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How to Prevent Inappropriate Restrictions on NGO Activities in Europe

Declassified ∗
AS/Jur (2014) 18
15 May 2014
ajdoc18 2014

Committee on Legal Affairs and Human Rights

How to prevent inappropriate restrictions on NGO activities in
Europe

Introductory memorandum

Rapporteur: M s Nataša VUČKOVIĆ, Serbia , Socialist Group

1. Introduction

1. The motion for a resolution on “ How to prevent inappropriate restricti ons on NGO activities in Europe” 1
was forwarded to the Committee on Le gal Affairs and Human Rights for report by the Assembly on 30
September 2013, following a recommendation by the Bureau on the same day
2. At its meeting in Paris on 6
November 2013, the committee appointed me rapporteur.

2. Self-evidently, the existence of a dynamic civ il society is crucial to a democratic s tate, and respect for
fundamental rights, particularly the right to freedom of expression and the right to freedom of association, is
vital to the proper functioning of civil society. Those freedoms are enshrined in Articles 10 and 11
respectively of the European Convention on Human Rights (hereunder referred to as the “ECHR”), but they
are not absolute. The restrictions on their exercise for which the ECHR provides have to be narrowly
interpreted, with only convinci ng and compelling reasons being able to justify them
3. The European Court of
Human Rights has confirmed this on several occasions 4.

3. The Council of Europe has acknowledged the importance of the role of civil society, inter alia by
setting up the Conference of International Non- Governmental Organisations (hereunder referred to as the
“Conference of INGOs”), which currently comprises over 400 NGOs holding participatory status. The
Conference of INGOs has drawn up, inter alia, the “Fundamental Principles on the Status of Non –
Governmental Organisations in Europe”
5. Furthermore, on 10 October 2007, the Committee of Ministers
adopted Recommendat ion CM/Rec (2007)14 on the legal status of non- governmental organisations in
Europe, in which it laid down basic principles concerning the policy to be pursued with a view to their proper
functioning
6. Those two documents contain a set of minimum standards which Council of Europe member
States should take into account when establishing their legislation, regulations and practices vis -à -vis NGOs.
∗ Document declassified by the Committee on 27 May 2014. 1 Assembly Doc. 13273 of 3 July 2013. 2 Reference 3994. 3 In paragraph 2 of both Articles 10 and 11 of the ECHR. Restrictions have to be prescribed by law and be necessary in
a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of di sorder
or crime, for the protection of health or morals, for the pr otection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
4 See, for example, The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (No. 2), applications
Nos. 41561/07 and 20972/08, judgment of 18 October 2011; The United Macedonian Organisation Ilinden and Ivanov v.
Bulgaria (No. 2), application No. 37586/04, judgment of 18 October 2011.
5 RAP -ONG(2003)4 of 24 March 2003, Fundamental Principles on the Status of Non-Governmental Organisations in
Europe.
6 Recommendation CM/Rec(2007)14 of the Committee of Ministers to member States on the legal status of non-
governmental organisations in Europe, adopted by the Com mittee of Ministers on 10 October 2007, at the 1006 th
meeting of the Ministers’ Deputies.

AS/Jur (2014) 18

4. I also wish to emphasise that our committee, and our colleague M s Mailis Reps (E stonia, ALDE) in
particular , have for several years been working on the situation of human rights defenders in Council of
Europe member States
7. Ta k ing account of the fact that this issue is closely linked to the one which I am to
examine in my capacity as rapporteur, I wish to exa mine more closely the problem of the restrictions on
freedom of expression and of association which affect NGOs in certain me mber States of the Council of
Europe, without duplicating the work of Ms Reps .

2. Examples of legal and administrative impediments to the proper functioning of NGOs
2.1. General situation

5 . In certain Council of Europe member S tates there is current ly a growing tendency to limit NGOs’
activities through the introduction of restrictive legal frameworks and the running of defamation campaigns
with a view to stifling any form of criticism
8. The NGOs m ost frequently affected by such restrictions are
those which carry out activities in the field of human rights protection.

6. It should be pointed out in this context that the right to freedom of association includes NGOs’ right to
receive donations and other forms of funding, and that there should be no impediments to their registration.
However, in certain countries, and particularly in the Russian Federation, Azerbaijan and Turkey, one of the
main obstacles raised by the authorities is precisely NGOs’ access to funding, particularly to donations from
abroad, and registration procedures may be long and cumbersome. The Venice Commission, the
Commissioner for Human Rights and the Expert Council on NGO Law of the Council of Europe Conference
of INGOs have taken the view that the new Russian and Azer baijani legislation on NGOs d oes not comply
with international standards in respect of democracy and human rights
9. In addition, a new term with a
negative connotation, “foreign agent”, has been introduced into Russian legislation 10, and a bill along t he
same lines was tabled in Hungary’s p arliament, although it was recently withdrawn. I should therefore like
first to consider the situation of civil society in those four countries.

