baku_book.qxd 2003. 01. 21. 15:51 Page 5

A CKNOWLEDGMENTS

Enabling : Practical Aspects of of Association, A Source Book is a compila- tion of the work of many. It is a collection of writings that address issues critical to the growth and development of civil society and non-governmental organizations (NGOs), together with a selection of related , court decisions, and interpretive materials. It is the hope of the Public Interest Initiative (PILI) and the Open Society Institute–Assis- tance Foundation (OSI-AF) that this volume can serve as a useful resource for NGOs and others in dealing with challenges undermining the growth and development of NGOs and the wider civil society. The Source Book grew out of a roundtable discussion in early 2002 organized by PILI and OSI-AF, with support from the Council of Europe. That meeting brought together over fifty NGO, , and international participants in Baku, Azerbaijan, to discuss “The Development of Civil Society in Azerbaijan: Practical Aspects of Freedom of Asso- ciation.” The constructive discussion that occurred informed the preparation of the Source Book. We would like to thank the Council of Europe for its support of the meeting and more generally, acknowledge its very useful work on issues in Azer- baijan. The Source Book has been prepared by Columbia University’s PILI in close cooperation with OSI-Azerbaijan. The effort was led by Edwin Rekosh, the Executive Director of PILI, with assistance from Patricia Armstrong and Jeremy McBride, consultants to PILI, and Linda S. Schmidt, a student at Columbia University School of Law. Farda Asadov, the Exec- utive Director, and Fuad Suleymanov, the Law Coordinator in the Civil Society Department, led the OSI-AF contribution. For their cooperation with this project and for their contributions to the Source Book, we would like to thank the International Center for Not-for-Profit Law, the Central Euro- pean and Eurasian Law Initiative of the American Bar Association, the Access Initiative, the Open Society Institute (New York), Oxfam-GB, and INTERIGHTS, as well as Sabit A. Bagirov, Alan Fowler, Annagi Hajiev, Mick Moore, and Sheelagh Stewart. We are grate- ful to them all. baku_book.qxd 2003. 01. 21. 15:51 Page 6

Finally, the Government of Azerbaijan participated in the discussions that led to the Source Book and we want to acknowledge its willingness to consider seriously greater open- ness for Azerbaijan’s third sector. Only with such openness can civil society and NGOs be full, engaged and constructive participants in development in Azerbaijan. PILI is grateful for the generous support for the Source Book by the Open Society Insti- tute, Budapest, and OSI-AF. baku_book.qxd 2003. 01. 21. 15:51 Page 1

I NTRODUCTION

The development of civil society has been itive steps, the effective practice of freedom one of the hallmarks of the post-commu- of association has often not followed legal nist period. But the relationship between developments. Although legislation and civil society and government in this process international commitments provide a basis has often been difficult, particularly given a for the realization of guarantees, now it is history of government neglect and hin- important to focus on implementation and drance of civil society, and its innate suspi- enforcement of law to ensure that freedom cions about the objectives and intentions of of association is respected, protected, and an independent sector. At the heart of the fulfilled. existence of an active civil society is free- In many countries, non-governmental dom of association—the ability of citizens organizations (NGOs), a key part of civil to interact and organize with and among society, face obstacles in conducting even one another for any purposes that are not the most basic of affairs. Restrictions in illegal and do not infringe on the of acquiring legal personality, securing finan- others. have an obligation to cial support, and operating independently allow citizens to exercise this right, be it for- are among the important factors limiting mally or informally, and to facilitate that their ability to make constructive contribu- exercise, with restrictions limited to those tions to national development and growth. needed to protect individual rights, public And suspicions and mutual distrust order, or public health, to ensure national between governments and NGOs have security, or to prevent criminal activity. resulted in the formulation of laws, policies, Associational rights require the conver- and procedures without the participation of gence of supportive laws, institutions, and the NGOs that are affected. (A description practices in order to find meaningful exer- of the foundations necessary for civic life cise. Over the last decade, many countries and effectiveness by Alan Fowler is con- have ratified international treaties, adopted tained in an accompanying sidebar.) new national laws, and undertaken institu- Ways must be found for government tional reforms. Notwithstanding these pos- and civil society to work together to imple-

1 baku_book.qxd 2003. 01. 21. 15:51 Page 2

ment legal commitments and thereby the reason for giving so much attention to enhance the ability of civil society to make civil society and NGOs, as well as the value positive contributions to economic and of a supportive environment that enables social development in the country. We hope their growth and development—including that Enabling Civil Society: Practical Aspects of such matters as tax policy, the internal Freedom of Association, A Source Book, can be NGO governance, , and a resource in these efforts. Chapter 1, using accountability, and voluntary self-regula- Azerbaijan as a case study, identifies key tion. In chapter 5, excerpts of key interna- legal and practical challenges and obstacles tional laws and court decisions are provid- facing NGOs and their contributions to ed for further reference. economic, social, and political development While we hope that the Source Book will in a post-communist society. Chapter 2 out- be a useful resource for NGOs and gov- lines relevant , with a par- ernment officials alike, the development of ticular focus on European standards. Chap- civil society is fundamentally an issue for ter 3 highlights a number of key challenges each particular government and all of its to the full realization of freedom of asso- citizens. Solutions to existing problems and ciation, which also encompasses public challenges, whether due to failures in law or advocacy and freedom of expression; par- in practice, will be effective only if they are ticipation and access to information; and appropriate to local circumstances and the importance of the existence of an inde- developed by those who must live with pendent judiciary. Chapter 4 reminds us of them.

ARCIN: THE FOUNDATIONS FOR CIVIC LIFE AND EFFECTIVENESS By Alan Fowler*

The foundations for civic life and effectiveness of Civil Society Organisations (CSOs)– to whatever end— can be encapsulated in the following five terms. They can be regarded as nec- essary conditions for civic evolution, capacity, viability, and contribution or obstacle to devel- opment.

2 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 3

Association [A] Resource mobilisation [R] Communication [C] Information [I] Negotiation [N]

Suggestions are made below for “boundary determining” questions related to each of these factors. Together, the answers establish the operational scenario from which enabling strate- gies can be considered. Where appropriate, answers can and should be posed, and disaggre- gated, in terms of member and third-party serving CSOs, gender, stratification by econom- ic status, and division by identity (caste, clan, ethnicity, , language, etc.). Factor A – Association: Is peoples’ associational life spontaneous and free both formally and informally? Or is it highly circumscribed and typically subject to political and security vet- ting or strong social control? High or Low “A”. How is associational life distributed over dif- ferent social groups? Are second and third order organisations to be found? For what groups and purposes? What is the source, or sources, of associational constraint: lack of political tol- erance and space, legal restrictions, administrative obstacles, costs, social norms? Who holds power over limiting conditions? Factor R - Resource mobilisation: Do people have the time, energy, materials, assets, financial surplus and mobilisation skills required for viable civic association and continuous creation of benefits? High or Low “R”. How reliant are CSOs on “external” — as opposed to self-generated and controlled—resources to continue to function? How autonomous is their resource base from government? What is the primary constraint: legal restrictions, lack of economic potential or disposable surplus, no cultural pre-disposition towards private phil- anthropy, inadequate financial infrastructure? Factor C - Communication: Is communication easy, free, intense and low cost or dif- ficult, restricted, and costly? High or Low “C”. How wide ranging can and do people com- municate and learn about the ‘necessities’ of others? How intense are urban-rural linkages for what purposes? What is the major constraint? Poor physical infrastructure making trav- el and access difficult, gender differentiated cultural restrictions limiting communication by and to women, technology limitations or cost, significant language differences and barriers?

INTRODUCTION • 3 baku_book.qxd 2003. 01. 21. 15:51 Page 4

Factor I - Information: Is access to information, particularly about the public domain, accessible, plentiful and suitable for non-literate as well as literate users? Or is it inaccessible, censored and controlled? High or Low “I”. how important is for access? What is the major constraint? Government disclosure, media density, variety, monopoly ownership? Factor N - Negotiation: Are there well functioning and well known ways for civic inter- ests to be continuously expressed, claims to be made, rights asserted and differences negoti- ated within civil society as well as with government and ? Are conventions in place that reflect trust and inclusiveness? Are there known institutionalised mechanisms or respect- ed “places” for dialogue within and between civil society and other sectors? High or Low “N”. What is the major constraint? Government aversion, deep social fractures and mistrust, lack of civic capacity to articulate and present interests?

*From “Enabling Environments for Civil Society with Particular Attention to Poor People and Poverty Reduc- tion Strategies”, 55-61, 19 June, 2000, prepared for an October 2000 seminar entitled Enabling Environment, Legal Dimensions, organized by the World Bank, CIVICUS and the Institute for Social Studies (Netherlands).

4 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 5

One A C ASE S TUDY: C IVIL S OCIETY IN A ZERBAIJAN

“[N]on-governmental organisations make an essential contribution to the development, realisation and continued survival of democratic societies, in particular through the pro- motion of public awareness and the participatory involvement of citizens in the res pub- lica, and they make an equally important contribution to the cultural life and social well- being of such societies. . . .” (Preamble, Council of Europe’s Fundamental Principles on the Status of Non-Governmental Organizations in Europe)

The growth of civil society, or the “third The experience of NGOs in Azerbaijan sector,” is one of the most remarkable raises issues and problems that are not phenomena growing out of the end of the uncommon to many post-communist Cold War. The importance of this devel- countries. Key legal foundations for the opment has been recognized and wel- growth of civil society in Azerbaijan have comed by international organizations, gov- been created: the of Azerbai- ernments, funding organizations, and citi- jan, as well as key international treaties, zens worldwide, and efforts have been guarantees freedom of association and made to create and enhance laws, policies, expression. Yet the rule of and the and institutions to encourage and support rule of discretion often undermine the rule this growth. There are many factors neces- of law. And in many cases, the government sary to enable civil society and permit it to has been unwilling or unable to enforce be effective. Key among them is the free- uniformly existing laws regulating NGOs. dom of individuals to associate with one Decisions can be taken by government another and express their views without officials in an arbitrary and sometimes fear of government interference or retri- capricious manner. Thus, implementation bution; they also must have the ability to of the legal foundation has been seriously create and sustain a formal organized exis- undermined. Concerns about obstacles to tence if that is desired. the growth of the third sector in Azerbai-

5 baku_book.qxd 2003. 01. 21. 15:51 Page 6

jan are reflected in some of the conditions country’s laws, while the involvement of placed on Azerbaijan’s accession to the citizens in the process of governing has Council of Europe. various forms and is in various degrees. This chapter explores key impediments The latter is based on a basic right of citi- to the development of NGOs in Azerbai- zens to elect and to be elected. By exercis- jan and examines issues that present par- ing their right to elect, citizens directly and ticular problems for NGOs — the acqui- indirectly appoint governors at different sition of a legal personality and political levels. And the right to be elected enables activism. A sidebar considers the distinc- citizens to participate in governance deci- tion, and its significance, between informal sions ranging from the level of a district and formal legal status for NGOs. community to the national government. We hasten to note that conditions relat- One measure of the extent of civil soci- ed to NGOs in Azerbaijan are changing ety development in a country is the extent and there is hope that new laws, for exam- to which people appreciate and exercise ple, regarding registration, will serve as a their rights—this ensures their involve- means for greater openness. Such changes ment in the process of governance and can unleash the energy of civil society to keeps them aware of their responsibilities tackle problems and increase its ability to to adhere to the existing legislation. make constructive contributions to nation- But how can this level of appreciation al growth and development. and the use of rights by citizens be mea- sured? There may come a time when pre- 1.1 T O CIVIL COCIETY THROUGH cise indicators or methodologies for calcu- THE DEVELOPMENT OF PUBLIC lating it exist, but without such a formula, ASSOCIATIONS we must be content with whatever is avail- By Sabit A. Bagirov* able. Among the inexact indices that are often used are the voter turnout in differ- The great Aristotle has said a famous ent local or nationwide representational or phrase: “A fully fledged citizen is someone executive elections, the number of public involved both in the process of gover- associations—non-governmental organi- nance and in the process of being gov- zations (NGOs)—per 1,000 residents, the erned.” In the modern world, the involve- division of responsibilities between local ment of citizens in the process of being and central power, the overall value of all governed means their observance of the projects being implemented by NGOs dur-

6 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 7

ing the year, etc. An analysis of these direct ernment. In advanced countries we and indirect indices of citizen involvement observe the of power, in in the process of governance in a given which some governmental functions are country is certainly a huge interest for transferred to various public associations. social scientists, politicians, and sociolo- But it must be acknowledged that this sit- gists and, beyond doubt, is worth dis- uation can hardly be compared to, figura- cussing in greater detail. But today’s con- tively speaking, a one-way street. This, in ference is dedicated to the analysis of fact, is a two-way street, where decentral- NGO development problems. Therefore, I ization not only takes place at the initiative would like to share with you some of my of those in government, but is also due to personal observations and conclusions that the effort of those being governed, when I have made over more than six years of citizens and their associations themselves work in the third sector. succeed in taking over certain tasks or I would like to cover the following functions after seeing the helplessness and questions concerning the problems of futility of the authorities’ actions. If an NGO development in Azerbaijan: the level assessment was made of the importance of of NGO development, the assessment of this factor in Azerbaijan, which I would NGO development, and the factors that describe as the factor of information, I impede NGO development. think there are reasons to say that both the So, what conditions affect NGO devel- government and NGOs in our country are opment in Azerbaijan? It seems that there not yet sufficiently active to meet the are several factors that are relevant. Some requirements of society. are the same for groups in both transition- Factors specific to NGO development al and developed countries. Other factors in transitional countries, and particularly are more characteristic of countries in tran- those that used to be part of the former sition. USSR, include the complicated processes Among the factors having wide appli- of economic transformation, integration cation in both developed and underdevel- with a new world economic relationship, oped countries is the considerable increase and new methods of governance. These in the volume of information that needs to difficulties make everyone keep learning in be considered before certain governance- the process of transformation, no matter related decisions are made, and the high whether it is the government or the citizens cost of inaccuracy of this information of these countries. In fact, the process of leading to greater responsibility of the gov- learning is often based on one’s own mis-

A CASE STUDY: CIVIL SOCIETY IN AZERBAIJAN • 7 baku_book.qxd 2003. 01. 21. 15:51 Page 8

takes. In addition, governments consist of area. Thus, quite often, when we try to different individuals with their own ambi- assess an NGO development in our coun- tions and interests, and quite often these try, we compare our numbers to those in ambitions and interests do not correspond other countries. Namely, comparisons are with the national interests of the country. very often drawn with our neighbors in the This, in turn, means that these personal South Caucasus, which leads to a conclu- interests must be controlled, including con- sion that the level of NGO development in trol by society. Azerbaijan is extremely dissatisfactory. The On the other hand, the older generation same conclusion is inferred after a com- of citizens in these countries grew up in parison of the number of projects being the conditions of a universal communist implemented in Azerbaijan by national and administration and were used to having international NGOs. everything taken care of by the govern- But what impedes NGO development ment, with any independent initiatives in our country? Quite often, third sector often subject to punishment. In the current activists, as well as different specialists in environment, people have to get accus- this sphere, point to the following five fac- tomed to the fact that many local problems tors of NGO development: (1) legal must be resolved independently and that framework, (2) qualifications of NGO they must contribute to the solution of staff, (3) financial framework, (4) mutual national problems. And to accomplish this, understanding between NGOs and the it is often better to join one’s efforts with government, and (5) interaction among others within different public associations. NGOs. Let me briefly speak about each of Thus, for the Newly Independent States, it these factors. is extremely important to reconstruct not First, the legal framework of NGOs. only the economies and governance insti- This issue has three aspects: (1) birth, i.e., tutions, but also people’s mentality. establishment and registration of an NGO; Of course, the list of factors condi- (2) activity of the NGO; and (3) liquidation tioning the development of public associ- of the NGO. Azerbaijan, like many other ations could be continued, but I think we transitional countries, has adopted laws have considered enough of them. regulating all these issues. The most impor- Now I will briefly focus on the assess- tant of them is, of course, the Constitu- ment of the level of development of pub- tion, which provides citizens with the right lic associations in Azerbaijan. It is note- to join, to establish public associations, worthy that there is little research in this etc., as well as the Civil Code and the laws

8 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 9

on non-governmental organizations and port entrepreneurs. Or, let’s say there is a on grants. All these laws provide for a nec- state committee on ecology and an eco- essary legal framework for the establish- logical NGO. Quite often, the attitude of ment and development of NGOs. How- government agencies to their colleagues in ever, the presence of a law does not always the third sector can be described as noth- mean it is functioning. For example, there ing but jealousy. During a conference in is a law on the registration of legal entities, March 2001, a presenter, a well-known pro- but what founders of NGOs face in reali- fessor, pointed to another factor impeding ty makes us think otherwise. Unfortunate- NGO development. In his opinion, the ly, there are many problems concerning view of government workers can be the the registration of NGOs, which is the rea- following: these NGOs and the people son there are much fewer registered orga- working there receive grants, good salaries, nizations in Azerbaijan than in Georgia while we government employees have to and , not to mention developed live with our miserable wages, etc. We societies. According to some information, could go even further in our suspicions, hundreds of NGOs founded in Azerbaijan saying that the authorities are reluctant to have been awaiting registration by the Min- contribute to the development of self- istry of Justice for years, whereas the law organization processes in society. It is envisages a period of one month for the always easier to subdue one person to one’s procedure. will rather than even a small group of peo- In my view, the reasons for the difficul- ple. It is clear that under these circum- ties with NGO registration in Azerbaijan stances, when the judicial power is influ- stem from the fact that the government enced by the executive branch, all the often considers public associations as above-mentioned factors retard the potential centers of opposition or agencies process of establishment and registration helping their political opponents. In addi- of NGOs. tion, in some cases registration is delayed as And now a few words about the law on the result of the jealousy of government NGOs. Azerbaijan law covers only public workers because NGOs, even if politically associations and foundations. Unfortu- non-aligned, are often seen as opponents. nately, it is impossible to set up any other In other words, let’s assume that a public type of an NGO in Azerbaijan. For association is being set up to deal with the instance, if we want to establish a non- problems of entrepreneurs. At the same commercial research center, the law on time, there is a government body to sup- NGOs cannot be applied. And whoever is

A CASE STUDY: CIVIL SOCIETY IN AZERBAIJAN • 9 baku_book.qxd 2003. 01. 21. 15:51 Page 10

interested in setting up such an institute eign sources, which include various inter- will have to establish it either in the form national organizations, national charitable of a public association with voluntary foundations of different countries, less fre- membership or in the form of a limited- quently private foreign companies, and liability enterprise. Both alternatives are sometimes government foundations of the absurd, but the law is the law. Therefore, world’s leading countries. There can be no there is a desperate need for a law on non- doubt that this is very unstable support, commercial organizations. Azerbaijan’s law and as soon as such donors leave the coun- on grants is not too bad and, in fact, has try, local NGOs will face serious prob- played an important role in NGO devel- lems. For example, in Estonia the recent opment in our country. As a final legal departure of the Soros Foundation severe- issue, I would like to point to the differ- ly affected the activity and capabilities of ences in definitions of public organiza- local NGOs. And the foundation left the tions in different legal acts. But I will not country because reforms in it were suc- go further on this problem, because, judg- cessfully progressing. ing by the program of today’s conference, Therefore, it is extremely important to we will soon hear a special presentation on address the problem of local funding legal aspects in NGO development. sources. I would like to draw your attention The second factor in NGO develop- to the following aspects of the problem: ment, as noted above, is the qualification of first, the underdevelopment of local tradi- NGO management and employees. It tions (charitable traditions were quite seems to me that the problem of qualifi- strong in Azerbaijan before the 1917 rev- cation of NGOs is no longer as important, olution, but the seventy years of Soviet which is confirmed by the growing number power destroyed any philanthropic cus- of increasingly difficult projects being toms—which, however, are now being implemented by local NGOs, as well as gradually restored) and of legislation to their growing involvement in the discus- stimulate the philanthropic activity of local sion of different laws in the Parliament and companies and private persons. Attention the implementation of projects in partner- should also be given to financing NGOs ship with the government. from the state budget. If the state budget Let us now turn to the factor of a finan- is composed of taxes, a taxpayer should cial framework for NGO development. not care who is solving the problems: the The situation is clear to all. NGOs in Azer- government or NGOs. Thus, logically, a baijan are funded almost exclusively by for- part of the budget should fund NGOs.

10 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 11

Legislation should also stimulate philan- And finally, the last factor: the ability to thropic activity. With appropriate provi- carry out joint NGO activities and to sions, this task could be carried out by the establish coalitions to implement certain tax code. large-scale projects. There are quite a few Another way of addressing the NGOs’ examples of such coalitions in Eastern financing problem lies in their entrepre- European countries, for example, the neurial activities. They are allowed and Coalition 2000 to fight corruption in Bul- even stimulated by the Law on NGOs and garia. In Azerbaijan, there is very little the Tax Code of Azerbaijan. For example, experience with such joint efforts. NGO entrepreneurial activities carried out by a forums and associations are forming, but non-commercial organization are exempt the process must be thoroughly planned, from many taxes according to our tax code. i.e., it is first necessary to define major But are these legal advantages sufficient? objectives, which, in turn, will call for the Yes, they are sufficient and effective if the corresponding forms of interaction among NGO in question has something to sell different NGOs. and has interested buyers. However, it is evident that entrepreneurial activities cur- * President, Development rently lack intellectual support and are thus Foundation. These remarks were made at a round- not yet commercially viable in our country. table discussion, “The Development of Civil Soci- At last, we reach the fourth of the ety in Azerbaijan: Practical Aspects of Freedom of above-mentioned factors of NGO devel- Association in Azerbaijan,” in Baku, Azerbaijan, 31 opment: mutual understanding and inter- January–1 February 2002. action between NGOs and the govern- ment. Until recently, such cooperation was very limited, but today there is evidence of 1.2 DEVELOPING CIVIL SOCIETY IN AZER- the beginning of large-scale interaction BAIJAN: OBSTACLES TO FREEDOM OF between the government and the third sec- ASSOCIATION tor. I am talking about the involvement of By Linda S. Schmidt over forty NGOs in the process of prepa- ration of a Poverty Reduction Program in Associational rights require the conver- Azerbaijan. And there are good reasons to gence of supportive laws, institutions, and expect that the number of NGOs will be practices in order to find meaningful exer- further increased as the program gets cise. Since gaining independence from the under way. in 1991, Azerbaijan has

A CASE STUDY: CIVIL SOCIETY IN AZERBAIJAN • 11 baku_book.qxd 2003. 01. 21. 15:51 Page 12

undertaken much legal reform intended to 2,500. Of this number, 1,400 were report- bring it into compliance with internation- ed registered by the Ministry of Justice, al norms generally, and European stan- 100 of which were registered in 2000.6 In dards in particular. As regards freedom of July 2001, NGO Forum, one of three association, not only does the Constitution prominent NGO umbrella organizations of the Azerbaijan Republic guarantee the in Azerbaijan, stated that approximately equal right of persons to freely gather and one-half of its 265 members remained form organizations with others,1 but unregistered despite filing the appropriate recent legislation2 and international com- applications. Meanwhile, the Initiative for mitments3 provide an additional basis for Social Action and Renewal (ISAR), a the realization of these guarantees. Washington-based organization whose Nonetheless, non-governmental organiza- Baku office regularly publishes a directo- tions (NGOs) in Azerbaijan face numer- ry of domestic NGOs, states that there are ous obstacles in conducting even the most 300 active and registered NGOs involved basic of their affairs. This article will in over fifteen different sectors.7 briefly examine two of these hurdles—the While the number of registered NGOs legal, institutional, and practice-related may be in dispute, the benefits to NGOs hurdles in the areas of registration and of having a formal legal personality are political activities—and the implications of not. Registration is required for obtaining the recent ratification of the European tax-exempt status with the Tax Ministry Convention on for future and bank account privileges essential to state practice.4 securing most funding grants. Registration also facilitates a number of general oper- Registration ations. Many NGOs have indicated that Estimates on the number of active NGOs police and other government officials in Azerbaijan vary widely, as do those on often prohibit them from conducting the number of organizations that are reg- activities on the basis of their unregis- istered. An official record of registered tered status, although such activities would NGOs is not currently available, although be permitted the average individual. Lack existing law includes a monthly reporting of registration also casts a shadow over requirement for the Ministry of Justice’s many organizations, inhibiting their abili- Registration Department.5 In 2000, the ty to attract members and volunteers to Society for Humanitarian Research esti- support their work. mated the total number of NGOs at Registration, however, also incurs ben-

12 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 13

efits for the government in its regulatory registration of associations and appeals capacity. Only legally recognized NGOs procedures.12 are required to register with the tax author- Political Activities ities, adhere to certain internal manage- The registration issue, while retaining its ment and oversight standards,8 maintain own peculiar institutional features, appears open financial records,9 and bear legal to be inextricably linked to this second cat- responsibility for violations of the laws.10 egory of problems: namely, distinguishing Nonetheless, registration remains an “political activity” conducted as a part of insurmountable hurdle for many NGOs, public advocacy from partisan actions as indicated in the figures above and exem- aimed at changing the composition of plified in the case of Transparency Inter- government. While both are legitimate national’s national chapter in Azerbaijan. activities important to a democratic soci- Active in over eighty countries, Trans- ety, NGOs and are subject parency International is devoted to com- to different regulatory regimes.13 bating corruption, focusing on prevention Recent statements by high-ranking and reforming systems and relying on government officials indicate that the access to information as an important withholding of registration is an ex ante tool. The Azeri chapter first filed for reg- means of controlling organizations pre- istration in November 2000. A refusal let- sumed to have opposing aims. In the ter dated 8 December 2000 was received in words of one NGO leader, the “non-gov- early July 2001 at the executive director’s ernmental” in NGO has been translated personal residence.11 Despite obtaining by government officials to mean “anti- legal assistance in preparing its second governmental.” application, Transparency Azerbaijan There may be several reasons for the remained unregistered as of September government’s unease about NGOs. The 2002. close affiliation that many of the “first- Some NGOs have been able to register wave” NGOs after independence had with only as the result of international pressure. partisan political groupings may be one Shortly before Azerbaijan’s accession into explanation. However, the conditions that the Council of Europe, twenty-six NGOs led to these initial close links have shifted. were registered. NGO registration contin- As Dimitrina Petrova, of the European ues to be a concern of the Council: the Roma Rights Center in Budapest, explains, conditions for Azerbaijan’s accession public interest groups included amending the rules governing

A CASE STUDY: CIVIL SOCIETY IN AZERBAIJAN • 13 baku_book.qxd 2003. 01. 21. 15:51 Page 14

FORMAL AND INFORMAL NGOS By Public Interest Law Initiative

Freedom of association is guaranteed by a host of international treaties, including the Euro- pean Convention (Article 11) and the International Covenant on Civil and Political Rights (Article 22). These instruments make clear that freedom of association is a right and enti- tlement, and not something that must first be granted by the government to citizens. Thus, in order for individuals to associate with one another, non-governmental organizations (NGOs) need not acquire formal legal status in order to exist. Indeed, most civic organiza- tions are in fact informal entities. Because these organizations constitute the largest part of the civic sector, protecting them from unwarranted governmental interference is at least as important for the realization of fundamental human rights as is protecting formal civic orga- nizations. The right of informal entities to exist is confirmed in Paragraph 5 of the Council of Europe's Fundamental Principles on the Status of Non-Governmental Organizations in Europe, which are set out in chapter 5.2. The Memorandum that accompanies the Funda- mental Principles (in chapter 2.2) explains that "an NGO may wish to pursue its activities without having legal personality to that end, and it is important that national law should do likewise" (Paragraph 19). There are many reasons an NGO might want to formally establish itself. NGOs exist for many reasons, to perform a variety of functions, in a variety of institutional forms-extend dash from labor unions to professional associations to neighborhood groups to philan- thropic trusts. An organization's desire for formal legal status may arise as the result of many factors, for example, a wish to attract particular types of financial support (whether from the public, private foundations, or the government), the nature of its activities, or a desire for government benefits such as concessionary tax treatment. The acquisition of legal per- sonality will also permit the group to enter into contracts and leases and have other legal relationships, while in most cases limiting the legal liability of the individuals who make up the organization. Government oversight of formally established groups will vary, from a requirement for NGOs to update their name and address periodically to close monitoring where an NGO is using government funds in its activities.

14 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 15

“face the challenge of charting new, interest are, from the government’s per- very different and sometimes uncom- spective, inextricably intertwined with a fortable relationships with govern- political contest. It is in this light that ments. The challenge is stronger for statements by public officials calling for those . . . groups built on dissident net- the complete withdrawal of NGOs from works born under communism. Under the political sphere, as well as corre- repressive regimes, the relationship to sponding restrictions on election involve- the state is one of opposition and ment in the Law on Non-Governmental protest. But as the transformation of Organizations, are perhaps best under- society proceeds, new complexities stood.16 While relations between the gov- emerge.”14 ernment and the NGO community have been evolving over the past decade, such In Azerbaijan, this transformation has institutional understandings present a very been marked first and foremost by the difficult barrier to surmount. explosive growth in the numbers of NGOs, including such organizations as Moving Forward: European Court of the Azerbaijan Young Lawyers’ Union and Human Rights Jurisprudence Lawyers XXI Century whose leaders and Azerbaijan’s accession to the Council of members are drawn from generations Europe in January 2001 and its ratification without experiential ties to the anti-com- of the European Convention on Human munism movement. It has also been Rights might be expected to provide new marked by public announcements from dynamism to the country’s development of prominent first-wave NGO leaders, disas- civil society.17 The extent that they do so sociating themselves from their political will depend on the level of pressure exert- affiliations. ed by the Council through continued mon- A second explanation for the govern- itoring and reporting requirements and by ment’s reservations about NGOs is the the introduction of the European Court communist past, which continues to of Human Rights (ECtHR) as an enforce- inform state institutions and practices. ment mechanism. While only recently in Under communism, the state was the sin- force in Azerbaijan, it is worth briefly gle organizing authority and the ultimate reflecting on recent ECtHR jurisprudence source for defining and determining the relevant to NGOs, particularly regarding public good.15 As a result, any claims by the two obstacles noted above. outside sources to speak for the public Freedom of association is guaranteed

E NABLING C IVIL S OCIETY • 15 baku_book.qxd 2003. 01. 21. 15:51 Page 16

by Article 11 of the ECtHR.18 That arti- Organisation Ilinden v. Bulgaria (2 October cle and related ECtHR establish 2001), the ECtHR found that denial of a strong presumption against interference registration based on the purposed uncon- by governments in the exercise of associ- stitutionality of an organization’s stated ational rights. Restrictions are permitted aims,22 while relevant to the consideration only where the restriction is (1) prescribed of the organization’s request to hold a by law, (2) in pursuit of a legitimate pub- peaceful assembly, could not justify a sys- lic policy interest, and (3) necessary in a tematic ban on such activities.23 The democratic society to achieve the intend- Stankov Court found the objectives of the ed purpose. government to be legitimate (protection of In terms of the current difficulties national security and territorial integrity, faced by many Azeri NGOs, this frame- protection of the rights and of work suggests that the ECtHR may pro- others, guaranteeing public order in the vide greater protection to NGOs. For local community, and the prevention of example, in Sidiropoulos and Others v. Greece disorder and crime)24 and prescribed by (10 July 1998),19 the European Court held law. 25 However, the Court stressed that that a refusal to register a non-profit-mak- Article 11’s provisions must be read in ing association called “Home of Mace- light of Article 10 of the Convention, as donian Civilisation,” on the ground that the “protection of opinions and the free- the promotion of the idea of a Macedon- dom to express them is one of the objec- ian minority in Greece was contrary to tives of the freedoms of assembly and Greece’s national interest and, thereby, association. . . .”26 As a result, the Court contrary to the law, did not fulfill the held that the government’s application of “necessity” requirement. While the Court measures to ban the applicant organization recognized the government’s right to from holding meetings and disseminating ensure that the association’s aims and views where there was “no real foreseeable activities were prescribed by law, 20 it risk” of violence or incitement was not stressed that the government must do so “necessary in a democratic society,” and in a manner compatible with obligations thus violated Article 11.27 under the ECtHR. This includes making These two decisions lead to three pri- registration determinations on the basis of mary conclusions regarding current Azeri the actual application and not mere suspi- practice and the shape of future litigation cions of the association’s true intentions. 21 before the ECtHR: In Stankov and the United Macedonian

16 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 17

• First, the established by aims of regional and cultural unity of Sidiropoulos suggests that ex ante con- the Macedonian minority. The Court cerns that an organization’s true pur- implicitly rejected overly broad pose is to undermine the country’s attempts by the state to deny NGOs political system, without expression of the right to undertake political activities that intent in the registration materials or advocate a political agenda—even themselves, is not sufficient grounds where the agenda includes reform of for refusing registration. As indicated legal structures and institutions. NGO by the Court, the government’s legiti- activities that respect the democratic mate interest in national security is process and are protected by interna- appropriately pursued in applying the tional rights and freedoms are likely to laws to activities actually engaged in by the be upheld vis-à-vis state restrictions.28 organization that are incompatible with its aims. Clearly, with the enforcement mecha- • Second, while Stankov specifically nisms of the European Court now avail- rejects the linking of denial of regis- able in Azerbaijan, existing will tration to a systematic ban on demon- be highly relevant to individual NGOs strations, the principle behind its deci- seeking to secure their rights as against the sion can be expected to apply to a wide Azeri government. As far as the develop- range of activities undertaken by ment of civil society is concerned, how- NGOs. The Court is thus likely to find ever, the Convention and its interpretation a lack of “necessity” where unregis- by the ECtHR serve another, more critical tered organizations are hindered by the function. Namely, to the extent that the government in conducting activities Convention forces government actors to necessarily relevant to the exercise of adjust their practices and to outwardly free speech. base their actions on grounds expressed in • Finally, it is noteworthy that the the language of the Court, it will help Stankov Court upheld the NGO’s exer- generate a transformation in institutional cise of free speech as an important culture and understandings—a transfor- associational right where the NGO was mation that will create more space for out- not a political party, but where (at least side parties also to speak on behalf of the some) members advocated a political public interest. position—regional autonomy—as a critical means to achieving the group’s

