Freedom of Association in EUROPE

Summary report footnotes
[1] The United Kingdom does not have a codified constitution but integrates the provisions of the European Convention on Human Rights (ECHR), including Article 11 protecting freedom of association into domestic law through the Human Rights Act 1998.
[2] Sidiropoulos and others v. Grèce, E.Ct.HR Application No. 57/1997/841/1047, (10/7/1998), par. 40
[3] Austria, Belgium, Cyprus, France, United Kingdom, Netherlands, Greece, Former Yugoslav Republic of Macedonia, Netherlands, Portugal, Slovenia and Switzerland
[4] Moreover, on October 10, 2007, the Committee of Ministers of the Council of Europe has adopted a Recommendation on the legal status of non-governmental organisations in Europe (CM/Rec(2007)14): “This is the first international legal instrument that targets the legislator, the national authorities and the NGOs themselves. It aims to recommend standards to shape legislation and practice vis-à-vis NGOs, as well as the conduct and activities of the NGOs themselves in a democratic society based on the rule of law.” (Please see: Please see: http://www.coe.int/t/e/legal_affairs/legal_co-operation/civil_society/Press%20release.asp#TopOfPage). However, Recommendations are not binding on member States.
[5] Guide de la liberté associative dans le monde, 183 législations analysées, under the supervision of Michel Doucin, La Documentation Française, Paris, 2007, p. 576
[6] Ibid. p. 632 and 678
[7] Ibid. p. 622
[8] Ibid. p. 682
[9] Ibid p. 606
[10] Ibid. p. 692
[11] Ibid. p. 631
[12] Ibid p. 586
[13] The police detention for persons suspected of terrorist acts can last up to 28 days in the United Kingdom (Terrorism Act 2006, Chapter 11, section 23)
[14] This study only focuses on European countries members of the European Union
[15] Sidiropoulos and others v. Greece, supra n.3
[16] United Macedonian Organisation Ilinden – PIRIN and others v. Bulgaria, E.Ct.H.R. application No59489/00 (20 October 2005)
[17] Sidiropoulos and others v. Greece, supra n.3
[18] Zhechev v. Bulgaria, E.Ct.H.R.application No 57045/00 (21 June 2007) concerning the refusal to register the association “Civil Society for Bulgarian Interests, National Dignity, Union and Integration – for Bulgaria”
[19] In its concluding observations concerning Greece, 25/04/2005, the United Nations Human Rights Committee “notes with concern the apparent unwillingness of the Government to allow any private groups or associations to use associational names that include the appellation ‘Turk’ or ‘Macedonian’”(par. 20). In its follow up report on Greece of March 2006, the Commissioner for Human Rights of the Council of Europe expressed concerns about the fact that “it is not possible today in Greece for those who claim they are members of a minority to use any word they wish in the denominations by which they would like to identify themselves collectively, for instance when registering associations. “(CommDH(2006)13 / 29 March 2006 par. 44)
[20] “In the instant case the refusal was not a comprehensive, unconditional one directed against the cultural and practical objectives that the association wished to pursue, but were based solely on the mention, in the memorandum of association, of a specific appellation for the association. It was designed to counteract a particular, albeit only potential, abuse by the association of its status as conferred by registration. It by no means amounted to a denial of the distinctive ethnic and cultural identity of Silesians or to a disregard for the association's primary aim, which was to “awaken and strengthen the national consciousness of Silesians” (Gorzelikand others v. Poland, E.Ct.H.R., application No 44158/98, (17 February 2004) par. 105)
[21] United Communist Party of Turkey v. TurkeyAdmittedly, it cannot be ruled out that a party’s political programme may conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the party’s actions and the positions it defends. In the present case, the TBKP’s programme could hardly have been belied by any practical action it took, since it was dissolved immediately after being formed and accordingly did not even have time to take any action” (United Communist Party of Turkey v. Turkey, application no. 133/1996/752/951, (30/1/1998) par. 58). It was confirmed recently in Bekir-Oustav. Greece, E.Ct.H.R.application No 35151/05 (10 October 2007), the E.Ct H.R. argues that “
[22] CM/Inf/DH(2007)8, 7 February2007
[23] In his follow up report on Bulgaria of 2006, the Human Rights Commissioner of the Council of Europe further recommended to the authorities that “appropriate measures be taken to allow the unrestricted exercise of the right of association by all minorities” (CommDH(2006)6 / 29 March 2006 par. 28)
[24] In Lithuania, the nationality requirement was repealed in 2004 (CM/Monitor(2005)1volIIfinalrevF / 11 October 2005  par. 101) ; similarly Belgium no longer imposes any such requirement following its condemnation by the European Court of Justice on 29 June 1999 (Guide de la liberté associative dans le monde, 183 législations analysées, p. 591, supra n.4)
