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Joint Guidelines on Freedom of Association

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Joint Guidelines on Freedom of Association Strasbourg, Warsaw, 17 December 2014 CDL-AD(2014)046 Or. Engl. Study no. 706/2012 OSCE/ODIHR Legis-Nr: GDL-FOASS/263/2014 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) OSCE OFFICE FOR DEMOCRATIC INSTITUTIONS AND HUMAN RIGHTS (OSCE/ODIHR) JOINT GUIDELINES ON FREEDOM OF ASSOCIATION Adopted by the Venice Commission at its 101st Plenary Session (Venice, 12-13 December 2014) This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int - 2 - CDL-AD(2014)046 Published by the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) Miodowa 10 00-557 Warsaw Poland www.osce.org/odihr © OSCE/ODIHR 2015 ISBN 978-92-9234-906-6 All rights reserved. The contents of this publication may be freely used and copied for educational and other non- commercial purposes, provided that any such reproduction is accompanied by an acknowledgement of ODIHR as the source. Cover and interior designed by Nona Reuter Printed in Poland by Poligrafus Jacek Adamiak - 3 - CDL-AD(2014)046 TABLE OF CONTENTS FOREWORD 5 WORK OF THE OSCE/ODIHR AND THE VENICE COMMISSION ON LEGISLATIVE SUPPORT 6 ACKNOWLEDGMENTS 7 INTRODUCTION 8 SECTION A: THE RIGHT TO FREEDOM OF ASSOCIATION 10 Introduction 10 Definition of associations ................................................................................................................... 12 Importance of associations ............................................................................................................... 12 Fundamental rights of associations .................................................................................................. 15 Importance of well drafted legislation and an enabling environment ............................................... 15 SECTION B: GUIDELINES ON LEGISLATION PERTAINING TO THE RIGHT TO FREEDOM OF ASSOCIATION 17 Guiding principles 17 Principle 1: Presumption in favour of the lawful formation, objectives and activities of associations17 Principle 2: The state’s duty to respect, protect and facilitate the exercise of the right to freedom of association 17 Principle 3: Freedom of establishment and membership 17 Principle 4: Freedom to determine objectives and activities, including the scope of operations 17 Principle 5: Equal treatment and non-discrimination 17 Principle 6: Freedom of expression and opinion 18 Principle 7: Freedom to seek, receive and use resources 18 Principle 8: Good administration of legislation, policies and practices concerning associations 18 Principle 9: Legality and legitimacy of restrictions 18 Principle 10: Proportionality of restrictions 19 Principle 11: Right to an effective remedy for the violation of rights 19 SECTION C: INTERPRETATIVE NOTES 19 Introduction 19 Definition of “association” 19 Legal Framework 22 Specific Types of Associations 22 SUBSECTION 1 - GUIDING PRINCIPLES 26 - 4 - CDL-AD(2014)046 SUBSECTION 2 - THE REGULATORY FRAMEWORK ON ASSOCIATIONS 37 A. Equal treatment and non-discrimination 37 B. Formation, legal personality and registration 45 C. Membership, internal management, objectives and activities 51 D. Participation in decision-making processes and property, income and assets 54 E. State support and access to other resources 56 F. Accountability, supervision and supervisory authorities 62 G. Liability and sanctions 65 H. Termination, prohibition and dissolution, and access to justice 66 I. Associations and new technologies 70 A N N E X E S 74 Annex A – Selected International and Regional Instruments 74 Annex B – Selected International and Regional Case Law 86 Annex C – Selected Reference Documents 91 Annex D – English-Russian Glossary of Key Terms for the Purposes of these Guidelines 94 - 5 - CDL-AD(2014)046 FOREWORD Freedom of association is a fundamental human right that is crucial to the functioning of a democracy and an essential condition for the exercise of other human rights. Associations play an important role in achieving goals that are in the public interest, and are essential actors in supporting the protection of human rights and implementation of OSCE human dimension commitments. The right to freedom of association is guaranteed by major international human rights treaties, including the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms, and is firmly rooted in OSCE human dimension commitments. These documents highlight that all associations, including interest groups, trade unions and political parties, are crucial elements of a democratic state. Given the importance of associations, it is vital that the role and functioning of associations and the right to freedom of association be effectively facilitated and protected in states’ laws