E NABLING C IVIL S OCIETY • 17 baku_book.qxd 2003. 01. 21. 15:51 Page 18

1 See, e.g., Articles 25, 49, and 58. Recognized Human Rights and Fundamental 2 Current implementing legislation includes Freedoms (Declaration on Human Rights the Civil Code (Chapter IV, Legal Entities); Defenders) reiterates and builds on existing Law on Non-Governmental Organizations principles of international law. 4 (2000, replacing the as-yet-unrepealed 1992 This article draws primarily from materials Law on Social Organizations); Law on Grant and information gathered by the author in (1998) and related of President and of interviews conducted between June and Cabinet of Ministers, and Decisions of Con- August 2001 and from a roundtable discussion stitutional Court; Law on Presidential Elec- organized by the Public Interest Law Initiative tions; Law on Procedure of Elections to and the Open Society Institute, with support Municipalities; and various general Tax Code of the Council of Europe, on 31 January–1 provisions. In addition, as of November 2002, February 2002, in Baku, Azerbaijan. the third and final version of a draft Law on 5 Law on State Registration of Legal Entities, State Registration of Legal Entities was under Article 16. consideration by Azerbaijan’s parliamentary 6 Society for Humanitarian Research, Report: body, Milli Mejlis and was intended to replace The Development of the Third Sector in Azerbaijan the 1996 law in accordance with Council of (2000), available at http://www.koan.de/~shr. Europe accession agreements. 7See: http://www.isaraz.org/story/localn- 3 International instruments that Azerbaijan go_en.htm. has ratified and that play an important role in 8 Law on Non-Governmental Organizations, defining and guaranteeing associational rights Articles 25–27. include the International Covenant on Civil 9 Id., at Article 29. and Political Rights; International Covenant on 10 Id., at Article 31. Economic, Social and Cultural Rights; Con- 11 The Law on State Registration of Legal vention on the Elimination of All Forms of Entities requires that written notice of refusal Discrimination Against Women; International be issued within ten days of the application’s Labour Organization Conventions 87 and 98; receipt (Article 9). Many NGOs, however, have Framework Convention for the Protection of reported delays in receiving refusal notices, National Minorities; Final Act of the Confer- ranging from several weeks to a year in length. ence for Security and Co-operation in Europe; When they do receive the refusal notices, the Charter of Paris for a New Europe; Conven- notices may or may not carry a date that falls tion on Access to Information, Public Partici- within the required response time frame. pation in Decision-Making and Access to Jus- 12 Parliamentary Assembly, Council of tice in Environmental Matters (Aarhus Con- Europe, Opinion No. 222, ¶14(iv)(h) (2000). vention); and, most recently, the European The changes in law were to be accomplished Convention on Human Rights. In addition, within one year of accession, that is by 25 Jan- the UN Declaration on the Right and Respon- uary 2002, but as of July 2002 it had not sibility of Individuals, Groups and Organs of occurred. Society to Promote and Protect Universally 13 The UN Declaration on Human Rights

18 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 19

Defenders, for instance, provides for the polit- form and to join trade unions for the pro- ical participation of associations that are not tection of his interests. political parties. “Everyone has the right, indi- 2. No restrictions shall be placed on the vidually and in association with others . . . exercise of these rights other than such as freely to publish, impart or disseminate to oth- are prescribed by law and are necessary in ers views, information and knowledge on all a democratic society in the interests of human rights and fundamental freedoms . . .” national security or public safety, for the and “. . . to have effective access, on a non-dis- prevention of disorder or crime, for the criminatory basis, to participation in the gov- protection of health or morals or for the ernment of his or her country and in the con- protection of the rights and freedoms of duct of public affairs. . . .” (Articles 6(b) and others. This article shall not prevent the 8). imposition of lawful restrictions on the 14 Dimitrina Petrova, Political and Legal Limita- exercise of these rights by members of the tions to the Development of Public Interest Law in armed forces, of the police or of the Post-Communist Societies, Parker Sch. J.E. Eur. L. administration of the State. 4–5, 544 (1996). 19 ECtHR, Application No. 26695/95. 15 Id. 20 Id., at Para. 36. 16 Article 2, Section 2.4, broadly states: “A 21 Id., at Para. 44–47. non-governmental organization may not par- 22 The applicant organization was denied reg- ticipate in presidential, parliamentary, or istration because its aims were found to violate municipal elections of the Azerbaijan Repub- Articles 3, 8, and 52 §3 of the Bulgarian Con- lic. . . .” The section also limits election observ- stitution of 1971, being directed against the er status to those NGOs that receive less than territorial integrity of the state and advocating 30 percent of their funding from foreign national and ethnic hatred. The organization’s sources. The current lack of domestic stated aims included inter alia the “political resources, and a culture of philanthropy cou- development of Macedonia” and the “united, pled with an absence of tax or other incentives, independent Macedonian State.” ECtHR, works to preclude the majority of NGOs from Application Nos. 29221/95; 29225/95, at Para. undertaking election monitoring activities. 12. 17 This is not necessarily true, or not neces- 23 Id., at Para. 92. sarily a positive dynamic. Interviews with 24 Id., at Para. 83–84. NGO leaders suggest that developments in the 25 Id., at Para. 82. registration situation have in fact taken a turn 26 Id., at Para. 85, citing Freedom and for the worse since accession. Party (ÖZDEP) v. Turkey [GC] (Application 18 Article 11 on and No. 23885/94), at Para. 37. Association states: 27 Id., at Para. 110–112. 1. Everyone has the right to freedom of 28 See generally chapter 2.1 infra, “International peaceful assembly and to freedom of asso- Law and Jurisprudence in Support of Civil ciation with others, including the right to Society,” by Jeremy McBride.

A CASE STUDY: CIVIL SOCIETY IN AZERBAIJAN • 19 baku_book.qxd 2003. 01. 21. 15:51 Page 21

Two I NTERNATIONAL L AW ON F REEDOM OF A SSOCIATION

1. Everyone has the right to freedom of peaceful assembly and to freedom of associ- ation with others, including the right to form and to join trade unions for the protection of his interests.

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 health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

(European Convention on Human Rights, Article 11)

Following the breakup of the Soviet Union, international standards set out in those most new governments ratified a range of instruments, in both content and applica- important international treaties, among tion. them the International Covenant on Civil The European Convention on Human and Political Rights, the Convention on the Rights (ECHR) is of greatest significance Elimination of All Forms of Discrimina- for European countries. The ECHR is dis- tion Against Women, the Convention on tinctive in that it was the first comprehen- the Rights of the Child, and the European sive treaty in the world in the field of Convention on Human Rights. In many of human rights (in force since 1953) and was these, governments have agreed to respect, the first to establish a complaints procedure protect, and encourage the right to freedom and an international court for the resolution of association. Ratification constitutes a of human rights disputes. The European government’s commitment to bring its Court of Human Rights has developed an domestic law into conformity with the extensive jurisprudence, more than any sim-

21 baku_book.qxd 2003. 01. 21. 15:51 Page 22

ilar institution in the international field. society are essential for the purpose not This chapter discusses the various only of initially establishing a genuine dimensions of freedom of association, with democracy but also of ensuring that, once particular attention to the European Con- achieved, it remains healthy and flourishing. vention and the European Court. “Interna- However, although such a democracy can tional Law and Jurisprudence in Support of be conceived of in a strictly party political Civil Society,” by Professor Jeremy sense, it is the pursuit by persons from all McBride, is an overview of freedom of sectors of a vast array of interests—such as association in the European context today. culture, recreation, sport, and social and Excerpts of many of the cases he discuss- humanitarian assistance, to say nothing of es can be found in chapter 5.3. The Coun- the rights of those at work and the simple cil of Europe (of which the European personal fulfillment of those who belong to Court is a part) is giving increasing attention the bodies concerned—that underpins its to freedom of association, including the vitality. Such a thoroughgoing democracy is ability of non-governmental organizations an objective of paramount importance for to exist and operate independently. In the the Council of Europe, the Organization near future, it is expected to issue its Fun- for Security and Co-operation in Europe, damental Principles on the Status of Non- and the United Nations, and it is thus not Governmental Organisations in Europe. surprising that provisions guaranteeing an The draft of these Principles is contained in extensive freedom of association have read- chapter 5.2, and the related Explanatory ily found a place in many instruments Memorandum is contained in this chapter. adopted by all these bodies. This chapter examines the nature and 2.1 INTERNATIONAL LAW AND JURISPRU- scope of the international guarantees DENCE IN SUPPORT OF CIVIL SOCIETY afforded to this freedom. It first reviews the By Jeremy McBride* various instruments in which the guarantees are provided, then looks at the way in which Introduction the term “association” is understood by Freedom of association enables individuals those bodies charged with overseeing the to come together and collectively express, effective implementation of this freedom, promote, pursue, and even defend those and goes on to consider those aspects of it interests that they have in common. Respect that the latter have identified as being of for this freedom by all public authorities particular significance. These aspects and its assiduous exercise by all sections of include the breadth of the categories of

22 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 23

persons on whom freedom of association many more besides. The protection pro- is conferred, the narrow range of circum- vided by the provisions concerned is rein- stances in which an association’s objectives forced in a number of other undertakings might be considered objectionable, the directed to associations with a particular nature of the rights that arise once an asso- type of membership or objective. The prin- ciation has been formed, the general imper- cipal general guarantees are found in Arti- missibility of imposing penalties on persons cle 20 of the Universal Declaration of solely on account of their membership in Human Rights, Article 22 of the Interna- an association, the limited scope for regu- tional Covenant on Civil and Political lating the activities of associations and the Rights, Article 11 of the European Con- requirements governing how this should vention on Human Rights (“European be conducted, the constraints applicable to Convention”), and an undertaking made by any involvement by public bodies in the states belonging to the Organization for activities of associations, and the particular Security and Co-operation in Europe considerations affecting the enjoyment of (OSCE).1 These guarantees are supple- this freedom by public employees. These mented by provisions in the same instru- different elements all make an indispensable ments requiring that they be secured with- contribution to the enjoyment of a freedom out any distinction such as race, color, sex, that is meant to be extensive and thereby language, religion, political or other opin- play a vital part in the strengthening of civil ion, national or social origin, , birth, society. However, as freedom of association or other status.2 Additional guarantees continues in practice to be subject to restric- against discrimination in the case of race, tions that are impermissible (whether for color, descent, national or ethnic origin, substantive or procedural reasons, or both), and gender are found in the International the chapter concludes with a brief review of Convention on the Elimination of All some of the global and regional procedures Forms of Racial Discrimination3 and the available to challenge them. Convention on the Elimination of All Forms of Discrimination Against Women.4 Sources of the Guarantees Apart from the Universal Declaration, Global and European human rights instru- all of the general guarantees make specific ments contain a number of general guar- mention of the freedom applying to the antees of freedom of association, which are formation of trade unions. However, the addressed to persons forming bodies with references to unions in these guarantees all the concerns already mentioned—and are intended only to clarify the position

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 23 baku_book.qxd 2003. 01. 21. 15:51 Page 24

rather than to limit their scope in some treaties such as the two International way.5 There are, however, several guarantees Covenants and the European Convention of freedom of association specifically are binding under international law on the directed to trade unions, notably Article 8 states that are parties to them,19 and the of the International Covenant on Eco- other instruments not only reinforce the nomic, Social and Cultural Rights, Article 5 significance of the political commitment to of the European Social Charter,6 and the secure freedom of association but can also Convention Concerning Freedom of Asso- help to elucidate how it is to be imple- ciation and Protection of the Right to mented in particular contexts. 20 Given the Organise,7 as well as an undertaking given lack of specificity in the language used in by members of the OSCE. 8 Furthermore, most of the guarantees, the most helpful there are a number of other guarantees source of guidance in determining the concerned with the enjoyment of freedom scope of the general freedom of associa- of association by particular sectors in a tion is to be derived from the case law gen- society, namely, children,9 environmental erated under those instruments that enable campaigners,10 human rights individual or collective claims to be defenders,11judges,12 members of national brought.21 minorities,13 refugees, 14 and stateless per- Of all of those instruments, it is only in sons,15 as well as for non-governmental respect of the Convention Concerning bodies of an international character.16 Freedom of Association and Protection of Moreover, the guarantee—in Article 15 of the Right to Organise and the European the International Covenant on Economic, Convention that there is at present a signif- Social and Cultural Rights—of the right to icant body of case law. Although the take part in cultural life undoubtedly approach in both of them is broadly the includes the possibility of forming associa- same, this chapter will focus primarily on tions for this purpose. that relating to the latter instrument,22 in Some of the specific guarantees, partic- order to ensure that there is no confusion ularly those relating to trade unions, between the general obligations and those undoubtedly require recognition of certain of concern only with the treatment of trade rights over and above those to be enjoyed unions.23 Nevertheless, it also needs to be by associations generally,17 but it is only kept in mind that this case law, notwith- with the latter that this chapter is con- standing the considerable benefit to be cerned.18 Furthermore not all of the guar- derived from it in understanding what free- antees entail legal obligations; however, dom of association entails, addresses only

24 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 25

those issues that have already been brought discussion below. before the various tribunals. Although these are undoubtedly important ones, this does Concept of Association not mean that the full extent of the protec- As with all terms found in international tion that states are legally obliged to afford human rights instruments, the concept of to associations has yet been fully clarified. “association” is something that has to be Indeed, it remains the case that provisions accorded an autonomous meaning; nation- such as Article 11 of the European Con- al provisions cannot, therefore, be conclu- vention have not received the same degree sive in determining whether something is or of attention from international and region- is not an association for the purpose of al tribunals as have many other rights and guarantees such as that in Article 11 of the freedoms. The fact that this has begun to European Convention.26 This not only change in recent years means that the main means that it is inappropriate to attach too elements of this freedom can now be read- much significance to the language used in ily discerned. Still, this should not encour- particular laws when trying to ascertain age a reluctance to draw on other poten- whether the exercise of freedom of associ- tially useful sources of guidance as to how ation is involved,27 but also that the condi- to interpret and apply the general guaran- tions which laws may impose before some- tees.24 Moreover, it should not be over- thing will be regarded as an association will looked that one possible explanation for the not necessarily be regarded as acceptable relative dearth of applications involving from the international perspective. Certain- Article 11 of the European Convention ly a very inclusive approach is taken at the may well be the limited controls applied in international level to the sort of gatherings many European countries with respect to of persons that are protected by freedom of this freedom, and that this is something that association guarantees. However, in order should therefore be emulated by all of for those guarantees to become applicable, them. It should also be recalled that inter- it would have to be demonstrated that the ference with the activities of associations grouping concerned is something more may well engage other legally binding rights than a body of persons who have a com- and freedoms—notably, rights to a fair mon objective, since it has already been hearing and peaceful enjoyment of posses- established that Article 11 does not seek to sions and freedom of assembly, conscience, protect a mere gathering of people desirous correspondence, and expression25—and of sharing one another’s company. 28 Fur- appropriate account is taken of these in the thermore, some forms of protest action

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 25 baku_book.qxd 2003. 01. 21. 15:51 Page 26

such as demonstrations and public meet- lishing certain groupings that they should ings, albeit gatherings of a more organized also have a formal legal character. It is thus character, would still not be an exercise of not open to a state to require that freedom freedom of association, because of their of association be exercised only by the essentially transient nature; they would, establishment of an entity with legal per- however, be regarded as activities coming sonality. under the protection of freedom of assem- Apart from the unacceptability of com- bly,29 the second limb of that provision. mon objectives that are unconstitutional or What is thus required is that the gathering illegal,33 the only qualification on what not only have been formed with the object might be the aim of a grouping in order for of pursuing certain aims, but also that it has this to be accepted as an exercise of free- a degree of stability as regards its existence dom of association is that either it is not and thus some kind of institutional (albeit intended to be a profit-making body34 or, not formal) structure to which the persons where trading activities are undertaken, any comprising it can really be regarded as profits accruing are plowed back into the belonging.30 pursuit of the common objectives rather In many instances, associations will be than distributed to its membership.35 This bodies with a formal status—namely, legal is because this freedom is essentially a civil personality—and this will also be what the and political right rather than an economic founders of most of them want. Never- one. Nevertheless, this does not mean that theless, the international guarantees are not an association cannot exist to advance the limited to such bodies but also apply to interests of its members; the specific inclu- groupings of an informal character so long sion of the formation of trade unions with- as they have, or are meant to have, more in the scope of the guarantees is the clear- than a fleeting existence. This is a necessary est indication that the securing of benefits consequence of the general freedom of for those who belong to an association is a those associating to determine the basis on legitimate objective, and these benefits can which they do so.31 The fact that some pro- be economic as much as moral, physical, tection is available to the latter bodies will, social, or spiritual. However, if the princi- of course, be particularly significant where pal objective is trading or some other form a formal status has been improperly denied of business activity, then protection for the to persons who have formed an associa- interests of those belonging to the body tion,32 but it will also be important where it concerned should be sought in guarantees is not considered necessary by those estab- such as the rather than

26 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 27

freedom of association.36 bodies that are established by law and which The fact that express reference is made doctors, lawyers, architects, and other mem- in general guarantees such as Article 11 of bers of professions are often required to the European Convention to only one form join. The Court has regarded these as being of association, namely, trade unions, might public law bodies designed to regulate a par- lead to the conclusion that these either ticular profession; as such, they do not nor- enjoyed a privileged position or that this mally attract the protection of Article 11 or provision was not intended to cover all other freedom of association guarantees.40 other forms of association. However, as the A similar view has also been taken of bod- Court made clear in United Communist Party ies such as works councils that may be of Turkey and Others v. Turkey, 37 the special required under legislation to mention of them is no more than a be established to secure staff participation reminder that they are within the definition in the management at a particular work- of associations; the conjunction “includ- place; this is the sole basis on which the ing” in Article 11 “clearly shows that trade “members” are brought together, and the unions are but one example among others compulsion in their formation is sufficient of the form in which the right to freedom to preclude such councils from being asso- of association may be exercised.”38 This ciations.41 However, the fact that groupings conclusion was reinforced in the context of are established pursuant to a legislative that case, which concerned the dissolution requirement does not necessarily mean that of a political party, by the incontestable they will not be treated as associations for view that political parties were “essential to the purpose of international guarantees. the proper functioning of democracy in Thus, in Chassagnou and Others v. , the the Convention system,” and they could Court had no hesitation in regarding as thus not be excluded from the scope of associations those bodies that had been Article 11. Nevertheless, it is evident that no established for the purpose of organizing category of association is a priori denied the hunting where these were “composed of protection afforded by the general guaran- hunters or owners of land or hunting rights, tees.39 and therefore, of private individuals, all of Some entities that may be treated as whom, a priori, wish to pool their land for associations under domestic law will not, the purpose of hunting.”42 It did not mat- however, generally be so regarded for the ter that the way in which these associations purpose of Article 11 or other freedom of operated was subject to the supervisory association guarantees. These are the many power of the prefect, as this was not in

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 27 baku_book.qxd 2003. 01. 21. 15:51 Page 28

itself sufficient for them to be integrated those belonging to it rather than with the into the structures of the state. It was, how- of their professional conduct.47 ever, significant that these bodies did not enjoy “prerogatives outside the orbit of the THE RIGHT TO FOUND AND TO BELONG ordinary law, whether administrative, rule- The ability to form and join associations making or disciplinary, or that they employ is something that the general guarantees all processes of a public authority, like profes- provide as being open to “everyone” with- sional associations.”43 Attempts to exclude in a state’s jurisdiction, and the scope for a particular body from the scope of the imposing limitations on this capacity is freedom of association guarantees by stip- quite limited. “Everyone” certainly means ulating, as in this case, that it is “public” or legal as well as natural persons, as associa- “para-administrative” will thus not be effec- tion is not one of the rights or freedoms tive if that is not actually an accurate reflec- that are capable of being exercised only by tion of its essential character. 44 human beings. 48 The only exception in this The compulsion to belong to bodies regard would be public bodies, since these such as professional associations and works are a part of the state, which is bound to councils can have the potential to encroach secure freedom of association rather than on this freedom—as well as others such as beneficiaries of this right. conscience and expression—because of the The unqualified nature of the formula- constraint that might be imposed on the tion means that the freedom should be manifestation of beliefs and opinions by exercisable by children as much as by adults, their members.45 Nevertheless, such a although this would not preclude the adop- problem does not tend to arise in practice, tion of protective measures to ensure that because the bodies involved are primarily they are not exploited or exposed to moral concerned with regulatory issues and do and related dangers. Such measures, insofar not have any monopoly over representing as they are proportionate and meet the the interests and views of their members. 46 requirements of legal certainty, could be It should also be noted that voluntary justified as a restriction on their freedom groupings established within these bod- pursuant to Article 11(2). However, in judg- ies—such as a bar association’s human ing the appropriateness of any such mea- rights committee—could be regarded as an sures, account would have to be taken of association enjoying the protection of Arti- the need stipulated by the Convention on cle 11. This is because they will be con- the Rights of the Child to respect “the cerned with promoting the objectives of evolving capacities of the child,” 49 which

28 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 29

would mean that the effect of any restric- joining associations with no political objec- tions that might be adopted would have to tives—such as those concerned with sport be diminished as those affected grow and culture—could hardly be defended by older.50 invoking Article 16.52 The inclusive nature of “everyone” Freedom of association entails the abil- would also mean that freedom of associa- ity both to form associations with others tion can, in principle, be exercised by peo- and to seek to join existing ones. However, ple who are not actually citizens of the the latter freedom amounts only to a restric- country concerned (whether they are citi- tion on the power of the state to impose zens of another country or stateless per- unjustified restrictions on the ability of per- sons). Article 16 of the European Conven- sons—as defined above—to seek member- tion does accept the possibility of some ship in an association; it is improbable that restrictions being imposed on the political the guarantee would be construed as con- activities of those who are not citizens, and ferring any general right on them to join this is defined to cover freedom of associ- one against the wishes of its members. The ation. However, in order to be acceptable, matter has so far not been directly such restrictions ought to be compatible addressed by the Court, but this seems to be with the Convention’s overall objectives of the inevitable conclusion of existing case political democracy, freedom, and the rule law restricting the circumstances in which of law, and they ought not to be dispro- someone can be required to belong to an portionate. It might, therefore, be possible association;53 compulsion to admit mem- to justify the exclusion of persons who are bers would effectively amount to the same not citizens from membership in national thing, since it would be denying those who political parties, but it would certainly be already belong to an association the free- harder to do so where the body was con- dom to choose those with whom they wish cerned only with local or non-party issues, to associate.54 Nevertheless, there would be particularly if those affected were estab- good justification for constraining the free- lished residents there. There is also likely to dom of existing members of an association be a reluctance to accept restrictions as to determine whom to admit as new mem- being justified under Article 16 where they bers where this was done in order to fulfill relate to persons from a country with which obligations to prevent discrimination on the one imposing the restrictions has close any inadmissible ground and thereby pro- political and institutional links.51 Moreover, tect the rights of others, as permitted by the restrictions on non-citizens forming or second paragraph of Article 11.55

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 29 baku_book.qxd 2003. 01. 21. 15:51 Page 30

A person’s imprisonment is likely to be affecting the applicant’s freedom of a constraint on his or her ability to take a expression could not be justified insofar as full part in the activities of an association, they covered non-political matters; the but this should not otherwise be an obsta- scope of the restriction was simply too cle to his or her continued membership in broad.57 The issue never went before the the association and involvement in its Court, as the applicant applied to have the affairs; it would be very difficult to demon- case struck off after the restrictions on his strate that a restriction on freedom of civil and political rights had been with- association that went beyond the inevitable drawn and the law permitting such penal- impracticality of attending meetings was ties had been modified so that they would something really needed for the purposes apply only for fixed periods determined of confinement—and that is the test by according to the seriousness of the which the impact of a deprivation of lib- offense. In these circumstances, it was not erty on other human rights must be surprising that the Commission did not judged.56 Nevertheless, it is possible that object to the case being struck off. How- some limits could be imposed on a per- ever, it is evident that the Court will require son’s exercise of freedom of association as very cogent justification for such restric- a penalty for certain conduct, provided tions on the exercise of freedom of asso- that a legitimate aim for them could be ciation, and it is unlikely that they would be demonstrated and that they were suffi- seen as acceptable where their scope did ciently carefully drawn to avoid being chal- not correspond to the nature of the lenged for a lack of proportionality. Thus, offense giving rise to them or they lasted one of the penalties imposed on a Belgian for an undue length of time.58 newspaper editor who had collaborated Although in practice most of the asso- with the German occupying authorities ciations that are formed or joined are like- during World War II was a prohibition for ly to be in the state where the persons con- life on involvement in the administration, cerned reside or are present, the freedom management, or direction of a profes- guaranteed by Article 11 would also extend sional or non-profit-making association or to the creation of and membership in the leadership of a political association. associations in other countries,59 and this The principle of such a penalty was not could be restricted only by reference to the specifically dealt with by the Commission same considerations that govern regula- in De Becker v. Belgium, but it did consider tion. that other such indefinite restrictions

30 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 31

Objectives objects that are entirely legitimate. No blank Among the most pressing issues for those check is thus given to states that would who would associate has to do with the allow them to make unlawful anything to extent to which restrictions can be imposed which they object.63 with regard to the objectives60 that they Even where a particular activity is ren- might want to pursue. This is, however, dered unlawful without meeting the objec- something that has also proved problemat- tion that this is through an improper use of ic for states, because the Court has on a state power, this status does not necessari - number of occasions found the imposition ly mean that the activity cannot still in some of such restrictions to be excessive and way shape the objectives of a would-be thus a violation of Article 11. Notwith- association. Certainly it is, in principle, per- standing these difficulties, the starting point fectly proper for a body to be established to with respect to objectives is actually quite pursue a change in the law, so long as the clear; an association should be able to pur- intention is to do this only by lawful sue any activity that individuals alone are means.64 Recognition of this can be seen in able to pursue, since a grouping of individ- X v. ,65 in which it was found uals with the same objective does not there- that the scope of certain offenses con- by make that objective inherently objec- cerned with homosexual relations was not tionable. Indeed, to accept the latter view such as to prevent the advocacy of reform would be to negate the very concept of of the . 66 On the other hand, freedom of association as a means for like- the fact that the applicant’s object in Lavisse minded persons to come together. So it fol- v. France did not appear to be confined to lows from this that, so long as the activities such advocacy meant that no objection was or objects are lawful, it should be possible raised to the refusal of the registration of for an association to be formed to under- an association to promote surrogate moth- take or pursue them.61 Although an associ- erhood; the endorsement of surrogacy ation cannot be formed to pursue specifi- could be regarded as inciting the commis- cally unlawful objectives, it should be borne sion of the offense of abandoning chil- in mind, when determining what conduct is dren.67 Nevertheless, the Commission in unlawful in this context,62 that the permit- that case regarded it as significant that this ted restrictions on internationally guaran- refusal—which meant that the association teed rights and freedoms must also not be could not acquire legal personality—did exceeded and thus make it impossible for an not prevent the body from promoting a association to be established to pursue change in the law on this matter; it is thus

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 31 baku_book.qxd 2003. 01. 21. 15:51 Page 32

implicit in the ruling that a refusal of regis- such a political programme is consid- tration to an association that merely sought to ered incompatible with the current prin- promote such a change would be incompati- ciples and structures of the Turkish ble with Article 11.68 Similar objections that State does not make it incompatible an association would cross the line between with the rules of democracy. It is of the promoting a change in the law and promot- essence of democracy to allow diverse ing a breach of it were raised with respect to political programmes to be proposed an association that wanted to promote the use and debated, even those that call into of cannabis in Finland, where such use was at question the way a State is currently the time a crime; in many respects, the asso- organised, provided that they do not ciation concerned could be regarded as harm democracy itself.71 amounting to no more than a conspiracy to commit this very crime and thus could be It is thus generally impossible to immunize seen as going well beyond advocacy of matters from change by according them change.69 constitutional status.72 The protection for the ability to propose However, there is an important qualifi- changes in the established position can even cation on the freedom to campaign for extend to, and include, the very nature of the change in the legal and constitutional basis existing constitutional structure of a state. of the state at the end of the Court’s con- Thus, in Socialist Party and Others v. Turkey,70 the clusion just cited, namely, that the proposed Court was not prepared simply to accept that change must not actually be anti-democra- objection could be taken to the applicant tic. This qualification is both a corollary of party’s proposal for a federal system—in the requirement that restrictions on free- which Turks and Kurds would be represent- doms such as that of association must be ed on an and on a voluntary necessary in a democratic society and a basis—because this would change the existing reflection of the unambiguous stipulation constitutional arrangements. Its reluctance to in Article 17 of the European Convention find such an objective inadmissible stemmed that nothing in that instrument is to be from the importance to be attached to polit- interpreted as implying “any right to engage ical pluralism in applying the European Con- in any activity or perform any act aimed at vention (and indeed other international the destruction of any of the rights and human rights guarantees). On this basis it freedoms” set forth in it. The qualification concluded that the fact that on the freedom to advocate change was subsequently given some elaboration by the

32 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 33

Court in Refah Partisi (The Welfare Party) and doms afforded under democracy, can- Others v. Turkey, demonstrating that it in not lay claim to the protection of the fact comprises two elements, namely, (1) the Convention against penalties imposed means used to that end must in every for those reasons.75 respect be legal and democratic; (2) the change proposed must itself be compatible The need for concern arises from the fact with fundamental democratic principles.73 that it is not generally going to be self-evi - Nevertheless, it is a qualification that should dent that the objectives of an association not be taken entirely at face value. In the are necessarily anti-democratic76 or vio- first place, although the insistence on the lent77 and thus inherently objectionable. It means being democratic rightly entails a is true that there were some early cases in process that respects political pluralism, the which it was accepted that a state could, requirement of lawfulness must be read without further justification, object to bod- subject to the need for any restrictions that ies that had as their aim the promotion of ought to be observed being themselves fascist or communist ideology, because compatible with international human rights these were organizations that were auto- standards; it is certainly conceivable that the matically to be regarded as being against the means which have been rendered unlawful Constitution and democratic values.78 Now, are in fact well-established elements of however, the rulings in them have to be Convention rights or freedoms,74 and this approached with some care, as more recent cannot be an acceptable constraint on the decisions demonstrate that overly simplistic freedom to advocate change. conclusions can be drawn too readily about There should also be some concern the possible threat posed by an associa- about the way in which the second aspect of tion’s stated objectives, especially where the the qualification on the freedom to advo- latter use terms or concepts that are open to cate change is applied, even though there is a pejorative construction but that is not no basis for disputing the Court’s view that their only possible meaning. Thus, in Vogt v. Germany,79 the Court a political party whose leaders incite took into account the fact that the Com- recourse to violence, or propose a poli- munist Party had not actually been banned, cy which does not comply with one or in the course of finding that the applicant’s more of the rules of democracy or is dismissal as a schoolteacher because of her aimed at the destruction of democracy membership in, and active role within, that and infringement of the rights and free- party could not be necessary in a democra-

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 33 baku_book.qxd 2003. 01. 21. 15:51 Page 34

tic society. It accepted that the dismissal was fare Party) and Others v. Turkey it was general- an act motivated by the legitimate aim of ly accepted that preserving secularism was protecting constitutional democracy, but necessary for the protection of the demo- the Court emphasized that in determining cratic system in Turkey, the Court pointed the justifiability of such a step, the focus out that there was actually no agreement had to be on individual conduct and not about the content, interpretation, and appli- abstract aims. In examining the former, it cation of this principle.82 As a conse- was evident not only that the applicant in quence, it could hardly be concluded that this case had never confused her political the mere advocacy of changes in the law to and working lives—by using the classroom take account of certain religious con- to promote party ideas—but also that she cerns—such as with respect to the wearing had asserted her belief in the German con- of Islamic head scarves and the organiza- stitutional order. Furthermore, the absence tion of working hours in the public sector of a formal ban on the party made it even to accommodate prayers—would necessar- harder to conclude that there was any dan- ily threaten secularism and thus be objec- ger being posed to that constitutional order tionable.83 by the employment as a teacher of some- The danger that authorities will be too one who belonged to that party. The Court ready to assume the worst about the objec- in that case was not actually concerned with tives of an association is all too real. Cer- whether it would have been acceptable then tainly there have already been a significant in Germany80 to have banned the party; number of cases, in a relatively short peri- however, the importance that was attached od of time, in which the Court has found to what the party did, rather than conclu- that they had been precipitous in reaching sions to be drawn from its general objec- the conclusion that what certain associa- tives, would certainly have made it very tions were proposing to do posed a serious unlikely that a cogent case could have been threat of unconstitutional or unlawful activ- made for the imposition of a ban. Whatev- ities, even though the particular restrictions er suppositions there might have been involved were themselves entirely legiti- about the nature of the Communist Party’s mate. Thus, in United Communist Party of objectives, it would at that time have been Turkey and Others v. Turkey,84 the Court scarcely credible, given the way it actually rejected the view that either the party’s operated, to regard it as being anti-consti- choice of name or certain statements in its tutional in practice. 81 program about the treatment of Kurds in Similarly, while in Refah Partisi (The Wel- themselves demonstrated a real threat to