[25] “Each Party undertakes, […] to guarantee to foreign residents, on the same terms as to its own nationals […]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 their interests. In particular, the right to freedom of association shall imply the right of foreign residents to form local associations of their own for purposes of mutual assistance, maintenance and expression of their cultural identity or defense of their interests in relation to matters falling within the province of the local authority, as well as the right to join any association”
[26] « Todos los extranjeros tendrán el derecho de asociación conforme a las leyes que lo regulan para los españoles y que podrán ejercer cuando obtengan autorización de estancia o residencia en España. » (Ley organica 8/2000, 22 December 2000)
[27] Ángeles López Álvarez, Reflexiones acerca de la Ley Orgánica 8/2000 sobre derechos y libertades de los extranjeros en España y su integración social
[28] “the aliens and immigration legislation has been criticised in a number of quarters on the grounds, amongst others, that the rights of assembly, association, demonstration, joining a trade union and striking are limited to foreigners with a residence permit or leave to stay in Spain. “(Report of the Commissioner for Human Rights of the Council of Europe, March 2005, CommDH(2005)8 / 9 November 2005 par. 76)
[29] For example, France banned the association “Tribu Ka” on a charge of incitement of racial hatred (the association prohibited its meeting to non African people) in 2006 (Guide de la liberté associative dans le monde, mentioned above, p. 622)
[30] Source: http://cm.greekhelsinki.gr
[31] Article 4, S/RES/1267 (1999)
[32] As of 1 March 2007, no less than eleven sanctions committees were active, which were created by Security Council resolutions from 1993 (resolution 751 on Somalia) to 2006 (resolution 1718 on the Democratic People’s Republic of Korea).
[33] Any state can suggest adding an individual on the black list. If none of the 15 members of the Security Council raise any objection within 5 days, sanctions are applied (source : UN Approves Appeals over Terrorism Blacklist, David Crawford, Wall Street Journal, 21 September 2006)
[34] For example, in July 2007, a seven year old child was subjected to a thorough check before taking a plane in Florida as his name was on the American list of dangerous persons on the basis that he had the same name as a man suspected of terrorism. (Source : AP)
[35] In the case of Yusuf et Al Barakaat International Foundation/Council and Commission), T-306/01, of 21 September 2005, the Court of First Instance of the European Communities found that “there is no judicial remedy available to the applicant, the Security Council not having thought it advisable to establish an independent international court responsible for ruling, in law and on the facts, in actions brought against individual decisions taken by the Sanctions Committee. […]In the circumstances of this case, the applicants’ interest in having a court hear their case on its merits is not enough to outweigh the essential public interest in the maintenance of international peace and security in the face of a threat clearly identified by the Security Council in accordance with the Charter of the United Nations”. the Convention could not be interpreted in a manner which would subject the acts and omissions of Contracting Parties which were covered by UNSC Resolutions and occurred prior to or in the course of such missions, To do so would be to interfere with the fulfillment of the UN’s key mission in the field including the effective conduct of its operations” (ECHR, Behrami et Behrami v. France and Saramati v. France, Germany and Norway (n° 78166/01), 31 May2007)Similarly, the European Court on Human Rights recently confirmed that “
[36] As of 15 August 2007, only nine persons have been taken off the list in 6 years; including two associates of Youssef Nada whose case is famous (source : « Pour lutter contre le terrorisme, l’ONU a établi une « liste noire » aux confins du droit », Le Monde, 17 août 2007)
[37] Syméon Karagiannis, in Report of Dick Marty, AS/Jur (2007) 14, 19 March 2007, par. 60
[38] “The inclusion on the list must be subject to a certain number of procedural guarantees. First is the right to be informed.” (Report of Martin Scheinin, Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while countering terrorism A/61/267, para. 38)
[39] “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
[40] “The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty”
[41] The Council adopted on 27 December 2001 a third instrument, the Common Position 2001/930/CFSP on ‘the fight against terrorism’. It contains all the elements of Resolution 1373 (2001)) but does not contain any provision on implementation.