2.2. Russian Federation

2.2.1. The “foreign agents” law

7 . Following the adoption in July 2012 of the “foreign agents” law ( law on “making amendments to certain
legislative acts of the Russian Federation regarding the regulation of activities of non- commercial
organisations performing the functions of foreign agents”), the situation of NGOs has deteriorated
7 See the report on “The situation of human rights defenders in Council of Europe member States” (Doc. 12957 of 11
June 2012) and Resolution 1891 (2012) of the Assembly of 27 June 2012, or “Strengthening the protection and role of
human rights defenders in Council of Europe Member States. Information memorandum about the situation of human
rights defenders in the South Caucasus region (Armenia, Azerbaijan and Georgia)”, AS/Jur (2014) 03, 24 January 2014.
8 See in particular the 2013 annual report of the Obs ervatory for the Protection of Human Rights Defenders, “Violations
of the right of NGOs to funding: from harassment to criminalization” ( Violations du droit des ONG au financement : du
harcèlement à la pénalisation), jointly published by the World Organisation against Torture (OMCT) and the International
Federation for Human Rights (FIDH).
9 Where Russia is concerned, see OING Conf/Exp (2013) 1, report of 1 August 2013, § 120; Recommendation adopted
by the Standing Committee on behalf of the Conference of INGOs on 30 September 2013, CONF/PLE(2013)REC5,
The
Opinion of the Expert Council on NGO Law on “The law introducing amendments to certain legislative acts of the
Russian Federation regarding the regulation of activities of non-commercial organisations performing the functions of
foreign agents” ; CommDH(2013)15 : Opinion of the Commissioner for Human Rights on the legislation of the Russian
Federation on non-commercial organisations in light of Council of Europe standards, of 15 July 2013, §78. Where
Azerbaijan is concerned, see: Venice Commission, Opinion No. 636/2011 of 19 October 2011 on “the compatibility with
human rights standards of the legislation on non- governmental organisations of the Republic of Azerbaijan” , § 117, and

Report by Nils Muižnieks, Council of Europe Commissioner for Human R ights, following his visit to Azerbaijan from 22 to
24 May 2013” CommDH(2013)14 of 6 August 2013.
10 Russian federal law No. 65- FZ of 8 June 2012 amending federal law No. 54-FZ of 19 June 2004 on assemblies,
meetings, demonstrations, marches and picketing, and the Code of Administrative Offences; Azerbaijani law of 11 March
2013 amending the law on NGOs (associations and foundations) of 13 June 2000, law on subsidies of 17 April 1998 and
Administrative Code of 11 June 2000.
2

AS/Jur (2014) 18
considerably 11. That law introduced a number of amendments to existing laws including the Criminal Code
and the laws on “public associations” , “non- commercial organisations ” and “the combating of money
laundering and the financing of terrorism ”. Henceforth, any NGO engaging in “ political activity” and receiving
funding from abroad
12 is obliged to register as a “foreign agent”. Any information published by such an NGO
has to be marked “published and distributed by the organisation, performing the functions of a foreign agent”.
The concept of “political activity” and the procedure to be followed to register as a “foreign agent” are so
vague that s ome NGOs have asked the Minister of Justice for more details on the matter. Some NGOs have
reported that the Minister had replied that he was not “authorised” to answer that kind of question
13.

8 . In the Russian Federation, the term “foreign agent” has more often than not a historical negative
connotation and may be regarded as synonymous with “spy” or “traitor”. It is difficult to believe that, by
adopting this term, the Russian authorities were not seeking to cast discredit on certain players from civil
society
14. While there are few national sources of funding, NGOs are deterred by the law concerned from
accepting funding from foreign sources. Given that a large part of foreign funding is given to organisations
which defend human rights, endeavouring to protect Russian citizens from violations committed by the
authorities, those same authorities are unlikely to replace such funding from public funds. Consequently,
NGOs’ budgets are likely to dec line considerably, and some NGOs will be forced to file for bankruptcy.

2.2.2. The law on non- commercial organisations

9 . The law on non-commercial organisations of 12 January 1996 (as amended on 20 July 2012)
stipulates that an NGO is considered to be engaging in “political activity” if it participates (particularly through
funding) in the organisation and implementation of political activities intended to influence the taking of
decisions by state bodies with a view to changing the policy pursued by those bodies, and in the shaping of
public opinion to those ends. Those activities are regarded as “political” in every case, irrespective of
whether or not the organisation is carrying them out in the interest of the foreign entity which is f un ding it
(Article 2 §6).

10. The law concerned imposes additional requirements on the NGOs termed “foreign agents”, which are
also subject to unscheduled audits on new grounds introduced by the law, and are obliged to submit regular
reports on, inter alia: (i) the activities and staff of their management bodies – every six months; (ii) the
reasons for expenditure and the management of assets – every three months; (iii) their audit, which may be
co nducted only by Russian auditors
15 – annu ally (A rticle 32 §3). If the funding received is equal to or
exceeds 200 000 RUB ( approximately 4 000 EUR), it is subject to monitoring by the federal body responsible
for financial supervision.