34 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 35

either Turkish society or the Turkish state Turkish population. Indeed, it was evident so as to make its objectives inadmissible. from the program that the party was look- The issue of the name had arisen out of the ing for a solution to the Kurdish problem fact that it included the word “communist,” that would enable the Kurdish and Turkish and there was a law making it an offense to peoples to “live together of their carry on political activities inspired by com- within the borders of the Turkish Repub- munist ideology. However, the objection lic.” In the Court’s view, there was no more taken to this by the authorities was partly than a wish to have a non-violent political unsustainable because that law had been dialogue as to how to resolve one of the repealed; even if that had not been the country’s problems, and it emphasized that case, the Turkish Constitutional Court had “there can be no justification for hindering itself concluded that the mere choice of a political group solely because it seeks to name did not mean that the party was seek- debate in public the situation of part of the ing “to establish the domination of one State’s population and to take part in the social class over the others.” Indeed, it was nation’s political life in order to find, evident that this particular party satisfied according to democratic rules, solutions the requirements of democracy,85 so there capable of satisfying everyone concerned . was no basis for objecting to the party on . . . That was indeed the TBKP’s objec- account of its name. tive.” 87 The mistake in the approach of the Furthermore, the Court could not be Turkish authorities had been to focus on persuaded that the reference to the Kurdish matters of form rather than to consider “people,” “nation,” and “citizens” in its issues of real substance as regards the program was necessarily intended to pro- nature of the party’s objectives. mote the unconstitutional objective of There was a similar failure in Socialist . The view of Turkey was that the Party and Others v. Turkey,88 which was con- distinction that was being made between cerned with the fact that references to the the Kurdish and Turkish nations had right to self-determination of the “Kur- revealed an intention of working to create dish nation” and the latter’s right to secede minorities that would pose a threat to its had been taken out of their context; they territorial integrity. However, there was were not meant to encourage unlawful actually nothing in the program describing secession but to emphasize that a proposed the Kurds as a minority or claiming special federal system should not come about with- treatment for them,86 let alone an assertion out the freely given consent of the Kurds, of a right to secede from the rest of the to be given by way of a referendum.89

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 35 baku_book.qxd 2003. 01. 21. 15:51 Page 36

Equally the Court found it unjustified in cerned92 rather than the terms used in its Freedom and Democracy Party (ÖZDEP) v. formal statement of objectives. The focus Turkey90 to conclude that a party’s support should thus be much more on the regula- for “the just and legitimate struggle of the tion of the former instead of on the exer- [Kurdish] peoples for independence and cise of control at the time of formation.93 freedom” meant that they wished to incite people to use violence or otherwise break Legal Personality and Other Rights the rules of democracy; the use of the term The essence of freedom of association is “struggle” was rightly recognized as a com- the pursuit of the common objectives of a monplace term used by parties in Europe group of persons (natural or legal). This for their political demands. Furthermore, as may be achievable through the individual in the previous case, references to “self- legal capacities of those persons, but in determination” of the “national or reli- practice the objectives may be best pursued gious minorities” were not to be taken out through the body concerned having a dis- of their context; there was no intention to tinct legal personality from those people encourage people to separation from who seek to establish or belong to it. Such Turkey but to emphasize the need for the a personality will certainly entail certain consent of the Kurds to the political basic legal capacities and possibly some reforms being proposed.91 others essential for the pursuit of its objec- It is thus evident from these cases that tives, but it certainly does not follow that any evaluation of objectives, particularly associations should enjoy all the rights that where this has a bearing on conferment or might prove useful for that pursuing them. retention of some legal status, must be well Moreover, the fact that some of these addi- informed. Furthermore, such an evaluation tional rights are conferred on certain types must itself be respectful of the political plu- of associations is not inherently objection- ralism underlying the European Conven- able so long as the principle of non-dis- tion and other international human rights crimination is respected. guarantees; different views must be respect- ed, and any conclusions as to where they Legal Personality will lead must not be shaped by prejudice or There are undoubtedly certain activities that narrow-minded perspectives. In general, will be essential for the basic operation of freedom of association will be better an association, such as the ability to enter respected if the imposition of restrictions into contracts related to the pursuit of its is guided by the deeds of the body con- objectives and to make payments for the

36 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 37

goods and services thereby obtained. The them for contracting through an interme- former will range from the printing of doc- diary. Most importantly, such an arrange- umentation through the arrangement of ment is likely to make the day-to-day work- appropriate and the renting of ing of many associations subject to inap- premises (both for offices and meetings) to propriate delays and uncertainties and result the employment of staff; they may also in the pursuit of their objectives being at include matters as diverse as the purchase best extremely difficult and at worst impos- and maintenance of vehicles, the purchase sible.94 and storage of food, clothing, and other There is, of course, no reason an asso- humanitarian supplies, and the organiza- ciation cannot choose to work in this way— tion of training and educational programs. indeed, it may be unproblematic in the case In theory, these are all activities that of ones with very limited objectives, a pref- could be carried out on behalf of the asso- erence for less formal structure, or both— ciation by those belonging to it, relying on but it is unlikely that it would be suitable for their own legal personalities and also their most associations. It is not surprising, there- private bank accounts for the purpose of fore, that the Court readily accepted in making payments in respect of the con- Sidiropoulos and Others v. Greece that the tracts concerned. However, this is often refusal to register the applicants’ associa- likely to be an impracticable solution, for a tion—with the result that it was denied number of reasons. Certainly members of legal personality—was an interference with an association may be discouraged from freedom of association. In its view, “The acting as a conduit for its transactions, refusal deprived the applicants of any pos- because of the tax liability that they might sibility of jointly or individually pursuing face on account of the funds flowing into the aims they had laid down in the associa- their bank accounts, as well as the potential tion’s memorandum of association and of for incurring obligations to meet civil lia- thus exercising the right in question.”95The bilities in circumstances over which they fundamental importance of a legal person- had no direct control. Furthermore, many ality for associations was further underlined organizations are likely to be reluctant to by the Court: “The most important aspect deal with an association in this indirect way, of the right to freedom of association is since they may be concerned about the pos- that citizens should be able to create a legal sibility of funds going astray and the entity in order to act collectively in a field of absence of clear lines of accountability, to mutual interest. Without this, that right say nothing of possible legal restrictions on would have no practical meaning.”96 It is

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 37 baku_book.qxd 2003. 01. 21. 15:51 Page 38

essential, therefore, that the option of of an association.103 This case is, however, acquiring legal personality be available to also a useful reminder that other provisions those who wish to establish an associa- of the European Convention can often be tion.97 invoked to protect associations; interfer- The requirement that legal personality ence with their activities will thus not always should be capable of being acquired—in be just a matter of being able to associ- the event that this is the wish of an associ- ate. 104 The need to recognize that associa- ation’s founders98—is, of course, subject to tions are able to enjoy some form of prop- the objectives being acceptable,99 and it erty rights does not, however, necessitate does not entail an obligation to ensure that they must also have the right to acquire it in every possible legal capacity should be particular ways; a bar on their benefiting enjoyed. However, in addition to the legal from legacies was not, for example, objec- capacities already mentioned, it may also be tionable where an association had other essential to recognize that an association can means of acquiring income.105 exercise ownership rights in respect of It is not particularly significant what property, since this is likely to be an impor- form the legal personality acquired by an tant means of pursuing its objectives, both association takes; many countries have spe- directly (such as the premises in which they cial regimes governing such personality, but take place) and indirectly (as a source of there would not be anything inherently finance for them). Furthermore, it should objectionable in the provisions regarding be able to protect those property rights, as corporate entities also being used for this well as any other legal interests that it may purpose, if they did not create any difficul- have, and this would undoubtedly necessi- ties regarding the pursuit of an association’s tate the possibility of being able to bring objectives. 106 It is also possible for the law and defend legal proceedings.100 to require associations for certain purposes The failure to accord such a right, or to take on even more specific legal forms, as rather the taking away of it, was character- commonly happens in the case of religious ized as a violation of the right to property associations and trade unions; however, in the case of Holy Monasteries v. Greece,101but such forms, while possibly advantageous although it was not considered in that case for the purpose of regulation or the con- that any issue arose in respect of Article ferment of benefits,107 should not create 11,102 the latter could be significant in other any unjustifiable impediments to the pursuit circumstances; loss of control over proper- of a particular association’s objectives. 108 ty could, for example, frustrate the purpose

38 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 39

Other Rights activities of trade unions that the relatively Apart from enjoying these essential aspects limited expectations an association should of legal personality, an association is not have following its formation can most clear- generally entitled by virtue of freedom of ly be seen. However, it is evident from association to the granting of any other these cases that a minimalist approach rights—no matter how useful those might should not be taken to extremes, as there be—in order to pursue its objectives. The are certainly some positive obligations with- reluctance to regard other rights as inherent in Article 11 as to the maintenance of a in freedom of association is premised on favorable environment for associations. the assumption that the absence of them Certainly the Strasbourg institutions have does not render the fact of association rejected claims based on freedom of asso- devoid of all practical meaning; it is still ciation that unions should be able to insist possible for the collective objectives to be on with employers,111 advanced, even if the preferred means can- on rights of consultation by government not be used. Thus, an association cannot prior to the adoption of legislation,112 and expect an automatic entitlement to chal- on representation on a national labor coun- lenge the lawfulness of some activity in the cil.113 Furthermore, it has also not been courts simply because this has a bearing on accepted that a right to strike should be some matter that falls within its objectives. seen as an inherent aspect of freedom of So the concern of, for example, an envi- association.114 ronmental group about certain construc- However, in reaching the conclusion tion being contrary to the applicable law that such rights could not be regarded as would not be a sufficient basis for it to insist being secured by freedom of association, on the right to bring legal proceedings chal- considerable emphasis has always been laid lenging the authorization for the construc- on the ability of the unions concerned to tion to proceed.109 The group could bring pursue their interests through other means such proceedings by reference to freedom than the ones they had claimed under Arti- of association only where its own interests cle 11. Thus, it has been repeatedly sug- were directly affected;110 in the absence of gested in particular that it followed, from that, such a challenge would probably be the reference in Article 11 to the joining of feasible only if country concerned took a trade unions “for the protection of his very generous view of standing in public interests,” that a should still be law proceedings in general. heard—even if this guarantee left a state It is the context of cases involving the with a free choice of means as to how this

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 39 baku_book.qxd 2003. 01. 21. 15:51 Page 40

was to be effected.115 Although the Court restrictions imposed by a particular legal has in the past always been persuaded that structure on the operation of any associa- some such means of protecting the inter- tion (and not just a trade union) are such ests of trade union members existed when that it can do no more than exist.120 There rejecting claims for particular rights, it had may thus be no guarantee that particular no hesitation in finding in Wilson and Others means can be employed,121 but the essence v. United Kingdom116 that there was a viola- of an association is the pursuit of objec- tion of Article 11 when it saw that an tives rather than the simple union of those employer was effectively allowed by the law persons who hold them to be important. to undermine or frustrate a trade union’s It is, however, improbable that the abil- ability to protect its members’ interests. ity for associations to undertake trading This situation arose because employers activities, let alone the possibility of being were entitled to use financial incentives to able to do so on some preferential basis vis- induce employees to surrender important à-vis the business community generally or union rights, such as the termination of a the granting of other kinds of privilege collective bargaining arrangement;117those (such as some exemption from taxation), employees who did this by signing new could normally be regarded as essential for contracts were awarded substantial pay the pursuit of objectives and thus an rises, and this was clearly “a disincentive or implied aspect of freedom of associa- restraint on the use by employees of union tion.122 Nevertheless, it should always be membership to protect their interests.” 118It borne in mind that the international guar- is, however, unlikely, that any treatment of antees for this freedom are imposing only union members that is less favorable than minimum obligations, and there can be lit- that of other employees will be regarded as tle doubt that the promotion of associa- amounting to a violation of Article 11, tions in this way can serve wider interests; unless it is so significant that union mem- such an of associations not bership becomes either pointless or seri- only will benefit the development of civil ously unattractive.119 society, but is also likely to facilitate the Notwithstanding the specific trade achievement of many social objectives that union context, the recognition that there would not be so readily accomplished must be some means of pursuing the col- through governmental structures. lective objectives is undoubtedly also of It may be, of course, that benefits are more general significance; it is highly likely conferred on some but not other associa- that Article 11 will have been violated if the tions, and it should not be overlooked that

40 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 41

this could always be open to challenge on be seen in Van der Heijden v. The Nether- the basis that it is unjustified discrimination, lands,130 in which no objection was taken to invoking Article 14 of the European Con- the termination of the contract of the vention to expand the protection afforded regional director of a foundation that pro- by Article 11. On the other hand, there is no moted the interests of immigrants and pro- barrier to a state’s choosing to grant some vided them with advice, because he was also advantages to some forms of association, a member of the bureau of a party that so long as any differentiation between these advocated a policy of repatriating immi- forms has a rational and objective basis.123 grants. In the circumstances of the case, the Commission considered that it was reason- Penalties for Membership able for the employer to have some discre- Of the positive obligations that the right to tion concerning the composition of its freedom of association imposes on states, staff, and that in view of the applicant’s pro- one that ought not to be overlooked is that fessional duties and the specific nature of improper sanctions should not be imposed his work, the employer also “could reason- on persons merely because of their mem- ably take account of the adverse effects bership in an association. Thus, there ought which his political activities might have on to be a remedy for anyone dismissed the Foundation’s reputation, particularly in because of his or her trade union activi- the eyes of the immigrants whose interests ties,124 and the same principle would also it sought to preserve.”131 This was a situa- be applicable to dismissal because of the tion in which there was a very public con- activities and objectives of any other form tradiction between the two aspects of an of association,125 and indeed to any other individual’s life; the same outcome might forms of sanction126—apart from the not be appropriate where the employee had refusal to associate with someone127—that no direct responsibilities regarding either are imposed simply because of the mem- the direction of the foundation or the pro- bership of the person concerned in an asso- vision of advice but was, for example, only ciation.128 responsible for cleaning its center and had The only exception admissible would no direct contact with those coming to it be where membership in the association is for advice.132 clearly incompatible with performance of Certainly the imposition of a sanction the employee’s responsibilities or with other for membership will not be considered jus- obligations.129 An example of such an tified where there is no direct evidence of incompatibility in the former context can incompatibility but it is only a matter of

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 41 baku_book.qxd 2003. 01. 21. 15:51 Page 42

supposition. Thus, a violation of Article 11 need for regulation, and although the sec- was found in Grande Oriente D’Italia di Palaz- ond paragraph of Article 11 recognizes zo Giustiniani v. Italy133 when persons there are some interests that can legitimately belonging to Masonic lodges were disqual- be invoked to restrict this freedom, the bur- ified from appointment by a regional den of proving that certain limitations are authority to various positions in public and required is undoubtedly on those who private bodies;134 this was an inappropriate would impose them. The very essence of response to a generalized concern about the freedom of association is the ability of Masonic influence over public decision- those belonging to a body to decide how it making when there was nothing actually should be run; this necessitates both a min- reprehensible in someone belonging to a imalist approach to regulation and very lodge.135 close scrutiny of attempts to interfere with the choices that associations and their Regulation members make about the organization of There is, of course, an inevitability about their affairs. the consideration given by governments to the need for some form of regulation Formation whenever any kind of activity is undertak- In many instances, the first problem con- en, and such consideration in which those fronted by an association is its very coming establishing and running associations are into existence and, in particular, the degree involved is certainly not an exception. Fur- of control exercised over this process by thermore, given both the possible concern state institutions. Although it has been indi- about objectives already discussed and the cated that there is an obligation on states to desirability of conferring certain advan- provide for the possibility of an association tages on at least some forms of associa- acquiring legal personality,137 a state is not tions,136 there is no a priori basis for object- generally entitled to insist on this being ing to the fact of regulation. Nevertheless, acquired by those who wish to form an the very fact that the European Convention association; if a group of individuals prefer recognizes freedom of association as a right a relatively informal status, then it would be that must be respected necessarily entails difficult to justify compulsion for them to some limits on the degree of regulation to establish something with a more formal which the establishment and operation of character. 138 However, no objection could associations can be subjected. Indeed, the be raised with respect to a requirement that presumption must actually be against the an association have a formal status where

42 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 43

either that is seen as essential for the pursuit judgment in the approach to drawing con- of certain activities (such as a trade union or clusions about activities or objectives, it is a religious organization) or that is a prereq- evident that in some countries the process uisite to acquiring certain benefits (such as is in reality being used as a means of exer- tax privileges), as the essential obligation cising an entirely unfettered discretion with under Article 11 in this connection is to be regard to the conferring of a formal status able to exercise certain legal capacities on a grouping of individuals, and such an rather than to be a particular type of legal abuse of the regulatory power is clearly person.139 Nevertheless, even in such cases, incompatible with Article 11. In order to there will still be a need to ensure that the minimize the risk of this occurring and to degree of regulation is not unduly oppres- facilitate the exercise of judicial control sive. over an allegedly improper refusal of Although the acquisition of legal per- recognition or registration, the grounds for sonality can be the automatic consequence taking such a decision—which should be of forming an association and thus not be for one of the legitimate aims identified in subject to any further formalities,140 it is in the second paragraph of Article 11—must principle compatible with Article 11 to be stated with an appropriate degree of insist that the entity go through some form precision and be such as to permit objective of recognition or registration process assessment of their observance. As a con- before such personality is achieved.141 Such sequence, not only is it improbable that a process can, as has already seen from the broadly framed criteria will be regarded as discussion of objectives, involve an assess- acceptable,142 but also it is most likely that ment of whether the objectives and pro- they will encourage improper refusals of posed activities of particular associations recognition or registration. are either contrary to the constitution or in Other than in those situations in which some other respect unlawful. Where this is the objectives and activities of an associa- found to be the case—bearing in mind the tion are properly found to be contrary to limited extent to which it is possible to the constitution or the law, 143 there are like- make such a judgment at this stage—it will ly to be only a limited number of circum- be admissible for recognition or registration stances in which a refusal of recognition or to be refused. This is certainly not a matter registration might be justified. They would in which all room for judgment can be certainly include such a refusal in cases in excluded; however, apart from those cases which the proposed name of the associa- in which there had been some genuine mis- tion belonged to another body or could be

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 43 baku_book.qxd 2003. 01. 21. 15:51 Page 44

confused with it or was in some other way tions and those forming them, the possi- damaging to it144 or could in some other bility of bringing a legal challenge to a way be genuinely regarded as misleading to refusal must be something that can be the public.145 However, no matter how speedily pursued. If these conditions are well-intentioned, the process of approval not met, then it is likely there will be not should not generally be used to impose only a violation of Article 11 but also, in constraints on the ability of associations to many instances, violations of Articles 6 and draw up their own rules, to administer their 13, the rights to a fair hearing and to an own affairs, or to make links with other effective remedy.150 bodies, as these are essential elements of It is also important that the actual freedom of association. Any interference process of dealing with an application for with that freedom would be admissible only recognition or registration—where this is if it were capable of being justified under required—takes place in a reasonably Article 11(2), such as the imposition of speedy manner, so that delay does not requirements necessary to preclude unjus- become a means of frustrating the pursuit tified discrimination or to protect the legit- of an association’s objectives. A useful imate interests of members.146 point of comparison in judging what is However, well-formulated criteria will reasonable might be the time taken to reg- never be an absolute guarantee against the ister corporations or . These also refusal of recognition or registration for have objectives that need to be checked, reasons not permitted under Article 11,147 and in most countries these can still be reg- and that is why there is a need not only to istered in a matter of days rather than of give those making these decisions appro- months. There is therefore no clear need priate training148 but also to ensure that for a significantly longer period to be need- there is effective judicial scrutiny of any ed for the process of recognizing or regis- such refusal, as regards both the interpre- tering an association, and it is undoubtedly tation of the law and its application to the the sort of yardstick the Court would taken particular facts of the case. Furthermore, in into account when dealing with any com- order to facilitate such scrutiny, there plaints about undue delay in reaching a should always be a reasoned decision where decision. recognition or registration has been refused, and this must, of course, be ade- Protecting Members’ Rights quate.149 In addition, given the potential There is a legitimate interest in a state’s significance of such decisions for associa- undertaking some regulation of associa-

44 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 45

tions in order to secure the rights of others, to a hunting association and allow hunting and this would justify, and indeed require, on their land despite their opposition to legal provisions designed to protect mem- hunting.153 It does not matter whether the bers from any abuse of an association’s constraints imposed on someone belonging dominant position. This might entail estab- to an association are directly imposed by the lishing a means of redress to prevent mem- law or are merely facilitated by it.154How- bers from being expelled contrary to the ever, they are less likely to be seen as objec- association’s rules or from being subjected tionable where they do not involve deeply to certain disadvantages that could be seated objections to membership being regarded as amounting to considerable overridden155 or entail no more than the hardship, or even to prevent the adoption exercise of legitimate forms of trade union of rules that could be construed as wholly activity.156 Moreover, the mere fact that unreasonable or arbitrary.151 In such cases, there may be tax or other advantages in appropriate protection would generally be joining an association will not in itself make satisfactorily afforded by some legal basis the incentive impermissible.157 Further- for the member concerned to challenge the more, as has already been seen, there has matter in the courts; there would rarely be not so far been any objection to a require- any need for a state entity actually to inter- ment that individuals join a professional vene on his or her behalf. association.158 However, although the indi- As freedom of association is primarily vidual interest in is the right of the individuals belonging to the undoubtedly offset to some extent by the entity, there will also be some obligation to public interest in regulation, it has been a ensure that they are not being unduly feature of all the cases concerned with such coerced into joining. This recognition of a associations that there was no restriction on negative dimension to freedom of associa- the members setting up their own organi- tion has led in the trade union context to zation in addition to the one they were finding unacceptable any requirements that obliged to join;159 in other words, they were individuals forgo their objections to mem- still in a position to voice their opinions in bership in order that they retain their job or their own way. Any compulsion to belong can continue to pursue their livelihood.152 to professional associations160 is thus like- However, it is a concern that is equally ly to be viewed much less favorably if these applicable outside the trade union context. associations are the only means through Thus, the Court has upheld a complaint by which their members can express an opin- small landholders being required to belong ion in the relevant sphere, as well as if the

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 45 baku_book.qxd 2003. 01. 21. 15:51 Page 46

structure of them is such that the coerced have lost the freedom to organize its own members do not even have a genuine affairs, and insofar as this is not voluntary, opportunity to influence the policy-making there will be a violation of Article 11. An process. instance of this happening can be seen in the attempt to use a taxi association as a way Controls over Management of administering the provision of taxi ser- Concern about regulation should also vices in Iceland.161 The regulation of such extend to the uses to which a state might try services was undoubtedly in the public to put a particular association. It is certain- interest and might well be a sufficient basis ly not uncommon to find what might be for requiring membership in a public law thought to be state objectives being secured body,162 but the co-option of what was a with the assistance of private bodies, private association in this case meant that whether commercial entities or private the latter was no longer in a position to run associations with an objective common to its own affairs, which is one of the princi- that of the state, and whether by means of pal elements of freedom of association. some kind of partnership, contractual For the same reason, it would be very arrangement, or other form of delegation. difficult to justify attempts (whether at the There can be no objection to this, and registration stage or subsequently) to pre- indeed, as has already been noted, this is scribe in detail how an association should one of the very reasons for encouraging organize its affairs—whether it ought to civil society to develop; the non-govern- have this or that management mental sector can often provide greater structure163—and there should certainly flexibility in responding to some problems, not be attempts to interfere with the choice and the fact that it is often much more of its representatives.164 closely linked to those in need of assistance Furthermore, although public account- can make it much better equipped to judge ability will be a relevant consideration where where efforts can most usefully be applied. an association is working with public However, while it would be foolish not authorities, enjoys some public benefits, or to draw on such a useful resource, attention both, this should certainly not permit unim- will always need to be paid lest this results peded access to the way in which particular in attempts by the state to take over partic- choices are being made by an association ular associations and effectively make them and in the first instance is likely to extend agencies working under its control. In these only to the provision of relevant informa- circumstances, the entity concerned will tion. Thus, it would be entirely legitimate

46 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 47

for an association’s decision-making to be of association.165 taken in closed meetings, but there could be a requirement that a proper record be kept Policing of the proceedings. Nevertheless, the state There may, of course, be instances in which will have responsibility for ensuring that associations do engage in improper activi - both its interests and the rights of others ties, and this may require some intervention are protected; this would justify require - by the state. However, it ought to proceed ments for financial reporting and indepen- on the same assumption that applies to dent auditing of accounts. It would also jus- individuals, namely, that what someone is tify an obligation that those responsible for doing is lawful in the absence of contrary decision-making in the association be clear- evidence.166 Thus, there ought not to be ly identified; there may be instances when any power to search an association’s premis- this gives rise to legal liabilities and private es and seize documents and other material bodies or the state will need to know against there without objective grounds for taking whom proceedings should be brought. such measures. Furthermore, the autho- However, there is no need for this to be rization for this ought to be given by a subject to oppressive regulation, and while judge, and the terms of a warrant ought to it could be a matter of notifying the author- be precise; there must be clear identification ity responsible for recognition or registra- of what the search is in connection with, tion, there are undoubtedly other ways in and no permission can be given for a gen- which this objective could be achieved in eral trawl in the hope of finding something various ways; for example, a record at the interesting. A judge also ought to be pre- association’s bank of those authorized to pared to refuse authorization for a search take decisions on its behalf would undoubt- where no evidence justifying one is provid- edly be as effective. ed. This is all well established in the case law In contrast to a state having a legitimate under Article 8 of the European Conven- need to know the executive officers of an tion, and it applies whether or not the association, there is no obvious justification object of the source is an individual or an for requiring disclosure to it of the names association.167 It should be noted that of members; individuals have a right to pri- monitoring of an association’s activities or vate life under Article 8 of the European members through surveillance techniques Convention. Indeed, disclosure might also such as the interception of communica- be a discouragement to joining and, there - tions must also be justified in accordance fore, an unacceptable inhibition on freedom with the requirements of Article 8; in the

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 47 baku_book.qxd 2003. 01. 21. 15:51 Page 48

absence of this, there would be legitimate independent judge with full jurisdiction grounds for complaint about non-obser- over these matters. If this is not possible, vance of this provision.168 then there will undoubtedly be violations of Where there is good justification for Articles 6 and 13 of the European Con- taking action against an association, vention, which guarantee a fair hearing in whether because it has not observed some the determination of civil rights and an of the requirements concerning recognition effective remedy.171 Furthermore, where or registration or because it has engaged in the validity of any requirement that an other conduct that is impermissible, then association should desist from a particular the appropriate powers can be exercised by activity is in dispute, it should be possible to the state. However, in such cases a sense of apply to have this suspended until the out- proportion is still required; technical failings come of the relevant proceedings; there should not have serious consequences for would have to be very grave circumstances either the association or the individuals con- for this to be denied, and it would be essen- cerned. Thus, consideration should first be tial that any such refusal should itself be given to whether the matter can be ade- subject to prompt judicial challenge. With- quately handled through the issue of some out the latter safeguard, an allegedly form of directions,169whereby only subse- “urgent” suspension of an association’s quent non-compliance will give rise to sanc- activities could be used as a pretext for tions, rather than the immediate institution stopping its pursuit of entirely legitimate of criminal proceedings. 170 The latter does, ones. of course, have the inherent safeguard of judicial supervision, and it is important that Dissolution any administrative measures are also subject In most instances, the appropriate sanction to this condition. The mere fact that the against an association for not observing administration asserts that an impropriety the legal requirements applicable to it will has occurred does not mean that this is cor- merely be the requirement to rectify its rect; the assertion may be based on a mis- affairs, some form of civil liability, and/or taken interpretation of the law, or there may the imposition of an administrative or crim- have been some misunderstanding or inal penalty on it and on any individuals incomplete information that led to its being directly responsible. The application of made. In either event, it is imperative that such penalties should, of course, always the association be in a position to challenge observe the principle of proportionality, as the position adopted by the state before an otherwise they are likely to be an indirect

48 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 49

inhibition on freedom of association. on any similar activity in the future.”175 It However, there may be circumstances in may be that the scrutiny will not be quite as which the conduct of the association would strict in cases where the association being warrant its enforced dissolution.172 These dissolved is not a political party—although are likely to be very rare indeed and would it is unlikely that there would be a significant probably cover only situations in which the difference in the approach in respect of association undertook anti-constitutional such a party and an association whose activities, failed to desist from other illegal objectives might be seen as political in a conduct after appropriate warnings and non-party sense—but the fundamental opportunities to rectify such failings, or had requirements are the same for all associa- such prolonged inactivity that it was neces- tions. These are that a measure such as dis- sary to intervene to ensure that its funds solution must not only be proportionate to were properly applied.173 the legitimate aim being pursued—dissolu- The need for an extremely well-found- tion must remain an exceptional step—but ed basis for such a drastic action as disso- the reasons for it also have to be clearly “rel- lution has been repeatedly emphasized by evant and sufficient.” 176 the Court. Thus, in United Communist Party of In the United Communist Party of Turkey Turkey and Others v. Turkey174—which con- case, it was particularly significant that the cerned the dissolution of this political party party had been dissolved even before it had by the constitutional court after it had been able to start its activities, and that the sought a ruling from that body, with a view dissolution was therefore ordered solely on to its taking part in an election, assessing the the basis of the party’s constitution and compatibility of its objects with the Con- program. The two grounds derived from stitution—the Court made it clear that the these by the constitutional court were that, protection afforded by Article 11 was not contrary to a provision in the criminal code limited to the mere formation of an asso- making it an offense to carry on political ciation but lasted for its entire life, and that activities inspired by communist ideology, while there was a need for rigorous super- the party had included the word “commu- vision of all restrictions on freedom of nist” in its name, and that it sought to pro- association, especially where political parties mote separatism and the division of the are concerned, “such scrutiny is all the Turkish nation. In the Court’s view, a polit- more necessary where an entire political ical party’s choice of name could not in party is dissolved and [as also occurred in principle justify such a drastic measure as this case] its leaders banned from carrying dissolution, without there also being other

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 49 baku_book.qxd 2003. 01. 21. 15:51 Page 50

relevant and sufficient circumstances. How- regarded as objectionable in what was being ever, these were clearly lacking; the formal- proposed. It did concede that the party’s istic approach of the Turkish constitution- program might conceal objectives and al court—which proceeded on the assump- intentions, but it added that these could be tion that the use of the name automatically verified only by comparing that with its triggered the application of the provision in actions and the positions that it defended; the code—was undermined by the fact that however, this was impossible given the by the time of the dissolution this offense peremptory dissolution of the party after its had been repealed. And the constitutional formation. Under the circumstances, such court had itself found that the party, drastic action was understandably seen as a notwithstanding its name, was not seeking disproportionate measure to protect the “to establish the domination of one social constitutional order and thus a violation of class over the others, and that, on the con- Article 11. Indeed, dissolution at such a trary, it satisfied the requirements of stage is always going to very difficult to jus- democracy, including political pluralism, tify since—as in the case of a refusal of universal and freedom to take part recognition or registration because of what in politics.” 177 an association’s objectives or activities are Under these circumstances, the choice thought to entail180—there will so little of name could not support a conclusion basis to substantiate the need for such that this party had opted for a policy repre- action. senting a real threat to either Turkish soci- The absence of any concrete action by ety or the Turkish state, and so this was the body being dissolved was also impor- insufficient to justify its dissolution.178 tant in Socialist Party and Others v. Turkey.181 Although the second ground invoked by In this case, the party—which, unlike the the constitutional court, namely, an inad- party previously considered, had been in missible objective, would undoubtedly be operation for some time182—had been dis- capable of justifying such a drastic measure solved because of various public statements as dissolution, it is still necessary to demon- that the constitutional court considered to strate that this exists; as has already been constitute evidence that was binding on it seen,179 the Court’s examination of the even though the person making them had party’s constitution and program—which ceased to be its chairman. As has already took into account the difficulties associated been seen,183 the Court found nothing in with the fight against terrorism in Turkey— those statements that could be considered failed to disclose anything that could be a call for the use of violence, an uprising, or