and regulations. Legislation regulating the exercise of this important right varies substantially across the OSCE area, and there is little guidance available to legislators to translate international human rights standards into domestic laws. These guidelines aim to offer such guidance. The OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the Council of Europe’s Commission for Democracy through Law (Venice Commission) provide legislative support to OSCE participating States and Venice Commission member states to assist them in their efforts to make their legislation, including on freedom of association, compliant with international standards and OSCE commitments. Jointly developed by ODIHR and the Venice Commission, these Guidelines on Freedom of Association draw on the long-standing and in- depth expertise of both organizations in providing advice to individual states on their national legislation. As such, these Guidelines represent an additional, comprehensive tool for legislators, providing further assistance and guidance on implementing the right to freedom of association. The Guidelines aim to ensure that legislation is drafted with the purpose of promoting the establishment and existence of associations, enabling their operation and facilitating their aims and activities. While there is no one-size-fits-all solution, this document sets out a clear minimum baseline in relation to international standards, thereby establishing a threshold that must be met by national authorities. The Guidelines are primarily, but not exclusively, intended for use by legislators tasked with drafting laws that regulate or affect associations. They are also intended to serve public authorities, the judiciary, legal practitioners, academics and others concerned with the exercise of the right to freedom of association, including associations, their members, human rights defenders and the general public. It is our hope that these Guidelines will be a useful source of information and will provide their users with practical, hands-on advice on how to make legislation and practices regulating freedom of association compliant with international human rights standards and OSCE commitments. The Guidelines are intended as a living instrument that will benefit from further input by its users. Only in this way will the Guidelines continue to develop and adapt to changing circumstances. Michael Georg Link Gianni Buquicchio Director President OSCE Office for Democratic Institutions Venice Commission and Human Rights (ODIHR) of the Council of Europe - 6 - CDL-AD(2014)046 WORK OF THE OSCE/ODIHR AND THE VENICE COMMISSION ON LEGISLATIVE SUPPORT ODIHR’s primary task in the field of legislative assistance is to support legal reform in OSCE participating States by reviewing, upon request, draft and existing legislation in areas covered by the human dimension to ensure compliance with international human rights standards and OSCE commitments. ODIHR also provides states with examples of good practices and sound legislative options that have been culled from years of experience of working with a number of countries. Such practices and sample legislation may serve as a source of inspiration for lawmakers in other parts of the OSCE region. Additionally, ODIHR analyses lawmaking procedures to ensure that they are inclusive and transparent, in line with key OSCE commitments requiring that “legislation will be formulated and adopted as the result of an open process reflecting the will of the people” (Moscow Document, 1991). With regard to legislative assistance, OSCE/ODIHR’s advice is solicited via an official request from the authorities of the participating State in question or the respective OSCE field operation. It is provided in the form of legal reviews (opinions or comments) prepared by ODIHR staff in co-operation with in-house and external experts. Once an opinion or comment is completed and sent out, it is uploaded onto ODIHR’s online legislative database, Legislationline.org. Further, if the authorities of the participating State deem it necessary, ODIHR staff and experts then travel to events and meetings in the respective states to discuss the findings and recommendations of the opinions or comments to ensure that they are taken into consideration during legislative processes. For more information on the legislative assistance provided by ODIHR, see the “Legislative support” section of the ODIHR website: http://www.osce.org/ odihr/108503. For ODIHR’s free online legislative database, LegislatiOnline.org, see: www.legislationline.org. The Venice Commission provides legislative assistance by offering impartial legal advice to individual countries engaged in drafting or revising constitutions or laws on legislation that are relevant
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