD (App. 250/57), 20 June 1957, Ann., I, p 22 and X v. BRD (App. 277/57), 20 December 1957, Ann., I, p. 219. C.C. Morrisson, The Developing European Law of Human Rights, Leiden, 1967, pp. 143-144; R. Pinto, La liberté d’information et d’opinion en droit international, Paris, 1984, pp. 158-159. More literature to be found in Velaers supra note 43, pp. 259 et seq.

73 Application 8440/78, 16 July 1980, 21 DR (1981), p. 150.

74 D. Driscoll, Freedom of Expression under Article 10 of the European Convention on Human Rights, Sevilla, 1985, Hoffmann-Remy supra note 38, pp. 34, 68; K. Rimanque, `Noodzakelijkheid in een Democratische Samenleving - een Begrenzing van Beperkingen aan Grondrechten', Liber amoricum F. Dumon, Antwerpen, 1983, p. 1221.

75 Compare Netherlands Supreme Court, 15 April 1975, Nederlandse Jurisprudentie (1976), 23 annotation ALM.

76 See Handyside, para. 49; ECoHR, Müller, para. 33; Young, James, Webster v. United Kingdom, Judgement of 13 August 1981, Series A, No. 44, 4 EHRR (1982), para. 63; Kjeldsen, Busk, Madsen, Pedersen v. Denmark, Judgement of 7 December 1976, Series A, No. 23, para. 50, in which the Court states that pluralism in education is essential for the preservation of a democratic society.

77 See e.g. Handyside, para. 49; Sunday Times, para. 65; Barthold v. Federal Republic of Germany), Judgement of 25 March 1985, Series A, No. 90, 7 EHRR (1985), para. 58; Müller, para. 33. See M. Hanotiau, `Vers le droit à l’information ou les idées qui heurtent, choquent ou inquiènt', Journal des Procès, 31 Octobre 1986, pp. 21 et seq.

78 This is also the case in the USA, see for literature and jurisprudence, inter alia, J.A. Peters supra note 52, pp. 183 et seq.

79 ECommHR, 6 July 1976, Nederlandse Jurisprudentie 1978, 237, Ars aequi 1979, p. 145 (Geïllustreerde Pers NV v. Netherlands).

80 Autronic, para. 57.

81 See e.g. Handyside, para. 48. Also Sunday Times, para. 59; Silver, para. 97; ECoHR, Barthold, para. 55.

82 Rassemblement Jurassien and Unité Jurassienne, p. 121

83 Art. 14 ECHR does not encompass a restraint on discrimination by the government in general, such as Art. 26 ICCPR does. The portence of Art. 14 ECHR is limited in this respect. Discrimination on basis of race, could however be considered to be demeaning in the sense of Art. 3 ECHR. East African Asians v. UK, (App. 4403/70), 10 October 1970, 36 Rec. Déc. (1971), pp. 92-93.

84 Velaers supra note 43, p. 339; M. Bossuyt, L’Interdiction de la Discrimination dans le Droit International des Droits de l’Homme, Brussel, 1976, pp. 56-57

85 Discrimination may be allowed if it serves a justified purpose and if this purpose is in proportion to the means (unequal treatment). For details and literature see Velaers supra note 43, pp. 338 et seq.

86 Christians against racism and fascism, p. 148; Plattform Ärzte für das Leben v. Austria (Application 10126/82), Appendix II, Report of the Committee, 12 March 1985.

87 Netherlands Supreme Court 25 June 1982, Nederlandse Jurisprudentie (1983), Nos. 295 and 25 June 1982, Nederlandse Jurisprudentie 1983, No. 296 annotation of E.A. Alkema.

88 Plattform Ärzte für das Leben v. Austria, Judgement of 21 June 1988, Series A, No. 139, 13 EHRR (1991), para. 34.

89 Plattform Ärzte für das Leben, para. 32.

90 Law on Nonprofit Organizations, text of the Draft of March 31, 1996.

91 Law Relating to Associations, Official Gazette of Republic of Croatia, No. 70, July 7, 1997 (certified translation)

92 The Law on Foundations, May 22, 1996 and The Law on Non-Profit Organizations Providing Generally Beneficial Services, text from draft 1996.

93 Especially the law in Slovakia has received substantial comments see supra note 33 and 34.

94 As for example the fact that the costs of administration may not exceed 4% respectively 15% of total expenses (Slovak Law NPOGBS, Art. 31(1) respectively Slovak Law on Foundations, Art. 31(4), or complicated registration procedures. Also see the comments referred to in the previous footnote.

95 The freedom of association is not restricted to associations in the strict legal sense of domestic laws of the member-states, but encompasses in principle all kinds of legal persons. See i.a. A.E. Alkema, Freedom of associations and civil society, In: Freedom of association, Council of Europe Press, 1994, p. 74.

96 Although the effective enjoyment of the freedom of association presupposes that sufficient legal status is granted to enable an association to achieve its goals.

97 Art. 14(3).

98 Art. 37 (4) and (5).

99 Although registration as a condition to acquire (full) legal personality is admissible, in order to protect the rights of others. Registration serves to establish the legal identity which is relevant f.e. regarding the rights to property, obligations and liabilities.