50 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 51

any other form of rejection of democratic operation of different religious rules for principles; it noted, on the contrary, that the each religious community, in which sharia person had in fact stressed the need for would be the applicable law for the Muslim democratic change, even if strong language majority of the country and/or the ordi- had been used in the statements. Further- nary law. Furthermore, they had given the more, they had to be read in their context, impression that it did not exclude the pos- so that references to self-determination and sibility of recourse to force in certain cir- secession had to be understood in terms of cumstances in order to oppose certain the need for any federal system that might political programs, or to gain power and be adopted in Turkey being based on the retain it. In these circumstances, it consid- freely given consent of the Kurds.184 There ered that a state might “reasonably forestall was thus nothing anti-democratic in the the execution of such a policy, which is statements and, in the absence of anything incompatible with the Convention’s provi - that would belie the sincerity of the speak- sions, before an attempt is made to imple- er, action was effectively being taken against ment it through concrete steps that might the party for conduct that was no more prejudice civil peace and the country’s than a legitimate exercise of freedom of democratic regime.”187 expression. As a result, its dissolution, It was important, however, that the dan- notwithstanding the legitimate aim of the ger posed by such political aims was not protecting national security, could only be something that was merely theoretical or regarded as disproportionate and thus illusory but was achievable, since such dras - unnecessary in a democratic society. 185 tic action as dissolution could be justified However, it can still be possible to sub- only where there is a genuine and immedi- stantiate a case for dissolution, as is evident ate threat to public order. Such a threat was from the ruling in Refah Partisi (The Welfare considered to exist in the present case Party) and Others v. Turkey.186 In the Court’s because the party had significant influ- view, there was a sufficient basis in the ence—through holding more than a third remarks and policy statements of the of the seats in the national assembly and party’s leaders to conclude that its objective through its increasing success in local elec- was anti-secular and thus anti-democratic, tions—and because of the success that in that they had advocated setting up a plu- other political movements based on reli- rality of legal systems, the introduction of gious fundamentalism had had in the past in discrimination between individuals on the seizing political power and then setting up ground of their religious beliefs, and the the societal model that they advocated. Fur-

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 51 baku_book.qxd 2003. 01. 21. 15:51 Page 52

thermore, the action was not seen as dis- anti-constitutional activity is involved, but it proportionate in its effect since, apart from will also be a factor that could contribute to the dissolution, only five of the party’s lead- the possibility of the measure being seen as ers temporarily forfeited their parliamentary disproportionate.192 Certainly such a trans- office and their role as leaders of a political fer would probably not be justifiable where party.188 Nevertheless, the very thorough the dissolution is based on other consider- examination of the various remarks and ations, such as the prolonged inactivity of policy statements demonstrates that disso- the association. In such a case, there is no lution remains an extremely difficult mea- reason this should lead to a windfall for the sure to justify, and it is not something that state; appropriate respect for the objectives should be lightly undertaken.189 of those giving property to the association Where dissolution does appear to be would be to ensure it was transferred on to justified, it is a measure that must be subject a body with similar objectives.193 In addi- to effective judicial supervision in order to tion to the violation of Article 11 in respect remain valid; without this, there would be of the association and its members, a fail- no effective remedy against a possible inter- ure to do this would probably violate the ference with freedom of association, and rights of the donors to control the use of thus there would be a violation of Article their property under Article 1 of the First 13.190 Furthermore, it would be only in the Protocol.194 most exceptional case that the effect of a dissolution decision would not be suspend- Public Employees ed until the outcome of any challenge to its It will be noted that the last phrase of Arti- validity; one of the factors in leading to the cle 11 speaks directly to the scope of the conclusion that dissolution was dispropor- freedom of association that can be enjoyed tionate in those cases where a violation of by certain persons in that the guarantee is Article 11 was found was the “immediate” expressed not “to prevent the imposition of effect of the measure,191 and its drastic lawful restrictions on the exercise of these character would undoubtedly be mitigated rights by members of the armed forces, of if the possibility of suspending it existed. the police or of the administration of the In all the cases of dissolution just con- State.” 195 Whereas it will be relatively clear sidered, one of the automatic consequences who falls within the first two categories,196 of it was the transfer of the assets of the the reach of the third may be more prob- associations concerned to the state. This lematic because of the varying approaches may well be an appropriate approach where taken by states with regard to the organiza-

52 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 53

tion of the public sector. Nevertheless, it is must always have a basis in law,202 be for a category that the Court has indicated one of the purposes identified in the sec- should be “interpreted narrowly,”197 and it ond paragraph of Article 11, and observe is unlikely that the fact that someone is paid the principle of proportionality, even if out of public funds or is formally catego- they may be more extensive than the restric- rized as a public servant will be decisive. tions that would be considered acceptable The Court has left open the question of in respect of anyone else.203Thus, in Vogt v. whether it applies to teachers, notwith- Germany, the dismissal of a language teacher standing the domestic designation of them because of her membership and active as public servants198 and in a different set involvement in the Communist Party was of proceedings other public servants were found to be a disproportionate measure to brought within the limitation only because protect constitutional democracy when the the purpose of the institution in which they party itself had not been banned and the worked resembled that of the armed forces applicant had not only asserted her belief in and the police.199 Furthermore, in Grande the constitutional order but had also never Oriente D’Italia di Palazzo Giustiniani v. , promoted the party ideology in the class- the Court was not prepared to regard room.204 On the other hand, in Ahmed and appointees by a regional authority to mem- Others v. United Kingdom—in which the limi- bership in various public and private bodies tation clause was not actually invoked—the as coming within the scope of the limita- Court upheld restrictions that prevented tion, since their link with that authority was certain local authority employees from seen as even less close than that of the being active in an organizational and admin- teacher in the Vogt case with her employ- istrative capacity in political parties or from er.200 It is thus possible that the term being officeholders in such parties, as justi- “administration of the State” will ultimate- fied in order to maintain a long-standing ly come to be regarded as applying only to tradition of political neutrality on the part higher-ranking officials, with restrictions of those advising and guiding elected mem- being held appropriate because of the level bers of the authority. In so doing, the Court and nature of their responsibilities;201 nev- attached particular significance to the rela- ertheless, it is still likely to cover a wide tively precise functional definition of those range of people. covered by the restrictions205 and the fact In imposing limitations on the freedom that they did not preclude either membership of association on those who do fall within in a political party or involvement in all the the scope of this clause, it is clear that these activities of such a party.

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 53 baku_book.qxd 2003. 01. 21. 15:51 Page 54

In Rekvényi v. Hungary,206 the Court individual petition under the European accepted that a complete prohibition on Convention extends to non-governmental members of the police even belonging to organizations. This means that those asso- a political party, as well as engaging in var- ciations (and not just their members) ious forms of political activity, could be whose rights under Article 11—as well as justified on account of the desire to ensure under its other relevant provisions—are that “the crucial role of the police in soci- apparently being infringed209 can have ety is not compromised through the cor- recourse to the Court in Strasbourg in the rosion of the political neutrality of its offi- event that there is no effective remedy cers.” In this regard, the Court saw as par- available to them within the country where ticularly significant that Hungary was in this is happening. It will be of no conse- transition from a totalitarian regime that quence in this regard that the association had greatly relied on the direct commit- either has not yet acquired legal personali- ment of the police to the ruling party—the ty or has lost it through dissolution, not aim was that “the public should no longer least since these may be the matters that are regard the police as a supporter of the being challenged.210 This provides an totalitarian regime but rather as a guardian assurance that the European standards of democratic institutions.”207 However, with respect to freedom of association are as the Ahmed case indicated, political neu- observed in practice and not just in theo- trality is of importance for all democratic ry. However, in the case of the Interna- societies, and it is unlikely that a similar tional Covenant on Civil and Political restriction could not be justified merely Rights, it would appear that only members because the recent political history of the of associations who are natural persons society concerned was not similar to that of can complain under its First Optional Pro- Hungary. Nevertheless, in upholding this tocol about interference with freedom of restriction, the Court emphasized that con- association and its allied rights, since legal siderable scope was still left to police offi- persons—whether members or the associ- cers to engage in political parties so that it ation—are not regarded as “individuals” could not be regarded as disproportionate for the purpose of Article 1 of the latter in its effect on either freedom of associa- instrument.211 Nevertheless, this still pro- tion or expression.208 vides a means of seeking a remedy for those situations in which the international Global and Regional Protection of the Guarantees guarantee of freedom of association is not A final point to note is that the right of properly respected.

54 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 55

* Director, Human Rights Law and Practice Convention), Articles 1, 2 (4, 5), and 3. 11 Programme, University of Birmingham, and UN Declaration on the Right and Responsi- vice-chair, INTERIGHTS. bility of Individuals, Groups and Organs of 1 See Document of the Copenhagen Meeting of Society to Promote and Protect Universally Rec- the Conference on the Human Dimension of ognized Human Rights and Fundamental Free- the CSCE, Para. 9.3. doms (Declaration on Human Rights Defend- 2 Article 2 of the Universal Declaration, Article ers) (GA Res 53/144, 9 December 1998) and 2(1) of the International Covenant, Article 14 of undertakings made at several OSCE meetings, the European Convention, and Para. 5.9 of the namely, Vienna in 1989 (Questions Relating to Document of the Copenhagen Meeting. The Security in Europe, Paras. 13.3, 13.6, and 21), last of these prohibits discrimination “on any Copenhagen (Paras. 10, 10.1–10.4, 11, and 11.2), ground” and thus expands earlier CSCE com- and Budapest (Chapter VIII, Para. 18). 12 mitments to non-discrimination given in Helsin- UN Basic Principles on the Independence of ki in 1975 (Declaration on Principles Guiding the Judiciary, Council of Europe Recommenda- Relations between Participating States, principle tion R(94)12, “On the Independence, Efficien- VII, Para. 1) and Vienna in 1989 (Questions cy and Role of Judges,” and the European Char- Relating to Security in Europe, Para. 13.7), which ter on the Statute for Judges. 13 were limited to race, sex, language, and religion. Framework Convention for the Protection of The absence of any specified categories of dis- National Minorities, Articles 3, 7, and 8, and the crimination was also a feature of OSCE meet- undertakings made at the OSCE meeting in ings in Paris in 1990 (Human Rights, Democra- Copenhagen in 1990 (Paras. 32.2, 32.6, and 33). 14 cy and , Para. 5) and Istanbul in 1999 Convention Relating to the Status of (Summit Declaration, Para. 2); however, in Refugees, Article 15. 15 Budapest in 1994 (Summit Declaration, Para. 7), Convention Relating to the Status of Stateless only race, color, sex, language, religion, social Persons, Article 13. 16 origin or belonging to a minority were identified European Convention on the Recognition of as the prohibited grounds of discrimination. the Legal Personality of International Non- 3 Article 5(d)(ix). Governmental Organisations. 17 4 Article 1–3. An example is the right to bargain collective- 5 ee the discussion in “Concept of Association,” ly. However, the difference between the scope of below. the guarantee in civil and political rights instru- 6 Also Article 5 of the Revised Charter adopted ments and that under economic, social, and cul- in 1996 and ratified by thirteen members of the tural ones may not be as great as at first appears; Council of Europe. see “Legal Personality and Other Rights,” below. 18 7 ILO Convention No. 87. On the scope of obligations under the ILO 8 In Madrid in 1983 (Questions Relating to Conventions and the European Social Charter, Security in Europe, Para. 17). see International Labour Organisation, Interna- 9 Convention on the Rights of the Child, Arti- tional Labour Standards (4th ed., revised, 1998), cle 15. and D. J. Harris and J. Darcy, The European Social 10 Convention on Access to Information, Pub- Charter (2nd ed., 2001). 19 lic Participation in Decision-making and Access Azerbaijan has ratified both Covenants, the to Justice in Environmental Matters (Aarhus European Convention, the Convention on the

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 55 baku_book.qxd 2003. 01. 21. 15:51 Page 56

Elimination of All Forms of Discrimination governmental Organisations and the General Against Women, the Convention on the Rights Comments issued by the United Nations of the Child, the Convention Relating to the Sta - Human Rights Committee in respect to the ful- tus of Refugees, the Convention Relating to the fillment of obligations under the International Status of Stateless Persons, the Framework Con- Covenant on Civil and Political Rights; the Com- vention for the Protection of National Minori- mittee has so far not issued any General Com- ties, the International Convention Concerning ment in respect to Article 22. Freedom of Association and Protection of the 25 These are guaranteed by Articles 6, 8, 10, and Right to Organise, and the International Con- 11 of the European Convention and Article 1 of vention on the Elimination of All Forms of the latter’s First Protocol and (with the exception Racial Discrimination. of possessions) Articles 14, 18, 19, and 20 of the 20 It is unlikely that freedom of association has International Covenant on Civil and Political yet attained the status of customary interna- Rights. Although an interference with an associ- tional law, but this is of no significance for the ation’s objectives that touches an interest cov- many states that have treaty commitments to ered by such a provision may be seen as also respect it. affecting freedom of association, a claim may 21 These include, for example, the Convention sometimes be treated only as engaging the pro- Concerning Freedom of Association and Pro- vision concerned on the basis that this is the lex tection of the Right to Organise, the Conven- specialis (see Appl. No. 23413/94, L. C. B. v. Unit- tion on the Elimination of All Forms of Dis- ed Kingdom, 83 DR 31 (1995), with respect to crimination Against Women, the European Article 8), or examination of the association Convention, the European Social Charter, the issue may simply be considered unnecessary International Convention on the Elimination of once a violation of another right is established All Forms of Racial Discrimination, and the (see Sadak and Others v. Turkey, 17 July 2001, with International Covenant on Civil and Political respect to Article 6). Rights (ICCPR). 26 Any classification by national law is to be 22 These include, for example, judgments of the regarded as having “relative value and consti- European Court of Human Rights (“the tutes no more than a starting point”; Chassagnou Court”) and decisions and reports of the Euro- and Others v. France, 29 April 1999, Para. 100. pean Commission of Human Rights (“the Com- 27 There is certainly no need for the term “asso- mission”). However, relevant cases considered ciation” actually to be used, and other terms can by the United Nations Human Rights Commit- thus be used in those provisions that seek to tee under the First Optional Protocol to the implement this freedom. Although “associa- ICCPR are also noted. tions” and “non-governmental organizations” 23 For the ILO case law, see Freedom of Associa- are terms that are often used interchangeably, the tion: Digest of Decisions and Principles of the Freedom latter will also embrace bodies that have no of Association Committee of the Governing Body of the membership (for example, foundations), and it ILO (4th ed., revised, 1996). will be seen that these are thus lacking an essen- 24 These would include not only the non-bind- tial prerequisite for the application of the free- ing instruments already referred to but also doc- dom of association guarantees. Such bodies uments such as the Council of Europe’s Funda- nonetheless also play a vital role in achieving and mental Principles on the Legal Status of Non- sustaining democracy, and interference with

56 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 57

their activities is likely to engage many other from the interference with a particular activity human rights (notably with regard to assembly, rather than the status or general operation of its expression, fair hearing, property, and religion). organizers. 28 See Appl. No. 8317/78, McFeeley v. United King- 30 In McFeeley (above, n. 28, at 98), the Com- dom, 20 DR 44 (1980), in which a complaint by mission described freedom of association as the applicants about not being allowed to meet being “concerned with the right to form or be other prisoners on account of the security affiliated with a group or organization pursuing regime to which they were subjected was held particular aims.” See also Appl. Nos. 11567/85 incompatible with the European Convention and 11568/85, Le Cour Grandmaison and Fritz v. ratione materiae; the institutional element is clear France, 52 DR 150 (1987), in which the absence in the Commission’s view that the concept of of any institutional framework meant that the freedom of association was “concerned with the preparation and distribution of leaflets alone right to form or be affiliated with a group or was not regarded as a manifestation of trade organization pursuing particular aims” (p. 98). In union activity within the meaning of Article 11. Appl. No. 7729/76, Agee v. United Kingdom, 7 DR 31 This freedom does not, however, preclude the 164 (1976), the European Commission had pre- possibility that certain institutional forms may be viously left open the issue of whether Article 11 required if particular benefits are to be enjoyed; protected contact with foreign intelligence offi- see “Legal Personality and Other Rights,” below. cers, but regardless of whether this might be 32 An example is Canea Catholic Church v. Greece, limited on grounds of national security, a sus- 16 December 1997, in which the refusal to rec- tained practice of meeting someone must now ognize the applicant church’s legal personality be regarded as conduct that does not come was found to be an unjustified interference with within freedom of association. See also Appl. No. its right of access to a court under Article 6. The 33489/96, Anderson v. United Kingdom, 91 DR 79 Court did not pursue the issue of whether this (1997), in which it was found that no issue arose interference also affected its right to freedom of under Article 11 in respect to the indefinite religion, but there can be little doubt that in exclusion of the applicants from a shopping some circumstances denial of legal personality center for alleged misconduct and disorderly could have an adverse effect both on this right behavior in the absence of their having any his- (see Metropolitan Church of Bessarabia and Others v. tory of using it for any form of organized assem- Moldova, 13 December 2001, in which refusal of bly or association. recognition was found to be improperly refused) 29 Stankov and the United Macedonian Organisation and on freedom of association; as to the latter, Ilinden v. Bulgaria, 2 October 2001, Appl. Nos. see “Legal Personality and Other Rights,” below. 29221/95 and 29225/95, 94 DR 68 (1998), con- 33 See “Objectives,” below. cerned the practice of systematically banning 34 However, if it is not otherwise precluded by peaceful assemblies organized by the applicants the law, there could be no objection to a group- on account of their having previously been con- ing that used the device of a corporation being sidered to be anti-constitutional and thus refused regarded as an association. registration as an organization. The appropriate 35 On the importance of the ability to do this approach as regards the latter is considered fur- for associations, see “Legal Personality and ther below (see “Regulation: Formation”), but Other Rights,” below. the violation of Article 11 in this case stemmed 36 For example, Agrotexim and Others v. Greece, 24

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 57 baku_book.qxd 2003. 01. 21. 15:51 Page 58

October 1995, and Lithgow and Others v. United lais v. France, 62 DR 309 (1989), in respect to bod- Kingdom, 8 July 1986, concerned the protection ies created under legislation to regulate lawyers, of the interests of shareholders affected by veterinary surgeons, and architects. It had also action taken against companies in which they been followed in respect to chambers of trade had invested. established by law to eliminate and prevent 37 30 January 1998. unfair trade practices and to further profession- 38 Ibid., Para. 24. This view has been reaffirmed al education and training, and to which the appli- in subsequent cases, such as Socialist Party and cant automatically became a member—with an Others v. Turkey, 25 May 1998; Sidiropoulos and Oth- obligation to pay an inscription fee—on being ers v. Greece, 10 July 1998; Freedom and Democracy granted a license to run a restaurant; Appl. No. Party (ÖZDEP) v. Turkey, 8 December 1999; and 14596/89, Weiss v. Austria, 71 DR 158 (1991). Yazar, Karatas, Aksoy and the People’s 41 Karakurt v. Austria,Admissibility Decision, 14 (HEP) v. Turkey, 9 April 2002. It had also been September 1999, concerned ineligibility on something previously emphasized by the Euro- grounds of for the applicant to be pean Commission in Appl. No. 6094/73, Asso- elected to a works council established pursuant ciation X v. Sweden, 9 DR 5 (1977), when point- to legislation. ing out that the fact that a students’ association 42 29 April 1999, Para. 101. was not without any specific protection under 43 Ibid. Similarly, in Sigurdur A. Sigurjónsson v. Ice- Article 11 because it was not a trade union in the land, Appl. No. 16130/90, 30 June 1993, the con- traditional sense of the term: “Freedom of asso- ferment of regulatory functions in the public ciation is a general capacity for the citizens to join interest on a taxi drivers’ association was not suf- without interference by the State in associations ficient for it be regarded as a public law associ- in order to attain various ends” (p. 7; emphasis ation outside Article 11’s ambit. In the Court’s added). view, the critical considerations in concluding 39 This does not, however, preclude differences that it was predominantly a associa- in the laws or regulatory arrangements for the tion were that it enjoyed full autonomy in deter- various possible categories of association; see mining its own aims, organization, and proce- “Legal Personality and Other Rights,” below. dure and that its purpose was to promote the 40 For example, Le Compte, Van Leuven and De interests of its members, to negotiate conditions Meyere v. Belgium, 23 June 1981, which concerned and wages for those members, and to represent an obligation to belong to a body that was them before the public authorities. No determi- required to keep a register of medical practi- nation was made as to whether the association tioners; and O. V. R. v. Russia, Admissibility was also a trade union. Decision, 3 April 2001, which concerned the 44 It was not significant that there was confusion requirement to belong to the regional notary in French law as to whether the bodies were pri- chamber on pain of losing the right to practice vate associations, public or para-public associa- as a private notary. This approach had previous- tions, or mixed associations, since the issue ly been followed by the Commission in Appl. before the Court was whether they were associ- No. 13750/88, A. and Others v. Spain, 66 DR 188 ations for the purpose of Article 11. It is possi- (1990), Appl. No. 8734/79, Barthold v. Federal ble that other compulsory groupings will also fall Republic of Germany, 26 DR 145 (1981), Appl. outside Article 11; see Appl. No. 6094/73, Asso- Nos. 14331/88 and 14332/88, Revert and Legal- ciation X v. Sweden, 9 DR 5 (1977), in which a

58 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 59

requirement to belong to a student union was provincial bar associations; Appl. No. 13750/88, not a violation of this provision, as a university A and Others v. Spain, 66 DR 188 (1990). See also is a public institution and so the provision was the view of the Inter-American Court of not relevant in the circumstances of the com- Human Rights that the use of compulsion to plaint. The Commission distinguished the stu- belong to an association as a means of licensing dent union from a professional organization journalists was incompatible with freedom of that upholds ethics and discipline within the pro- expression; Compulsory membership in an asso- fession or defends its members’ interests in out- ciation prescribed by law for the practice of side disputes, and the Commission also did not journalism (Advisory Opinion of 13 November see it as a trade union in the sense of represent- 185, No OC-5/85). ing the students “in a labour conflict situation 48 These include the prohibition on and against an employer.” In its view the union was the right to marry. The issue of restrictions on in fact “a formal way of organising student par- the capacity of legal persons to exercise freedom ticipation in the administration of the universi- of association has not yet been addressed by the ty. The ‘studentkår’ seems to be democratically Court, but it has accepted that corporate bodies composed and the students are free to disagree can exercise the related freedom of expression; with those political positions which it may see, e.g., The Sunday Times v. United Kingdom, 26 adopt” (p. 8). April 1979. Although the position is the same 45 For example, in Ezelin v. France, 26 April 1991, under the ICCPR, corporate bodies are not able it was found that disciplinary action taken to lodge communications about possible viola- against a member of the bar for taking part in a tions of its provisions under the First Optional demonstration in which public buildings had Protocol; see n. 210. been damaged and the judiciary had been insult- 49 Article 5. Freedom of association is explicit- ed was a violation of Article 10, because the ly recognized by Article 15 of the Convention as applicant had not himself been involved in any a right exercisable by children, but the provision reprehensible act. permits the imposition of restrictions on the 46 The Court in Le Compte, Van Leuven and De same basis as under the European Convention. Meyere v. Belgium, 23 June 1981, emphasized that 50 Restrictions on the ability of persons who are there would have been a violation of Article 11 mentally ill or incapacitated could undoubtedly if medical practitioners were not able to set up be justified on a similar basis, but a failure when and join associations to represent their profes- applying them to take due account of the capac- sional interests other than the body they were ities of those affected would breach the princi- required to belong to for the purpose of pro- ple of proportionality. fessional registration. This was also an important 51 In Piermont v. France, 27 April 1995, Article 16 consideration in all the other cases dealing with was not accepted as justifying restrictions on the professional organizations (see n. 40); see also the exercise of freedom of expression by someone Commission’s observation about the scope for who was from another European Union mem- disagreement in Association X v. Sweden (n. 44). ber state and was also a member of the Euro- 47 However, this would not be the case where pean Parliament. It is at least arguable that a sim- the grouping is effectively part of the supervi- ilar approach would be appropriate where the sory structure of the main body, as was the posi- country imposing the restriction and the coun- tion of young lawyers’ groups within Spanish try of those affected are both members of the

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 59 baku_book.qxd 2003. 01. 21. 15:51 Page 60

Council of Europe. that he was thus able to practice hunting within 52 In the case of refugees and stateless people, the legal framework provided by domestic law there is an obligation with respect to freedom of meant that he could no longer be considered a association that is probably narrower than that victim. In finding that no civil rights or obliga- under the general guarantees, in that it requires tions were being determined, the Court empha- that those who are lawfully in the country con- sized that the association was “a private entity cerned be given the most favorable treatment dealing with a private pastime or hobby, rather accorded to a foreign national in the same cir- than, for example, a professional body exercis- cumstances—but only as regards “non-political ing certain statutory obligations delegated by the and non-profit-making associations and trade State, to which members of that profession are unions”; Convention Relating to the Status of obliged by law to belong in order to earn their Refugees, Article 15, and Convention Relating to livelihood” (Para. 2). This was used to justify the the Status of Stateless Persons, Article 13. How- conclusion that the fair hearing guarantee in ever, the minimum standards in the instruments Article 6 was inapplicable—in contrast to the concerned would not prevent refugees and state- decisions concerning professional regulatory less people, as much as any foreign nationals, bodies (see, e.g., Le Compte, Van Leuven and De from enjoying the less-restricted freedom con- Meyere v. Belgium, 23 June 1981)—but it also ferred by the general guarantees. served to cast doubt on the admissibility in gen- 53 As to which, see “Regulation: Protecting eral of the state interfering with the membership Members’ Rights” below. decisions of such bodies, even if the regulatory 54 In Appl. No. 10550/83, Cheall v. United King- framework for hunting might lead one to doubt dom, 42 DR 178 (1985), the Commission that there was a public dimension to such deci- expressed the view that “unions must remain sions in the present case. free to decide, in accordance with union rules, 55 In Jersild v. Denmark, 23 September 1994, the questions concerning admission to and expul- Court accepted that the duty under Article 4 of sion from the union” (p. 186), but it did see a the International Convention on the Elimination role for the state in protecting a union against of All Forms of Racial Discrimination to pro- exclusion that was not in accordance with those hibit the dissemination of racist ideas could be rules. The issue was raised but not resolved in taken into account in assessing the acceptability the right to join Rutkowski v. Poland, Admissibil- under Article 10 of the European Convention ity Decision, 16 April 2002, which concerned the of a restriction on freedom of expression. refusal to accept the applicant—because there 56 Golder v. United Kingdom, 21 February 1975. were already too many members, he was from 57 Cf. the upholding by the Commission in outside the relevant area, the tone of his appli- Appl. No. 6573/74, X v. The Netherlands, 1 DR 87 cation was not liked—as a member of certain (1974), of a ban, albeit permanent, that affected local branches of the Polish Hunting Associa- only participation in public life (including the tion, in circumstances in which such member- right to vote) for those who had been convicted ship was required in order to practice hunting. of “uncitizenlike” conduct during World War II. The merits of the application were not exam- 58 The ban on the founders and managers of ined, because in the meantime he had become a three political parties from holding similar office member of a branch; even assuming that his in any other political body was an important claims fell within the ambit of Article 11, the fact consideration in the finding in United Communist

60 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 61

Party of Turkey and Others v. Turkey, 30 January However, although the actions of individual 1998; Socialist Party and Others v. Turkey, 25 May members of an association—whether or not in 1998; and Yazar, Karatas, Aksoy and the People’s a leadership position—ought not to be auto- Labour Party (HEP) v. Turkey, 9 April 2002, that matically regarded as binding the latter, a failure their dissolution was disproportionate and thus to take disciplinary action against something a violation of Article 11. Equally, where a dis- that is supposedly “out of line” with an associ- solution was upheld, such a ban on five of the ation’s objectives might point to its actually being party’s leaders but none on its other 152 MPs endorsed; see Refah Partisi (The Welfare Party) and was the basis for a finding that this measure was Others v. Turkey, 31 July 2001, in which the taking not disproportionate in Refah Partisi (The Welfare of such action was considered not to be truly Party) and Others v. Turkey, 31 July 2001 (but voluntary but only a belated step to avoid disso- reheard before a Grand Chamber on 19 June lution (Para. 78). An association’s objectives, as 2002). See “Regulation: Dissolution,” below. See the Court has repeatedly recognized, can also be also the Court’s condemnation in Labita v. Italy, 6 concealed behind formal provisions, but they April 2000, of a comparable ban involving the have to be demonstrated—activities and state- disenfranchisement for two years of a suspect- ments may help to disclose them—and cannot ed Mafioso because it had been imposed only readily be assumed. after his acquittal of the offenses that had ini- 61 See the recognition by the Court that “the fact tially led to his being placed under a special that their activities form part of a collective exer- supervisory regime; it would have accepted a cise of freedom of association in itself entitles temporary suspension of voting rights where political parties to seek the protection of Articles there was evidence of Mafia membership. How- 10 and 11 of the Convention”; United Communist ever, see the previous footnote for the uphold- Party of Turkey and Others v. Turkey, 30 January ing of a permanent ban in very special circum- 1998, Para. 43 (emphasis added). stances. Apart from improper activities of a 62 See, e.g., Appl. No. 23892/94, ACREP v. Por- “political” nature, the most likely justification for tugal, 83 DR 57 (1995), in which an association a restriction on this aspect of freedom of asso- claiming prerogatives normally within the exclu- ciation would be some form of financial mis- sive domain of states and intending to carry out conduct by the person concerned; this would its activity under a previous (monarchical) con- probably support limitations on his or her stitution without regard to the one now in force becoming an officeholder in an association was found by the Commission to have an aim where this involved financial responsibility, but that could not be considered compatible with it is doubtful if this would justify anything more Portuguese . extensive than that. 63 Thus, in Sidiropoulos and Others v. Greece, 10 July 59 In Cyprus v. Turkey, 10 May 2001, it was not 1998, the Court was not persuaded that the established that there had been attempts to pre- upholding of a country’s cultural traditions and vent Turkish Cypriots living in northern Cyprus historical and cultural symbols fell within one of from establishing associations with Greek Cypri- the legitimate aims listed in Article 11(2), and so ots in the southern part of Cyprus. a restriction having this purpose would not be 60 These can be taken to cover not only the for- justified. However, it accepted that the restric- mal provisions in an association’s constitution tion imposed in that case could also be regard- but also policy statements that amplify them. ed as being intended to protect national securi-

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 61 baku_book.qxd 2003. 01. 21. 15:51 Page 62

ty and to prevent disorder in view of the alleged was the detrimental consequences for health of intention of the association concerned to dis- what was being promoted, and thus the case pute Greek identity in Macedonia and to under- should be seen more as involving an inadmissi- mine Greek territorial integrity (Paras. 37–39). In ble objective. See further below. Appl. No. 8652/79, X v. Austria, 26 DR 89 70 25 May 1998. (1981), the Commission upheld as compatible 71 Para. 47. This ruling reinforced the Court’s with Article 11(2) the prohibition of an associ- earlier refusal in United Communist Party of Turkey ation because it continued the activities of a pre- and Others v. Turkey, 30 January 1998, to accept viously dissolved one, but the nature of the that the dissolution of a political party could be conduct that was illegal was not discussed. justified solely by reference to the assertion that 64 However, see below with respect to the need the party’s constitution and program called for any restrictions on means also to be com - Turkey’s constitutional order into question; such patible with guaranteed rights and freedoms. a restriction on freedom of association had still 65 Appl. No. 7525/76, 11 DR 117 (1978). to be shown, in the particular circumstances of 66 Furthermore, the Commission emphasized the case, to be necessary in a democratic society. that the material submitted to it did not support A similar stance was also taken in Freedom and a claim that the mere existence of an “‘explicit Democracy Party (ÖZDEP) v. Turkey, 8 December association’ in groups, clubs, or societies by 1999; Yazar, Karatas, Aksoy and the People’s Labour homosexuals could be illegal” (ibid., p. 131) and Party (HEP) v. Turkey, 9 April 2002; and Selim thus demonstrated how limited is the scope for Sadak and Others v. Turkey, 11 June 2002. using criminal offenses to restrict the objectives 72 In finding a violation of Article 11 in of associations; the fact that certain conduct can Sidiropoulos and Others v. Greece, 10 July 1998, the legitimately be criminalized does not mean there Court observed that the refusal of registration to cannot be some form of grouping of persons an association had been based only on a mere linked with that conduct, so long as the aim is suspicion that the applicants intended to under- not to promote it. mine Greece’s territorial integrity, but it seems 67 Appl. No. 14223/88, 70 DR 218 (1991). unlikely that the advocacy of a boundary change 68 The ruling is, however, an instance of the is something that could in itself be seen as respondent state being allowed a fairly generous objectionable. This is, after all, a matter about margin of appreciation as to the conclusions which states are prepared to negotiate, and the reached about an association’s objectives; the real concern must therefore be with the manner more recent rulings of the Court discussed in which such a change is promoted. below point to a somewhat stricter assessment 73 31 July 2001, Para. 47; the case was reheard by being required, because it now emphasizes that the Grand Chamber on 19 June 2002. only convincing and compelling reasons are 74 Thus, a ban on advocating change through capable of justifying restrictions on freedom of the holding of a public meeting or demonstra- association. On the scope of the requirement to tion where there was no risk of inciting public accord legal personality to an association that disorder would not be compatible from the seeks it, see “Legal Personality and Other viewpoint of the European Convention. It Rights,” below. should also be borne in mind that the risk of dis- 69 Appl. No. 26712/95, Larmela v. Finland, 89 order cannot automatically be invoked to justify DR 64 (1997). However, the principal concern suppression of controversial views, as there is

