Council of Europe
The Council of Europe (COE) is the oldest European political organization. It was founded on 5 May, 1949, by the Treaty of London (also known as the Statute of the COE), which was signed in London by ten states (Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom).
The main values of the COE are human rights, democracy and the rule of law. CoE advocates for freedom of expression and of the media, freedom of assembly, equality, and the protection of minorities. The Council of Europe helps member states fight corruption and terrorism and undertake necessary judicial reforms. Its group of constitutional experts, known as the Venice Commission, offers legal advice to countries throughout the world. Accordingly, membership in the COE is open to all European states which accept the rule of law and are committed to guarantee democracy, fundamental rights and freedoms
Established against the background of the unprecedented abuse of human rights and atrocities committed in Europe during the Second World War, the COE was from the outset envisaged as a guarantor of democratic principles and human rights across the European continent. The coming of the Cold War prevented the COE from entirely fulfilling its mission. However, the collapse of communism in Central and Eastern Europe (CEE) – and the subsequent application of CEE countries for membership in the COE – gave the organization new momentum. Today, COE has 47 members, and includes all European states, except Belarus.
The COE’s most prominent instrument to achieve its goals is the European Convention on Human Rights, formerly known as the European Convention for the Protection of Human Rights and Fundamental Freedoms, and its subsequent amendments in the form of protocols. The Convention was opened for signature in Rome on November 4, 1950, and entered into force on September 3, 1953. The catalogue of civil and political rights guaranteed by the Convention largely mirrors those stated in the Universal Declaration of Human Rights. All members of the COE are required to sign and ratify the Convention, which obliges them to secure and guarantee to “everyone” within their jurisdiction (not only their citizens) the rights stipulated in the Convention. Following the successful ratification of the Lisbon Treaty by the European Union (EU) member states and coming into force of Protocol No. 14 of the European Convention, significant strides have been made in the official talks between the EU and COE about the EU accession to the Convention, which will ultimately place the EU institutions on the same footing with the COE member states with regard to the responsibilities for the protection of the rights guaranteed by the Convention.
The Convention also established an international judicial body, the European Court of Human Rights, with jurisdiction to hear cases of alleged violations of the Convention committed by COE member states. In addition, the COE has adopted approximately 200 conventions, treaties, and other instruments which further its objectives.
|Founding Document||Statute of the Council of Europe|
|Head||Thorbjorn Jagland, Secretary General|
|Governing Bodies||Council of Ministers: supreme decision-making body.|
Parliamentary Assembly: plays an advisory and investigative role; appoints the Secretary General of the COE, the judges of the ECHR, and the members of the European Committee for the Prevention of Torture.
The Congress of Regional and Local Authorities: advises the Committee of Ministers and the Parliamentary Assembly on all aspects of local and regional policy.
|Key Human Rights Agreements||The European Convention on Human Rights; the Convention on Action Against Trafficking in Human Beings; the Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuses; the European Social Charter; the European Charter for Regional or Minority Languages; the Framework Convention for the Protection of National Minorities; the European Convention on Trans-frontier Television.|
|Key Judicial Bodies||The European Court of Human Rights|
|Bosnia and Herzegovina||Liechtenstein||Spain|
|Cyprus||Malta||The former Yugoslav Republic of Macedonia|
|Freedom of Association||Legal Protection||European Convention on Human Rights, Articles 9, 11;|
Framework Convention for the Protection of National Minorities, Article 7;
European Convention on the Recognition of the Legal Personality of International Non-Governmental Organizations;
|Judicial Bodies||European Court of Human Rights: decides on alleged violation of the European Convention on Human Rights committed by the COE member states.|
|Civil Society Participation||Civil participation in public affairs||– The right to civil participation in political decision-making should be secured to individuals, NGOs and civil society at large.|
– Participation in decision-making is distinct from political and lobbying activities.
– Effective and meaningful participation can only be achieved if member states guarantee through law and practice the effective rights of freedom of association, of assembly, of expression and of information.
– Government “recognition and protection” of civil society’s advocacy and monitoring functions is essential for “building a diverse and vibrant society.”
