echr: case law pertaining to freedom of associaton dragan golubovic nessebar, 03.06.2010
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ECHR: CASE LAW PERTAINING TO FREEDOM OF ASSOCIATON
Dragan Golubovic
Nessebar, 03.06.2010.
EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND BASIC FREEDOMS / ECHR
THE FIRST COMPREHENSIVE INTERNATIONAL TREATY IN THE FIELD OF HUMAN RIGHTS.
THE RIGHTS SET OUT IN THE CONVENTION AND THE PROTOCOLS LARGELY DERIVE FROM THE UN UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948).
THE FIRST TO ESTABLISH A COMPLAINT PROCEDURE AND AN INTERNATIONAL COURT FOR THE RESOLUTION OF HUMAN RIGHTS DISPUTES (EUROPEAN COURT OF HUMAN RIGHTS).
THE COURT IS THE LEADING INTERNATIONAL BODY IN SHAPING HUMAN RIGHTS CASE LAW.
Country Signatories
All countries of Europe, West NIS and Caucasus (excluding Belarus).
Primary obligation towards freedom of association: negative – not to interfere with freedom of association.
THE FREEDOM OF ASSOCIATION – SCOPE OF INTERFERENCE
ARTICLE 11 ECHR:
“(1) Everyone has the right to freedom of peaceful assembly and the freedom of association with others, including the right to form and to join trade unions for the protection of his interest.”(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 the rights and freedoms of others.”
ARTICLE 11 ECHR: CASE LAW
ANY INTERFERENCE TO FREEDOM OF ASSOCIATION MUST BE:
PRESCRIBED BY LAW. SERVE LEGITIMATE AIM. BE NECESSARY IN A DEMOCRATIC
SOCIETY.
FREEDOM OF ASSOCIATION: ARTICLE 11 ECHR: CASE LAW
WHAT IS “PRESCRIBED BY LAW”? THE INTEREFERENCE MUST HAVE BASIS IN
LAW. THE LAW HAS TO BE BOTH ACCESSIBLE
AND FORESEEABLE. FORSEEABILITY TEST: THE LAW HAS TO BE
OF A CERTAIN QUALITY; HAS TO BE WRITTEN IN A CLEAR AND UNAMBIGOUS LANGUAGE (Maestry v. Italy)
FREEDOM OF ASSOCIATION: ARTICLE 11 ECHR: CASE LAW
WHAT IS “LEGITIMATE AIM”? THE INTERFERENCE MUST BE WITHIN THE AMBIT OF
ARTICLE 11, PARA 2 (in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of the rights and freedoms of others).
THE LIST OF LEGITIMATE INTERFERENCE IN PARA 2 IS EXHAUSTIVE, NOT ILLUSTRATIVE.
FREEDOM OF ASSOCIATION: ARTICLE 11 ECHR: CASE LAW
WHAT IS “NECESSARY IN A DEMOCRATIC SOCIETY?”
THE STATE HAS TO PROVE THAT THE INTEFERENCE WITH FREEDOM OF ASSOCIATION WAS THE MINIMUM NEEDED TO SECURE LEGITIMATE AIM (PROPORTIONALITY TEST).
IN MOST CASES, THE APPLICATION OF PROPORTIONALITY TEST HAS ULTIMATELY DETERMINED WHETHER THERE WAS VIOLATION OF
FREEDOM OF ASSOCIATION.
FREEDOM OF ASSOCIATION: SCOPE
The right to voluntarily establish an association to pursue any legitimate (public or mutual benefit) goals without due interference from the state.
The right (not an obligation!) to form a legally recognized association; and that such an association, once formed, enjoys the full protection in the exercise of the freedom of association that an individual has.
The right to decide who will be a member of an association.
The right not to join an association (negative freedom of association).
THE RIGHTS OF CSOs UNDER ECHR
Once formed CSOs enjoy the following rights as protected by ECHR and five additional Protocols: Right to make opinions known and to join public debate / Freedom of speech (Article 10) / particularly
strong connection between Article 10 and 11 ECHR. Right to privacy (Article 8): The terms “private life” and “home” have been extended to cover
business (private) premises, to protect individuals against arbitrary interference by the public authorities.
Right to use and dispose of property without undue restrictions/Article Protocol 1 of ECHR, Art. 1 (non-distribution constrain).
ECHR AND CSO LEGISLATION IN CEE COUNTRIESBEST PRACTICE IN CENTRAL AND EASTERN EUROPE: PROGRESSIVE INTERPRETATION OF MINIMUM STANDARDS AS PRESCRIBED BY ECHR:
MINIMUM NUMBER OF FOUNDERS (2-10).
LEGAL ENTITIES PERMITTED TO BE FOUNDERS OR MEMBERS OF AN ASSOCIATION.
EFFICIENT REGISTRATION PROCEDURE (15 instead of 30 days).
EFFICIENT APPEALING PROCEDURE AGAINST DECISION TO DENY REGISTATION (15 instead of 30 days).
EXAMPLES OF VIOLATION OF ECHR IN DOMESTIC LAWS
Mandatory Registration for CSOs. Broad grounds for denial of registration and/or
termination. Limitation on permissible purposes. Excessive government authority to intervene in
internal affairs of CSOs (name, membership). Excessive government authority to supervise
CSOs. Restrictions on use of property. Restrictions on advocacy activities.
Contact information:
Apaczai Csere Janos u.17, 1st floor,
Budapest 1052,Hungary
phone: + 361 318 6923
fax: + 361 266 1479
www.icnl.org/ecnl
Email: [email protected]