CHALLENGES TO FREEDOM OF ASSOCIATION IN THE OSCE AREA... AND WAY FORWARD

WRITTEN CONTRIBUTION of THE OBSERVATORY submitted on the occasion of the Supplementary Human Dimension Meeting of the OSCE on Freedom of Assembly and Association, Vienna, on 8-9 November 2012

In many countries of the OSCE region, freedom of association is restricted, hindered or even blatantly violated by some authorities to discourage or ban any activity in favour of human rights and fundamental freedoms.

These practices breach Articles 5 and 13 of the United Nations Declaration on Human Rights Defenders, which guarantee the principles of freedom of association and access to funding for human rights purposes.

In the light of the state of freedom of association in the OSCE area, the elaboration of Guidelines on Freedom of Association by ODIHR would be key to an improved protection of this fundamental principle.

These guidelines could be elaborated in a similar format as the existing Guidelines on Freedom on Peaceful Assembly.

Such document could outline a set of best practices to be followed by OSCE Participating States with regards to freedom of association at the national level(1).

These best practices should include the following:

DEFINITION OF AN ASSOCIATION

An association is the result of a contract concluded for a defined purpose between at least two natural persons or legal entities, regardless of their gender, religion, nationality or political affiliation.

GENERAL PRINCIPLE

Everyone shall have the right, individually or in association with others, and regardless of gender, sexual orientation, religion, ethnicity, nationality or political affiliation, to form, join and participate in associations.

ADMISSIBLE RESTRICTIONS

No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety (incl. transparency), public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Any restriction imposed shall comply with the principle of proportionality. In other words:

- such measure shall be taken only to avoid a real - and not only hypothetical - threat to national security and to the democratic order;

- such measure shall be taken only if less draconian measures would be insufficient to avoid a real danger;

- any such measure shall be meticulously balanced and assessed in the light of the consequences it may have on the members of an association.

REGISTRATION

It should be permissible for individuals to join together to engage in lawful activities without having to register as legal entities, in accordance with the provisions of Article 22 of the International Covenant on Civil and Political Rights and Article 5 of the Declaration of human rights defenders, if they so wish.

States should not criminalise or impose criminal penalties for activities in defence of human rights or for participating in unregistered entities.

During the drafting process of a law governing freedom of association, the civil society should be duly consulted at the various stages on the process and the content of the bill.

Laws governing the creation, registration and functioning of civil society organisations should be written and should set up clear, consistent and simple criteria to register or to incorporate a civil society organisation as a legal person.

Non-governmental organisations that meet all administrative criteria should be immediately able to register as legal entities.

States should ensure that existing laws and regulations are applied in an independent, transparent and less burdensome or lengthy manner in order to avoid restricting the right to freedom of association.

States must ensure that any restriction regarding the registration of organisations is fully compatible with Article 22 of the International Covenant on Civil and Political Rights (see above on “admissible restrictions”.

The registration process should be prompt and expeditious (e.g. shall not exceed 30 days), easily accessible and inexpensive.

Clear procedures and timelines for Government review of applications should be established. Lengthy, burdensome and overly bureaucratic registration processes affecting effective functioning should be avoided.

States should not impose costs related to the registration process making it difficult for NGOs to maintain their registration or place other provisions on NGOs that cause unsustainable burdens.

The silence of the administrative authority over this time period shall be tantamount to implicit recognition of registration.

Any refusal for registration:

a. shall be notified within a reasonable time, e.g. 30 days
b. shall be duly motivated
c. shall not be based on arbitrary considerations, legislation of exception or any other legislation contrary to international human rights standards
d. shall not be invoked for reasons that go beyond the necessities of a democratic society and beyond the principle of proportionality.

States should guarantee the right of an association to appeal against any refusal of registration. Effective and prompt recourse against any rejection of application and independent judicial review regarding the decisions of the registration authority is necessary to ensure that the laws governing the registration process are not used as obstacles to the right to freedom of association.

Any involuntary termination of an NGO shall be subject to judicial review.
States should put in place a single, publicly accessible registry for civil society organisations. Registration bodies should be independent from the Government and should include representatives of civil society.

Reporting obligations placed on NGOs should be simple, uniform and predictable. Sanctions for the failure of filing reports or complying with other provisions of the law governing civil society organisations should provide for adequate warning being given to the organisation as well as an opportunity to correct such administrative infractions. States should not criminalise non-compliance with the law governing civil society organisations.

The registration and supervisory organs should have the right to examine the books, records and activities of civil society organisations only during ordinary business hours, with adequate advance notice. Such auditing and supervisory powers should not be used arbitrarily and for the harassment or intimidation of organisations. Police and other law enforcement agencies should only conduct raids on offices and confiscate documents or equipment of NGOs when in possession of a valid search warrant or other applicable court authorisation, and allowing the presence of an attorney.

ORGANISATION AND OPERATION

States should not interfere with the internal management and activities of NGOs. The validity of decisions of the management board should not be conditional on the presence of a Government representative at the board meeting.

The supervision and monitoring of NGOs should not be invasive and intrusive. The confidentiality of NGOs’ activities should be duly respected.

States should not unduly restrict the scope of the activities to be undertaken by NGOs, including in particular the right to access and communicate with international bodies, the right to protest and the right to complain and criticise human rights violations committed by the authorities.

FOREIGN NGOs

Foreign NGOs carrying out human rights activities should be subject to the same set of rules that apply to national NGOs; separate registration and operational requirements should be avoided.

ACCESS TO FUNDING

States should ensure and facilitate by law access to funds, including from foreign sources, for the purpose of defending human rights.

States should refrain from restricting the use of funds as long as they comply with the purposes expressly established in the Declaration of promoting and protecting human rights and fundamental freedoms through peaceful means.
States should not to require prior governmental authorisation to apply for or receive funding from abroad.

States should allow access by NGOs to foreign funding, and to restrict such access only in the interest of transparency, and in compliance with generally applicable foreign exchange and customs laws.

States should allow NGOs to engage in all legally acceptable fund-raising activities under the same regulations that apply to other non-profit organisations in general.

Fund-raising through public solicitation methods may require registration with a State organ or independent supervisory organ on equal footing for all non-profit organisations.

States should prohibit extensive scrutiny by tax authorities and abuse of fiscal procedures.

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The contribution of the Observatory can be accessed on the website of the OSCE: https://www.osce.org/odihr/93722?view=conference_documents&display=page_5&arg=93722&author=96976

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(1) Many of the best practices identified below are based on the « Commentary to the Declaration on the Rights and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms », UN Special Rapporteur on the situation of human rights defenders, July 2011.

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