11 . In the event of failure to comply with the provisions of this l aw, severe penalties are provided for,
including heavy fines of up to approximately 25 450 EUR for legal entities and up to 7 270 EUR for private
persons, and suspension or termination of activities for an NGO which is a “foreign agent”
16. A decision to
suspend activities taken by a “designated body” may be the subject of a judicial challenge. An NGO which
has had its activities suspended has a period of up to 6 months in which it may remedy the infringement of
the law by applying for inclusion on the register of “foreign agents”. Once such an NGO has been registered
as a “foreign agent”, it is able to resume its activities
17.

11 Russian federal law No. 121-FZ o f 20 July 2012 on “making amendments to certain legislative acts of the Russian
Federation regarding the regulation of activities of non-commercial organisations performing the functions of foreign
agents”, Rossiyskaya Gazeta, 23 July 2012, http://www.rg.ru/2012/07/23/nko-dok.html
. 12 The law covers funds received from a wide range of sources, including “foreign states […], international and foreign
organisations, foreign citizens and stateless persons or persons acting for them, and [or] Russian legal entities which
receive funds and other assets from the same sources”, Article 2 §6.
13 See the report by Human Rights Watch: “Laws of Attrition – Crackdown on Russia’s Civil Society after Putin’s Return to
the Presidency”, April 2013, p. 21.
14 http://www.freedomhouse.org/report/contending- putins-russia/factsheet#.UziMDfl_tZ8 . 15 The results of the audit have to be presented to a “designated body” (currently the Minister of Justice), which has to
publish them on line or distribute them to the media.
16 To date at least four NGOs have voluntarily ended their activities for fear of criminal prosecution. 17 Overview of draft law No. 121-FZ on “making amendments to certain legislative acts of the Russian Federation
regarding the regulation of activities of non-commercial organisations performing the functions of foreign agents” [Обзор
Федерального закона от 20 июля 2012 года №121-ФЗ «О внесении изменений в отдельные законодательные акты
Российс кой Федерации в части регулирования деятельности некоммерческих организаций, выполняющих
функции иностранного агента»]”, The International Center for Not -for-Profit Law, August 10, 2012,
http://lawcs.ru/images/doc/overview -of-the -russian- foreign-funding- law.pdf
.
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AS/Jur (2014) 18

2.2.3. Amendments to the Code of Administrative Offences and Criminal Code

1 2. The recent amendments (20 July 2012) o f the Code of A dministrative Offences and Criminal Code
introduced heavy penalties for “non- commercial organisations” and their leaders if they fail to comply with the
requirements of the law. Among the administrative offences are failure to present in due time and/or in due
form the report on the activiti es of an NGO, failure to obtain its inclusion on the register of “foreign agents”
and failure to display the words “foreign agent” on the documents published or distributed by such an NGO
18.
In the criminal -law sphere, two new offences concerning all NGOs were added. Firstly, in respect of the
setting up and management of a non- commercial organisation of which “the activities are connected with the
incitement of citizens to refuse to discharge their civic duties” or of other unlawful acts (Article 239 of t he
Criminal Code), the law does not include a clear definition of what constitutes such an activity
19. Secondly,
intentional omission or “malicious” failure to submit the necessary documents for the organisation’s inclusion
on the register of “foreign agents” is punishable by a fine of a maximum sum of 300 000 RUB ( approximately
6 000 EUR) or by a prison s entence of up to two years
20 (A rticle 330§1 of the Criminal Code).

2.2.4. The law on “treason”

1 3. Amendments have recently been made to the Criminal Code in order to redefine the crime of
treason
21. The new definition of this crime gives the authorities broad scope for arbitrary interpretation and
for applying it to human rights defenders participating in international colloquies and exchanging information
with their foreign colleagues. The United Nations Committee against Torture has stated that the law could
thus be interpreted as prohibiting any exchange of information with the UN about the human rights situation
in Russia
22. According to Human Rights Watch, no NGO has been accused of treason in pursuance of the
new law. However, the law o n “treason” could be used arbitrarily to justify intrusive surveillance of
individuals
23.

2.2.5. The “Dima Yakovlev ” law

14. Since the adoption of the “foreign agents” law , the Russian authori ties have, through other laws,
t ightened their restrictions on NGOs’ activities. In December 2012, in response to the Magnitsky Act passed
by the US Congress , the Russian Parliament passed the “ Dima Yakovlev” law, which basically prohibits the
adoption of Russian children by American citizens. That law also contains one provision specifically aimed at
NGOs receiving funding from American bodies, as well as Russian- American citizens working in the civil
society sector
24. It go es even further than the “foreign agents” law , completely prohibiting “politically
oriented” organisations which receive funding from the United States and also prohibiting persons with dual
Russian and Am erican nationality from being l ea der s or members of international or foreign NGOs which
engage in “political activi ty”. However, it seems that not a single NGO has to date been subject ed to
monitoring under that law.