100 Quite the opposite is the case: given the legal framework that normally accompanies the status of legal person, the freedom of association might be best served by optional legal personality.

101 Croatian Law Relating to Associations, Art. 5. In a previous draft a provision of this kind was laid down in Art. 6 which also explicitly demanded that associations be open to the media and shall provide within a reasonable time, the media with the relevant documents on their request.

102 Bulgaria, Law on Non-Profit Organizations, Art. 60, regarding charitable organizations.

103 The consequence of lacking an adequate process for legal protection, is that the restriction considered to fail the requirement that it must be prescribed by law. See para. 4.3.1.

104 Niemetz v. Germany, Judgement of 16 December 1992, Series A, No. 251-B, 16 EHRR (1993), para. 31.

105 See f.e. the Amsterdam Court of Appeals, KG 1997, 359, recognizing a ngo's (a foundation operating a clinic), to privacy and private life.

106 Nor authorizing `the public' to do so, also see para. 4.3.5; the government is obliged to guarantee that its subjects can effectively enjoy their fundamental freedoms. There is no good reason to assume that this rule only applies to the freedom of association and assembly, and not for the right to privacy.

107 The Slovak Law on Foundations demands that a foundation is obliged to announce the amount of a gift, name, surname and address of the donor, if the total amount of the gifts of this donor exceeds 5.000 Slovak Crowns (appr. 150 US dollar).

108 As is the case in e.g. Belgium, Law of 1921, Art. 10 and Austria, Vereinsgezetz 1951, para. 12. Also the Croat Law Relating to Associations, requires a list of members Art. 3(6), and puts a fine on shortcomings in maintaining the list Art. 35(1), but does not seem to explicitly require public disclosure of the list.

109 Violation of the restriction is threatened by dissolution of the foundation in Art. 15(1)(c).

110 More specifically, this restriction may very well serve to suppress the minority groups or groups with dissenting opinions. Also see Review and Recommendations Proposed Slovak Law on Foundations, European Commission, May 10, 1996, p. 9.

111 Art. 11(4)(c).

112 Development of spiritual values, realization and protection of human rights or other humanitarian goals, protection and creation of the environment, protection of natural and cultural values, protection of health and support of education.

113 As was discussed above, the lack of an adequate procedure for legal protection, has the consequence that the restriction is considered to fail the requirement that it must be prescribed by law. See para. 4.3.1.

114 De Wilde, Ooms and Versyp v. Belgium, Judgement of 18 June 1971, Series A, No. 12, 1 EHRR (1979-80), pp. 41, 78; Benthem v. Netherlands, Judgement of 23 October 1985, Series A, No. 97, 8 EHRR (1986), pp. 1 et seq. There is more law regarding the principles of fair trail, that may be relevant but cannot be discussed here.

115 As is the case in the Croatian Law Relating to Associations, in which the competent state authority for registration shall issue a dissolution order i.a. when an association acts contrary to the provisions of the law and the constitution (which may mean articles of incorporation): Art. 28(1). The facts necessary to reach this decision are established by this same state authority. The law seems to fail to prescribes a judicial procedure.

116 See e.g. Slovak Law NPOs providing generally beneficial services, Art. 37 and Law on Foundations, Art. 41.

117 Bulgarian Law on Non-Profit Organizations, Art. 67(2).

118 Art. 1 ECHR.

119 Decisions of the ECoHR are also binding; cf. Art. 53 ECHR: `The High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties'. published on: http://www.hmso.gov.uk/acts/acts1998/80042--a.htm

120 For a survey on constitutional systems see: A. Drzemczewski, European Human Rights Convention in Domestic Law, Oxford: Oxford Universty Press, 1983.

121 De Becker v. Belgium (App. 214/56), 9 June 1958, Yearbook of the European Convention on Human Rights (1958-59), pp. 214 324.

122 Updated report on the performance of all applicants are available at http:/europa.eu.int/comm/dg1a/enlarge/report_11_98_en/index.htm

123 In 31 ILM (1992), pp. 247 et seq. Art. F.(2) stipulates: "The Union shall respect fundamental rights, as guaranteed by the European Convention (...)".

124 Material for the Meeting of the Government of the Slovak Republic, No. 7519/1996-60.

125 For a general survey see T. Tomasevski, Development Aid and Human Rights, London, 1989.

126 Bartram S. Brown, The United States and the Politization of the World Bank, London/New York: Kegal Paul International, 1992.

127 Based on an a contrario interpretation: both the Articles of Agreement of Bank and IMF do not explicit refer to human rights. For a critical discussion on this subject see H.M.G. Denters, Law and Policy of IMF Conditionality, Dordrecht: Kluwer Law International, 1996, pp. 173-191.

128 Text appeared in 29 ILM (1990) p. 1077.

129 Of 28 May 1991, ‘Subject: Procedures to Implement the Political Aspects of the Mandate of the European Bank for Reconstruction and Development’.

130 Ibid.

131 Council of Europe Doc. 6595 of April 8, 1992.

 

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