(Guidelines for civil participation in political decision-making, 2017)
|Ability to Participate in CoE Activities||There are two institutional forms of participation: First, CSOs participate in COE’s activities through the Conference of International Non-Governmental Organizations (INGOs) which is the chief body representing the INGOs enjoying participatory status with the COE. In addition, the COE cooperates with CSOs through its civil society initiatives and co-operation programs, which seek to strengthen the role of civil society in pluralistic democracies, and in particular to improve relations between CSOs and member states’ public authorities.|
|Human Rights Defenders||Current Status||The protection and the development of an enabling environment for human rights defenders are one of key elements in the mandate of the Commissioner for Human Rights. The Commissioner for Human Rights is an independent, non-judicial institution, which advises the Council of Ministers and Parliamentary Assembly on issues pertinent to the promotion and the protection of human rights in the COE member states – including the protection of human rights defenders.|
The Commissioner’s role in this respect has been reinforced through the Committee of Ministers’ Declaration on Council of Europe Action to Improve the Protection of Human Rights Defenders and Promote Their Activities (2008).
Freedom of Association: European Court of Human Rights Case Law
The following list of cases is illustrative, not exhaustive; included are some of the Court’s key decisions in giving shape and scope to the freedom of association.
|Young, James and Webster v. the United Kingdom, nos. 7601/76 and 7896/77, Commission’s report of 14 December 1979, Series B, no. 39, p. 36, § 167||1979|
|McFeeley v. the United Kingdom, Application No. 8317/78; decision of 15 May 1980||1980|
|Le Compte, Van Leuven and De Meyer v. Belgium, Application no. 6878/75; 7238/7; judgment of 23 June 1981||1981|
|Cheall v. United Kingdom, Application No. 10550/83; decision 13 May, 1985||1985|
|Holy Monasteries v. Greece, Application No.. 13092/88; decision of 5 June 1990||1990|
|Ezelin v. France, Application, No. no. 11800/85, judgement of 26 April, 1991||1991|
|Sigurđur A. Sigurjónsson v. Iceland, Application No.16130/90; judgment of 30 June 1993||1993|
|Gustafsson v. Sweden, Application No. 15573/89; judgment of 25 April, 1996||1996|
|United Communist Party of Turkey and others v. Turkey, Application No. 19392/92; judgment of 30 january, 1998||1998|
|Sidiropoulos and Others v. Greece, Application No. 26695/95; judgment of 10 July, 1998||1998|
|Chassagnou and Others v. France, Application No. 25088/94, 28331/95, 28443/95; judgement of 29 April, 1999||1999|
|Grande Oriente d’Italia de Palazzo Guistiniani v. Italy, Application No. 35972/97; judgment of 2 August 2001||2001|
|NF v. Italy, Application No. 37119/97; judgment of 2 August 2001||2001|
|Gorzelik and others v. Poland, Application No. 44158/98; judgment of 20 December 2001||2001|
|Refah Partisi (Prosperity Party) and others v. Turkey, Application No. 41340/98, 41342/98, 41343/98 and 41344/98; judgement of 13 February, 2003||2003|
|Socialist Party and Others v. Turkey, Application No. 26482/95; judgment of 12 November 2003||2003|
|Socialist Party and Others v. Turkey, Application No. 26482/95; judgment of 12 November 2003||2003|
|Maestri v. Italy, Application No. 39748-98; judgement of 17 February, 2004||2004|
|Ouranio Taxso and other v. Greece, Application No. 74989/01; judgment of 20 October, 2005||2005|
|Tsonev v. Bulgaria Application No. 45963/99; judgment of 13 April, 2006||2006|
|Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan (No. 37083/03)||2009|
|Stankov and the United Macedonian Organization Ilinden v. Bulgaria (No. 34960/04), judgment (2)||2011|
|Sindicatul “Păstorul cel Bun” v. Romania, Application No. 2330/09; judgment of January 31, 2012||2012|
|Vona v. Hungary, Application No. 35943/10; judgment of 9 July 2013||2013|
|Tum Bel- Sen v. Turkey, Applications Nos. 38927/10; 47475/10; 47476/10; judgment of 18 February 2014||2014|
|Magyar Keresztény Mennonita Egyhaz and Others v. Hungary, Applications Nos. 70945/11; 23611/12; 26998/12; 41150/12; 41155/12; 41463/12; 41553/12; 54977/12; 56581/12; judgment of 8 April 2014||2014|
|Adefdromil v. France, Application No. 32191/09; judgment of 2 October 2014||2014|
|Matelly v. France, Application No. 10609/10; judgment of 2 October 2014||2014|
|Association of victims of Romanian judges and Others v. Romania, Application No. 47732/06; judgment of 14 October 2014||2014|
|Islam- Ittihad Association and Others v. Azerbaijan, Application No. 5548/05; judgment of 13 November 2014||2014|
|Case of Cumhuríyet Halk Partísí v. Turkey No. 19920/13; judgement of July 26, 2016||2016|