[42] Article 2 paragraph 3 of the Regulation (EC) No 2580/2001 is implemented by the Council’s community Decision 2001/927/EC of 27 December 2001 (see par. 21)
[43] The European Parliament “deplores the choice of a legal basis which falls under the third pillar for the definition of the list of terrorist organisations, thereby excluding all consultation and effective scrutiny both by the national parliaments and by the European Parliament, and also evading the jurisdiction of the Court of Justice [and] regrets that this Common Position, which defines the list of European and non-European terrorist organisations, can be updated at any moment by the Council without any consultation of Parliament”
[44] The list currently in force is the one contained in the Council’s Common Position 2007/448/CFSP of 28 June 2007 (see annex 2).
[45] The Council’s Decision 2007/445/CE of 28 June 2007 is the one currently in force. (See Annex 2).
[46] “The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-à-vis third parties […]Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former”
[47] Article 1 paragraph 4 of the Council’s Common Position (2001/931/CFSP)
[48] Article 4 of Common Position 2001/931/CFSP: “Member States shall, through police and judicial cooperation in criminal matters within the framework of Title VI of the Treaty on European Union, afford each other the widest possible assistance in preventing and combating terrorist acts. To that end they shall, with respect to enquiries and proceedings conducted by their authorities in respect of any of the persons, groups and entities listed in the Annex, fully exploit, upon request, their existing powers in accordance with acts of the European Union and other international agreements, arrangements and conventions which are binding upon Member States.”
[49] Applications No 6422/02 and No. 9916/02                                                                                         
[50] Jugement T-333/02 7 June 2004; confirmed by ECJ 27 February 2007, case C-354/04 P.
[51] It seems to be different for non-European associations since they come under article 2 and 3 of the Common Position 2001/931/CFSPrelating to the freezing of funds, which affects the free movement of capital, a Community matter
[52] Source:EU’s secretive counter-terror group to face scrutiny (EUobserver.com)
[53] It seems like a new procedure is currently ongoing (See document (10826/1/07 REV1) of the UE Council of 21 June 2007, which is, as of recently, considered as confidential)
[54] Since 29 June 2007, The Council gives “a statement of reasons […] for each person or entity subject to an asset freeze”, doc. 11309/07)
[55] Mr. Sison, former chairman of the Philippines’ Communist Party, which military wing NPA is on the European blacklist of associations suspected of terrorism, who resides in the Netherlands, was protesting the fact that his social insurance had been suspended and his bank account frozen
[56] In these two Cases, the Court notes that “certain fundamental rights and safeguards, especially the rights of the defence and the right to effective judicial protection, and also the obligation to state reasons, are in principle fully applicable to the adoption of a Community decision freezing funds pursuant to regulation 2580/2001. [In this case] those rights and safeguards were not respected by the Council in its adoption of the contested decisions. Reasons were not given for those decisions, which were adopted in the context of procedures in which the rights of the defence of the persons concerned were not observed and the Court itself was unable to review the lawfulness of those decisions […] The Court concludes that the contested decisions must be annulled » (Press Release 47/07, Judgements of the Court of First Instance in cases T-47/03 and T-327/03)
[57] Annual Report of the Committee of Vigilance in the Fight against Terrorism (Committee T) – year 2006, p. 21