2.2.6. Implementation of the new legislation

18 See federal law No. 192-FZ on “making amendments to the Code of Administrative Offences of the Russian
Federation”, 2012, published at http://www.rg.ru/2012/11/14/koap-dok.html
. 19 The criminal penalties prescribed in respect of this new type of offence are a fine of up to 200 000 roubles
(approximately $6,500) or a prison sentence or community service order of a maximum of three years. “Propaganda” for
such activities may lead to a fine of up to 120 000 roubles (approximately $3,900) or a prison sentence or community
service order of a maximum of two years.
20 Federal law No. 121-FZ o f 2012. 21 Federal law of 12 November 2012, No. 190-FZ “on amendments to the Criminal Code of the Russian Federation and
to Article 151 of the Code of Criminal Procedure of the Russian Federation”. This extends the scope of the three articles
of the Criminal Code on “treason”, “espionage” and “disclosure of a state secret”. Furthermore, the Criminal Code has
introduced a separate article on “unlawful receiving of information constituting a state secret”.
22 Concluding observations on the fifth periodic report of the Russian Federation, adopted by the Committee at its forty –
ninth session (29 October -23 November 2012), p.7 (exists in English and in Russian).
23 See the case of Ivan Moseev, an academic from Arkh angelsk, whose telephone lines were tapped by the Federal
Security Service (FSB), HRW, see footnote 13, p.39.
24 Federal law No. 272-FZ on “measures against persons involved in violations of fundamental human rights and
freedoms, of the rights and freedoms of citizens of the Russian Federation” (“Dima Yakovlev” law), adopted on 21
December 2012; full text available at: http://ria.ru/politics/20121221/915806320.html
.
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AS/Jur (2014) 18
15. The above- mentioned changes in legislation threaten the viability of civil society in Russia and
considerably restrict its emergence and development. This situation has been criticised both in the country
itself and also abroad
25. In practice, the application of the new laws often undermines freedom of expression
and freedom of association as enshrined in the leading international human rights instruments and can have
a deterrent effect on the exercise of those freedoms.

16. In March 2013, the Russian prosecuting authorities began conducting extensive checks on NGOs to
determine whether they were com plying with the provisions of the legislation and, if not, to force them to
comply. A year later, many cases against several NGOs are pending in Russian courts. Human rights
organisations, in particular those defending LGBTI rights and electoral rights, have been the most frequently
targeted. Some have had penalties imposed and a few have even had to suspend their activities
26. Only
one NGO (a non- profit partnership, “Promoting competition in the CIS”, set up with the support of the Federal
Antimonopoly Service) has voluntarily obtained inclusion on the register of “foreign agents”
27. To put even
more pressure on NGOs, a bill amending the law on non- commercial organisations was tabled in parliament
on 25 April 2014. Under the bill, the Minister of Justic e himself would place the NGOs concerned on the
register of “foreign agents”
28.

17. On 6 February 2013, 11 Russian human rights NGOs lodged an application with the European Court
of Human Rights alleging that the “foreign agents” law violated their rights to freedom of association and
expression. The case is currently pending in the Strasbourg Court
29. In August 2013, Russia’s former
Human Rights Commissioner, Vladimir Lukin, lodged an appeal with the Constitutional Court on behalf of
four organisations against both the warnings from the prosecuting authorities asking them to have
themselves included on the register of “foreign agents” and the fines imposed on them for failing to register.
Another six NGOs have lodged separate applications with the Constit utional Court challenging the “foreign
agents” law. On 8 April 2014, the Constitutional Court ruled that the “foreign agents” law complied with the
Constitution
30. Although the Constitutional Court ordered some minor adjustments, such as a reduction in
the fines provided for, and clarified the definition of “political activity” 31 and the rules on the burden of proof,
the law remains essentially unchanged 32. Followin g publication of the ruling, several NGOs reiterated their
refusal to register as “foreign agents”. The judicial proceedings which had been adjourned pending the
Constitutional Court’s ruling have now been resumed.