|Case of Kasparov and Others v. Russia (No. 2) No. 51988/07; judgement of May 29, 2017||2017|
|Case of Lashmankin and Others v. Russia No. 57818/09; judgement of May 29, 2017||2017|
|Case of National Turkish Union and Kungyun v. Bulgaria No. 4776/08; judgement of June 8, 2017||2017|
|Case of Metodiev and Others v. Bulgaria No. 58088/08; judgement of June 15, 2017||2017|
|Case of Navalnyy v. Russia No. 29580/12 and 4 others; judgement of February 2, 2017||2017|
|Case of Bakir and Others v. Turkey No. 46713/10, judgement of July 10, 2018||2018|
Freedom of Assembly: European Court of Human Rights Case Law
|“Arzte Fur das Leben” v. Austria, Application No. 10126/82; judgment of 21 June 1988|
|Ezelin v. France, Application No. 11800/85; judgment of 26 April 1991|
|Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, Applications Nos. 29221/95 and 29225/95; judgment of 2 January 2002|
|Cisse v. France, Application No. 51346/99; judgment of 9 April 2002|
|Appleby and Others v. United Kingdom, Application No. 44306/98; judgement of 6 May 2003|
|Djavit AN v. Turkey, Application No. 20652/92; judgment of 9 July 2003|
|Adali v. Turkey, Application No. 38187/97; judgment of 31 March 2005|
|Ivanov and Others v. Bulgaria, Application No. 46336/99; judgment of 24 November 2005|
|Oya Ataman v. Turkey, Application No. 74552/01; judgment of 5 March 2007|
|Kuznetsov and Others v. Russia, Application No. 184/02; judgment of 11 April 2007|
|Baczkowski and Others v. Poland, Application No. 1543/06; judgment of 26 September 2007|
|Bukta and Others v. Hungary, Application No. 25691/04; judgment of 17 October 2007|
|Vajnai v. Hungary, Application No. 33629/06; judgment of 8 July 2008|
|Solomou and Others v. Turkey, Application No. 36832 /97; judgment of 24 September 2008|
|Patyi and Others v. Hungary, Application No. 5529/05; judgment of 7 October 2008|
|Ashughyan v. Armenia, Application No. 33268/03; judgment of 1 December 2008|
|Eva Molnar v. Hungary, Application No. 10346/05; judgment of 7 January 2009|
|Gasparyan v. Armenia, Application No. 35944/03; judgment of 13 January 2009|
|Hyde Park and Others v. Moldova (no. 2), Application No.45094/06; judgment 31 March 2009|
|Uzunget and Others v. Turkey, Application No. 21831/03; judgment 13 January 2010|
|Corina FUSU v. Moldova, Application No. 33238/06; judgment of 1 June 2010|
|Gul and Others v. Turkey, Application No. 4870/02; judgment of 8 September 2010|
|Alekseyev v. Russia, Applications Nos. 4916/07; 25924/08; 14599/09; judgment of 21 October 2010|
|Matasaru and Savitchi v. Moldova, Application No. 38281/08; judgment of 2 February 2011|
|Patyi v. Hungary, Application No. 35127/08; judgment of 17 April 2012|
|Szerdahelyi v. Hungary, Application No. 30385/07; judgment of 17 April 2012|
|Berladir and Others v. Russia, Application No. 34202/06; judgment 10 July 2012|
|Tatar and Faber v. Hungary, Applications Nos. 26005/08; 26160/08; judgment 12 September 2012|
|Trade Union of the Police and Others v. Slovakia, Application No. 11828/08; judgment of 25 September 2012|
|Kakabadze and Others v. Georgia, Application No. 1484/07; judgment of 2 October 2012|
|Najafly v. Azerbaijan, Application No. 2594/07; judgment of 2 October 2012|
|Faber v. Hungary, Application No. 40721/08; judgment of 24 October 2012|
|Disk and Kesk v. Turkey, Application No. 38676/08; judgment of 27 November 2012|
|Saska v. Hungary, Application No. 58050/08; judgment of 27 November 2012|
|Vona v. Hungary, Application No. 35943/10; judgment of 9 July 2013|
|Vyerentsov v. Ukraine, Application No. 20372/11; judgment of 11 July 2013|
|Kasparov and Others v. Russia, Application No. 21613/07; judgment of 3 October 2013|
|Shmushkovych v. Ukraine, Application No. 3276/10; judgment of 14 November 2013|
|Kudrevicius and Others v. Lithuania, Application No. 37553/05; judgment of 26 November 2013|
|Primov v. Russia, Application No. 17391/06; judgment of 12 June 2014|
|Nemtsov v. Russia, Application No. 1774/11; judgment of 31 July 2014|
|Veniamin Tymoshenko and Others v. Ukraine, Application No. 48408/12; judgment of 2 October 2014|
|Yilmaz Yildiz and Others v. Turkey, Application No. 4524/06; judgment of 14 October 2014|
|Emin Huseynov v. Azerbaijan, Application No. 59135/09; judgement of 7 May 2015|
|Identoba and Others v.Georgia, Application No. 73235/12; judgement of 12 May 2015|
|Promo Lex and Others v. the Republic of Moldova, Application No. 42757/09; judgement of 24 May 2015|
|Helsinki Committee of Armenia v. Armenia, Application No.59109/08; judgement of 30 June 2015|
|Gafgaz Mammadov v. Azerbaijan No. 60259/11; judgement of 15 October 2015|
|Kudrevičius and others v. Lithuania No. 37553/05; judgment of 15 October 2015|
|Körtvélyessy v. Hungary No. 7871/10; judgement of 5 April 2016|