[58] Terms used by Denis Bosquet about the outcome of the judgement of first instance, « Analyse de la première décision de justice rendue sur base de la loi belge du 27 décembre 2005, portant sur les modes d’investigation dans la lutte contre le terrorisme et la criminalité grave et organisée », p. 5
[59] “A person commits an offence if : (a) he publishes a statement to which this section applies or causes another to publish such a statement; and b) at the time he publishes it or causes it to be published, he (i) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate acts of terrorism or Convention offences; or (ii) is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate such acts or offences.” (Part 1 - Terrorism Act 2006)
[60] Two of the associations prohibited under the Terrorism Act 2000, are accused of ‘incitement to terrorism’, as provided for by the Terrorism Act 2006 (Al Gurabaa and Saved Sect or Saviour Sect)
[61] “In United Kingdom, the proscribed organisation or any person affected by the organisation’s proscription may apply to the Secretary of State to remove the organisation from the list. Proscribed organisations can at any time make an application to the Secretary of State for de-proscription.  Should an application be unsuccessful, the organisation or any person affected by their proscription can then appeal to the Proscribed Organisations Appeal Commission (POAC), set up under section 5 and schedule 3 of the Terrorism Act 2000. A party to that appeal may bring a further appeal to the Court of Appeal on a question of law with the permission of the Commission or the Court of Appeal. There may also be an appeal on a question of law in connection with proceedings brought before the Commission under the Human Rights Act 1998, by virtue of section 6(1) of the Terrorism Act 2000 as applied by section 9 of that Act.”
[62] In the United Kingdom and Denmark, controversy has surrounded the proposed prohibition of the organisation Hizb ut-Tahrir, a radical association created over 50 years ago with members throughout the Muslim world, the organisation seeks to establish an Islamic society in the Middle East.. Germany dissolved the association after 11 September 2001, considering that it was an Islamic movement seeking the destruction of Israel. Politicians in the United Kingdom have attempted several times to have the association proscribed but at time of writing it remains a lawful entity.
[63] Cour de Cassation (chambre criminelle), Amaya Recarte, 08/07/2004
[64] Amnesty International report, AI Index: IOR 61/013/2005, “Counter-terrorism and criminal law in the EU”, p.16
[65] The association Greenpeace Belgium is currently subject to a complaint for ‘criminal conspiracy’ for having demonstrated (peacefully) against Electrabel facilities at the end of December 2006.
[66] A case in point rose after Bahar Kimyongür was accused of being the chief of a terrorist and criminal organisation theRevolutionary People's Liberation Army/Front/Party (DHKP/C), an association which appears on the European Union’s ‘blacklist’ and which, although it is engaged in armed struggled in Turkey, has never resorted to violence in another State. Bahar Kimyongür claims sympathy towards DHKP-C without being a member of it (according to him, he simply “collaborated to the information office close to this organisation as a translator and attaché”), but the Belgian Court of Appeal of Gand gave him the quality of “head of a terrorist and criminal organisation without consideration for the nature of its daily occupations which could be legal. Indeeda perfectly legal activity can constitute a terrorist crime, particularly when in carrying out such activity one participate in any way to terrorist activities, be it through the provision of data or material means to a terrorist group, or by giving any source of funding to any terrorist activity, when the person is aware that his/her participation contributes to crimes being committed by a terrorist group”. On 19 April 2007, the Belgian Court of Cassation quashed the decision of the Court of Appeal of Gand, which had sentenced Bahar Kimyongür to five years imprisonment.