2.3. Azerbaijan
2.3.1. Recent changes in the regulations on NGOs

18. In Azerbaijan, NGOs critical of the authorities encounter particular difficulties. In July 2009,
amendments to the law on NGOs introduced, inter alia, new registration rules and requirements concerning
funding. These changes in l egislation tightened administrative control of domestic and international NGOs
25 For instance, in July 2012, grave concern was expressed by Catherine Ashton, High Representative of the EU for
Foreign Affairs and Security Policy , Thorbjørn Jagland, Secretary General of the Council of Europe, and Navi Pillay, UN
High Commissioner for Human Rights , about the pressure exerted on civil society in Russia. See also Assembly
Resolution 1896 (2012) of 2 October 2012 on “The honouring of obligations and commitments by the Russian
Federation” and the opinion of the Venice Commission, CDL- AD(2013)003, Opinion No. 686/2012 of 11 March 2013. 26 As at 25 March 2014, penalties had been imposed on two NGOs, Golos (“the Voice”), a leading Russian NGO
specialised in monitoring elections, and the Regional Public Association in Defence of Democratic Rights and Freedoms
“Golos” (Moscow), see http://www.hrw.org/node/115544#header . 27 http://closedsociety.org/analytics/ 28http://asozd2c.duma.gov.ru/addwork/scans .nsf/ID/7F6AEBCD3716007643257CC50049FBE8/$FILE/508677-
6.PDF?OpenElement . 29 Ecodefence and Others v. Russia, Application No. 9988/13; this case has not yet been communicated to the Russian
government. For more details, see: http://www.mdx.ac.uk/aboutus/news-events/news/russia-foreign-agent-law.aspx
. 30 For more details on the ruling, see:
https://www.frontlinedefenders.org/files/fld_note_on_constitutional_court_ruling_on_foreign_agent_law_-_april_2014.pdf
. 31 An NGO is considered as taking part in political activities « if, irrespectively of the goals enumerated in its statute, it
takes part (in particular by providing financial support) in organizing and carrying out political actions aimed at influenci ng
the d ecisions of State authorities or changing State policies or aimed at influencing the public opinion with the above-
mentioned purposes”, for example by organizing meetings, demonstrations, gatherings, picket lines, electoral
campaigns, by disseminating information on the assessment of state authorities’ decisions or their policies (included by
means of modern technologies). See the decision of the Constitutional Court, p. 38 (in Russian), available at:
http://www.ksrf.ru/ru/Decision/Pages/default.aspx
32 http://www.frontlinedefenders.org/node/25724 .
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AS/Jur (2014) 18
and were passed by parliament without the prior publication which would have enabled Azerbaijani society to
submit comments.

19. Many NGOs, including those critical of the auth orities, have seen their applications to register turned
down without proper grounds, following either misinterpretation of the provisions of the law or the extension
without valid reason of the time taken to process their applications, which has attracted the criticism of the
Venice Commission
33. Some NGOs have had to apply up to eight times before being registered 34. The
registration procedure is quite complex: NGOs have to make declarations to several government
departments
35, they have to register with a special office of the Ministry of Justice in Baku and they have to
pay fairly high fees. After registration, NGOs are subject to tax inspections and must comply with restrictive
legislation regarding funding from abroad. Under Azerbaijani legislation, i f an organisation receives more
than two warnings in a year concerning breaches of the law, the authorities may close it down. It should be
underlined that this action is taken regardless of the seriousness of the breaches for which the warnings had
been issued.

20. The European Court of Human Rights has delivered several judgments concerning failure by the
Minister of Justice to take final decisions or to respond within the prescribed time- limits to applications to
register associations, and has found vi olations of Article 11 of the ECHR
36. According to the Court, long
delays in responding to applications for the registration of associations amount to de facto refusals to register
those associations.

21. Amendments to the law on NGOs
37 passed in July 2009 introduced new registration requirements for
international NGOs: they must now conclude a prior agreement with the Azerbaijani authorities, after first
demonstrating that they respect the country’s “national moral values” and are not involved in “politica l or
religious propaganda”. Agreements are concluded following negotiations between the Minister of Justice
and the NGO concerned
38. These amendments have thus made it more difficult for foreign and international
NGOs to open offices.

22. In its opinion of 19 October 2011, the Venice Commission found that the provisions of the 2009 law
were vague because “national moral values” and “political or religious propaganda” are not clearly defined.
The requirement for foreign NGOs to conclude bilateral agreements with the national authorities is
questionable in itself, and the procedures for concluding those agreements are set out in very vague terms.
According to the Venice Commission, “the freedom of expression of an association cannot be subject to the
direc tion of public authorities, unless in accordance with permissible restrictions ascribed by law and
necessary in a democratic society for narrowly and clearly defined purposes.” The new legislation
introducing new requirements for foreign NGOs therefore do es not meet international standards.
39

23. In his report of 6 August 2013
40, the Council of Europe Commissioner for Human Rights also noted
that the fresh amendments to the law on NGOs passed by parliament on 15 February 2013 further restricted
their operat ions in Azerbaijan. Following the entry into force of the amendments, NGOs are not allowed to
receive foreign funding exceeding AZN 200 (EUR 185) without the formal agreement of the relevant
authorities, and non- compliance is punishable by fines. As NGOs are only allowed to receive grants or
33 The 2003 Law on State Registration and the State Register of Legal Entities provides for a co -operative process for
the registration of NGOs. It might even be thought that the time-limits set in Article 8 of the law could result in swift
procedures: 30 days as a rule for the registration process, with the possibility in exceptional cases of an extension of
30 days, and a further 20 days if the file is incomplete. According to the Venice Commission, the time-limit set in the Law
on State Registration “could be accepted, were it meticulously respected and were the extension of the period t ruly
reserved for ‘exceptional cases’”. Venice Commission, CDL- AD(2011)035, Opinion No. 636/2011 of 19 October 2011,
§ 62.
34 See the information memorandum by Ms Reps, AS/Jur (2014) 03 see footnote 7. 35 The Ministry of Taxation, the Ministry of Justice, the Ministry of Finance, the Ministry of Labour and Social Protection
and the State Social Protection Fund.
36 Ramazanova and Others v. Azerbaijan, application No. 44363/02, judgment of 1 February 2007; Al iyev and Others v.
Azerbaijan, application No. 28736/05, judgment of 18 December 2008; Nasibova v. Azerbaijan, application No. 4307/04,
judgment of 18 October 2007; Ismayilov v. Azerbaijan, application No. 4439/04, judgment of 17 January 2008. In the
judgment in Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan of 8 October 2009, application No. 37083/03, the
Court found a violation of Article 11 following unjustified dissolution of the applicant organisation.
37 Law No. 401, passed in 2000. 38 Venice Commission, CDL -AD(2011)035, Opinion No. 636/2011 of 19 October 2011, § 9. The implementing decree of
16 March 2011 set out the procedures for concluding such agreements.
39 Venice Commission, CDL-AD(2011)035, Opinion No. 636/2011 of 19 October 2011, § 85. 40 CommDH (2013)14, Report by the Commissioner for Human Rights of 6 August 2013, p. 20.
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AS/Jur (2014) 18
donations of over AZN 200 by bank transfer, unregistered NGOs are unable to receive funding; not being
legal entities, they are unable to open bank accounts. Recently, on 23 April 2014, the Commissioner for
Human Rights reiterated his concerns regarding the deterioration of freedom of expression and association
in Azerbaijan
41.