|Ibrahimov and Others v. Azerbaijan No. 69234/11, 69252/11 and 69335/11; judgement of May 11, 2016|
|Case of Yaroslav Belousov v. Russia No. 2653/13 and 60980/14; judgement of March 6, 2017|
|Case of Kasparov and Others v. Russia (No. 2) No. 51988/07; judgement of May 29, 2017|
|Case of Lachmankin and Others v. Russia No. 57818/09, 4618/11, 19700/11, 47609/11, 59410/11, 7189/12, 16128/12, 16134/12, 20273/12, 51540/12, 64243/12, and 37038/13); judgement of May 29, 2017|
|Case of Bakir and Others v. Turkey No. 46713/10, judgement of July 10, 2018|
Civil Society Participation
The COE, through its instruments, judicial, and quasi-judicial bodies is a key political organization which fosters the development and protection of human rights in Europe.
One of the most prominent features of the European Convention on Human Rights is the establishment of the European Court of Human Rights (Court), which is based in Strasbourg, France. The Court is an international judicial body which hears cases of alleged violations of the Convention committed by the COE member states (“High Contracting Party”). Since November 1, 1998, following the ratification of the Protocol 11 to the Convention, the Court has been operating as a permanent body, thus replacing the previous enforcement mechanism, which included both the European Commission of Human Rights (established in 1954) and the European Court of Human Rights (established in 1959).
The number of judges on the Court mirrors the number of member states in the COE (at present 47). The judges are elected by the COE Parliamentary Assembly for a non-renewable term of nine years, from lists of three candidates proposed by each member state. Although judges are elected from a list of candidates proposed by a member state, they are independent and impartial, and hear cases as individuals, rather than state representatives.
The Convention envisages two types of application to the Court: individual applications lodged by any person, group of individuals, company or non-governmental organization (NGO) alleging violation of their rights guaranteed by the Convention; and inter-State applications brought by one State against another.Thus far, the overwhelming majority of applications have been lodged by individuals. The Court cannot take up cases on its own. A (member) state and an NGO may also be authorized by the President of the Court to intervene in proceedings as third parties.
Cases can be brought directly by individuals and the assistance of a lawyer is not necessary at the outset of the proceedings; however, it becomes necessary in the later stages thereof. It is sufficient to file with the Court a duly completed application form with the requisite documents. The application form and the guidelines on how to fill it out can be downloaded from the Court’s official website, as well as from the websites of the COE representative offices in members states. The filing of the application is no guarantee that it will be admissible or successful on the merits. There are no fees for proceedings before the Court.
In order for an individual application to be deemed admissible, a number of conditions must be met:
- An application must not be anonymous and can only be lodged against one or more COE member states, and not against any third state or an individual;
- A case can only be brought to the Court if all domestic remedies have been exhausted, according to the generally recognized rules of international law. In other words, as a general rule, an individual alleging violations of his/her rights must first take a case through the judicial system of the respondent state, up to the highest level of jurisdiction. This admissibility criteria underscores the fact that the primary responsibility for the protection of the rights guaranteed by the Convention falls on member states; the Court plays a subsidiary role in this respect;
- An applicant’s allegations must involve one or more of the rights guaranteed by the Convention; the Court cannot examine complaints concerning violations of any other rights;
- A case can not be substantially the same as a matter that has already been examined by the Court, or has already been submitted to another procedure of international investigation or settlement, and contains no relevant new information;
- Applications must be lodged within six months following the final judicial decision in the case, which will usually be a ruling by the highest court of the respondent state;
- The facts or acts resulting in the alleged violation of the applicant’s rights must occur following the ratification of the Convention by the respondent state, and not before; and,
- The applicant must be personally and directly a victim of violation of the Convention.