62 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 63

also a positive obligation to prevent these from difference in treatment between individuals being disrupted by those hostile to them; Plat- in all fields of public and private law accord- tform “Artze für das Leben” v. Austria, 21 June 1988. ing to their religion or beliefs manifestly can- See also the observation by the Court in Sidiropou- not be justified under the Convention, and los and Others v. Greece, 10 July 1998, that “even more particularly Article 14 thereof, which supposing that the founders of an association prohibits discrimination. Such a difference in like the one in the instant case assert a minority treatment cannot maintain a fair balance consciousness, the Document of the Copen- between, on the one hand, the claims of cer- hagen Meeting of the Conference on the tain religious groups who wish to be gov- Human Dimension of the CSCE (Section IV) of erned by their own rules and on the other 29 June 1990 and the Charter of Paris for a New the interest of society as a whole, which Europe of 21 November 1990—which Greece must be based on peace and on tolerance had signed—allow them to form associations to between the various and beliefs. protect their cultural and spiritual heritage” (Refah Partisi (The Welfare Party) and Others v. (Para. 44). Turkey, 31 July 2001, Para. 70) 75 Ibid. It would also include the introduction of sharia 76 This includes anything that undermines inter- (Islamic law) as the ordinary law, since this was nationally guaranteed rights and freedoms. It a regime “which clearly diverges from Conven- would also include anything anti-pluralist; a soci- tion values, particularly with regard to its crimi- etal model that introduced nal law and criminal procedure, its rules on the into all legal relationships a distinction legal status of women and the way it intervenes between individuals grounded on religion in all spheres of private and public life in accor- [which] would categorise everyone according dance with religious precepts”; ibid., Para. 72. to his religious beliefs and would allow him Furthermore, “pluralism, tolerance and broad- rights and freedoms not as an individual but mindedness are hallmarks of a ‘democratic soci- according to his allegiance to a religious ety’ . . . [and] democracy does not simply mean movement . . . cannot be considered com- that the views of a majority must always prevail; patible with the Convention system. . . . a balance must be achieved which ensures the Firstly, it would do away with the State’s role fair and proper treatment of minorities and as the guarantor of individual rights and avoids any abuse of a dominant position”; Gorze- freedoms and the impartial organiser of the lik and Others v. Poland, 20 December 2001, Para. practice of the various beliefs and religions 57. However, “the State’s duty of neutrality and in a democratic society, since it would oblige impartiality . . . is incompatible with any power individuals to obey, not rules laid down by on the State’s power to assess the legitimacy of the State in the exercise of its above-men- religious beliefs, and requires the State to ensure tioned functions, but static rules of law that conflicting groups tolerate each other, even imposed by the religion concerned. . . . Sec- where they originated in the same group”; Met- ondly, such a system would undeniably ropolitan Church of Bessarabia and Others v. Moldo- infringe the principle of non-discrimination va, 13 December 2001, Para. 123. between individuals as regards their enjoy- 77 Thus, “Refah’s leaders did not dispel the ment of public freedoms, which is one of ambiguity of . . . statements about the possibil- the fundamental principles of democracy. A ity of having recourse to violent methods in

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 63 baku_book.qxd 2003. 01. 21. 15:51 Page 64

order to gain power and retain it”; ibid., Para. 74. ferent from those at the time of the cases 78 This does not detract, however, from the referred to in n. 78. unacceptability of objectives that are anti-demo- 81 See also the earlier friendly settlement of an cratic; see Appl. No. 250/57, German Communist application alleging a violation of Article 11 on Party case, 1 Yb 222 (in which no objection was account of a conviction for the offense of being taken to the party’s dissolution), and Appl. No. members of the Turkish Communist Party; 6741/74, X v. Italy, 5 DR 83 (1976), in which an Appl. Nos. 16311/90, 16312/90, and 16313/90, application complaining about criminal pro- Hazar, Hazar and Acik v. Turkey, 72 DR 200 ceedings, brought in respect to the founding of (1991) and 73 DR 111 (1992). The Commission, a whose doctrine and plat- in approving the settlement, noted that the form were inspired by those of the fascist party offense under which the applicants had been and whose symbol had been copied, was con- convicted had also been abrogated. sidered to be manifestly ill-founded. The legiti- 82 31 July 2001, Para. 65. macy of such an objection to associations with 83 Ibid., Para. 73. such objectives was also the subtext of the deci- 84 30 January 1998. sions in Glasenapp v. Federal Republic of Germany, 85 The Court distinguished the applicant party 28 August 1986, and Kosiek v. Federal Republic of in this regard from the German Communist Germany, 28 August 1986, which respectively Party, to the dissolution of which no objection concerned public servants belonging to com - had been taken; see n. 78. munist and fascist organisations but which were 86 It is questionable whether this would, in any treated as raising only the issue of access to event, have been considered an admissible employment in the public service; as to restric- ground for objecting to the party’s objectives, tions on freedom of association for persons since efforts to ensure rights for minorities are working in that service, see “Public Employees,” a feature of a number of global and regional below. See also Appl. Nos. 8348/78 and 8406/78, treaties, to say nothing of the commitment to Glimmerveen and Hagenbeek v. The Netherlands, 18 respect minority rights in Article 27 of the DR 187 (1979); Appl. No. 12194, Kühnen v. Ger- International Covenant on Civil and Political many, 56 DR 205 (1988); Appl. No. 12774/87, B. Rights. H., M. W., H. P. and G. K. v. Austria, 62 DR 216 87 30 January 1998, Para. 57. (1989); and Appl. No. 25096/94, Remer v. Ger- 88 25 May 1998. many, 82 DR 117 (1995), in all of which restric- 89 The dissolution in the present case was not tions on national socialist ideas were found not based on the party’s program but on statements to be incompatible with the guarantee of free- by its chairman; still, the evaluation of them is dom of expression in Article 10. In addition, see essentially the same as that involved in judging Comm. No. 117/1981, M. A. v. Italy, Admissi- the admissibility of objectives. bility Decision, 10 April 1984, in which the Unit- 90 8 December 1999. ed Nations Human Rights Committee stated 91 Similarly, in Yazar, Karatas, Aksoy and the Peo- that the reorganizing of a dissolved fascist party ple’s Labour Party (HEP) v. Turkey, 9 April 2002, was an act removed from the protection of the and Selim Sadak and Others v. Turkey, 11 June 2002, ICCPR. the Court found that too much had been read 79 26 September 1995. into such objectives when it found that the dis- 80 Here the circumstances were considerably dif- solution of the associations concerned was con-

64 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 65

trary to Article 11. See also the finding in Church of Bessarabia and Others v. Moldova, 13 Sidiropoulos and Others v. Greece, 10 July 1998, that December 2001, that the failure to recognize the a refusal of registration for an association was applicant church was an interference with free- “based on a mere suspicion as to the true inten- dom of religion; “not being recognised, the tions of the association’s founders and the activ- applicant church cannot operate. In particular, ities it might have engaged in once it had begun its priests may not conduct divine service, its to function” (Para. 45). See also the conclusion of members may not meet to practice their religion the Court in Metropolitan Church of Bessarabia and and, not having legal personality, it is not entitled Others v. Moldova, 13 December 2001, that “the to judicial protection of its assets” (Para. 105). possibility that the applicant church, once recog- However, having taken Article 11 into account nised, might constitute a danger to national in finding a violation of Article 9, the Court con- security and territorial integrity . . . [was] a mere sidered that it was unnecessary to deal separate- hypothesis which, in the absence of corrobora- ly with the denial of recognition as a violation of tion, cannot justify a refusal to recognise it” freedom of association. The issue had previ- (Para. 125). ously been left open by the Commission in 92 It is guided as well by the deeds of its leaders; Appl. No. 14223/88, Lavisse v. France, 70 DR 218 in Refah Partisi (The Welfare Party) and Others v. (1991); Appl. No. 23892/94, ACREP v. Portugal, Turkey, 31 July 2001, it was remarks and policy 83 DR 57 (1995); Appl. No. 26712/95, Larmela statements by the latter that persuaded the Court v. Finland,89 DR 64 (1997); Appl. No. 18874/91, that the party was aiming at “a model of State X v. Switzerland, 76 DR 44 (1994); and Appl. No. and society organised according to religious 28973/95, Basisan for “Liga Apararii Drepturilor rules” (Para. 76). However, see n 186 for the Omului Din Romania” v. Romania, 91 Dr 29 (1997), conclusion reached by the dissenting judges. having decided instead to address the issue of 93 See “Regulation: Policing” and “Regulation: whether any interference with Article 11 was jus- Dissolution,” below. tified (as to which, see “Objectives,” above, and 94 These concerns—which are essentially about “Regulation,” below). However, although the effective operation—are, of course, similar to ability to form a legal entity is clearly funda- those that have led to the recognition of the mental, there could still be situations where the need for a separate legal personality for com- inability to do so will not be regarded as a viola- mercial bodies from those who have invested in tion of Article 11. Thus, the Commission did it as shareholders, notwithstanding the substan- point out in Larmela that an unregistered associ- tial interest of the latter in the former. ation in Finland “could engage in certain activi- 95 10 July 1998, Para. 31. ties, just as it can possess funds through its 96 Ibid., Para. 40. This view was reaffirmed by members,” and this led it to question whether the Court in Gorzelik and Others v. Poland, 20 the inability to register had prevented it from December 2001, Para. 55, and it is unlikely this pursuing its objectives” (p. 69). Furthermore, in is something that will be called into question fol- Appl. No. 8652/79, X v. Austria, 26 DR 89 lowing the referral of that case to the Grand (1981), it found that “the practice even of a non- Chamber on 18 July 2002. Similar considerations recognised religion is fully guaranteed in Austria to those underpinning the essential importance . . . independently from any form of registra- of legal personality established in Gorzelik and tion” (p. 93), and in both Appl. No. 18874/91, Sidiropoulos led the Court to find in Metropolitan X v. Switzerland, 76 DR 44 (1994), and Appl. Nos.

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 65 baku_book.qxd 2003. 01. 21. 15:51 Page 66

29221/95 and 29225/95, Stankov and the United ality. Macedonian Organisation “Ilinden” v. Bulgaria, 94 100 It is, of course, a corollary of the recogni- DR 68 (1998), it considered that the refusal of tion of an association’s legal personality that registration of an association would not be a vio- individual members cannot then be pursued for lation of Article 11 if the association is able to its debts and other liabilities in the absence of perform its activities without registration; in the some specific basis for holding them responsi- former, the association was found not to have ble, such as some misuse of their position as an proved that it could not exercise its functions, officer of the association. but in the latter, the ability to function was used 101 9 December 1994. to support the competence of an unregistered 102 The suggestion that the action taken against body to submit a complaint under Article 11. the monasteries “would prevent an increase in 97 This obligation relates to associations estab- the numbers of monks and would deter the lished within the country of the state concerned. faithful from making gifts to them” was consid- There is a quite distinct obligation under the ered to be no more than “hypothetical”; ibid., European Convention on the Recognition of Paras. 86 and 87. the Legal Personality of International Non- 103 See also the discussion in “Regulation: Dis- Governmental Organisations. Under this con- solution,” below. vention, a state party is generally obliged to rec- 104 In Canea Catholic Church v. Greece, 16 Decem- ognize the legal personality of an association, ber 1997, the inability of a church to have any foundation, or other private institution estab- dispute relating to its property rights determined lished under the law of another state party, by the courts, as a result of a Cassation Court where the body concerned has a non-profit- ruling that it had no capacity to take legal pro- making aim of international utility and is carry- ceedings, was found to be a denial of access to ing on its activities in at least two states, and its court contrary to Article 6(1) of the European statutory office, management, and control are in Convention. The Court did not find it necessary the territory of a state party. The state parties are to address the issue from the perspective of Austria, Belgium, France, Greece, Portugal, either or the right to prop- Slovenia, Switzerland, and the former Yugoslav erty. In Metropolitan Church of Bessarabia and Oth- Republic of Macedonia. ers v. Moldova, 13 December 2001, emphasized 98 See the discussion in “The Concept of Asso- that “one of the means of exercising the right to ciation,” above. manifest one’s religion, especially for a religious 99 The Court disagreed with the view that they community, in its collective dimension, is the were not acceptable in the Sidiropoulos and Met- possibility of ensuring judicial protection of the ropolitan Church of Bessarabia cases; see “Objec- community, its members and its assets, so that tives,” above. A refusal of legal personality might Article 9 must be seen not only in the light of also be justified where the proposed name of an Article 11 but also in the light of Article 6” association encroached on the rights of existing (Para. 118). However, in that case the failure to bodies or was misleading (see “Regulation: For- recognize the applicant church was found only mation,” below), but an appropriate modifica- to be a violation of freedom of religion; the tion should ensure that this is not a permanent Court, having taken account of the impact of basis for preventing an association with a par- non-recognition on the church’s right of access ticular set of objectives acquiring legal person- to court in reaching that finding, considered

66 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 67

that it was unnecessary to examine separately the 271). Article 6 issue. 110 This would be true, for example, where its 105 Appl. No. 14635/89, Union of Atheists v. own land was being compulsorily acquired for France, Report of the Commission, 6 July 1994. the development. 106 Cf. the view of the Court in Gorzelik and Oth- 111 Swedish Engine Drivers Union v. Sweden, 6 Feb- ers v. Poland, 20 December 2001, that the need to ruary 1976; this concerned a refusal by the use a procedure not designed for the purpose of National Collective Bargaining Office to enter being recognized as belonging to a national into a collective agreement with the applicant minority had not had any consequences for the union despite doing so with the large trade union applicants’ rights under Article 11. federations and some independent unions. 107 See “Regulation,” below. Although this refusal appeared to have had an 108 See Appl. No. 8652/79, X v. Austria, 26 DR adverse effect on the size of the union’s mem- 89 (1981), in which the need for an alternative bership, there was a rational and objective basis form of legal organization for religious com- for the differential treatment of unions in this munities was not pursued because their apparent matter, and so there was also no violation of exclusion from being registered under the asso- Article 11 when coupled with the prohibition of ciations law was not actually treated, in principle, discrimination in Article 14. This approach was as an obstacle to the registration of religious followed by the Commission in Appl. No. organizations as associations. 9792/82, A Union v. Federal Republic of Germany, 109 The lack of a legal capacity to bring such 34 DR 173 (1983), and also endorsed by the proceedings would not be an insurmountable Court in Schettini and Others v. Italy, 9 November obstacle to the expression of its concerns, since 2000; Unison v. United Kingdom, Admissibility other avenues are open to it for this purpose, Decision, 10 January 2002; and Wilson and Oth- such as campaigning and public protest. See ers v. United Kingdom, 2 July 2002. Appl. No. 9234/81, X Association v. Federal Repub- 112 National Union of Belgian Police v. Belgium, 27 lic of Germany, 26 DR 270 (1981), in which the October 1975; this concerned the failure of the applicant had the special aim of preventing the government to recognize the applicant union as construction of a nuclear power station. How- one of the representative organizations to be ever, its complaint about being refused standing consulted under a statutory provision concern- to challenge the authorization given for this was ing various aspects of employment in the pub- held to be manifestly ill-founded. In the Com- lic service. The fact that three large trade union mission’s view, “Associations are treated like all organizations were so recognized was seen as a other plaintiffs in that they have to show a legal proper means of attaining the legitimate aim of interest of their own if they want to bring a consultation on matters that were not just of court action. Unless this is the case, there can interest to those in the police forces that the therefore be no question of an interference with union represented, and thus there was also no their freedom of association. The possibility of violation of Article 11 when coupled with the suing, irrespective of a legal interest, is not an prohibition of discrimination in Article 14. element necessarily inherent in the notion of 113 Appl. No. 7361/76, X v. Belgium, 14 DR 40 freedom of association, nor was it in the cir- (1978). The issue of membership in the council cumstances of this particular case indispensable was important because it could affect the ability for the effective enjoyment of this freedom” (p. of a union to take part in negotiating commit-

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 67 baku_book.qxd 2003. 01. 21. 15:51 Page 68

tees with the employers of the public servants Kingdom, 93 DR 63 (1998), it considered whether that it represented. Thus, the case was also actu- a requirement that a union divulge to the ally about the right to take part in collective bar- employer the names of its members who are to gaining—which, as in the Swedish Engine Drivers be included in a ballot on whether to strike, or case, was not considered to be an inherent part are involved in the strike itself, was compatible of freedom of association—but a similar con- with the right of a trade union to protect the clusion would certainly have been reached if the occupational interests of its members. In find- representation on the council concerned matters ing that there was no such incompatibility, other than negotiating employment terms. It emphasis was placed on both the protection was also found that the restriction of member- under the law against victimization as a result of ship on the council was not contrary to Article trade union activity and the absence of any pres- 11, combined with Article 14, as the aim was to sure from the particular employer, as well as the prevent the fragmentation of trade union orga- fact that no real administrative difficulty was nizations, and as the council was neither restrict- faced by the union in producing the list of mem- ed in membership to private sector unions nor bers and that there was nothing inherently secret barred from obtaining views from unions not about membership in a trade union. A less represented on it. absolute approach can also be seen in Unison v. 114 Schmidt & Dahlstrom v. Sweden, 6 February United Kingdom, Admissibility Decision, 10 Janu- 1976; this concerned the denial of certain ben- ary 2002; it was accepted by the Court that the efits to members of certain unions that had been prohibition of a strike by a hospital employees involved in selective strikes. This denial, notwith- over proposals to transfer them to a new (private standing that the applicants had not actually sector) employer restricted the union’s power to been involved in the strikes organized by their protect the interests of its members and was unions, was not found to be a violation of Arti- thus a restriction on freedom of association, cle 11, coupled with the prohibition on discrim- albeit one that had the legitimate aim of pro- ination in Article 14, as it was considered rea- tecting a hospital’s ability to carry out its func- sonable for the government to stress the soli- tions effectively, including the securing of con- darity between union members when selective tracts with others. However, the complaint with action was being undertaken. Similarly, in S v. respect to Article 11 was found to be manifest- Federal Republic of Germany, 39 DR 237 (1984), the ly ill-founded, as there was still some possibility imposition of a disciplinary penalty on a teacher of taking (both against the hospi- and leading union member because he had voted tal in respect to dismissals and against the new for a strike was not considered to affect freedom employer generally), and so the union was not of association, because the punishment was not entirely deprived of the possibility of effective for his trade union membership but for the action in the future to defend their members. See encouragement of teachers to strike despite a also the conclusion by the United Nations prohibition on their striking. The Commission Human Rights Committee in Comm. No. did, however, leave open the question of 118/1982, J B, PD, LS, TM, DP, and DS v. Cana- whether a general failure to recognize the right da, Admissibility Decision, 18 July 1986, that the to strike could be consistent with Article 11, and right to strike was not included within the scope in Appl. No. 28910/95, National Association of of freedom of association in Article 22 of the Teachers in Further and Higher Education v. United ICCPR. However, several members (Higgins,

68 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 69

Lallah, Mavrommatis, Opsahl, and Amos Wako) (Para. 2). However, it found that it had not been considered that the question of whether the shown why time to study new legislation on right to strike was a necessary element in the union elections was strictly necessary for the protection of the interests of the authors of the effective exercise of the applicant’s functions as complaint was a question on the merits, in other a representative, and that in any event the mea- words, whether the restriction being imposed in sure did not have sufficient gravity to have a sub- the case was justifiable under Article 22. stantial impact on the right guaranteed by Arti- 115 In all the cases cited in the preceding four cle 11. footnotes, reference was made to the other 116 2 July 2002. means available for the unions concerned to rep- 117 There was no requirement to give up union resent their members—such as the ability to membership. strike, hold demonstrations, and undertake other 118 Para. 47. In reaching its conclusion that this forms of campaigning action—and the apparent was in violation of Article 11, the Court took concern of the Court in Unison v. United Kingdom, into account criticism previously made of the 10 January 2002, about a total prohibition on the relevant law by the European Social Charter’s right to strike is significant in this regard. See also Committee of Independent Experts and the the emphasis placed by the Commission, when ILO’s Committee on Freedom of Association, finding the complaint in Hoffunktionaerforeningen and this should sound a note of caution about I Danmark v. Denmark, 72 DR 278 (1992), to be assumptions that freedom of association is more manifestly ill-founded, on the fact that the union extensive under social rights guarantees; the abil- concerned was not ignored, notwithstanding the ity to pursue objectives must be equally effective refusal of the royal household to conclude a col- where reliance is placed on civil and political lective bargaining agreement with it. However, rights guarantees of this freedom. The earlier although there was a refusal in Appl. Nos. case of Schmidt & Dahlstrom v. Sweden, 6 Febru- 11567/85 and 11568/85, Le Cour Grandmaison ary 1976, might be distinguished from the pre- and Fritz v. France, 52 DR 150 (1987), to regard sent one in that there was no evidence of a the preparation and distribution of leaflets alone decline of union membership as a result of pay as a manifestation of trade union activity with- increases being awarded to non-union employ- in the meaning of Article 11, there was no insti- ees who had not gone on strike, and that the tutional framework behind it; the action was concern underlying the case was the discour- being undertaken by only two conscripts calling agement to strike rather than to belong to a on other soldiers to take action against being union. posted overseas. See also Sanchez Navajas v. Spain, 119 The effect is what counts, as the intention of 21 June 2001, which concerned a complaint the employer was not seen as material. Howev- about a deduction made from the applicant’s er, the ruling is directed only to the individual salary for time spent on trade union activities. treatment of employees; a right to collective bar- The Court considered that it could be inferred gaining is still not being read into Article 11, so “from Article 11, read in the light of Article 28 that a termination of a union’s recognition for of the European Social Charter (Revised), that this purpose would not be a violation of this workers’ representatives should as a rule, and provision, even though union membership within certain limits, enjoy appropriate facilities might then seem less worthwhile. It should also to enable them to perform their functions” be noted that the Commission, in Appl. No.

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 69 baku_book.qxd 2003. 01. 21. 15:51 Page 70

7990/77, X v. United Kingdom, 24 DR 57 (1981), dent union was not a form of unjustified dis- found no requirement in Article 11 that the crimination, as this was seen as being in the state authorities “actively support a union or an interests of the proper administration of the individual union member in a particular case” university; as to the compulsion to belong, see and that there was thus no requirement for “Concept of Association,” above. The impor- prison authorities to intervene with the appli- tance of access to facilities for the pursuit of an cant’s employer with regard to the request by the association’s objectives is implicitly recognized in latter that he be recalled to prison from a pre- Appl. No. 33489/96, Anderson v. United Kingdom, release employment scheme because of his trade 91 DR 79 (1997), in which no issue was found union activities. It was, however, significant that to arise under Article 11 in respect to the indef- the applicant still had the possibility of bringing inite exclusion from a shopping center only a claim for unfair dismissal against the employ- because there was no history of the applicants er. A warning from the prison authorities about using it for any form of organized association. the applicant’s trade union activities was not 121 Some may, of course, be ensured through objectionable, because it was merely an indica- other treaty obligations; for example, see Euro- tion of the fact that they “saw no possibility to pean Social Charter, Article 6. intervene themselves with regard to any action 122 However, this is a conclusion that could be taken by the employer on account of” his trade affected by the precise funding environment in union activities (p. 63). the country concerned. 120 Although in Appl. No. 6094/73, Association 123 As the cases discussed in nn. 111–114 indi- X v. Sweden, 9 DR 5 (1977), it was stated that cate, differential treatment will not always be Article 11 did not “give any specific contents to lacking a rational and objective justification, but freedom of association except, to a certain see the significance attached to the use of excep- extent, as regards trade unions” (p. 6), it is per- tional criteria in determining an application for haps more significant that the Commission stat- recognition of a church, in Metropolitan Church of ed that “Freedom of association is a general Bessarabia and Others v. Moldova, 13 December capacity for the citizens to join without interfer- 2001. ence by the State in associations in order to 124 See Appl. No. 7990/77, X v. United Kingdom, attain various ends. However, a right to the suc- 24 DR 57 (1981), and Frederiksen v. Denmark, 56 cessful attainment of such ends is not guaran- DR 237 (1988), in which such protection was teed by Art. 11” (p. 7). This clearly recognizes considered to have been provided. the importance of being able to pursue common 125 This includes political ones; see Vogt v. Ger- objectives, whatever the outcome may be. The many, supra. applicant was a students’ organization and had 126 A sanction for this purpose could include complained that it had not been given the status disincentives to belong to an association, such as of a students’ union, which would enable it to loss of eligibility for certain benefits or posts; see participate in the administration of the univer- Wilson and Others v. United Kingdom, 2 July 2002 sity. The denial of this status was not seen as pre- (ineligibility of union members for certain pay cluding the applicant from striving to protect its increases), and Grande Oriente D’Italia di Palazzo members’ interests. Furthermore, the fact that Giustiniani v. Italy, 2 August 2001 (ineligibility of another body—to which all students were com - members of Masonic lodges for appointment to pelled to belong—did have the status of a stu- certain posts). See also Comm. No. 52/1979,

70 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 71

Lopez Burgos v. Uruguay, Views of the United 135 See also the Court’s refusal in Kiiskinen and Nations Human Rights Committee, 29 July Kovalainen v. Finland, Admissibility Decision, 1 1981, in which Article 22 of the ICCPR was June 1999, to rule on whether the Masonic link found to be violated because of the harassment between a judge and a party was of itself suffi- of someone on account of his trade union activ- cient to lead to a lack of impartiality for the pur- ities. poses of Article 6 of the European Convention; 127 This is an inevitable consequence of the no such link was established in that case. freedom not to associate; see “The Right to 136 These might range from concessions with Found and Belong,” above, and “Regulation: respect to taxation to the award of grants from Protecting Members’ Rights,” below. This is, public funds; see “Legal Personality and Other however, subject to the application of guaran- Rights,” above. tees against discrimination. 137 See “Legal Personality and Other Rights,” 128 Thus, the deportation of someone because above. of his or her association with others would be a 138 This is true unless the acquisition of a degree violation of freedom of association, unless the of legal personality is, as it is in some countries, nature of the association or the activities pur- the automatic consequence of the decision of sued were legitimately impermissible; see Appl. the founders to establish an association. No. 7729/76, Agee v. United Kingdom, 7 DR 164 139 See “Legal Personality and Other Rights,” (1976), in which it was found that Article 11 above. could not be interpreted as forbidding the 140 This is the case unless certain exceptional deportation of an alien because of his contact benefits or capacities are being sought. with foreign intelligence offic ers. 141 It is the nature of the process rather than the 129 This could possibly include a conflict of term used for it that is significant. interest arising from membership in two associ- 142 This is the case since they will mean that the ations that are effectively in with restrictions on freedom of association are not each other, with the result that the person con- foreseeable and thus not prescribed by law; see cerned is required to make a choice between the imprecise prohibition on membership in them. Masonic lodges, which was sufficient to find a 130 Appl. No. 11002/84, 41 DR 264 (1985). violation of Article 11 in NF v. Italy, 2 August 131 Ibid., p. 271. It was emphasized that there 2001. were no complaints against the applicant per- 143 Although the Court accepted in Metropolitan sonally. Church of Bessarabia and Others v. Moldova, 13 132 In addition, the high-profile nature of Van December 2001, that a refusal of recognition der Heijden’s political role was undoubtedly sig- could have had the legitimate aim of protecting nificant, and mere membership in a party or public order and public safety, the consequence organization might also be less likely to give rise for the applicant church’s freedom of religion— to problems of compatibility. However, this may an ability to organize itself or operate, as well as not be so where the employee concerned works intimidation—could not be regarded as propor- for a public body; see “Public Employees,” below. tionate to it. 133 2 August 2001. 144 As regards the former, see Appl. No. 134 Candidates for the posts had to declare that 18874/91, X v. Switzerland, 76 DR 44 (1994), in they did not belong to any such lodges. which it was found that a refusal of registration

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 71 baku_book.qxd 2003. 01. 21. 15:51 Page 72

under the national designation—as opposed to ation of those belonging to an association with- an absolute refusal—could be regarded as nec- out legal personality could also be harmed by the essary in a democratic society for the prevention usurpation of its name. of disorder, and for the protection of the rights 145 See Gorzelik and Others v. Poland, 20 Decem- and freedoms of others where a third person ber 2001, in which it was accepted that the might confuse the applicant association’s name “Union of People of Silesian nationality” could with that of a chamber of commerce and anoth- be rejected because the similarity of the name to er body responsible for bilateral trade relations the language used in a provision in the parlia- between Switzerland and Australia; the body mentary elections law governing participation in “lacked the necessary integration into national the distribution of seats meant that it gave “the foreign trade policy” (p. 49). See also Appl. No. impression that in future the members of the 28973/95, Basisan for “Liga Apararii Drepturilor association might, in addition to the objectives Omului Din Romania” v. Romania, 91 DR 29 expressly set out in their program, aspire to (1997), in which the only difference between the stand in elections” (Para. 64). It was significant name of the applicant association and the that such doubts could have been dispelled by a already existing League for the Defence of slight change in the name of the association and Human Rights was the addition of “in Roma- of its memorandum of association, without nia”; here, the Commission considered that, having any harmful consequences for its exis- having regard to the possibility of confusion, the tence as an association and without preventing refusal of registration could be viewed as unrea- the achievement of its objectives. The case was sonable. An instance of both considerations can referred for a hearing before a Grand Chamber be seen in Apeh Uldozotteinek Szovetsege, Ivanyi, on 18 July 2002. Roth and Szerdahelyi v. Hungary, Admissibility 146 Appl. No. 10550/83, Cheall v. United Kingdom, Decision, 31 August 1999, in which the Court 42 DR 178 (1985), in which it was considered did not consider there to be an excessive inter- that the state could protect an individual against ference with freedom of association in the exclusion or expulsion from a trade union where refusal of a request for a registration by an asso- the membership rules “were wholly unreason- ciation whose name in English was the Alliance able or arbitrary or where the consequences of of APEH’s Persecutees (APEH being the abbre- exclusion or expulsion resulted in exceptional viated name of the Hungarian Tax Authority), hardship such as job loss because of a closed when there was no obstacle to the formation shop [in other words, where union membership and registration of an association to promote was obligatory]” (p. 186). taxpayers’ interests other than the choice of a 147 See the finding that the refusal to recognize name that implied a risk of confusion and that the applicant church in Metropolitan Church of was defamatory; it is, however, questionable Bessarabia and Others v. Moldova, 13 December whether anyone might have imagined a body 2001, because it was not a new denomination with such a name was an official one, and the involved a failure of the government to dis- ready acceptance of the defamation objection is charge its duty of neutrality and impartiality. possibly at odds with the protection given to Note also the Court’s finding that “when the value judgments under Article 10. The body authorities recognised other liturgical associa- concerned need not be one that is already rec- tions they did not apply the criteria which they ognized or registered, as the freedom of associ- used in order to refuse to recognise the applicant

72 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 73

church and that no justification has been put for- involved for the purpose of making Article 6 ward by the Moldovan Government for this applicable. In the Court’s view, it followed from difference in treatment” (Para. 129). the fact that the association could obtain its 148 This training emphasizes in particular the legal existence only through registration that value of associations and the need not to imag- “an unregistered association constitutes only a ine the worst of their objectives and activities. group of individuals whose position in any civil- Furthermore, the impartiality of the bodies con- law dealings with third parties is very different cerned must be assured; as the Court observed from that of a legal entity. For the applicants, it in a comparable context, “where the exercise of was consequently the applicant association’s very the right to freedom of religion or of one of its capacity to become a subject of civil rights and aspects is subject under domestic law to a system obligations under Hungarian law that was at of prior authorisation, involvement in the pro- stake in the registration proceedings.” (Para. 36) cedure for granting authorisation of a recog- Therefore, these were concerned with its civil nised ecclesiastical authority cannot be recon- rights and obligations. In Sidiropoulos and Others v. ciled with the requirements of paragraph 2 of Greece, 10 July 1998, there was unfairness regard- Article 9”; Metropolitan Church of Bessarabia and ing the evidence on which registration was Others v. Moldova, 13 December 2001, Para. 117. refused, but the Court considered that Article 11 149 In, for example, Sidiropoulos and Others v. was to be seen in the light of Article 6, and that Greece, 10 July 1998, the Court held that a refusal it was thus not necessary to address the fair hear- of registration based on mere suspicion about ing issue separately. However, while civil rights activities in which the association concerned and obligations would be affected by a refusal of might engage was a disproportionate response recognition or registration in the case of most to the country’s legitimate concern about seces- associations, this provision appears to be inap- sion. See also the friendly settlement of the peti- plicable in the case of a political party, as the tion about the unreasoned refusal to register a right involved in the registration process will be religious association in Appl. No. 28626/95, seen as primarily a “political” one; see Vatan (Peo- Khristiansko Sdruzhenie “Svideteli Na Iehova” (Chris- ple’s Democratic Party) v. Russia,Admissibility Deci- tian Association Jehovah’s Witnesses) v. Bulgaria, 92 sion, 21 March 2002, which concerned the sus- DR 44 (1998), pursuant to which the association pension of the applicant party’s activities for six would be registered. months. Nevertheless, such a party, as well as any 150 In, for example, Apeh Uldozotteinek Szovetsege, association, should also have an effective reme- Ivanyi, Roth and Szerdahelyi v. Hungary, 5 October dy to challenge a refusal of registration consid- 2000, Article 6(1) was held applicable to non- ered improper in order to meet the require- contentious court registration proceedings, and ments of Article 13. a violation was found because of the failure to 151 See, for example, Appl. No. 10550/83, Cheall v. provide the applicants with the intervening pros- United Kingdom, 42 DR 178 (1985), which con- ecution authority’s submissions and the conse- cerned the expulsion of the applicant from a quent failure to respect the “equality of arms” union pursuant to an arrangement between principle. Although registration was treated as a unions that there should first be an inquiry about matter of public law in Hungary, the national a person’s status in his or her former union classification of proceedings is never decisive as before the granting of membership. Such an to whether a “civil right or obligation” is arrangement was intended to prevent inter-