2.3.2. Implementation of the new regulations on NGOs

24. In practice, several local and international NOGs, including Human Rights House Azerbaijan, have
been prevented from freely carrying out their activities. On 10 March 2011
42, Human Rights House
Azerbaijan, which was established in 2007 as the national office of the Human Rights House Foundation,
was forced without warning to stop operating until the conclusion of an agreement with the authorities.
Before its closure, Human Rights House had not received any warnings whatsoever about any breaches of
the law. In spite of three years of negotiations with the authorities, it has not to date been all owed to
reopen
43. It should be underlined that nothing in the 2009 law makes any provision for NGOs which are
already registered and operating to conclude agreements with the Minister of Justice.

25. The government claims to grant financial support to som e NGOs. However, only regime-supporting
organisations
44 receive funding. Other NGOs are regularly subjected to interference and threats from the
authorities. For instance, in February 2012, the Institute for Reporters’ Freedom and Safety received a
warni ng from the Minister of Justice stating that the organisation had failed to declare the re- election of its
chair. Similarly, on 19 April 2011, the Media Rights Institute was warned by the same Minister that it might
incur an administrative penalty, as it had failed to notify him of the appointment of a new chair. According to
the Institute, the warning was unfounded because the chair of the organisation had been re- elected, not
elected. It should be noted that the law does not stipulate that the Minister of Justice must be notified of re-
elections.

26. The Election Monitoring Centre (EMC) was closed down during the run- up to the October 2008
presidential elections because the Minister of Justice claimed that it had not notified him of a change of
address and the registration of its regional offices. Its successor, the Election Monitoring and Democratic
Studies Centre was finally registered after its application had been turned down several times for various
minor deficiencies. On 28 and 30 October 2013, after the presidential elections in Azerbaijan, the chair and
two members of EMDS were questioned by the Serious Crimes Investigation Unit of the Prosecutor
General’s Office regarding the receipt by the organisation of large grants from foreign investors
45. On
31 October 2013, the Prosecutor General’s Office searched EMDS’s offices and confiscated documents and
two computers. On 16 December 2013, Anar Mammadli, the Chair of EMDS, was arrested and placed in
detention on various charges, in particular “tax evasion”, “abuse of official authority” and “illegal business
activity”
46. On 21 April 2014, a Baku court held a preliminary hearing and set 28 April 2014 as the date for a
full hearing47.

27. It is clear that measures of this kind put pressure on civil society and are unacceptable from the point
of view of Azerbaijan’s international obligations. However, the situation of international NGOs is deteriorating
ever further. On 17 March 2014, Fuad Aleskerov, Head of the Law Enforcement Department of the Offic e of
the President, accused NGOs such as Freedom House, Human Rights Watch, Amnesty International and
Transparency International of applying double standards to Azerbaijan and making false claims in their
reports. He said not only that there should be no co-operation with such organisations but also that it was
necessary to combat their double standards and prevent the propagation of misinformation about
Azerbaijan
48.