In addition, Protocol No. 14 to the Convention, which came in the force on June 1, 2010, further streamlined the application procedure, in efforts to make the Court more efficient. It provides that the Court shall declare inadmissible, at any stage of proceedings, an individual application if it considers that the applicant has not suffered a “significant disadvantage”, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits, and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal. It remains to be seen how the notion of “significant disadvantage” will be interpreted in the case law.
The Convention, as amended by Protocol 14, envisages that the Court hears cases in a single-judge formation, in committees of three judges, in Chambers of seven judges, and in the Grand Chamber of seventeen judges. The Court’s Chambers set up committees for a fixed period of time. This organization of the Court seeks to make it more effective, in particular in dealing with inadmissible applications, which constitute the overwhelming majority of all applications.
A single judge may declare inadmissible or strike out of the Court’s list of cases an application submitted which is prima facie (plainly) inadmissible. The decision of a single judge is final in this respect. To prevent conflict of interest, a single judge cannot examine any application against the member state in respect of which that judge has been elected. In cases of doubt, or if the single judge finds the application prima facie admissible, then the judge refers the application to the committee for further examination. Unless it declares the application inadmissible, the committee communicates the case to the government of the respondent state, asking the government for its observations, before it proceeds deliberating on the merits of the case. The committee can render a decision on the merits of the case only if it has to do with the interpretation or the application of the Convention or the Protocols thereto, which is already the subject of well-established case-law. In order for a committee’s decision (both on admissibility and merits), to be final, a unanimous vote is required. When a committee decides on the merits of a case, the judge elected on behalf of a respondent state is no longer a compulsory member of the committee. However, that judge can be invited by the committee to replace one of its members for specific reasons, e.g. when the application relates to the exhaustion of national legal remedies. Changes introduced in Protocol 14, do not affect the (old) rule which requires that a judge elected in respect of the member state concerned is an ex officio member of a Chamber and the Grand Chamber.
In cases other than those assigned to a single judge or a committee, a Chamber decides by a majority vote on the admissibility and merits of individual applications. In addition, a Chamber decides on the admissibility and merits of inter-State applications. Exceptionally, the Grand Chamber hears cases referred to it either after relinquishment by a Chamber (i.e., where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before it might have a result inconsistent with a judgment previously delivered by the Court), or when a request for referral has been granted. Whilst inadmissibility decisions by Committees and Grand Chamber judgments are final and are not subject to appeal, the parties have three months following the delivery of a Chamber judgment to request referral of the case to the Grand Chamber for reconsideration. Requests for referral are examined by a panel of five judges which decides whether or not referral is appropriate. A panel can grant referral only if the case gives rise to a serious question affecting the interpretation or application of the Convention or the protocols thereto, or to a serious issue of general importance. If the panel grants referral, the Grand Chamber will review the case and render judgment, which is final and not subject to further appeal.
The Court examines the case together with the representatives of the parties and, if need be, undertakes an investigation, for the effective conduct of which the member state concerned shall furnish all necessary facilities. Hearings are conducted in public, unless the Court in exceptional circumstances decides otherwise. In all cases before a Chamber or the Grand Chamber, a member state has the right to submit written comments and take part in hearings, when the applicant is a national of that member state. In addition, in all cases before a Chamber or the Grand Chamber, the COE Commissioner for Human Rights can submit written comments and take part in hearings. Documents deposited with the Court’s Registrar are accessible to the public, unless the President of the Court decides otherwise.
At any stage of the proceedings, the Court can place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto. Proceedings of a friendly settlement are confidential. The decision on friendly settlement is transmitted to the Committee of Ministers, which supervises the execution of the terms of the friendly settlement as set out in the decision.
When the Court rules against a respondent state and observes that the applicant has sustained damage, it awards the applicant just monetary satisfaction. Judgments finding violations are binding on the respondent states and they are obliged to execute them; however, they do not replant decisions of domestic courts in cases concerned. The Committee of Ministers monitors the execution of judgments, particularly to ensure that the compensation for the damage sustained has been carried out. However, the Committee of Ministers cannot force the respondent state to comply, and the ultimate sanction for non-compliance is a political one: expulsion from the Council of Europe. In case of a friendly settlement between the applicant and the respondent state, the Committee of Ministers will strike such a case from its monitoring list, provided that the Court has received a formal notification from the respondent state to that effect and is satisfied that the settlement is based on respect for human rights, as defined in the Convention or its Protocols.