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 73 baku_book.qxd 2003. 01. 21. 15:51 Page 74

union disputes and was not considered unrea- Sigurjónsson v. Iceland are examples of the former, sonable. It was also significant that the effect of whereas in the others referred to in n. 152, the the expulsion did not lead to the applicant’s los- requirement to be a member arose from agree- ing his job, as union membership was not oblig- ments with employers that could lawfully be atory. In addition, in Appl. No. 13537/88, Johans- concluded by the unions concerned. son v. Sweden, 65 DR 202 (1990), the inability to 155 This is the case whether the objection to opt out of the collective home insurance membership is philosophical or religious, as in arranged for the members of a trade union was the trade union cases (n. 152); ethical, as in Chas- not considered unreasonable. sagnou and Others v. France (in which the applicants 152 Young, James and Webster v. United Kingdom, 13 had deep-seated convictions against hunting); or August 1981, concerned the applicants being political, as in Sigurdur A Sigurjónsson v. Iceland (in required, if they wished to keep their jobs, to which the applicant disagreed with the limita- belong to one of three unions under an agree- tions on taxi cab licenses espoused by the asso- ment concluded between the latter and their ciation). For example, in Sibson v. United Kingdom, employer. Sigurdur A. Sigurjónsson v. Iceland, 30 20 April 1993, the applicant had no specific June 1993, concerned a requirement to belong to convictions regarding trade union membership a taxi drivers’ association as a condition of being and was not faced with losing his job by failing granted a licence to be a taxi driver. See also the to become a member, but was merely moving friendly settlements of similar complaints in his workplace to a different (but nearby) depot Appl. No. 9520/81, John C. Reid v. United Kingdom, operated by his employer. 34 DR 107 (1983); Appl. No. 8476/79–8481/79, 156 Gustafsson v. Sweden, 25 April 1996 (Revision, Eaton and Others v. United Kingdom, 39 DR 11 30 July 1989), and Appl. No. 15533/99, Englund (1984); Appl. No. 10061/82, Conroy v. United v. Sweden, 77 DR 10 (1994), both of which con- Kingdom, 46 DR 66 (1986); and Appl. No. cerned —the stopping of deliv- 11518/85, Chauhan v. United Kingdom, 65 DR 41 eries to a restaurant and of the collection of (1990). See also the Cheall case referred to in the refuse from it—against the first applicant (who preceding note, in which a lack of union mem- employed the applicants in the second case) for bership as a result of restrictions on changing refusing to be bound by a collective agreement. the union to which one belonged could not lead No violation of Article 11 was found in the for- to dismissal. mer because, although there was pressure to join 153 Chassagnou and Others v. France, 29 April 1999. an employers’ federation as an indirect way of It was not significant that the applicants were becoming bound by the collective agreement, very much a formal membership that arose from the applicant’s fundamental objection was seen their ownership of the land and that there was as being to the collective bargaining system, and no obligation to take an active part in the activ - notwithstanding some economic damage, the ities of the association, since this membership pressure on him to enter a collective agreement facilitated the attainment of objectives of which did not significantly affect his freedom of asso- they disapproved. There was also a violation of ciation. It should be noted, however, that the Article 11, in conjunction with Article 14, as the Court was divided 11–8 on this point. In the case obligation was imposed on small but not large of the employees, the Commission found no landholders. violation of Article 11 because the industrial 154 Chassagnou and Others v. France and Sigurdur A. action did not have the effect of preventing

74 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 75

them from remaining unorganized employees or 163 Some such requirements could be an accept- changing their conditions of employment. able condition for obtaining certain benefits, There was thus no failure on Sweden’s part “to such as exemption from taxation. However, they actively provide protection . . . against interfer- would have to be voluntarily accepted, and there ence with their negative freedom of association” should also be the freedom to surrender the ben- (p. 19). efits and to cease being bound by those require- 157 Appl. No. 9926/82, X v. The Netherlands, 32 ments. DR 274 (1983), in which it was found that it did 164 In Hasan and Chaush v. Bulgaria, 26 October not follow from the fact that a particular associ- 2000, a violation of Article 9—in this case, a ation benefited from a part of the proceeds of specific application of Article 11—was found a tax “that there is any de facto obligation to join when there was a redesignation of the leadership this association by virtue of the fact that pay- of a religious community, without any criteria or ment of the tax amounts to a contribution to the procedural safeguards, at the behest of a break- association” (p. 280); there was no suggestion away group. The effect of this was to favor that that one association was being unduly favored, group, “granting it the status of the only official and therefore no issue of the application of leadership, to the complete exclusion of the Article 14 arose. In addition, in Kajanen and Tuo- hitherto recognised leadership. The acts of the malaa v. Finland, Admissibility Decision, 19 Octo- authorities operated, in law and practice, to ber 2000, the Court found no appearance of a deprive the excluded leadership of any possibil- violation of Article 11 in a complaint by civil ser- ity of continuing to represent at least part of the vants who were not union members and so Muslim community and of managing its affairs could not bring legal action concerning a salary according to the will of that part of the com- disagreement arising from a collective agree- munity” (Para. 82). This interference was found ment before the courts. They had never been not to be prescribed by law “in that it was arbi- directly forced to belong to the trade union that trary and was based on legal provisions which had negotiated the collective agreement, and allowed an unfettered discretion to the executive the indirect effect of the hardship to which they and did not meet the required standards of clar- were subjected was not seen as comparable to ity and foreseeability” (Para. 86). The Court thus that in the Sigurjónsson case (n. 152). The restric- did not have to consider whether an interference tion on access to the courts had in fact been with the religious community that had a sounder removed by the time the case came before the legal basis could be justified, but this seems Court. improbable in the particular circumstances of 158 See “Concept of Association,” above. the case; as the Court observed in that case and 159 See cases cited in n. 40. in both Serif v. Greece, 14 December 1999, and 160 This is true as well of other bodies to which Metropolitan Church of Bessarabia and Others v. there may be compulsion by law to belong, such Moldova, 13 December 2001 (in which a prose- as chambers of trade, student unions, and works cution for having usurped the functions of a councils. minister of a “known religion” and a failure to 161 Sigurdur A. Sigurjónsson v. Iceland, 30 June recognize a church were respectively found not 1993. to be necessary in a democratic society), the state 162 As to this, see “Concept of Association,” did not need to take measures to ensure that reli- above. gious communities are brought under a unified

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 75 baku_book.qxd 2003. 01. 21. 15:51 Page 76

leadership. It is equally improbable that a state These did not exist in this case—which con- would be regarded as justified in interfering with cerned an obligation of a union to disclose the the management of associations, notwithstand- names of members who would be involved in ing that it might be more convenient for the industrial action—as it was not considered like- authorities if they did not have to deal with a ly to impair the union’s ability to protect its multitude of bodies. For proceedings in which members, the employer was in any event aware the breakaway group alleges a violation of Arti- of the names of most members through payroll cle 9 on account of the re-recognition of the deduction of membership fees, and there was original leadership in the Hasan and Chaush case, nothing inherently secret about membership in see Supreme Holy Council of the Muslim Community a union. v. Bulgaria, Admissibility Decision, 13 December 166 This is underpinned by the presumption of 2001. It should be noted that interference in the innocence in Article 6(2) in the European Con- internal affairs of associations could also have vention. implications for observing the respect due to 167 An example of this is Niemietz v. Germany, 16 property rights under Article 1 of Protocol 1; December 1992. this issue was not pursued in the Hasan and 168 For example, in Appl. No. 23413/94, L. C. Chaush case. See also the Court’s observation, in B. v. United Kingdom, 83 DR 31 (1995), it was both Freedom and Democracy Party (ÖZDEP) v. found that the applicant had not adduced suffi- Turkey, 8 December 1999 (Para. 26), and Refah cient evidence to demonstrate a reasonable like- Partisi (The Welfare Party) and Others v. Turkey, 31 lihood of the interception of the communica- July 2001 (Para. 78), that the decisions of party tions of people belonging to an association that leaders should be “made freely . . . if they are to was campaigning for compensation for service- be recognised under Article 11”; in these cases men exposed to experimental nuclear explo- it found that decisions in favor of voluntary dis- sions. The applicant had alleged that the inter- solution and disciplinary actions against mem- ception was an interference with his freedom of bers respectively were taken only to avoid association and expression, but the complaint enforced dissolution (which was harsher in its was dealt with by the Commission under the effects than a voluntary one), and thus could not right to respect for correspondence under Arti- be used to prevent the party in the first case cle 8 as the lex specialis. In another example, the from claiming to be a victim of the enforced dis- alleged surveillance of a Jehovah’s Witness was solution or to negate the support of the second raised in Tsavachidis v. Greece; the Commission party for the remarks made by the members found a violation of Article 8 but not of free- concerned. dom of religion, with no separate issue arising in 165 Thus, in Appl. No. 28910/95, National Asso- respect to Article 11. The case was subsequent- ciation of Teachers in Further and Higher Education v. ly resolved by a friendly settlement, Appl. No. United Kingdom, 93 DR 63 (1998), the Commis- 28802/95, 21 January 1999. sion “accepted that there might be specific cir- 169 This includes whether to desist from certain cumstances in which a legal requirement of an activity or to take specific action. association to reveal the names of its members 170 It is essential, therefore, that such an option to a third party could give rise to an unjustified be specifically provided in the legal framework interference with the rights under Article 11 or governing associations. other provisions of the Convention” (p. 71). 171 Even if disputes relating to the competence

76 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 77

of an association do not always concern civil less fail to explain how that could be so as rights and obligations (see n. 150), Article 6 will ÖZDEP scarcely had time to take any significant certainly be applicable whenever criminal pro- action. It was formed on 19 October 1992, the ceedings are involved. first application for it to be dissolved was made 172 The freedom of members to decide whether on 29 January 1993 and it was dissolved, initial- they wish to continue to associate clearly entitles ly at a meeting of its founding members on them to decide to dissolve an association on a 30 April 1993 and then by the Constitutional voluntary basis. Court on 14 July 1993. Any danger there may 173 The latter would probably apply only when have been could have come only from no use was being made of funds that had been ÖZDEP’s programme, but there, too, the Gov- obtained for the public benefit, particularly if ernment have not established in any convincing this had been on a tax-exempt basis. manner how, despite their declared attachment 174 30 January 1998. to democracy and peaceful solutions, the pas- 175 Ibid., Para. 46. sages in issue in ÖZDEP’s programme could be 176 Ibid., Para. 47. regarded as having exacerbated terrorism in 177 Ibid., Para. 55. Turkey” (Para. 46). The concern had been that 178 A choice of name is unlikely ever to be a the party’s program tended to undermine the basis for dissolution where this is a matter con- territorial integrity of the state and the unity of sidered at the time of a recognition or registra- the nation, because it was supposedly based on tion process; in any event, problems with names the assumption that there was a separate Kur- are generally going to be matters that require dish people in Turkey with its own culture and only some slight modification and not the ter- language. In addition, it was suggested that by mination of the bodies concerned; see “Forma- advocating the abolition of the government tion,” above. Religious Affairs Department in its program 179 See “Objectives,” above. (on the ground that religious affairs should be 180 Ibid. under the control of the religious institutions 181 25 May 1998. themselves), ÖZDEP had undermined the prin- 182 There had, however, been an earlier unsuc- ciple of secularism. However, the Court found cessful attempt to have it dissolved. nothing in the program that could be considered 183 See “Objectives,” above. a call for the use of violence, an uprising, or any 184 It was also significant that the speaker had other form of rejection of democratic princi- been acquitted in criminal proceedings brought ples; indeed, the need to abide by democratic against him in respect to the impugned speech- rules had been stressed. Furthermore, the refer- es. ence to a right to self-determination of the 185 See, to similar effect, Freedom and Democracy “national or religious minorities” was to be taken Party (ÖZDEP) v. Turkey, 8 December 1999, as encouraging not separation but the need for where again the party was dissolved after just reform, to be underpinned by the freely given, coming into existence and without any oppor- democratically expressed consent of the Kurds. tunity to engage in any activities; Turkey had Similarly, the mere advocacy of a political affirmed that ÖZDEP bore “a share of the change, such as the proposed abolition of the responsibility for the problems caused by ter- Religious Affairs Department, could hardly be rorism in Turkey . . . The Government nonethe- objectionable in a democracy. The latter point

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 77 baku_book.qxd 2003. 01. 21. 15:51 Page 78

also weighed heavily in Yazar, Karatas, Aksoy and of an association that claimed the power to the People’s Labour Party (HEP) v. Turkey, 9 April award medals, honors, and titles under what it 2002, in which it was found that the party’s poli- called “the revived monarchical laws.” In this cies were not aimed at undermining the demo- finding, it was significant that not only was the cratic regime in Turkey and that its dissolution association claiming prerogatives that are nor- because of them could not therefore be neces- mally the exclusive domain of states, but it was sary. Similarly, in Selim Sadak and Others v. Turkey, also intending to carry out its activity under a 11 June 2002, dissolution of a party on such a previous (monarchical) constitution without basis that led to the applicants’ losing their par- regard to the one now in force; it was thus pur- liamentary seats was found to entail a violation suing an aim that could not be considered com- of Protocol 1, Article 3, but in view of that, patible with Portuguese public policy. In addi- there was held to be no need to determine the tion, see the upholding in Appl. No. 8652/79, X Article 11 complaint. The dissolution measure v. Austria, 26 DR 89 (1981), of a prohibition of could probably also be regarded as lacking pro- an association that was continuing the illegal portionality, in that it was based particularly on activities of another dissolved association that speeches by the former president of the party had been founded by the applicant; this was seen while abroad (Para. 36). as necessary for the prevention of disorder. 186 31 July 2001. 190 However, the Court in Refah Partisi (The Wel- 187 Ibid., Para. 81. fare Party) and Others v. Turkey, Admissibility Deci- 188 However, the fact that the 152 remaining sion, 3 October 2000, and in Yazar, Karatas, MPs continued to sit in Parliament and were able Aksoy and the People’s Labour Party (HEP) v. Turkey, to pursue their political careers normally might 9 April 2002, did not consider the right to a fair suggest that the anticipated danger was not real- hearing to be applicable to the dissolution deci- ly that serious and thus call into question the sion itself, on the basis that no civil right or propriety of the dissolution. Under the circum- obligation was being determined and thus Arti- stances, it is not surprising that the Court was cle 6 was not applicable. The issue of the appli- closely divided (4–3) in this ruling, and the dis- cation of Article 6 was not considered necessary senting judges understandably placed some to be addressed in Socialist Party and Others v. emphasis on the lack of action taken against Turkey, 25 May 1998, and Selim Sadak and Others those making the remarks and statements used v. Turkey, 11 June 2002, and it was not raised in to justify the dissolution, as well as on the need United Communist Party of Turkey and Others v. to pay more attention to the party’s formal pro- Turkey, 30 January 1998, or in Freedom and Democ- gram than to the views of individual leaders; the racy Party (ÖZDEP) v. Turkey, 8 December 1999. case was referred to a Grand Chamber hearing It is not entirely clear whether the conclusion on on 19 June 2002. Cf. the finding of a violation Article 6 in the first two cases is limited to their of Protocol 1, Article 3, in Selim Sadak and Oth- specific context of the cases—dissolution of ers v. Turkey, 11 June 2002, when dissolution of political parties by a constitutional court—but if a party led to thirteen members of parliament it is not, then there would appear to be a possi- losing their seats. ble inconsistency with the view that a dispute 189 See also Appl. No. 23892/94, ACREP v. Por- over the grant of legal personality to an associ- tugal, 83 DR 57 (1995), in which the Commission ation is a matter concerned with its civil rights found nothing objectionable in the dissolution and obligations; see n. 149. However, the ruling

78 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 79

in Vatan (People’s Democratic Party) v. Russia, (with the exception of Yazar, Karatas, Aksoy and Admissibility Decision, 21 March 2002, sug- the People’s Labour Party (HEP) v. Turkey, 9 April gests the former is more likely, as it was held that 2002, in which it was not raised), the Court did Article 6 was not applicable to the proceedings not consider it necessary to deal with the appli- in which the activities of a regional branch of cation of Protocol 1, Article 1, in respect to the the association were suspended for six months, parties themselves. as those affected were exclusively political. 195 There is a limitation in similar terms in Arti- Although dissolution can have economic con- cle 8(2) of the International Covenant on Eco- sequences for an association (see below), this nomic, Social and Cultural Rights, but those in would not be sufficient to turn this process into the Convention Concerning Freedom of Asso- the determination of civil rights where a politi- ciation and the Right to Organise, Article 9, and cal party is involved and where this is merely an in the International Covenant on Civil and Polit- incident of it; see the Admissibility Decision in ical Rights, Article 22(2), apply only to the armed the Refah Partisi case. forces and the police. 191 United Communist Party of Turkey and Others v. 196 However, it remains to be determined Turkey, 30 January 1998; Socialist Party and Others whether these categories would embrace private v. Turkey, 25 May 1998; Freedom and Democracy security services working under contract to, or Party (ÖZDEP) v. Turkey, 8 December 1999; Selim otherwise working with the authorization of, Sadak and Others v. Turkey, 11 June 2002; and the state. (only implicitly) Yazar, Karatas, Aksoy and the Peo- 197 Vogt v. Germany, 26 September 1995, Para. 67, ple’s Labour Party (HEP) v. Turkey, 9 April 2002. and Grande Oriente D’Italia di Palazzo Giustiniani v. 192 This is as was found in the cases cited in the Italy, 2 August 2001, Para. 31. preceding footnote, although such assets did 198 Ibid., Para. 68. not figure in the amounts claimed for pecuniary 199 Appl. No. 11603/85, Council of Civil Service loss in them. Furthermore, the fact that it was Unions and Others v. United Kingdom, 50 DR 228 not alleged that the transfer of assets did not (1987), which concerned persons working at an result in pecuniary damage to either the party or institution that had the function of ensuring the its members was a factor in the finding that the security of military and official communications dissolution in Refah Partisi (The Welfare Party) and and of providing signal intelligence to the gov- Others v. Turkey, 31 July 2001, was not dispro- ernment. portionate. 200 2 August 2001. 193 Indeed, this would be the only approach 201 This functional approach was fundamental consistent with the rationale underlying enforced to certain restrictions being found proportionate dissolution in these circumstances. Where dis- in Ahmed and Others v. United Kingdom, 2 Septem- solution is based on the repeated illegal activities ber 1998 (see below), although the ruling did not of an association, the transfer of its assets to the discuss whether local authority employees were state would also be inappropriate insofar as these part of the administration of the state. Cf. the involved funds comprised amounts obtained for Court’s use in Pellegrin v. France, 8 December entirely legitimate objectives. 1999, of a functional criterion to determine 194 This issue was not pursued by any donors in whether disputes about a public servant’s any of the cases just considered, and after hav- employment came within the conception of ing determined the Article 11 complaint in them “civil rights and obligations” for the purpose of

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 79 baku_book.qxd 2003. 01. 21. 15:51 Page 80

attracting the fair hearing guarantee in Article 6. ever be considered unacceptable. In its view, this provision was inapplicable only 204 26 September 1995. to disputes involving those “public servants 205 It sought to catch those who were involved whose duties typify the specific activities of the in the provision of advice to a local authority or public service in so far as the latter is acting as who represented it in dealings with the media, the depositary of public authority responsible but it also made provision for certain categories for protecting the general interests of the State of employees identified for this purpose to seek or other public authorities” (Para. 66), and the exemption where they were not actually involved armed forces and the police were specifically in these functions. instanced as examples of persons falling within 206 20 May 1999. this functional definition. The admissibility of a 207 Ibid., Para. 44. complaint about a restriction on magistrates 208 They could still be “sometimes subject to belonging to Masonic lodges (Maestri v. Italy, 4 restrictions imposed in the interest of the ser- July 2002) should result in the applicability of vice, expound election programmes, promote the limitation to judges being clarified. and nominate candidates, organise election cam- 202 In NF v. Italy, 2 August 2001, a prohibition paign meetings, vote in and stand for elections on members of the judiciary belonging to a to Parliament, local authorities and the office of Masonic lodge was found to be a violation of mayor, participate in referenda, join trade Article 11, because its terms were not suffi- unions, associations and other organisations, ciently clear to allow even a person as well participate in peaceful assemblies, make state- informed as the applicant to realize that he could ments to the press, participate in radio or televi- face disciplinary action as a result of joining one. sion programmes or publish works on politics” 203 The acceptance that the restrictions might be (Para. 49). See also Appl. No. 18598/91, Sygounis, more extensive than the application of the gen- Kotsis and Union of Police Officers v. Greece, 78 DR eral restrictions in Article 11(2) was implicit in 71 (1994), in which no interference with the right the consideration of whether the “administra- to form and join trade unions was found to have tion of the State” limitation was applicable after been caused by a circular from the justice min- first finding in Grande Oriente D’Italia di Palazzo istry to police departments asking them to Giustiniani v. Italy, 2 August 2001, that the appeal against any court decision establishing an impugned restriction was not “necessary in a association by members of the police, because democratic society.” Although in Rekvényi v. Hun- this had had no practical effect in dissuading gary, 20 May 1999, the Court had previously left police officers from joining; the association had open the question of whether “lawfulness” was been lawfully entered in the register of associa- the only condition governing restrictions where tions, its lawfulness had never been disputed, this clause was applicable, no limitation has yet and it had some 33,000 members. It was, how- been upheld where a legitimate aim did not exist ever, also significant that an earlier circular pro- and the principle of proportionality was not hibiting membership in the union and forbid- invoked. However, a restriction is unlikely to be ding the latter from representing the interests of regarded as “lawful” if it is in some way arbitrary police officers had been suspended. In the light in its character or effect, and it is unlikely that of all the cases just discussed, it seems unlikely one which has no clear link to the performance that the upholding in Appl. No. 11603/85, Coun- of the responsibilities of those affected could cil of Civil Service Unions and Others v. United King-

80 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 81

dom, 50 DR 228 (1987), of the complete prohi- will be able to claim to be the direct victim of a bition of union membership for persons work- violation of Article 11 where action is taken ing at an institution that had the function of against its very existence, as in the case of dis- ensuring the security of military and official solution, or where its ability to act on behalf of communications, and of providing signal intel- its members is in some way constrained (see, e.g., ligence to the government, would now be seen the cases referred to in n. 101). as proportionate, notwithstanding the national 210 In the case of the former, it was the security dimension. This is especially so since the founders, rather than the association refused prime concern was industrial action, which registration, that complained about the refusal of could have been addressed by the less drastic registration in Sidiropoulos and Others v. Greece, 10 measure of a prohibition on strikes. It should July 1998, and Gorzelik and Others v. Poland, 20 also be noted that the Freedom of Association December 2001. Cases have certainly been Committee of the Governing Body of the ILO brought by unregistered associations, and the found this ban to be in breach of the ILO Con- Commission and the Court have not considered vention (Case No 1261) and that it has since this to be improper, at least where either domes- been revoked. tic law actually allows such bodies to function 209 Note in this regard the Commission’s recog- and pursue their activities, as in Appl. No. nition in Appl. No. 7805/77, X and Church of Sci- 26712/95, Larmela v. Finland, 89 DR 64 (1997), entology v. Sweden, 16 DR 68 (1979), that it was and Appl. Nos. 29221/95 and 29225/95, Stankov mistaken in previously considering that a church and the United Macedonian Organisation “Ilinden” v. (and thus undoubtedly an association) was pro- Bulgaria, 94 DR 68 (1998), or they have been tected through the rights granted to its members; implicitly recognized in proceedings in domes- “a church body is capable of possessing and tic courts, as in Canea Catholic Church v. Greece, 16 exercising the rights contained in Article 9(1) in December 1997. The issue of competence to its own capacity as a representative of its mem- complain has not generally been raised in the bers” (p. 70). However, not all action taken dissolution cases, but there was a reluctance on against members of an association will neces- the part of the Court in Freedom and Democracy sarily entail a violation of Article 11 in respect to Party (ÖZDEP) v. Turkey, 8 December 1999, to the association itself; see, e.g., Appl. No. accept a loss of victim status as a result of a 22954/93, Ahmed and Others v. United Kingdom, party’s decision to dissolve itself before an Admissibility Decision, 12 September 1995, in enforced dissolution. It did not consider this to which restrictions on the political activities of be a truly voluntary act (see n. 164), but in any public servants were found not to have had any event, under Turkish law, a party dissolving itself direct effect on the union to which they remained in existence for the purpose of disso- belonged. Cf. Appl. No. 11603/85, Council of lution proceedings against it in the constitution- Civil Service Unions and Others v. United Kingdom, 50 al court. DR 228 (1987), and Wilson and Others v. United 211 See the admissibility decisions of the Unit- Kingdom, 2 July 2002, in which a ban on union ed Nations Human Rights Committee in S. M. membership and pay incentives to cease being a v. Barbados (502/1992, 31 March 1994) and Singer union member were considered to affect the v. Canada (455/1991, 26 July 1994). union itself. On the other hand, an association

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 81 baku_book.qxd 2003. 01. 21. 15:51 Page 82

2.2. COUNCIL OF EUROPE, EXPLANATORY efficient and ethical manner. MEMORANDUM TO THE FUNDAMENTAL 4. It is for these reasons that the Funda- PRINCIPLES ON THE STATUS OF NON-GOV- mental Principles on the Status of Non- ERNMENTAL ORGANISATIONS IN EUROPE, Governmental Organisations in Europe 13 NOVEMBER 2002 have been drawn up. The aim is not to offer model legislation concerning NGOs but to Introduction recommend the implementation of a num- 1. Freedom of association, as declared in ber of principles which should shape rele- Article 11 of the European Convention for vant legislation and practice in a democrat- the Protection of Human Rights and Fun- ic society founded on the rule of law. damental Freedoms, is a right recognised by 5. The European Convention on the all member states of the Council of Europe. recognition of the legal personality of inter- 2. In the majority of member states this national non-govermental organisations2 freedom is reflected in a flourishing volun- (ETS No. 124) deals with existing NGOs tary sector; the number of associations reg- which already have legal personality in the istered in the countries concerned is esti- state where they are headquartered and wish mated at 2 to 3 million1, and this figure does to have this legal personality recognised by not take account of unofficial, unregistered other states in which they intend to carry associations, of which there are many in cer- out some of their activities. On the other tain countries. The number of non-govern- hand, the Fundamental Principles seek to mental organisations (hereinafter NGOs) promote legislation which assists the setting is therefore increasing, and this trend is up of NGOs and which, among other inextricably linked to the ideal of freedom things, lays down arrangements for the and democracy which guides the Council of acquisition of legal personality in the Europe and its member states. NGO’s state of origin, regardless of 3. However, freedom of association is whether the NGO’s work is to be purely effective only where it goes hand in hand national or international as well. National with legislative measures facilitating its exer- law should provide NGOs with a flexible cise and respecting the value of NGOs’ legal framework, enabling them to meet the contribution to society. Although they can recommendations contained in the Funda- be fostered by passing favourable legislation, mental Principles. All legislation on NGOs awareness of and respect for NGOs’ con- should be devised in consultation with rep- tribution develop only where NGOs them- resentatives of the NGO sector. selves undertake to behave in a responsible,

82 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 83

Background of NGOs’ contribution to a democratic 6. The Fundamental Principles on the society, which is made in fields as varied as Status of NGOs in Europe are the result of promotion of human rights, environmental discussions initiated as early as 1996. They protection, sport, public health and defence began with a series of multilateral meetings of the interests of various sectors of the and regional conferences held from 1996 to community. The text lays particular empha- 19983, which resulted in the adoption of sis on NGOs’ role in public awareness- “Guidelines to promote the development raising and education for democracy, while and strengthening of NGOs in Europe”, pointing out that these aims, albeit essential constituting the conclusions of a multilat- in a society adhering to the values of eral meeting on the legal status of NGOs democracy and the rule of law, are not the and their role in a . It was sole purposes fulfilled by NGOs. The these guidelines that laid the foundations for nature of NGOs’ input in the different the Fundamental Principles. fields is equally varied. 7. An expert, Professor Jeremy McBride, 9. The preamble emphasises that, was commissioned to prepare preliminary through the many different activities they draft Fundamental Principles on the Status pursue and the ensuing benefits, NGOs of NGOs in Europe. This draft text was contribute to the achievement of the aims discussed at two open meetings of con- and principles set out in the Statute of the tracting parties to the European Convention Council of Europe and the Charter of the on the Recognition of the Legal Personali- United Nations. As far as the Council of ty of International Non-Governmental Europe is concerned, this contribution is Organisations, held in Strasbourg on 19 and made through a variety of means, such as 20 November 2001, from 20 to 22 March education, training, dissemination of Coun- 2002 and on 5 July 2002. cil of Europe standards, participation in expert committees, and especially through THE FUNDAMENTAL PRINCIPLES the consultative status that some 370 ON THE STATUS OF NGOs IN NGOs have acquired with the Organisa- EUROPE tion. 10. Member states of the Council of Preamble Europe undertake to promote the rule of 8. The preamble to the Fundamental law and protection of the fundamental Principles on the Status of NGOs in freedoms which are the foundation of gen- Europe stresses the importance and value uine democracy, in particular freedom of

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 83 baku_book.qxd 2003. 01. 21. 15:51 Page 84

opinion, expression and association. varies considerably, since they include both 11. Laws enabling NGOs to acquire small local bodies with only a few members, legal personality play a vital role in giving e.g. a village chess club, and international effect to freedom of association, guaran- associations known worldwide, e.g. certain teed by the European Convention on organisations engaged in the defence and Human Rights and safeguarded by interna- promotion of human rights. tional and constitutional law. Furthermore, 14. Among these NGOs the text gives freedom of expression, which is also guar- examples of certain forms, but the list is anteed by the European Convention on not exhaustive. This list does not include Human Rights and safeguarded by interna- trade unions and religious congregations, tional and constitutional law, is meaningful but these certainly have a special place only where it is enforced through laws per- among NGOs. In some countries these mitting the establishment of associations. bodies, or some of them, come within the This is why the preamble states that the ambit of legislation on associations, where- vitality of civil society in a given country is as in others they are covered by separate a good indication of that country’s adher- laws. Since Convention ETS No. 124 did ence to principles of democratic pluralism, not expressly exclude these bodies from its in particular freedom of association. scope, the participants decided to make no 12. Lastly, the preamble points out that, explicit mention of trade unions and reli- under the text, NGOs have not only rights, gious congregations in the Fundamental but also certain duties and responsibilities. Principles. 15. Political parties, are expressly exclud- Scope ed from the ambit of the Fundamental 13. There is no general definition of an Principles as, under most national laws, NGO in international law and the term they are the subjects of separate provisions covers an extremely varied range of bodies from those applicable to NGOs in general. within the member states. Reference should 16. Professional bodies, established by be had to the different practices followed in law, to which members of a profession are each state, notably concerning the form required to belong for regulatory purposes that an NGO should adopt in order to be are also not included in the Fundamental granted legal personality or receive various Principles’ definition of NGOs. However, kinds of advantageous treatments. Some as is recognised in paragraph 20, national types of NGOs, e.g. trusts, exist only in cer- law may treat them as NGOs and some tain states. NGOs’ sphere of action also aspects of their activity can be essentially

84 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 85

the same as those carried out by voluntary law should do likewise. Furthermore, in bodies, e.g. the human rights committee of some countries, the distinction between a bar association. NGOs with legal personality and those 17. As indicated in paragraph 4 of the without does not exist, as NGOs automat- Fundamental Principles, the main character ically acquire legal personality upon their of NGOs is the fact that profit making is establishment. Therefore, not all aspects of not their primary aim. All NGOs have in the Fundamental Principles are applicable common their self-governing, voluntary to them. nature and the fact that they do not dis- tribute profits from their activities to their Basic Principles members but use these for the pursuit of 20. The Fundamental Principles lay their objectives. down four basic principles, which are then 18. Apart from these common features, fleshed out in the subsequent sections: the distinction most frequently drawn in the 21. Voluntary establishment: The starting case of NGOs is that between associations point for any law on NGOs should be the and foundations. As stated in the explana- right of any natural or legal person to estab- tory report on Convention ETS No. 124, lish an NGO with a lawful, non-profit mak- an association means “a number of persons ing objective. This should be an act of free uniting together for some specific pur- will. It is important that national laws on pose”. According to the same source, a NGOs, and also rules on their taxation, foundation is “an identified property devot- allow and encourage such initiatives. ed to a given purpose”. 22. Right to freedom of expression: his prin- 19. Another distinction of some impor- ciple derives from Article 10 of the Euro- tance is that addressed in paragraph 5, the pean Convention on Human Rights, which distinction between informal NGOs, that is provides “Everyone has the right to free- those not wishing to acquire legal person- dom of expression”, and is applicable to ality, and NGOs with legal personality. As NGOs on an equal footing with other nat- is the case with most national laws, the text ural or legal persons. contains a number of provisions aimed 23. NGOs with legal personality should have solely at NGOs with legal personality. the same general rights and obligations as other legal However, the text acknowledges the prin- entities: The purpose of this principle is to ciple that an NGO may wish to pursue its reaffirm that NGOs must be subject to activities without having legal personality to ordinary domestic law, not special regula- that end, and it is important that national tions, although separate legislation may

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 85 baku_book.qxd 2003. 01. 21. 15:51 Page 86

grant them additional rights and measures change in the law and participating in polit- may be taken to encourage their activities. ical debate, are particularly mentioned 24. Judicial protection: In a state governed because limitations on their pursuit have by the rule of law it is essential that NGOs been the subject of successful challenges in should be entitled, in the same way as other the European Court of Human Rights. legal entities, to challenge decisions affect- 27. Pursuit of economic activities is a ing them in an independent court which has special case, since it is in fact NGOs’ non- the capacity to review all aspects of their profit making nature that distinguishes legality, to quash them where appropriate them from commercial enterprises. In this and to provide any consequential relief that connection, the text lays down the principle might be required. The principle estab- that an NGO is free to carry on any eco- lished in the previous paragraph holds nomic, business or commercial activity, on good, i.e. any act or decision affecting an condition that any profits are used to NGO must be subject to the same admin- finance the pursuit of the common- or istrative and judicial supervision as is gen- public-interest objectives for which the erally applicable in the case of other legal NGO was set up. National legislation gov- entities. There should be no need for spe- erning NGOs should therefore stipulate cial provisions to this effect in legislation on that none of their earnings or net profits is NGOs. to be distributed, as such, to any person whatsoever. Such legislation might also pre- Objectives scribe particular modalities for carrying out 25. The range of objectives that may be economic, business or commercial activity, pursued by NGOs is commensurate with e.g. the formation of a subsidiary company. their own diversity, and the objectives men- Subject to this general restriction, no tioned in the Fundamental Principles are requirements should be imposed on NGOs merely examples. The only requirement other than the general rules governing the here—other than that an NGO should be economic activities in question. non-profit making—is that set out in para- 28. The Fundamental Principles also graph 10: lawfulness of the objectives pur- establish the principle that, in pursuit of sued and the means employed. The Funda- their objectives, NGOs are free to join or mental Principles illustrate a range of the not to join federations and means that might be employed, but these of NGOs. Such federations and confeder- are not exhaustive. ations of NGOs have an important role, 26. Two objectives, namely seeking a since they foster complementarity among

86 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 87

NGOs and allow them to reach a wider 31. Paragraph 17 of the text deals with audience, as well as share services and set foundations, funds and trusts, which are the common standards. normal forms taken by NGOs established by means of a donation or bequest. Establishment 29. Paragraph 15 of the Fundamental Content of Statutes Principles reiterates, and fleshes out, the 32. As regards their organisation and principle that any person or group of per- decision-making processes, NGOs, in par- sons should be free to establish an NGO, ticular those with legal personality, must already mentioned in the section on basic heed the needs of various parties: mem- principles. Two kinds of restriction are bers, users, beneficiaries, their highest gov- encountered in practice in some states: erning body, their staff, donors and, in cer- firstly, on establishment by foreign nation- tain circumstances, national or local admin- als and, secondly, on establishment by legal istrative authorities. They must therefore entities. There are no grounds for these have clear statutes, setting out the condi- restrictions. tions under which they operate and which 30. The question of the minimum should be available for consultation by the number of people needed to establish an above-mentioned parties, with a view to NGO was discussed at length during the ensuring legal certainty. Paragraph 18 of travaux préparatoires, since this number varies the text lists several examples. They illus- under national law. In some states one per- trate the type of information of general son is enough, whereas in others the law usefulness which the statutes should con- sets a higher threshold, which may be two, tain. three or five people, or even more. In the 33. Subject to generally applicable end, the participants decided to draw a dis- administrative, civil and criminal law, the tinction between informal organisations conditions under which an NGO operates, and those wishing to acquire legal person- as set out in their statutes, are entirely a ality. In the first case, two people should matter for the NGO itself, in the persons of suffice to establish a membership-based its members. A decision to amend the NGO, whereas a greater minimum number statutes accordingly lies with the NGO’s of members may be required before legal highest governing body, consisting of its personality can be granted. In that event, entire membership, so as to ensure that the the figure should not be so large as to dis- proposed amendment commands suffi- courage the actual establishment. cient support among members.

