T'R'N'C DRAFT LAW ON ASSOCIATIONS AND THE ECHR

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T.R.N.C DRAFT LAW ON ASSOCIATIONS AND THE ECHR

• Dr. DRAGAN GOLUBOVIC
• ECNL, BUDAPEST

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FREEDOM OF ASSOCIATION AND ECHR

• 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..

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ARTICLE 11 OF ECHR OBLIGATION OF THE STATE

• PRIMARY OBLIGATION OF THE STATE NEGATIVE ONE
  NOT TO INTERFERE WITH THE FREEDOM OF ASSOCIATION.
  
• IN SOME INSTANCES THE STATE ALSO HAS POSITIVE
  OBLIGATION TO INTERFERE IN ORDER TO PROTECT THE
  FREEDOM OF ASSOCIATION (e.g., to afford legal
  protection to a member whose membership rights in
  an association have been violated).
• ALL EUROPEAN COUNTRIES SIGNATORIES TO THE
  CONVENTION (SAVE FOR BELARUS).

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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.

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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.

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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.

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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 (PRESSING SOCIAL NEEDS
  /PROPORTIONALITY TEST).

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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 COUNTRIES
• BEST 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).

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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.
• Excessive government authority to supervise CSOs.
• Restrictions on use of property.
• Restrictions on advocacy activities.

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T.R.N.C. DRAFT LAW ON ASSOCIATIONS

• 1) FREEDOM OF ASSOCIATIONS GURANTEREED TO TRNC
  NATIONALS ONLY
• ECHR OBLIGATION OF A STATE TO GUARNATEE FREEDOM
  OF ASSOCIATION TO EVERYONE WITHIN ITS
  JURISDICTION (PERCEIVED LEGAL NEXUS BETWEEN AN
  INDIVIDUAL AND A STATE FOREIGNERS RESIDING IN
  TRNC, PERSONS WITH NO CITIZENSHIP, REFUGEES,
  ETC).

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T.R.N.C. DRAFT LAW ON ASSOCIATIONS

• 2) SUPERVISION OF AN ASSOCIATON
• LEVEL OF SCRUTINY DEPENDS ON A NUMBER OF FACTORS
  
• THE LEGAL STATUS OF AN ASSOCIATION (FORMAL OR
  INFORMAL).
• THE GOAL OF AN ASSOCIATION ASSOCIATIONS ENGAGED
  IN PUBLIC BENEFIT GOALS SUBJECT TO A GREATER
  DEGREE OF SCRUTINY (TRADE OFF FOR CORRESPONDING
  TAX AND OTHER BENEFITS).
• RIGHT TO PRIVACY OF AN ASSOCIATION MUST BE
  OBSERVED WHEN CARRYING AN INSPECTION IN ITS
  PREMISES.
• AS ASSOCIATION SHOULD BE GIVEN PRIOR NOTICE FOR
  INSPECTION SO THAT IT CAN PREPARE ALL DOCUMENTS
  NECESSARY RENSOME CHECKING AN EXCEPTION THAT
  MUST BE JUSTIFIED WITH SOUND REASONS.

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T.R.N.C. DRAFT LAW ON ASSOCIATIONS

• 3) GROUNDS FOR DISSOLUTION
• MUST BE PRESCRIBED ONLY FOR THE MOST EGREGIOUS
  BREACHES OF LAW, WRITTEN IN A PRECISE LANGUAGE
  AND MEET THE PROPORTIONALITY TEST.
• ANY OFFENSE MAY NOT LEAD TO TERMINATION OF AN
  ASSOCIATION!

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T.R.N.C. DRAFT LAW ON ASSOCIATIONS

• 4) FEDERATION AND CONFEDERATION
• USUALLY THIS ISSUE IS LEFT OUT OF LAW IT IS
  REGARDED AN ASSOCIATIONS INTERNAL AFFAIRS
  (CHEALL V. UNITED KINGDOM).

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Contact information

• Apaczai Csere Janos u.17, 1st floor,
• Budapest 1052,Hungary
• phone [phone]
• fax [phone]  
• www.icnl.org/ecnl
• Email dragan_at_ecnl.org.hu