In efforts to build a more effective enforcement mechanism, Protocol No 14 of the Convention further extends the power of the Court. A member state can be brought before the Grand Chamber by the Committee of Ministers if it refuses to enforce a judgment and the Committee of Ministers can ask the Grand Chamber for an interpretation of a judgment to help determine the best way for a member state to comply. A referral decision requires a majority vote of two thirds of the representatives entitled to sit on the Committee of Ministers. If the Court finds that a member state fails to comply with its decision, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. Otherwise, it shall refer the case to the Committee of Ministers, which closes its examination of the case.
In some cases, as a result of the Court’s ruling, the respondent state will have to amend its legislation, to bring it in line with the Convention. Over the past few years the Court has developed a new procedure to respond to the increased number of applications arising from non-conformity of domestic law with the Convention. In such situations, the Court takes on one or more applications dealing with the same or similar non-compliance issue (pilot case), while the proceedings of other similar cases are adjourned (postponed). When it delivers its judgment in a pilot case, it calls on other respondent states concerned to bring their respective domestic legislation in line with the Convention and indicates the general measures to be taken, before taking on cases involving those states.
Freedom of Association
Article 11 of the European Convention on Human Rights provides:
“1. Everyone has the right to freedom of peaceful assembly and to 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 interests 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. However, it does 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 member state.”
The principal obligation of a member state under Article 11 is a negative one: to refrain from arbitrary interfering with freedom of association. However, at some instances the state also has positive obligations toward the exercise of freedom of association, e.g., the duty to afford legal protection to a member whose rights in an association are allegedly violated, or the duty to grant legal personality to an association which meets the prescribed requirements.
An association differs from peaceful assembly, which is also protected under Article 11, in that it requires a certain institutional character, i.e., a certain degree of organization, as well as duration. It can be established to pursue any not-for-profit goal which is otherwise permissible to a natural person.
While Article 11 makes specific reference to trade unions only, freedom of association extends to any other form of private and voluntary grouping – regardless of its legal status (informal association or a legal entity) – for a common goal (political parties, religious associations, association of employees, etc).
Freedom of association entails the right to establish or join an association, as well as the right not to join an association (the so called negative freedom of association). Once established, an association enjoys a number of other rights guaranteed by the European Convention, including freedom of speech (Article 10); freedom, either alone or in community with others and in public or private, to manifest one’s religion or belief, in worship, teaching, practice and observance (Article 9); the privacy of its business premises (Article 8); prohibition of any discrimination in the enjoyment of rights and freedoms recognized by the Convention (Article 14); the right to fair hearing (Article 6); and the right to an effective remedy before national authorities (Article 13).
The list of legitimate grounds for interference with freedom of association stipulated in Article 11, Paragraph 2, is an exhaustive one; no other ground can serve as justification for interference with freedom of association. In addition, the European Court of Human Rights has developed an analytical framework to determine if interference in question meets any of the legitimate grounds stated in Article 11. Accordingly, any interference with freedom of association must: (1) be prescribed by law (meaning that the law in question must be both accessible and of a certain quality, i.e., written in a language which a layman can understand); (2) serve a legitimate aim (as stipulated in Article 11, Paragraph 2); and (3) be necessary in a democratic society (i.e., amount to the minimum level of interference necessary to accomplish a legitimate goal – the so-called proportionality test). The onus to prove that the foregoing requirements are met is on the respondent state, rather than the applicant.
For a more detailed account on the scope and the content of freedom of association please consult the following sources: Jeremy McBride (International Law on Freedom of Association); Zvonimir Mataga (The Right to Freedom of Association under the European Convention on the Protection of Human Rights and Fundamental Freedoms).
Civil Society Participation
The primary document that provides guarantees related to participation is the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms Convention protects freedom of expression and Article 11 freedom of assembly and association.
On September 27, 2017 the Council of Europe’s Committee of Ministers approved the Guidelines for civil participation in political decision-making. The ultimate aim of the Guidelines is to strengthen trust in and credibility of democratic institutions and to complement representative and direct democracy by broadening participation by individuals, NGOs and civil society at large.
The Guidelines recognise the right to participation of individuals, NGOs and civil society at large in political decision-making, clearly stating that all are welcome to participate in the political debate, which is distinct from political and lobbying activities.
The Guidelines outlines key principles for promoting dialogue, consultation and co-operation between civil society and the authorities. It also contains recommendations for four core types of public participation: provision of timely information, organization of consultations, the encouragement of dialogue and active involvement.