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 87 baku_book.qxd 2003. 01. 21. 15:51 Page 88

MEMBERSHIP anteed to them both by Article 11 of the 34. Membership is a particularly impor- European Convention on Human Rights tant issue, as it is related to the concepts of and Article 15 of the Convention on the liability and legal capacity. The section of Rights of the Child. However, subject to the Fundamental Principles dealing with these provisos, it should be lawful within a this subject first reiterates the fundamental state’s jurisdiction for any person, whether requirement that membership of an NGO natural or legal, national or foreign nation- must generally be voluntary. This negative al, to join an NGO. aspect of freedom of association is, how- 37. In the same way as an NGO’s ever, something that can be relaxed in the statutes determines a person’s capacity to case of professional organisations to which become a member, it is for the statutes to members of a given profession - such as deal with the question of expulsion of doctors or lawyers - must belong under the members and to determine the procedure in force, for those countries to be followed in that case. whish treat them as NGOs. 35.Apart from its voluntary nature, Legal Personality membership is governed by two important 38. The provisions relating to the legal principles: firstly, anyone should be able to personality of NGOs are one of the cor- join an NGO without being subject to nerstones of their status, since they permit unjustifiable restrictions imposed by law; NGOs to have an existence in their own secondly, questions relating to membership right, separate from those of their mem- are a matter for the NGO’s statutes. bers or founders. This enables them to 36. Thus, the statutes may provide for enjoy elementary civic rights, such as the restrictions, such as confining membership initiation of legal proceedings but also to of a club for senior citizens to persons engage in practical dealings essential for belonging to that age group. Furthermore, their operation, e.g. rental of premises or in some cases membership of an NGO opening of a bank account. It is important may be incompatible with a person’s office to note that paragraphs 24 and 25 of the or employment, particularly where these Fundamental Principles are to be read are public. In addition, there may be a need together with paragraphs 72 and 73 on lia- to adopt restrictions to protect vulnerable bility. persons, but any restriction on the ability of 39. Some of the provisions contained in children to join an NGO should take into the Fundamental Principles specifically account the freedom of association guar- concern NGOs with legal personality.

88 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 89

However, it must not be overlooked that Principles concerned with acquisition of some NGOs may well wish to pursue their legal personality establishes certain basic objectives without acquiring legal personal- principles that should govern this proce- ity to that end, and national law should dure—referred to in some states as the reg- allow them this possibility without being istration procedure—where this personali- based on the assumption that legal person- ty is not automatically acquired through ality is mandatory for all NGOs. the establishment of the NGO concerned. The underlying logic is that the procedure Acquisition of Legal Personality must be as simple and undemanding as 40. The moment at which an NGO possible and must not entail the exercise of acquires legal personality varies depending discretion. on the state concerned: in some states 43. For that reason the applicable rules NGOs automatically have legal personality must be clear and easily accessible by from their establishment, and this section NGOs, which is not always the case among therefore does not apply. In the majority of states. One means of guaranteeing such states, acquisition of legal personality is accessibility is publication of an explanato- governed by rules and a procedure. The ry guide to the process by the relevant text stipulates that these should have an authority. This may not be possible in all objective basis and their application should states for budgetary reasons, but in any not result in arbitrary treatment of NGOs. event the registration authority should pro- 41. Although the moment of acquisi- vide NGOs with all the information and tion of legal personality varies from one assistance they may need. state to another, the same does not apply to 44. It is entirely legitimate for states to its termination, since the rule is that an make the acquisition of legal personality by NGO’s legal personality ends with its dis- an NGO subject to the supply of certain solution—voluntary or involuntary—in information and documents. In an effort to case of bankruptcy, prolonged inactivity— ensure legal certainty, this information which might arise from insufficient mem- should above all make it possible to answer bership—or as an exceptional sanction. It enquiries from third parties about the also comes to an end with the merger of NGO’s identity, address and management two or more NGOs; the resulting new enti- structures. Any individual having a business ty assumes the rights and obligations of the relationship with an NGO, for instance in NGOs that have merged. the event of sale of property or recruit- 42. The section of the Fundamental ment of staff, must be able to ascertain

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 89 baku_book.qxd 2003. 01. 21. 15:51 Page 90

whether the organisation in question is ing an application for legal personality, the recognised as a legal person. Similarly, for Fundamental Principles list the grounds on their own protection, private individuals which an NGO’s application may be should be able to check that a body pre- refused. However, the list set out in para- senting itself as an NGO and seeking their graph 31 of the Fundamental Principles is support is in fact what it claims to be. not exhaustive. States may lay down addi- 45. The registration procedure should tional grounds for refusal in their legisla- not constitute an opportunity for states to tion, though such grounds should be based request information to which they have no on clear and objective considerations. In entitlement. The latter would generally accordance with the principles governing include the identity of donors or an NGO’s decision-making by administrative authori- financial circumstances, but there may be a ties, it also specifies that there should be a need to require disclosure of those cir- prescribed time-limit for deciding an appli- cumstances where a body such as a foun- cation. The decision must be final, and it is dation is established. The procedure should not acceptable that legal personality grant- also not provide states with an excuse for ed to an NGO should be subject to peri- discriminating between NGOs as to odic review. However, this does not prevent whether their objectives or members are states from re-examining the question of deemed “acceptable”, in so far as the objec- legal personality where a substantial change tives and the means employed are lawful. is made to the statutes or activities of the 46. A state may charge a fee to cover the NGO. The grounds for the decision must cost of processing applications, but this be indicated in writing, particularly where it should not be set at a dissuasive amount. is a refusal, so as to allow the NGO to chal- 47. The text establishes the principle lenge it in the relevant administrative that the authority deciding an application authority and in courts. Failure to decide for legal personality should be separate within the prescribed time limit should be from that awarding any form of public treated as either a refusal of, or the grant of, support. As a general rule, legal personali- legal personality. ty will be granted by an administrative 49. In the states which have ratified authority, but in some countries it may be Convention ETS No. 124, the legal per- appropriate for the courts to fulfil this func- sonality and capacity acquired by an NGO tion. in one contracting party where it has its reg- 48. So as to limit the scope for the exer- istered headquarters should be recognised, cise of discretion by the authorities decid- as of right, by the others, subject to com-

90 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 91

pliance with certain conditions. In other clear statutes, as it is this document which states, foreign NGOs may be required to defines the organisation’s structure and obtain approval to operate in the host operating rules. country. 53. The statutes should comply with 50. Information supplied by NGOs the legislation in force, and it is also desir- when applying for legal personality is usu- able that it be compatible with any com- ally kept on record in a centralised nation- mitments entered into by the NGO vis-à- al register, which, as stated in the text, vis donors or a network of NGOs to which should be accessible to the public. Howev- it belongs. er, this rule on centralisation of informa- 54. The NGO’s organisation and deci- tion cannot be made generally applicable, as sion-making processes and determination account should be taken of the particular- of levels of responsibility and accountabil- ities of federal states, where registration ity must be consistent with its statutes, but may be carried out at the level of the enti- should not be subject to the supervision of ties of the federation. any outside authority, except for the 51. The rule laid down in paragraph 42 requirement of compliance with the law, of the Fundamental Principles is intended mentioned above. to ensure that the statutes of an NGO can 55. This means that an NGO is sover- be amended under a simple, expedited pro- eign in determining the internal organisa- cedure. Approval should only be needed in tion it wishes to adopt in pursuit of its the case of significant matters, such as the objectives, as defined in the statutes. As name or objectives of an NGO. The pro- long as it does not break the law, external cedure should not normally entail an oblig- legal bodies should have no say in the con- ation to re-establish the organisation as a duct of its internal affairs. An exception is whole, thus allowing the NGO to evolve, made here for those provisions governing while maintaining some continuity. certain types of NGOs which require spe- cial supervision. All NGOs must however Management observe all relevant applicable employment 52. As regards their organisation and and social security law and they enjoy no decision-making processes, NGOs must exemption from any requirements as heed the needs of various parties, both regards the membership of their compo- internal and external, as pointed out in nent bodies or with respect to immigration paragraph 46. It is therefore in the interests law. In particular, foreign nationals on the of all concerned that NGOs should have board or staff of NGOs are subject to the

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 91 baku_book.qxd 2003. 01. 21. 15:51 Page 92

laws of the host country with respect to another compatible body to receive its their entry, sojourn and departure. assets, after clearing of its liabilities, in the event of its dissolution. This is a principle Property and Fund-Raising of good practice, which should be encour- 56. The possibility for NGOs to solicit aged. In some cases contractual clauses, in donations in cash or in kind is a funda- particular concerning major donors, may mental principle, a pendant to their non- require the return of funds to a donor in profit making nature. Such contributions, the event of the NGO’s dissolution. The along with the proceeds of any economic successor may also be the state, particular- activity, are NGO’s vital means of financ- ly where no compatible body exists or ing the pursuit of its objectives. However, where the NGO’s objectives or activities this possibility for NGOs to collect fund- have been found to be unlawful. However, ing is not absolute and may be subject to this should not give rise to a financial wind- regulation, with a view to the protection of fall for the state. the targeted audience. 61. Paragraph 56 sets out the principle 57. Donors may be natural or legal per- according to which it is perfectly appropri- sons—companies or institutions—and ate for an NGO to use its funds for paying may be national or foreign. In general, for- its staff and reimbursing staff and volun- eign and national funding should be sub- teers for the costs incurred while acting on ject to the same rules, in particular as its behalf, even if the funds used were regards the possible uses of the funds and obtained by means of public support. reporting requirements. 58. The provisions of paragraphs 51 to Public Support 55 are designed to safeguard the assets of 62. NGOs are sometimes better placed NGOs and ensure that they are properly than the state to answer certain needs of managed. society, for instance in welfare and health 59. The principle set out in paragraph matters. As a result, states often decide to 51 does not imply that banks are under an grant them support, in the form of direct obligation to provide banking facilities to grants or preferential tax treatment. every NGO requesting it. Subject to the 63. The eligibility for public support principle of non-discrimination, individual should be based on clear, objective criteria. banks are free to choose their clients. The public should also be able to ascertain 60. The law should permit an NGO to which NGOs have received support and designate, in its statutes or by resolution, on what grounds. The authorities must

92 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 93

also be able to verify that associations seek- which has benefited from public support ing support or preferential tax treatment or preferential tax treatment can be expect- do indeed serve a non-profit making pur- ed to account to the community concern- pose, as in some countries tax advantages ing the use made of public funds. Lastly, attract certain entities to apply for NGO donors may stipulate by contract that an status when it would have been more NGO is required to report on the use appropriate for them to have been estab- made of individual donations. lished as commercial companies. 67. However, reporting requirements 64. As a result, the majority of states must be tempered by other obligations make the granting of public support con- relating to the respect for and con- tingent on compliance with certain criteria fidentiality. In particular, a donor’s desire to and, above all, with the NGO’s fulfilment remain anonymous must be observed. The of a public-interest objective. In some respect for privacy and confidentiality is, states this may entail recognition of special however, not unlimited. In exceptional status or classification as an organisation in cases, the general interest may justify that the public interest, which enables the authorities have access to private or confi- NGO to receive donations and enjoy tax dential information, for instance in order advantages, while at the same time ensur- to combat black market money transfers. ing the protection of third parties. Any exception to business confidentiality 65. Since granting of public support is or to the privacy and confidentiality of to a large extent conditional on the objec- donors, beneficiaries and staff shall tives and activities of an NGO, it is normal observe the principle of necessity and pro- that any major change in those activities or portionality. objectives may result in review, alteration 68. In order to guarantee objectivity, the and even termination, of the public sup- Fundamental Principles lay down the prin- port. ciple that NGOs should have their accounts audited by a person independent Transparency and Accountability of its management, although this person 66. As regards its activities and financial could still be a member of the NGO. As position, an NGO is accountable to a num- tends to happen with small commercial ber of parties, first and foremost its mem- companies, small NGOs may be exempted bers. It is good practice that it should sub- from the obligation of having their mit an annual report on its accounts and accounts audited by an independent per- activities to them. Secondly, an NGO son.

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 93 baku_book.qxd 2003. 01. 21. 15:51 Page 94

Supervision in most instances, the appropriate form of 69. Whereas the previous section con- protection would be the possibility for cerned oversight of an NGO’s accounts members to bring the matter before the and performance, in relation to the objec- courts; there should generally be no need tives defined in its statutes, this section for a public body to take action on the deals with supervision of compliance with members’ behalf. civil, criminal and in 72. In supervising the activities of force. NGOs, the administrative authorities 70. The best means of ensuring ethical, should apply the same assumption as holds responsible conduct by NGOs is to pro- good for individuals, namely that, failing mote self-regulation in this sector at the proof to the contrary, their activities are national and international levels. Respon- lawful. The powers of the administrative sible NGOs are increasingly conscious of authorities and the police—notably as the fact that the sector’s success depends regards —and the penal- to a large extent on public opinion con- ties that may be imposed, must be consis- cerning their efficiency and ethics. Fur- tent with the principle of proportionality thermore, in some countries codes of con- and be subject to judicial supervision. duct are often drawn up to enable groups 73. The Fundamental Principles speci- of NGOs in a given sector to ensure that fy that dissolution of an NGO—the ulti- the sector’s needs and challenges are met mate penalty—should be used only a last and widely understood. resort. Such cases should be extremely 71. States nevertheless have a legiti- rare, and it must be shown that there is a mate interest in regulating NGOs so as to very sound basis for taking a measure of guarantee respect for the rights of third this kind. Although the measure may parties and this may include action to safe- appear warranted, to be valid it must, in guard the reputation and economic inter- turn, also be subject to effective judicial ests of other NGOs in particular. State review. intervention may also be needed to protect members against abuse of an NGO’s Liability dominant position, particularly against 74. The principles established under exclusion in breach of the organisation’s this head are themselves a consequence of rules, imposition of certain unfavourable an NGO’s legal personality. The NGO has conditions, or even adoption of wholly separate existence from its members and unreasonable or arbitrary rules. However, founders, and it alone is liable for debts

94 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 95

and obligations entered into on its behalf, Relations with Governmental Bodies save in case of misconduct or neglect of 76. Although NGOs and state authori- duties by a member of staff or manage- ties sometimes have an ambiguous attitude ment. In the latter cases, the NGO or oth- towards dialogue, it is in the interest of them ers affected should be able to take legal both to establish mechanisms for dialogue action against the person responsible in and consultation, as they pursue a common order to obtain compensation for the objective of finding solutions to society’s damage caused. problems and satisfying its members’ needs. 75. Competent and responsible NGO Their participation is distinct from and does input to the process of public policy for- not replace the role of political parties. Con- mulation enhances the applicability of leg- sultation may take place at a national, local islation and the seriousness of govern- or sectoral level and may be particularly use- mental decision-making. ful in the drafting of legislation.

* The Fundamental Principles can be found in vention ETS No. 124, Strasbourg, 9-10 Febru- chapter 5.2 infra. ary 1998 1 According to the “Guide de la liberté associative -Meeting on the legal status of NGOs and their dans le monde”, edited by Michel Doucin, Paris, role in a pluralist democracy, Strasbourg, 23-25 2000 March 1998 2 As of 5 July 2002, states parties to Convention -Regional conference on the legal status of ETS No 124 are: Austria, Belgium, France, NGOs, Kyiv, 9-10 September 1998, with the Greece, Portugal, Slovenia, Switzerland, “the participation of Ukraine, Moldova and the Former Yugoslav Republic of Macedonia” and Russian Federation the United Kingdom. -Regional conference for the Caucasus coun- 3-Multilateral meeting on associations and foun- tries on the legal status of NGOs, Strasbourg, dations, Strasbourg, 27-29 November 1996 10-11 December 1998. -Multilateral seminar on application of Con-

INTERNATIONAL LAW ON FREEDOM OF ASSOCIATION • 95 baku_book.qxd 2003. 01. 21. 15:51 Page 97

Three K EY C HALLENGES TO F REEDOM OF A SSOCIATION

“NGOs can be either informal bodies or organisations which have legal per- sonality. They may enjoy different statuses under national law in order to reflect differences in the financial or other benefits which they are accorded in addition to legal personality.” (Paragraph 5, Council of Europe’s Fundamental Principles on the Status of Non-Governmental Organizations in Europe)

“All NGOs enjoy the right to free- needs.” (Paragraph 74, Council of Europe’s Fun- dom of expression.” (Paragraph 7, Council of damental Principles on the Status of Non-Govern- Europe’s Fundamental Principles on the Status of mental Organizations in Europe) Non-Governmental Organizations in Europe) “This principle derives from Article “Any act or omission by a governmen- 10 of the European Convention on tal organ affecting an NGO should be Human Rights, which provides subject to administrative review and be ‘Everyone has the right to freedom of open to challenge in an independent and expression’, and is applicable to NGOs impartial court with full jurisdiction.” on an equal footing with other natural (Paragraph 9, Council of Europe’s Fundamental or legal persons.” (Paragraph 22, Council of Principles on the Status of Non-Governmental Orga- Europe Explanatory Memorandum to the Funda- nizations in Europe) mental Principles on the Status of Non-governmental Organisations in Europe) “In a state governed by the rule of law it is essential that NGOs should be enti- “NGOs should be encouraged to par- tled, in the same way as other legal entities, ticipate in governmental and quasi-gov- to challenge decisions affecting them in an ernmental mechanisms for dialogue, con- independent court which has the capacity sultation and exchange, with the objective to review all aspects of their legality, to of searching for solutions to society’s quash them where appropriate and to pro-

97 baku_book.qxd 2003. 01. 21. 15:51 Page 98

vide any consequential relief that might be ters of public interest is now well accept- required . . ..” (Paragraph 24, Council of Europe ed and important to enhancing, among Explanatory Memorandum to the Fundamental Prin- other things, legislation and the serious- ciples on the Status of Non-governmental Organisa- ness of governmental decision-making tions in Europe) (See Pareagraph 75, Council of Europe Explanatoy Memorandum to the Funda- This chapter examines four challenges mental Principles on the Status of Non- that face non-governmental organizations govermental Organisations in Europe). (NGOs) in many countries. Each presents Environmental concerns illustrate the an obstacle to fully developed freedom of value of such participation, and presents association and the ability of NGOs to as well a new legal regime to promote it— making useful and effective contributions the Convention on Access to Information, to the economic and social development. in Decision-Making Each also represents different aspects of and Access to Justice in Environmental freedom of association principles. These Matters (popularly known as the Aarhus challenges are public advocacy, public par- Convention, excerpts of which can be ticipation, access to information, and the found in chapter 5.1). In this chapter, the independence of the judiciary. Access Initiative, a global coalition com- mitted to promoting the implementation Public Advocacy: The ability of of the Aarhus Convention, identifies NGOs to pursue various matters of pub- “Elements of a Public Participation Sys- lic interest often raises concerns that go to tem.” the heart of freedom of association and freedom of expression. Linda S. Schmidt Access to Information: A sine qua non explores the treatment of these often con- to effective participation and the fulfill- tentious concerns in Europe, particularly ment of freedom of association is timely in the context of European Court access to information. This chapter iden- jurisprudence. Excerpts of many of the tifies the benefits of such access and also cases she cites are reproduced in chapter includes in a sidebar a 2002 Council of 5.3. A sidebar focuses on the approach to Europe recommendation regarding access the issue that has been taken in Germany. to official documents. Independence of the Judiciary: Public Participation: The involve- Without an independent and fair inter- ment of citizens and civil society in mat- preter and enforcer of the law, there is lit-

98 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 99

tle hope that freedom of association and ities. One proposal would convert a rarely expression can be guaranteed and pro- used town parking lot into a playground tected. The judiciary is the guardian of with basketball and volleyball courts. commitments to civil society, as well as the Some parents and others support the mea- cornerstone of the rule of law. The Coun- sure as good for the mental and physical cil of Ministers of the Council of Europe health of children. Some believe the pro- has recommended norms on the indepen- posal is not enough and that a park with dence, efficiency and role of judges that football fields is urgently needed. Those are set out in a sidebar. Another sidebar who live near the lot oppose the propos- contains a Judicial Reform Index devel- al, concerned that there will be too much oped by the Central and East European noise from screaming children and balls Law Initiative of the American Bar Asso- hitting the pavement on the lot. Still oth- ciation. ers insist that, whatever proposal is adopt- ed, it should not cost too much, because 3.1 PUBLIC ADVOCACY: FREEDOM OF there are other important needs in the EXPRESSION AND POLITICAL ACTIVITIES town. Each person who speaks before the By Linda S. Schmidt town council represents one of these competing community interests. As a Introduction: Public Advocacy and the Public result, even a seemingly benign issue such Interest as playgrounds for children becomes a Public advocacy, or campaigning for the center of dispute about what the “public” public interest, can be a difficult under- interest is and whose opinion should taking. Certainly, an individual or group count. that seeks to represent the public on an The term “public,” however, does not issue is putting forward at least one legit- easily encompass such divisions or dis- imate view. There may be, however, other tinctions.1 When used to modify “good” legitimate views on any given issue. How or “interest,” it can be misleading in the to address the multitude of opinions, degree of homogeneity and uniformity it beliefs, and concerns—voiced and suggests. In the example above, it may be unvoiced—is a central issue to any demo- possible to find an outcome that satisfies cratic system of governance. all the positions advocated. For example, For example, a town council is consid- the town council might find someone to ering plans to increase the amount of area donate a small grassy area for a football available to children for recreational activ- field and turn the parking lot into a play-

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 99 baku_book.qxd 2003. 01. 21. 15:51 Page 100

ground, but only for use during specified, ulation. This broader approach asks not limited hours. Such a result may be wide- “what the public interest is, so much as who ly understood to serve the public interest. gets to participate in defining it and However, why the public interest is served through what means.”2 by the town council’s decision is subject to The first approach, and public advoca- different interpretations. cy on behalf of the relevant majority, can On the one hand, the public could be be important when the democratic defined in terms of a community’s major- process does not function well. However, ity, the majority of those who actively public advocacy finds its true place with- express an interest in a given issue, or the in the second approach. Public advocacy state officials who are politically account- does not necessarily seek to represent the able to the majority of the electorate. community as a whole, or even a signifi- Thus, a resolution that sufficiently reflects cant majority. Rather, it helps ensure that the concerns and values of the relevant the concerns of a particular subgroup in majority or officials is believed to serve the community are heard where they the public interest. How legislators or might otherwise be excluded or ignored. other public authorities address any single In other words, public advocacy seeks to issue is important only to the extent that expand the “who” in the public interest the decision-making process they follow debate. aids them in accurately reflecting the will This article will examine some of the of the majority. This is a restrictive ways in which voluntary organizations approach to defining the public and the conduct public advocacy in Europe, as public interest. well as the nature and scope of the guar- A broader approach to the public and antees afforded them under the European the public interest is also possible. Such an Convention on Human Rights (the “Con- approach might address the public interest vention”). It focuses on the standard-bear- not by first defining the relevant public, er freedoms for associational activities, but by establishing a decision-making beginning with the role of Article 10 (free- process which allows for the greatest pos- dom of expression) and Article 11 (free- sible degree of input. It concedes that the dom of assembly and association) in the “public” is not a homogenous body. Convention and the test used by the Euro- Nonetheless, it does not abandon the pean Court of Human Rights (the enterprise by starting and ending its quest “Court”) to balance enforcement of those with the interests of a subset of the pop- rights with state interests in derogation. It

100 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 101

then addresses the scope of objectives Balancing State Interests and Indi- and advocacy methods permitted organi- vidual Freedoms: The “Necessity” zations under the Court’s growing Test jurisprudence. Although European orga- Despite their importance, Article 10 and nizations may find protection for their Article 11 rights are not absolute. Howev- activities under other international instru- er, where a state renders a particular activ- ments, 3 the well-developed review mech- ity unlawful, the restriction must conform anisms and jurisprudence of the Court to internationally guaranteed rights and can be expected to exercise the greatest freedoms. The Convention under girds influence in Council of Europe member this obligation in respect to Articles 10 countries. and 11 by (a) requiring that any limits be prescribed by law, (b) limiting the interests Public Advocacy, Freedom of Association, and a state may pursue when derogating from the European Convention on Human Rights Article 10 or 11, and (c) by imposing a The European Convention on Human requirement that the derogation be “nec- Rights, and the case law it has generated, essary in a democratic society.” Article 11 are important sources of guidance on the (2) states that scope of individual and group rights to participate in a country’s decision-making [n]o restrictions shall be placed on the processes. The Convention places a high exercise of [the rights of freedom of premium on commitment to democratic assembly and association] other than systems of governance.4 Freedom of such as are prescribed by law and are expression (Article 10) and freedom of necessary in a democratic society in the assembly and association (Article 11) fit in interests of national security or public the Convention’s framework due to the safety, for the prevention of disorder protection they lend to political pluralism. or crime, for the protection of health The Court has clearly highlighted political or morals or for the protection of the pluralism as a core element of democracy rights and freedoms of others. that is protected by the Convention. 5The two rights are also closely intertwined: Article 10 (2) contains similar language, Article 11 addresses Article 10 freedom of although it recognizes that the exercise of expression concerns on a larger scale, its freedoms carries concurrent responsi- explicitly legitimizing the imparting of bilities. As a result, the state may subject ideas and beliefs together with others.6 the exercise of free speech to “such for-

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 101 baku_book.qxd 2003. 01. 21. 15:51 Page 102

malities, conditions, restrictions or penal- UK at the time in which the events of the ties as are prescribed by law.” The same case took place, the laws permitted both requirement found in Article 11 (2) that and human embryo experimen- any limitations or conditions be “neces- tation within specified time frames of the sary in a democratic society” also applies. fetus’s development. The major political On their face, the permissible state parties did not take positions on abortion interests in both Articles 10 and 11 could or embryo experimentation, but allowed allow a broad range of activities to be their parliamentary members to vote swept under governmental according to their consciences.12 Prior to prohibitions.7Moreover, the legality the April 1992 elections, SPUC distributed requirement does little to rein in the wide flyers outlining various parliamentary can- sweep of the state’s interests provisions. didates’ positions on abortion and embryo Its focus is on eliminating capriciousness experimentation. SPUC’s flyers listed can- in state behavior. The Court, however, didates who were both for and against regularly uses the “necessity” requirement abortion and human embryo experimen- as a basis for strictly reviewing state limi- tation and contained developmental cal- tations on Articles 10 and 11 rights.8 Lim- endar of the human fetus.13 itations which appear arbitrary or dispro- Mrs. Bowman was charged with violat- portionate in effect or application are like- ing the United Kingdom’s 1983 Act, sec- ly to fail the “necessity” inquiry, precisely tion 75, which prohibits expenses above because of the Court’s special concern GB £ 5 by any person other than a candi- for enabling wide participation in political date for office or his or her agent “with a processes and debate. 9 view to promoting or procuring the elec- tion of a candidate at an election.”14 The The “Necessity” Test Applied: law was interpreted to include activities Bowman v. United Kingdom intended to prevent a candidate’s election Bowman v. United Kingdom highlights the and it only applied in the four to six weeks Court’s concern with proportionality preceding an election.15 when applying the “necessity” test. 10 Mrs. The European Court of Human Phyllis Bowman was the executive director Rights found that Mrs. Bowman’s Article of the Society for the Protection of the 10 rights had been violated. The Court Unborn Child (SPUC), an organization recognized the government’s legitimate which was opposed to abortion and interest in protecting the rights of others human embryo experimentation.11 In the by securing financial equality among can-

102 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 103

didates for office. It found, however, that that SPUC had an effective means of the restriction did not meet the necessity reaching voters during the critical period requirement because its reach was dispro- preceding the election outside of direct portionate to the state interest pursued. campaigning. First, the extremely low expenditure Second, loopholes in the law allowed limit effectively operated as a complete to distort the election process barrier to SPUC’s ability to express its through other channels. No laws prohib- views and inform voters about candidates’ ited political parties, wealthy individuals, voting records during a time when the or organizations from spending money in public’s mind was focused on such support of or in opposition to a party or issues.16Although the UK government issue generally at the national or regional defended the Act’s expenditure limits by level. Nor were there limits on private pointing to a number of other avenues donations to political parties or on the SPUC could have used to disseminate its press’s ability to support or oppose indi- views,17 the Court rejected this approach. vidual candidates. There is a concern that Rather, the Court emphasized that the Court does not raise in this respect, but which may underlie the instincts of its [f]ree elections and freedom of expres- opinion. Namely, the Act and its loop- sion, particularly freedom of political holes may be a tool by which the leading debate, together form the bedrock of parties and their members hope to any democratic system. . . . For this strengthen their hold on the state machin- reason, it is particularly important in ery and to exclude outside contenders. the period preceding an election that Assuming the majority of parliamentary opinions and information of all kinds members are affiliated with one of the are permitted to circulate freely. 18 major political parties, these members are likely to benefit most from campaign lim- Alternative modes of communication sug- its which exclude party-focused advertis- gested by the government were either pro- ing and financial support. By contrast, sin- hibitively expensive compared to the mod- gle-issue and interest group campaigning, est aims of SPUC, for example, standing explicit targets of the restriction, have the for election, or uncertain of success, for potential to reduce the level of control example, writing letters or articles for pub- major political parties exercise over elec- lication in the newspaper. 19 In effect, the tion debates.20 government was unable to demonstrate

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 103 baku_book.qxd 2003. 01. 21. 15:51 Page 104