2.4. Turkey

41 http://hub.coe.int/en/web/coe-
portal/press/newsroom?p_p_id=newsroom&_newsroom_articleId=1852163&_newsroom_groupId=10226&_newsroom_t
abs=newsroom -topnews&pager.offset=0 . 42 Another organisation, the National Democratic Institute, was also forced to stop operating on 10 March 2011. 43 http://ru.faktxeber.com/News_h432425.html , article published on 11 March 2014. 44 See AS/Jur (2014) 03 in footnote 7 supra. 45 http://civicsolidarity.org/country/id/17 . 46 http://humanrightshouse.org/Articles/19944.html . 47 http://www.frontlinedefenders.org/node/25770 . 48 http://www.trend.az/news/politics/2253834.html , article published on 17 March 2014.
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28. In Turkey, although civil society is not subject to severe repression as in the Russian Federation and
Azerbaijan, attention should be paid to some disturbing recent developments. In July 2004, a new law on
associations came into force and was deemed by the European Commission to be “generally in line with
international standards”
49. The right to exercise freedom of association is also governed by the Turkish Civil
Code 50 and the Law on Foundations 51. Nevertheless the number of associations and foundations directly
dealing with human rights is fairly limited in Turkey. Legal aid to victims of human rights violations is
provided in general by the Bar Associations. There are organisations working for the rights of women and
children. The most numerous organisations are those active on behalf of persons with disabilities, but as a
rule they only supply personal services. Organisations dealing with prisoners are few. There are also some
associations which defend the rights of minorities, and these are placed under the strict supervision of the
“Directorate General of Foundations”, a governmental body. However, prosecutors and judges often refuse
to register them or threaten them with closure, on the basis of the provisions relating to the official
state
language.

29. Some human rights advocacy associations are subject to judicial harassment by the authorities. In
fact investigations and court proceedings are regularly begun against certain associations. The case of the
Human Rights Association ( Ýnsan Haklarý Dernegi, IHD) is a typical example of this kind of state
harassment, as prosecution is often on arbitrary grounds and results in heavy financial penalties
52.

30. The anti -terrorist law, amended in June 2006, extended the list of acts constituting terrorist crimes,
while retaining a broad definition of terr orism. These amendments have an impact on associations working,
in particular, on the sensitive question of the rights of the Kurds, who are often equated with terrorist
groups.
53 The pro- government media help to discredit these NGOs in the eyes of the general public and of
their potential – national or foreign – donors 54.

31. The bureaucratic stipulations for setting up an association are quite onerous, especially for small
assoc iations or associations with limited financial capabilities. Inspections are frequent, and administrative
fines for poor accounts -keeping or failure to obtain permission before raising money from the public are
disproportionate. Associations must have ar ticles setting out their aims and the type and field of their
activities. They must present the Minister of the Interior and the administrative authorities of the provinces
with yearly reports on activities carried out and financial balance sheets, and ar e compelled to carry out
audits at considerable expense. The accounting system is very complicated and mistakes can easily be
made for want of expertise. Indeed, small associations and the branches of NGOs cannot afford to use
accountants. The authoriti es can make more detailed checks on associations if they deem it necessary. As
they have insufficient resources to scrutinise all associations, they choose them on an arbitrary basis. Thus
the associations dealing with the rights of minorities or politic ally sensitive questions are kept under close
administrative supervision, particularly in the provinces.

32. Bureaucratic stipulations and a lack of simplified rules for small and medium -sized associations
prevent the creation of a favourable environment for their operation, especially in view of the fact that the law
requires them to inform the local administrative authorities before receiving financial support from abroad
and to produce detailed documentation about such support. Moreover, inspections of NGOs receiving funds
from abroad are frequent. Although non- compliance with the requirements of the law on associations can no
longer be a ground for their dissolution, it may nonetheless result in the imposition of disproportionate fines
which may even put a stop to the activities of small associations working in the field of human rights
55.

49 Turkey 2006 Progress Report of 8 November 2006 , SEC(2006) 1390, p. 15. 50 Law No. 4721 enacted on 22 November 2001. 51 Law No. 5737 of 20 February 2008. 52 https://www.frontlinedefenders.org/node/21395 . 53 See, for instance, the case of four human rights defenders from the IHD, who were convicted in January 2013 for
prison sentences of between 6 and 7 and a half years for having taken part in an “illegal armed organization”, see at:
https://www.frontlinedefenders.org/fr/node/21421 . Or, the case of the French-Turkish student Sevil Sevimli, who, having
taken part in a demonstration on 1 May 2012 in Istanbul, was convicted in February 2013 for 5-year prison sentence for
spreading « propaganda » in favour of an extreme left movement, the Revolutionary Party of People’s Liberation (DHKP –
C). Initially, she had been accused of having led a branch of this movement, which had been classified as terrorist by
Turkey and the EU, and she could incur a prison sentence of 32 years, see at: http://www.lepoint.fr/societe/l -etudiante-
franco-turque-sevil -sevimli-de-retour -en-france -20-02- 2013-1630262_23.php 54 See footnote 8, p. 74. 55 The Observatory for the Protection of Human Rights Defenders, “Turkey: Human Rights Defenders, guilty until proven
innocent”, May 2012.
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AS/Jur (2014) 18

2.5 Hungary

33. In Hungary, NGOs can be set up for purposes which are in accordance with the Fundamental Law and
not illegal
56. The two traditional legal forms of NGO are the association and the foundation; specific forms of
association are alliances, political parties and trade unions.

34. Hungarian legislation imposes no restrictions on the legislative or political activities of NGOs. The
definition of what c onstitutes a “political activity” is fairly precise and raises no problems of interpretation
57.
NGOs are generally free to engage in any form of political activity. Furthermore, the legal and institutional
framework guarantees the capacity of NGOs to take part in decision-making processes through a wide range
of advocacy, campaigning and lobbying activities. Restrictions on engaging in political activities only apply if
an NGO acquires “public benefit organisation” status. In this case, it must not pursue direct political activity,
must be independent of the political parties and must not provide them with financial support.