Principles of Civil Participation
- Mutual respect between all actors as the basis for honest interaction and mutual trust
- Respect for the independence of NGOs whether their opinions are consistent with those of the public authorities or not
- Respect for the position of public authorities with whom responsibility and accountability for decision making lies
- Openness, transparency and accountability
- Responsiveness, with all actors providing appropriate feedback
- Non-discrimination and inclusiveness so that all voices, including those of the less privileged and most vulnerable, can be heard and taken into account
- Gender equality and equal participation of all groups including those with particular interests and needs, such as young people, the elderly, people with disabilities or minorities
- Accessibility through the use of clear language and appropriate means of participation, offline or online
Conditions for effective civil participation
- The right to civil participation in political decision-making should be secured to individuals, NGOs and civil society at large.
- Enabling and encouraging environment is a precondition of effective civil participation. Member States should provide legal and practical guarantees for fundamental rights and rule of law.
- Government “recognition and protection” of civil society’s advocacy and monitoring functions is essential for “building a diverse and vibrant society.”
Participation include provision of information, consultation and dialogue and active involvement. COE Member States should adopt political, legal (where appropriate), and practical framework for supporting these types of civil participation.
All appropriate information should be presented in clear and easily understandable language and in accessible format at all stages of decision making, without undue administrative obstacles and, in principle, free of charge, in accordance with open data principles. Views on a specific policy or topic should be collected as part of an official procedure, through various means and tools, such as meetings, public hearings, focus groups, surveys, questionnaires and digital tools. Authorities should provide publicly available feedback on the outcome of consultations. Structured, long-lasting and results-oriented processes are based on mutual interest in the exchange of opinions between public authorities, individuals, NGOs and civil society at large. Different platforms for dialogue include regular public hearings, public forums, and advisory councils.
Civil participation in decision-making processes extends beyond the provision of information, consultation or dialogue. It may include working groups or committees for the co-development of documents, with transparent criteria and processes for the representation of individuals, NGOs and civil society.
Civil Society Participation in CoE Activities
There are two institutional mechanisms allowing for civil society participation in COE activities. First, civil society organizations (CSOs) participate in the COE’s activities through the Conference of International Non-Governmental Organizations (INGOs), which is the chief body representing the INGOs enjoying participatory status with the COE. The Conference constitutes civil society’s pillar in the Council of Europe “quadridialogue” with the Committee of Ministers, the Parliamentary Assembly, and the Congress of Local and Regional Authorities. Participatory status is granted by the CoE to international NGOs, which share the COE goals and values as stipulated in Article 1 of the COE Statute, and which are particularly representative at the European level (e.g., affiliations of national umbrella organizations in several of the 47 member states). In addition, they need to demonstrate capacity to contribute to CoE activities and to promote them among the European public (Committee of Ministers’ Resolution No. (2003)8 on a Participatory Status for International Non-Governmental Organizations).
Applications for participatory status must be submitted on the official form and must be accompanied by a file in French or English. The file must contain the INGO’s statute; a list of member organizations, as well as the approximate number of members of each of these national organizations; a report on its recent activities; and a declaration to the effect that it accepts the principles set out in the Preamble and in Article 1 of the COE Statute. Participatory status is granted once a year in December, and the procedure for the examination of applications takes several months. At present, some 320 INGOs have granted participatory status. Co-operation with INGOs holding participatory status takes many forms, from simple consultation to full-scale co-operation on specific projects.
In January 2008, the Conference of INGOs established the Expert Council on NGO Law, which operates under the authority of the Conference. The Council was established against the background of the COE Warsaw Declaration, which was issued at its Europe Summit of 2005, and the COE Recommendation on the Legal Status of NGOs in Europe (CM/Rec(2007)14). The Mandate of the Expert Council is to contribute to the creation of an enabling environment for NGOs in the member states by monitoring the legal and regulatory framework in European countries, as well as the administrative and judicial practices in them, which affect the status and operation of NGOs; preparing opinions and reports on both matters of concern and examples of good practice on a thematic or country basis; taking action towards implementation of its recommendations at European and national level; promoting knowledge and implementation of the Committee of Ministers Recommendation CM/Rec (2007)14 on the legal status of NGOs; analyzing relevant developments in European standards and case law; and proposing ways in which Council of Europe standards pertinent to freedom of association could be further developed. The Conference of INGOs appoints the President of the Expert Council, and the Bureau of the Conference of INGOs appoints up to 15 members for a three year term. Each member is designated in her/his personal capacity. During its first term (2008-2011), the Council produced thematic annual reports: on the conditions of the establishment of CSOs; on the internal governance of CSOs; and on the sanctions and liabilities with respect to CSOs. Following a period of evaluation and the approval in January 2012 of a report by the President of the Expert Council on “The future role and operations of the Expert Council on NGO Law”, the Conference of INGOs reaffirmed the position of the Expert Council as one of its main organ and appointed members thereof for a second three-year term. During its second term (2012-2015), in December 2013, the Expert Council produced a report on Regulating Political Activities of Non-governmental Organizations.