[67] Sidiropoulos and others v. Greece supra n.3, par. 40
[68] For instance, the Convention of the Council of Europe for the Prevention of Terrorism of 16 May 2005, STCE no. 196, which entered into force on 1 June 2007, affirms already in its preamble (as well as in its article 12) that the Convention “is not intended to affect established principles relating to freedom of expression and freedom of association.” Similarly, the EU reference text, the Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA), specifies in its preamble « Nothing in this Framework Decision may be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as the right to strike, freedom of assembly, of association or of expression, including the right of everyone to form and to join trade unions with others for the protection of his or her interests and the related right to demonstrate. »
[69] See article 1, paragraph 4 : “In this Act “control order” means an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism […] Those obligations may include, in particular […] a restriction on his association or communications with specified persons or with other persons generally”
[70] Section 1 par. 9 Prevention Terrorism Act 2005  “(a) the commission, preparation or instigation of acts of terrorism; (b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so; (c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so; (d) conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity; and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally.” Section 1 par. 9 Prevention Terrorism Act 2005
[71] CaseSecretary of State for Home Department vs JJ; KK; GG; HH; NN; & LL, No. T1/2006/9502, 1 August 2006
[72] Zana v. Turquie, E,Ct.H.R., Application 18954/91 (25 November 1997), par. 55
[73] In his report of 5 June 2007, the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Intolerance Mr. Doudou Diène, mentions that: “the Head of the Appeals Prosecutor’s Office stated during a radio interview that all Roma were criminals and announced that “perpetrators, instigators and accomplices” of Roma people who had helped them in a case concerning the alleged forced expulsion of Roma families in the Makrigianni area of Patras would be “called on to take the stand”, specifically including among this group representatives of Greek Helsinki Monitor.” (A/HRC/4/19/Add.1, p. 18)
[74] Ouranio Toxo v. Greece, E.Ct.H.R. Application No 74989/01 (20 October 2005)par. 40
[75] Handyside v. United Kingdom 1976 1 EHRR 737
[76] In Slovakia, law 300/2005 on the offence of defamation entered into force on 1 January 2006. The offence is punishable by a prison sentence (Guide de la liberté associative dans le monde, mentioned above, p. 686)
[77] In Greece, in July 2007, a new broadcasting law has issued that speaking language in radio broadcasting shall dominantly and preferentially be in Greek; which can be interpreted as limitation on freedom of media and expression (OSCE document, HDIM.NGO/135/07, 26 September 2007)
[78] Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, E.Ct.H.R., Applications No 29221/95 and 29225/95 (2 October 2001), par. 97
[79] ECHR, Baczkowski and others v. Poland, application No 1543/06, 3 May 2007, par. 64
[80] See in particular the follow-up report of the Commissioner for Human Rights of the Council of Europe (CommDH(2007)13 / 20 June 2007, par. 51 s.) and the report by the Special Representative of the UN Secretary General on Human Rights Defenders, 22/3/2006, E/CN.4/2006/95/Add.1, p. 188.
[81] Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Netherlands, Luxembourg, Portugal, Spain, Sweden, United Kingdom and the European Commission
[82] The Interpretative Note to the Special Recommendation (30 May 2007) states that in order to prevent misuse of NPOs by terrorists, the only ‘effective’ approach is one that ‘involves’ no less than four elements “a) Outreach to the [NPO] sector [on the issue of financing of terrorism] b) supervision or monitoring, c) effective investigation and information gathering and d) effective mechanisms for international co-operation’.
[83] In 2006, for instance, FATF was happy to say that Special Recommendation VIII is ‘fully respected’ in Italy, where “The Bank of Italia has issued operating guidelines regarding nonprofit organizations in July 2003 which require all financial intermediaries to pay special attention to the quality of associates, the beneficiaries and country of destination of donations as well as to possible inconsistencies between transactions and the subjective profile of the client. It also recalls the obligation to immediately declare all suspicious transactions to the UIC. In addition, NPOs are subject to the general obligation to transfer funds through authorized financial intermediaries for all transfers of €12,500 and more and to the obligation to declare cross-border transfers.” (FATF, mutual evaluation programme, report of Italy, 2006, p. 92)
[84] COM/2005/0620 final
[85] On the adoption of the code of conduct, see the observations of the Swedish section of the International Commission of Jurists (25 August 2005) or the observations of the AEDH (15 September 2005)
[86] Article 3 of order 66-388 of 13 June 1966
[87] Article 114 A : “the person, or group of person, who, directly, or indirectly, provide an economical support or transport or collect funds or make available funds to one of the person who execute or prepare to execute one of the action listed in article 114 [which defines terrorism] is punish to imprisonment up to 10 years”
[88] Please see: http://www.djoef.dk/online/?MIval=view_artikel&&action_ID=3&ID=1708 (Only in Danish)
[89] This was reiterated in note No NOR/INT/A/04/00089/C of the Interior Ministry, 19 July 2004
[90] Statement by Dominique de Villepin, Former French Prime Minister, 20 March 2005