35. Hungarian legislation allows NGOs to take part in the decision- making processes of parliament and
government, through general c onsultation (sending comments on the drafts of new laws) or direct
consultation (on the basis of a partnership agreement). In addition, several ministries have established
specific procedures for working with NGOs and have set up consultative bodies in their respective spheres.
NGOs in Hungary are free to organise workshops or conferences to educate the public on societal problems.
They can also criticise policy or the authorities at any time, anywhere, on the basis of the right to freedom of
expression embodied in the Constitution. As regards funding which originates from abroad, only political
parties may not accept financial support from a foreign government
58, a restriction which does not apply to
other types of NGO.

36. Despite this positive beginning, the position of civil society began to deteriorate with the coming to
power in 2010 of the Fidesz party holding a two- thirds majority. Thereafter, a new Constitution (the
Fundamental Law) and related laws came into force in January 2012, and th ese have subsequently been
amended several times. These laws have had a negative effect on the independence and administration of
justice, placed limitations on the powers of the Constitutional Court, on political participation, on freedom of
the media, a nd on religious freedom, and restricted the rights of women, the LGBTI community and the
homeless
59. Recently a bill similar to the Russian law on “foreign agents” was tabled in Parliament 60. The
bill was not passed but might be tabled again. Thus it woul d be expedient to look more closely at the latest
political and legal changes which might influence the position of civil society in Hungary.

3. Conclusion

37. Given the importance of civil society’s role and of the right to freedom of expression and association in
a democratic society, it is very disturbing to observe that in some Council of Europe member States more
and more restrictions are being placed on the activities of NGOs. I should therefore like to examine this
subject more closely, and particularly the impediments which exist to the registration of NGOs, to their free
operation and to the possibility of them lawfully receiving subsidies from national and foreign sources.

38. So that the committee is better informed of the current position of NGOs and of their legal and
practical difficulties, and in order to ascertain how to guard against inappropriate restriction of the activities of
NGOs at national level, I should like to request the committee’s permission to organise a hearing with
experts, including academics specialising in the right to freedom of association, and representatives of civil
society. Furthermore, I envisage making fact -finding visi ts to two or three member States where civil society
is meeting ever more major obstacles to its free functioning.

56 Article 3 (4) of Act CLXXV/2011, the “CSO Act”. 57 Article 2, paragraph 22 of the “CSO Act”. 58 Act XXXIII/1989. 59 http://www.hrw.org/reports/2013/05/16/wrong-direction-rights . See also the Monitoring Committee’s report on “Request
for the opening of a monitoring procedure in respect of Hungary”, Doc. 13229 of 10 June 2013, rapporteurs Ms Jana
Fischerovà (Czech Republic, EDG) and Ms Kerstin Lundgren (Sweden, ALDE) and Resolution 1941 (2013).
60 Report of December 2013 by the Expert Council on NGO Law, “Regulating political activities of non-governmental
organisations”, OING Conf/Exp (2013) 4 .
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AS/Jur (2014) 18
39. In addition, it would be useful to take stock of legislation at European level on the right to freedom of
association. The appended questionnaire is intended to identify possible divergences in the legal
frameworks of Council of Europe
member States. Accordingly, I should like to ask the committee to
authorise me to send this questionnaire to the European Centre for Parliamentary Researc h and
Documentation (ECPRD).

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AS/Jur (2014) 18
Appendix
Questionnaire
I. General legislation on NGOs
1. In which legal form(s) are NGOs able to ? Are they required to acquire
operate in accordance with the law
legal personality?
2. What is the legal status of foreign NGOs and local branches of foreign NGOs? How does it differ from that
of national NGOs ?
II. Registration
3. Is the system of NGO registration based on authorisation or merely on notification to the authorities
responsible?
4. W hich authorities are responsible for the registration and supervision of NGOs?
5. Does national legislation prohibit unregistered NGOs?
6. Does national legislation prescribe fixed time limits for the registration of an NGO and for notification in
the event that registration is refused?
7. What minimum conditions have to be met in order to obtain registration of an NGO? What are the cost
and duration of the registration procedure?
8. Does national legislation require NGOs to re- register after a certain length of time?
III. Dissolution and suspension
9. On what grounds may an NGO be dissolved or its activities suspended, and which authorities are
responsible for taking such decisions?
10. Do effective remedies exist against dissolution and suspension decisions?
IV. Funding and taxation
11. Are there any restrictions on NGOs’ right to receive and possess assets and funds? If so, what are
these?
12. Does national legislation require NGOs to declare any grants received from abroad, or even to seek
prior authorisation for them?
13. What penalties are prescribed for infringements of the rules on the f unding of NGOs?
14. Which taxes must NGOs pay? Are there any differences according to the nature of NGOs’ activities?

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