In addition, COE cooperates with NGOs through its civil society initiatives and co-operation programs, which seek to strengthen the role of civil society in pluralistic democracies, and in particular to improve relations between NGOs and member states’ public authorities. Examples of that cooperation include: the Civil Society Leadership Network for Armenia, Azerbaijan, Georgia, Moldova and Ukraine; Support to Civil Society in Russia; and Support to Civil Society in Belarus.
|Human Rights||Democratic and effective oversight of national security services. Issue paper published by the Council of Europe Commissioner for Human Rights|
|Civil Participation||Civil Participation Decision-Making Processes|
|Human Rights Defenders|
European Commission for Democracy Through Law (Venice Commission)
|Compilation on Venice Commission Cases on Freedom of Association|
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115th Plenary session of the Venice Commission of the Council of Europe (June 2018)
Venice Commission adopted an opinion on the compatibility with international human rights standards of the Hungarian government’s new “Stop Soros” draft legislative package as far as it affects NGOs.
“Stop Soros” legislation in Hungary (June 2018)
President of the Venice Commission, Gianni Buquicchio asked Hungarian parliament not to proceed with vote before its opinion on the matter is adopted.
Copenhagen Declaration adopted (April 2018)
Copenhagen Declaration on the reform of the European Convention on Human Rights system has been adopted following a high-level conference held specifically on this topic.
Council of Europe expert opinion on Romania’s draft law on associations and foundations (March 2018)
The Expert Council on NGO Law of the Conference of INGOs of the Council of Europe published its opinion on the Romanian draft law 140/2017 on Associations and Foundations. The Expert Council finds that the changes would be effected by the provisions in the draft law give rise to a number of shortcomings.
New guidelines on media pluralism and transparency of media ownership (March 2018)
New guidelines are focusing on the promotion of media pluralism and transparency, the recommendation provides a comprehensive framework.
Commissioner concerned about proposed additional restrictions to the work of NGOs in Hungary (February 2018)
Commissioner for Human Rights, Dunja Mijatovic published a statement expressing her serious concern at the proposed “Stop Soros” legislative package that would introduce further restrictions of NGOs in Hungary
Commissioner concerned about human rights backsliding in Poland (February 2018)
Commissioner concerned about deteriorating environment for NGOs in Poland, warns the police searches may have a dangerous chilling effect for their work. The Commissioner published the exchange of letters with the government of Poland on the independence of the judiciary; women’s rights; and the situation of NGOs and Ombudsman.
Turkey’s decision to ban all events organised by LGBTI is a breach of fundamental rights (December 2017)
PACE’s General Rapporteur on the rights of LGBTI people calls the Turkish authorities to ensure that the human rights of LGBTI people are upheld and that any decisions taken at local or regional level in breach of fundamental rights are immediately overturned.
European convention is needed for greater protection of lawyers (December 2017)
Lawyers in many Council of Europe member States, are victims of harassment, threats, attacks and physical violence and abuse of disciplinary proceedings. PACE Committee on Legal Affairs and Human Rights voted in favour of drafting a European convention on the profession of lawyer to provide effective protection for the profession of lawyer.
Poland: Recent reforms constitute “grave threat” to the judiciary (December 2017)
In its opinion the Venice Commission finds that the cumulative effect of proposed reforms to two laws and recently adopted amendments to a third law “puts at serious risk” the independence of “all parts” of the Polish judiciary. The opinion concerns two draft laws, which propose to amend the Act on the National Council of the Judiciary and the Act on the Supreme Court, as well as already adopted amendments to the Act on Ordinary Courts. (Update: The Polish Parliament adopted the draft acts on 15 December 2017.
Romania: draft Law on Associations and Foundations shows serious shortcomings as regards compliance with international standards (December 2017)
The Expert Council on NGO Law of the Conference of INGOs of the Council of Europe published its opinion on the Romanian Draft Law 140/2017 on Associations and Foundations. The Expert Council on NGO Law examined the draft law’sts compatibility with international standards and best practices and found “that the changes that would be effected by the provisions in the draft Law give rise to a number of shortcomings as regards compliance with international standards and best practices.”
European governments to fully assume their positive obligation to protect media professionals (November 2017)
Culture Committee of the PACE adopted a draft resolution that urges governments to fully assume their positive obligation to protect media professionals, taking all necessary steps to ensure freedom of expression and the protection of sources, and put an end to impunity