Further Notes on Political Plural- tribute to the functioning and viability of ism and “Necessity” democratic society. The league’s activities It should be noted that the Bowman Court’s inform the council members and the com- concern for political pluralism and, thus munity at-large about a need in the com- ensuring “freedom of political debate,” is munity that might otherwise have gone likely to extend to much of daily democ- unnoticed in the playground debate. Any ratic governance—and to many of the attempt by the state to limit the league’s varied activities by non-governmental public advocacy will have to satisfy the organizations. three-part test outlined above, including Although perhaps less obvious an the “necessity” test. example than an abortion rights debate Moreover, an organization like the during an election period, the free circula- league or SPUC does not need to promote tion of opinions and information is simi- a view or an agenda that is completely dis- larly important to ensuring public choice tinct from that of other organizations in in the playground scenario outlined above. order to enjoy the rights under Articles 10 Suppose a youth football league exists in and 11. The prior existence of an anti- a town that aims to build youth apprecia- abortion organization, for example, would tion for football through football lessons, not be grounds for the UK to prohibit the training, and games. When the playground establishment of SPUC. Nor would Mrs. issue arises, the league may bring its mem- Bowman’s membership in SPUC be bers together to petition and picket the grounds for prohibiting her from becom- town council to include a new football ing a member of multiple other associa- field in its proposal. The league could also tions. The Convention’s commitment to ask council members to pledge their sup- democratic society, and political plural- port and then publicize the names of ism, secures individuals and each organi- those council members who do. While zational membership the right to express such activity would not likely be part of their opinions and pursue their beliefs in the league’s core agenda, it is certainly their own way.21 related to the league’s aims: the league’s ability to reach out to children and to pro- The Scope of Political Activities in Public mote football is directly limited by the Advocacy amount of space available to play football. One of the pressing issues for any non- Beyond the league’s direct and self- governmental organization is the extent to interested concerns, its activities also con- which Articles 10 and 11 reach beyond an

104 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 105

organization’s initial formation to protect erly understood to entail only those state- that organization’s objectives and activi- imposed restrictions that are compatible ties. Generally, an organization should be with international rights and freedoms. able to undertake any activity that may be “Democratic” means, by contrast, requires lawfully pursued by an individual. As Arti- that organizations respect the political cle 11’s special focus suggests, what is per- process.24 missible for an individual should not be The following discussion sets forth a inherently suspect because it is pursued by few of the methods that organizations a grouping of individuals. Therefore, the have employed in their public advocacy permissible limits to state derogations work and the Court’s response to state- from Articles 10 and 11 typically apply imposed limits on these activities. with equal force when the restrictions involved are placed on an organization. Commercial Advertising The Court’s jurisprudence reflects a Many governments regulate the use of tendency to treat state restrictions on the commercial advertising for political pur- range of permissible objectives to strict poses. There are many grounds for such review. In fact, while an organization’s regulation, including ensuring equal access aims may correspond to legally recognized and minimizing unfair influence of pow- or protected ones, they need not do so. erful or wealthy interest groups during For instance, an organization may have as elections. Regulatory schemes based on its objective to change the existing legal these grounds are legitimate, because their order of the state. Thus, the Court noted aim is to maintain the free and fair in Socialist Party and Others v. Turkey that in exchange of ideas necessary for a democ- its “view, the fact that . . . a political pro- ratic society. However, the regulations gramme is considered incompatible with must be finely tuned so that they both the current principles and structures of serve their goal and impose only the nar- the . . . State does not make it incompati- rowest impediments to free exercise of ble with the rules of democracy.”22 speech. Likewise, the Court has indicated that Bowman v. United Kingdom,25 mentioned organizations may legitimately employ earlier, found a violation of the Article 10 methods that are “in every respect . . . legal rights of an anti-abortion organization in and democratic.”23 As Jeremy McBride one such regulatory scheme. Although has commented elsewhere in this volume, that case involved leafleting, the U.K. law’s the requirement of “legal” means is prop- excessive limitations on monetary expen-

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 105 baku_book.qxd 2003. 01. 21. 15:51 Page 106

ditures presumably would have equally monopoly and which was subject to pub- violated Article 10 if the organization had lic laws only in the area of programming, legally produced and disseminated a was under no obligation to broadcast the broadcast commercial with similar infor- commercial—either in general or in order mational content. to promote a diversity of views. 31 The In Vgt. Verein gegen Tierfabriken v. Federal Court further found that federal Switzerland,26 the Court reviewed Switzer- law prohibited the broadcasting of politi- land’s regulation of political advertising on cal commercials and, in regards to VgT’s television and radio. Following a series of discrimination complaint, VgT “was com- advertisements broadcast nationally by the plaining of two situations which were not meat industry, the Verein gegen Tierfab- comparable with each other. Promotions riken (“Association against Animal Facto- by the meat industry were economic in ries”, VgT) produced a commercial advo- nature in that they aimed at increasing the cating reduced meat consumption.27 VgT turnover and were not related to animal had as its objective the protection of ani- protection.”32 mals, with particular emphasis on animal In reviewing the record, the European experiments and industrial animal pro- Court determined that the prohibition on duction.28 Its commercial contained political advertising was prescribed by law strong, contrasting images of pigs roam- and pursued legitimate aims. The regula- ing free and pigs raised for mass con- tory aim of the Swiss Radio and Televi- sumption.29 When Vgt approached the sion Act’s prohibition on political adver- only television broadcast company with tising was to “prevent that financially national coverage, the Swiss Radio and strong groups [from] obtain[ing] a com- Television Company, to request air time, petitive advantage in politics” and to the broadcast company refused to broad- ensure the financial viability of a compet- cast the commercial. In its rejection, the itive print media market. The Court then company cited a provision of the Swiss continued to find that the Act’s applica- Radio and Television Act which prohibits tion to VgT violated the necessity require- “political advertising.”30 VgT appealed the ment. company’s decision to various govern- The Court found, first, that the gov- ment agencies and ultimately to the Swiss ernment failed to demonstrate that the Federal Court. The Federal Court rejected regulation of political advertising was “of the appeal. It found that Swiss Radio and a particularly pressing nature.”33 The Act Television, which no longer enjoyed a prohibited political advertising on televi-

106 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 107

sion and radio.34 There was, however, no The Court emphasized that limitations on corresponding prohibition for print political speech, as opposed to commer- media. The government defended the dis- cials, would be subject to the most exact- tinction by observing that “television had ing scrutiny under Article 10.37 In the a stronger effect on the public on account absence of a “pressing” social need, the of its dissemination and immediacy.”35 government faced a very high hurdle in The Court acknowledged the govern- defending the Act’s application. ment’s defense, but ultimately found the Third, the Court rejected the state’s distinction between print and audio/visu- defense that VgT could have accessed the al media insufficient. One suspects that Swiss public via foreign and regional the Court required a government showing broadcast media without falling under the that print media was less susceptible to the Act. The foreign and regional media do competitive advantage enjoyed by finan- not broadcast nationally in Switzerland. cially strong groups. As a result, VgT’s ability to effectively dis- Second, the government failed to jus- seminate its views would be diminished tify the law’s application to VgT. without sufficiently greater expendi- tures.38 [I]t has not been argued that the appli- As a final note, it is important to recall cant association itself constituted a what is not at issue in this case: namely, the powerful financial group which, with right of the broadcast company to reject its proposed commercial, aimed at VgT’s commercial as an exercise of its edi- endangering the independence of the torial freedom. Swiss Radio and Television broadcaster; at unduly influencing pub- did not rely on its editorial powers. lic opinion; or at endangering the Instead, it defended—and the state courts equality of opportunity between the upheld—the rejection as compelled by the different forces of society. Indeed, Swiss Radio and Television Act. Thus, the rather than abusing a competitive case rests squarely on the proper exercise advantage, all the applicant association of state power and not, as the Court intended to do with its commercial was observed, on whether there is a “right to to participate in an ongoing general antenna,” i.e., an obligation of private debate on animal protection and the senders to broadcast political opinions rearing of animals.36 against their wishes.39

E NABLING C IVIL S OCIETY • 107 baku_book.qxd 2003. 01. 21. 15:51 Page 108

PUBLIC ADVOCACY CASE STUDY: GERMANY

By Linda S. Schmidt

GOVERNMENT STRUCTURE Germany has a federal system in which the Länder (states) supplement Bundes (federation) law and codes as well as participate in the legislative and administrative processes of the federa- tion, as laid out in the Grundgesetz (Basic Law). Laws of the Länder do not override laws of the federation.1

LEGAL STRUCTURE FOR ASSOCIATIONS Freedom of association was first recognized in the Constitution of 1873. It was subsequent- ly recognized in the 1949 Constitution and incorporated into the Basic Law through Article 9, which states:

(1) All Germans have the right to form associations and societies. (2) Associations, the objects or activities of which conflict with the criminal laws or which are directed against the constitutional order or the concept of international under- standing, are prohibited. (3) The right to form associations to safeguard and improve working and economic con- ditions is guaranteed to everyone and to all trades and professions. Agreements that restrict or seek to hinder this right are null and void; measures directed to this end are illegal.

Legal Personality. Organizations take many forms, for example, sports associations, par- ent teacher associations, human rights organizations, and cultural organizations. The govern- ment may refuse registration on the grounds that an organization was formed for an illegal purpose under Article 9, Section 2, of the Basic Law. In such instances, the application of the regulation is reviewed by the courts.2 Beneficiaries of Legal Protections. Article 9 protection extends to organizations whether they are politically oriented or not, for example, citizen initiatives (if of longer, more stable existence), replacement organizations of former political parties (if not represented in gov- ernment), side organizations of political parties (if independently organized, with separate membership list, goals, and tasks), religious and philosophical associations (not congregations), and voter organizations.3 Political organizations are not, however, privileged beneficiaries of the protections of Article 9.4 The right to freedom of association is indifferent to the goals of the organization, excepting the limitations found in Section 2. Juridical persons established by or vested with public authority are not rights holders under Article 9. Freely formed sub-

108 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 109

groups of such organizations may, however, enjoy freedom of association rights.5 Interlocking Membership. It is permissible for not-for-profit parties and political parties to have interlocking board memberships, and, in fact, this practice is common. However, when there is overlap between a not-for-profit organization’s demands and that of a political party, the not-for-profit organization should take care to clarify that its actions are in furtherance of its objectives and not that of partisan ideology. 6

GOVERNMENT POLICY NGOs do not have a constitutional or statutory right to be consulted on policy matters.7 Legislative and Administrative Consultation. As a matter of policy, the government recog- nizes a right to consultation on legislative and administrative matters, and it is generally fol - lowed in practice.8 Lobbying. Lobbying by associations is permitted, including for organizations that have not-for-profit status. (See Taxation discussion that follows.) Taxation. Tax relief is limited to organizations that pursue objectives in the “general interest,” which include “science and research, training and education, art and culture, religion, communication between peoples, protection of the environment, support for children and elderly people, sport (chess is deemed to be a sport) and demographic development.”9 The use of funds by not-for-profit organizations for electoral campaigning or the sup- port of political parties is prohibited. Yet lobbying is permitted without any limit on expen- ditures.10

FREEDOM OF EXPRESSION Freedom of expression is guaranteed by Article 5 of the Basic Law:

1) Everyone has the right freely to express and to disseminate his opinion by speech, writ- ing and pictures and freely to inform himself from generally accessible sources. Free- dom of the press and freedom of reporting by radio and motion pictures are guaran- teed. There shall be no censorship. 2) These rights are limited by the provisions of the general laws, the provisions of law for the protection of youth and by the right to inviolability of personal honor. 3) Art and science, research and teaching are free. Freedom of teaching does not absolve from loyalty to the constitution.11

Juridical persons as well as informal, or “non-legal” (rechtsfähiger), organizations are beneficia- ries of Article 5 protections.12 Organizations not covered by Article 5 include foreign juridi - cal persons for whom European Union recognition requirements do not apply and juridical persons established by or vested with public authority. 13 The latter exclusion derives from the

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 109 baku_book.qxd 2003. 01. 21. 15:51 Page 110

principle that Article 5 is designed to protect citizens from the state, not the state from itself.14 Permissible limitations through “general laws” under Article 5, Section 2, apply only if those laws are consistent with the Section 1 principles for democratic society. As a result, legal limitations are permissible only when they neither are directed against particular opin- ions nor provide special privileges to certain views in the public process of opinion forma- tion.15 The Constitutional Court reviews such laws with increasing scrutiny as the degree of limitation increases.16 Leafleting and Flyers. Leaflets and flyers are generally recognized as protected sources of information,17 and limitations are evaluated in light of Article 5. Thus, in 1992, the Consti- tutional Court held that a Hamburg city ordnance requiring a permit for the distribution of flyers in public walkways to promote “safety and ease of traffic” does not require a permit where, as in this case, the activity was taking place in a pedestrian zone.18 Advertising. Political advertising in broadcast media is generally prohibited under state law, while advertisements requesting donations to not-for-profit organizations are allowed.19 The prohibition is intended to promote equality in organizations’ ability to express political views.20 Limited exceptions are made, however, for political parties during elections to the Bundestag and for political parties and other political organizations during elections to the European Parliament.21 In each instance, the party or organization must meet certain ballot- ing requirements and advertising is allowed only on nationwide, private broadcasting stations.22 Campaigning. There are very few restrictions in this area that meet constitutional stan- dards. As stated above, tax codes prohibit the use of funds by NGOs for electoral campaigning or support of political parties, but lobbying is permitted without limit. A 1981 decision by the Bundesverwaltungsgericht (Federal Administrative Court) held that authorities could not prevent an association that was supporting Chilean opposition to General Augusto Pinochet from soliciting donations on the street or house-to-house under Article 26 of the Basic Law, which prohibits promotion of war or disturbance of peaceful international relations.23

FREEDOM OF ASSEMBLY Article 8 of the Basic Law secures freedom of assembly and serves, according to the Consti- tutional Court, as a corrective measure for potential weaknesses of the representation-based political system.24 It states:

1) All Germans have the right to assemble peacefully and unarmed without prior notification or permission. 2) With regard to open-air meetings this right may be restricted by or pursuant to a law. 25

Juridical persons enjoy Article 8 rights.26 An assembly or gathering of persons does not, in and of itself, enjoy Article 8 rights, because it is not a recognizable rights holding (juridi-

110 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 111

cal) person. However, it may have a general right of existence.27 Registration or Approval. Article 8, Section 1, of the Basic Law specifically provides for assembly without prior approval or permit. As a result, Section 2 cannot be used to impose a permission requirement except for open-air meetings, and as provided by law.28 Further, the right to freedom of assembly encompasses the self-determination of place, time, type, and content of the meeting.29 Any state intervention must proceed on the basis of legislation that is consistent with Article 8 norms and may not prohibit, modify, or limit in practice its exer- cise.30 The Versammlungsgesetz (Assemblies Law) sets out the limits envisioned by Article 8, Sec- tion 2. As interpreted, spontaneous or last-minute gatherings are excluded from reporting requirements or, at a maximum, face more limited reporting requirements .31 The failure to report a planned assembly and the need to enforce the Assemblies Law reporting requirements do not provide grounds for the assembly’s dispersal.32 Prohibition or Dispersal. Under the Assemblies Law, the prohibition of an assembly may occur only as the result of “imminent danger of public safety and order.”33 And a determi- nation of imminent danger must rely on recognizable circumstances and not merely on belief or assumption.34 Circumstances under which the right to assembly may be restricted include those where actions or goals of the organizing association are contrary to the Basic Law, the organizing association or party is prohibited under the Basic Law as determined by a court of law, the organizer is carrying weapons, or facts show that the organizer or followers plan vio- lence or criminal activity. 35 Other Limits on State Intervention. Police or other state officials may not photograph par- ticipants without concrete reasons, nor may police attendance be so extensive as to hinder the expressive intent of the assembly. 36 Similarly, the Bavarian Administrative Court held in 1999 that police had interfered unconstitutionally with Amnesty International–Germany’s right to freedom of assembly when they parked a bus and set up a band in front of the organization’s protest during a 1995 visit by Chinese Premier Jiang Zemin37.

1 See Perri 6 and Anita Randon, , Charity and Politics: Non-profit Law and , 18 (1995) [hereinafter Liberty]. 2Id., at 19. 3 Brun-Otto Bryde, Dagmar Coester-Waltjen, Manfred Gubelt, et al. (eds.), Grundgesetz-Kommentar (Band 1), 625–28 (2000) [hereinafter Kommentar]. 4 Id., at 611. 5 Id., at 616. 6 Liberty, at 19. 7 Id. 8 Id. 9 Liberty, at 19–20, citing E. Alfandari and A. Nardone, Les Associations et foundations en Europe: Regime juridique et fiscal, 304 (1990). Translation by author.

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 111 baku_book.qxd 2003. 01. 21. 15:51 Page 112

10 Liberty, at 19. 11 English translation by General Electric’s Germany & Europe Round Table, available at http://www.lib.byu.edu/~rdh/eurodocs/germ/ggeng.html. 12 Kommentar, at 116–17. 13 Id., at 117–18. 14 Id., at 118. Thus, exceptions to this exclusion include, e.g., universities, public broadcasters, and publicly funded churches; id., at 119–20. 15 Id., at 122–23, citing the Constitutional Court, BVerfGE 95, 220, 235. Interpretation by author. 16 Kommentar, at 124. Imposition of criminal sanctions receives particularly heightened review in line with this principle; id., at 125. 17 Id., at 209. 18 Constitutional Court/BverfG, v. 18.10.1991–1 BvR 1377/91. 19 RStV § 7 (8). 20 Kommentar, at 456. 21 RStV § 42 (2). 22 Id. Parties that wish to buy advertising time during Bundestag elections must have qualified for placement on at least one state ballot. Parties and other political organizations wishing to buy adver- tising time during European Parliament elections must have at least one election proposal make it to ballot. 23 Liberty, at 19. 24 Kommentar, at 577. 25 English translation by General Electric’s Germany & Europe Round Table, available at http://www.lib.byu.edu/~rdh/eurodocs/germ/ggeng.html. 26 Kommentar, at 581. 27 Id. 28 Id., at 592. 29 Id., at 587. 30 Id. 31 Id., at 600. 32 Id., at 602, citing BverfGE 69, 315 [351], § 15 I of the Assemblies Law, and OVG Münster, NVwZ 1989, 886. 33 Kommentar, at 600, Assemblies Law/VersG § 15(1). 34 Kommentar, at 600, citing BverfGE 69, 315 [pp. 353]. 35 Assemblies Law/VersG § 5 II. 36 Kommentar, at 587. 37Ai gewinnt Prozess gegen bayerische Staatsregierung (press release) (22 January 1999), available at http://www2.amnesty.de/internet/deall.nsf/50144ae16ca25cecc12567df002695c7/7605d5ed3bac9af 4c1256aa00042d180?OpenDocument.

112 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 113

Producing and Disseminating Pub- Kurdish people, will inevitably turn on lications the working class and .44 The distribution of publications, whether produced by an organization itself or The state charged and convicted Mr. Cey- obtained from abroad, receives the protec- lan with “non-public incitement to hatred tion of Article 10 as one means by which and hostility contrary to the Turkish Crim- ideas or information are imparted and inal Code,” and sentenced him to one year received.40 and eight months’ imprisonment plus a fine In Ceylan v. Turkey,41 the Court upheld of 100,000 Turkish liras. 45 the principle that criticism of the govern- The Court found that the charges and ment enjoys wide-ranging protection. Mr. conviction violated Article 10. The gov- Ceylan, president of a petroleum workers’ ernment’s interference was prescribed by union, wrote and published an article criti- law and pursued the legitimate aim of pur- cal of the government in Yeni Ülke (“New suing national security. Nonetheless, the Land”), a weekly newspaper published in law’s application was found disproportion- Istanbul.42 Mr. Ceylan accused the govern- al to achieving that aim. Taking into ment of “state terrorism” and “” account the fact that the article was pub- in eastern and southeastern Anatolia.43 He lished shortly after the Gulf War, when also called for the inclusion of the Kurds in large numbers of Iraqi Kurds were fleeing a larger movement of the Turkish working into Turkey, the Court observed that “the class for economic and democratic change, applicant was writing in his capacity as a stating: trade-union leader, a player on the Turkish political scene, and that the article in ques- Despite all the hurdles erected by the tion, despite its virulence, does not encour- law, we must unite in action with the age the use of violence or armed resistance democratic mass organisations, political or insurrection.”46 parties and every individual or body Similarly, when a state chooses to allow with which it is possible to work; we or assist private associations in imparting must oppose the bloody massacres and information, it must do so in an even-hand- State terrorism, using all our powers of ed, non-discriminatory manner. In Vereini- organisation and coordination. If we gung demokratischer Soldaten Österreichs (VdSÖ) fail to do so, the circles of monopolis- and Gubi v. Austria, the Court linked the tic capital, which, under imperialist state’s Article 1 duties to secure the rights orders, aim to gag and suffocate the and freedoms of its domestic law to every-

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 113 baku_book.qxd 2003. 01. 21. 15:51 Page 114

one with Article 10 to find a violation of Court held that the existence of articles VdSÖ’s right to impart information and critical of military life was not sufficient ideas. 47 VdSÖ published a monthly maga- grounds to refuse the publication’s distrib- zine entitled der Igel (“The Hedgehog”), ution, absent an incitement to disobedi- which targeted soldiers serving in the Aus- ence, violence, or other recognizable threat trian army and contained articles often crit- to military discipline. ical of military life.48 It sent a request to the Federal Minister for Defense that its publi- Admittedly, most of the issues set out cation be distributed in the barracks. The complaints, put forward proposals for minister denied VdSÖ’s request, although reforms or encourage the readers to the army distributed two other, privately- institute legal complaints or appeals pro- published military magazines at its own ceedings. However, despite their often expense. He grounded his decision in Arti- polemical tenor, it does not appear that cle 79 of the Austrian Constitution, the they overstepped the bounds of what is Armed Forces Act, sections 44, paragraphs permissible in the context of a mere dis- 1 and 46, Article 116 of the Criminal Code, cussion of ideas. . . .53 and General Army Regulation 3, paragraph 1.49 The various effect of these provisions The Court reiterated the refrain of previous is to require service members to be sup- cases that Article 10 freedoms extend to portive of the military in the performance information and ideas that “offend, shock of its tasks, to be ready to fulfill their duties, or disturb the State or any section of the to refrain from harming the reputation of population.”54 the military, and to withhold from distrib- It may seem noteworthy that the Court uting non-official publications which deni- was willing to find disproportionality in a grate the army. 50 The two non-official mag- case involving a branch of the state so inti- azines that were distributed were the only mately related to national security. The state other military-focused magazines in Aus- might be expected to enjoy wider latitude to tria.51 regulate in this area. Three points are rele- The Court found an Article 10 violation vant in this respect. First, the Court’s hold- even though the service members could still ing essentially reflects a finding of dispro- receive VdSÖ’s publication through mail portionality, although it does not use the subscription. It recognized that preserva- term explicitly. Given that the army dis- tion of order in the armed forces was a tributed two of the three privately-pub- legitimate state interest.52 However, the lished military magazines, any state interest

114 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 115

in favoring those publications by not dis- tional amendment recognizing the right to tributing der Igel could “only have been jus- life was passed by referendum in 1983, and tified by imperative necessities.”55 An legislation made abortion and action “with army-wide ban on distribution could also the intent to procure the miscarriage of any not be justified by reference to disciplinary woman” unlawful.60 Subsequently, the gov- problems in one barracks. Such a measure ernment issued an injunction against Open would not be narrowly-tailored to the prob- Door and Dublin Well Woman, requiring lem it is designed to address.56 Second, them to stop provision of their abortion- although VdSÖ advocated legal and social related services.61 reform of the military, it promoted legal The Court found that there was an means of doing so rather than inciting dis- interference with the two organizations’ obedience or violence. In fact, the govern- Article 10 rights, but that it was prescribed ment was gradually implementing some of by law62 and pursued a legitimate state the reforms advocated for in VdSÖ’s mag- interest, namely, the protection of morals. azine. 57 The Court further observed that the state enjoys “a wide margin of appreciation in Counseling matters of morals, particularly in an area Another common form of public advoca- such as the present which touches on mat- cy is the provision of special services, ters of belief concerning the nature of including counseling. This is particularly human life.”63 Nonetheless, it found a vio- true for groups serving the underprivileged. lation of Article 10 due to a lack of pro- While, on its face, the provision of services portionality in the law’s application to Open may not appear political, the nature of the Door and Dublin Well Woman.64 advice or support given can often carry a There were several aspects of the case political aspect. that contributed to the Court’s finding of In Open Door and Dublin Well Woman v. disproportionality. Firstly, the restraint was Ireland,58 the applicant associations, Open too broad. Although some women could Door and Dublin Well Woman, provided legally obtain an abortion abroad, the non-directive counseling to pregnant injunction prohibited the associations from women in Ireland. As part of their services, providing abortion-related counseling to they provided addresses and phone num- any woman regardless of her legal status.65 bers for safe abortion clinics outside Ire - Secondly, the link between the provision of land and made travel arrangements for information on abortion facilities and the women going to such clinics.59 A constitu- actual termination of pregnancy was too

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 115 baku_book.qxd 2003. 01. 21. 15:51 Page 116

tenuous, given the lack of directive coun- a formal permit do not violate the right to seling. 66 Thirdly, the law was too selective- freedom of assembly per se. The state has a ly applied. The information Open Door valid interest in ensuring that the event pro- and Dublin Well Woman provided was ceeds peacefully. In fact, prior notice or per- available through other legally sanctioned mit regulations may help secure many of sources, such as telephone directories, mag- the aims listed in Section 2 of Article 11, azines, and journals.67 Finally, the state did including “prevention of disorder or not counter evidence that the injunction crime” and the “protection of the rights could endanger the health of women who and freedoms of others.” Regulations that nonetheless sought an abortion, particular- effectively undermine the ability to assem- ly the health of the less resourceful or edu- ble, however, would violate the Conven- cated.68 tion.70 Similarly, the state has an obligation Thus, even in regulating areas of moral under Article 11 to protect a demonstration concern, the state must carefully balance from those who would disrupt it: otherwise the interests it pursues with the freedom of the right to freedom of assembly may be expression rights of individuals and orga- undermined by fear of violent counter- nizations as well as the right of the public demonstrations.71 to receive information. It should also care- Indeed, although only peaceful demon- fully tailor the limitation to address its inter- strations receive Article 11 protection, the ests without overly or arbitrarily restricting “peacefulness” of a demonstration is mea- individual rights. sured by the organizers’ intent rather than by the actions of any extremist participants Demonstrating or Protesting who may disrupt it.72 This principle is seen The right to organize and conduct demon- at work in Steel and Others v. The United King- strations is guaranteed to associations as dom,73 a case involving an Article 11 claim well as individuals, to organizers as well as decided under Articles 5 (the right to liber- participants. While freedom of assembly ty and security) and 10. applies to gatherings taking place both In Steel, the Court found a violation in indoors and out, the European Commis- the cases of three of five applicants. The sion recognized in Rassemblement jurassien applicants were arrested for breach of that it is through assemblies out-of-doors peace while protesting against the sale of that the true collective expression of opin- fighter helicopters outside the “Fighter ion takes place.69 Helicopter II” Conference at a London Regulations that require prior notice or conference center. 74 The applicants dis-

116 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 117

tributed leaflets and held up banners with those participating in the shoot.80 The sec- the slogan “Work for Peace and not War.”75 ond applicant had protested the building of Initially concluding that the detention of a highway extension by placing herself in the applicants violated Article 5, the Court front of the construction equipment in stated it order to impede the work. During the day’s events, protesters repeatedly broke into the sees no reason to regard their protest as construction site, climbed trees that were to other than entirely peaceful. It does not be cut down, or placed themselves in front find any indication that they significant- of the machinery.81 Although the second ly obstructed or attempted to obstruct applicant posed a much lesser risk of harm those attending the conference, or took than the first, the Court concluded that the any other action likely to provoke these police and magistrates’ findings were rea- others to violence. . . .76 sonable and in proportion to the danger the applicant had created.82 Similarly, the Court concluded under Arti- Finally, it should be remembered that cle 10 that the detention was not “pre- disciplinary or criminal sanctions imposed scribed by law” and was not “necessary in following participation in a demonstration a democratic society,” because the unlawful may also violate Article 11 if there is not a detention was clearly out of proportion to sufficiently direct link between the individ- the state’s legitimate aim in preventing dis- ual sanctioned and the behavior leading to order and protecting the rights of others.77 the sanction. Thus, in the Ezelin By contrast, the Court found neither an case,83there was a violation when discipli- Article 5 nor an Article 10 violation in the nary sanctions were imposed on a lawyer by cases of the first and second applicants in the Guadeloupe bar for participating in a Steel. The two applicants were arrested for demonstration. Although some demon- breach of peace and conduct “likely to pro- stration participants caused damage to pub- voke a disturbance of the peace,” respec- lic buildings and insulted the judiciary, the tively.78 The first applicant had taken part in government did not demonstrate that the a protest against a grouse shoot, during lawyer himself had committed any which she walked in front of an armed crimes.84 member of the shoot in order to prevent him from firing.79 She thus clearly created A Final Note on Public Advocacy under the a danger of serious physical harm to herself European Court and others, and interfered with the rights of The preceding discussion highlights only a

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 117 baku_book.qxd 2003. 01. 21. 15:51 Page 118

few of the many forms of public advoca- of democratic society. As a result, political cy, their regulation by the state, and the speech, often the core of public advocacy, standards by which each is measured by the is a particular focus of Article 10 and Arti- European Court of Human Rights. As cle 11 protections. more cases come before the Court, it will further clarify the nature and extent of It is of the essence of democracy to Article 10 and Article 11 protections. allow diverse political programmes to be Notably, those protections can extend to proposed and debated, even those that activities that fall outside the scope of state- call into question the way a State is cur- sanctioned behavior. This is particularly rently organized, provided that they do true where the state-imposed restrictions not harm democracy itself.85 do not correspond with international rights and freedoms, or where the restrictions dis- The Court’s concern in this area is not proportionately affect certain individuals limited to the activities of formally recog- or organizations without a principled dis- nized political parties. Rather, as seen in the tinction. cases outlined above, the Court extends In its opinions, the Court emphasizes open this protection to a myriad of associations debate and dialogue as important features advocating a large array of causes.

1 Black’s Law Dictionary, a standard reference http://conventions.coe.int/Treaty/EN/Cadre work for the legal profession in the United ListeTraites.htm [hereinafter Convention]. The States, defines “public” as “[t]he people of a commitment to democratic society is regularly nation or community as a whole,” or, in its adjec- reiterated throughout the Convention, particu- tive form, as “[r]elating or belonging to an entire larly as a limiting condition on the accepted community, state, or nation” (emphasis added). grounds for government interference in the Black’s Law Dictionary 1242 (Bryan A. Garner rights it guarantees. et al., eds., 7th ed., 1999). 5 See, e.g., Socialist Party and Others v. Turkey, Appl. 2 Edwin Rekosh, Who defines the public inter- No. 21237/93, 25 May 1998. est? Public interest law strategies in Central and 6 Frowein, Jochen, Europäische Menschen- Eastern Europe, Public Interest Law: Concept and rechtskonvention: EMRK-Kommentar 410 Practice, Ford Foundation Symposium 11 (2001). (1996) [hereinafter Forwein]. 3 See chapter 3.1, “International Law and 7 The state interests quoted are generally broad- Jurisprudence in Support of Civil Society,” by er state policy interests articulated in both arti- Jeremy McBride [hereinafter McBride]. cles. Articles 10 and 11 each recognize further, 4 European Convention for the Protection of more particularized, state interests such as reg- Human Rights and Fundamental Freedoms, ulating activities of members of the armed opened for signature 4 November 1959, preamble, forces in Article 11; and, in Article 10, protect-

118 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 119

ing the reputation and rights of others, pre- pendent newspaper, giving interviews on radio venting disclosure of confidential information, or television, or publishing leaflets without ref- and maintaining the reputation and impartiality erence to any particular candidate. Id., Para. 39. of the judiciary. 20 Id., Paras. 22, 47. Notably, the Court does not 8 Capricious restrictions are also likely to fail the cite the state’s articulated interests in dampen- Court’s review, but on separate grounds. Section ing the effect of powerful interest groups or sin- 2 further requires that any restriction be pre- gle-issue campaigning when it finds that the Act scribed by law which capricious restrictions pursues a legitimate aim. It only refers to the would presumably violate. See “Regulation” dis- state’s justification that the Act promotes fair- cussion in McBride, supra note 3. ness among candidates. 9 Arbitrary or disproportionate limitations on 21 On the distinctions between voluntary asso- the exercise of Article 10 or Article 11 rights ciations and professional organizations with may also infringe on other Convention provi- compulsory membership, see Le Compte, Van sions, e.g., Article 14 (freedom from discrimina- Leuven and De Meyere v. Belgium (1981), Appl. tion), which do not permit derogation. See Vere- Nos. 6878/75; 7238/75, and text accompanying inigung demokratischer Soldaten Österreichs and Gubi footnotes 45-47 in McBride, supra, note 3. v. Austria, Appl. No. 15153/89, 19 December 22Socialist Party and Others v. Turkey, Appl. No. 1994, discussed infra. 21237/93, 25 May 1998, Para. 47. 10 Appl. No. 24839/94, 19 February 1998. 23 Refah Partisi (The Welfare Party) and Others v. 11 Id., Para. 10. Turkey, Para. 47, Appl. Nos. 41340/98, 12 Id., Paras. 10-11. 41342/98, 41344/98 and 41344/98, 31 July 13 Id., Para. 12. 2001. 14 Id., Paras. 19-20. 24 McBride, supra, note 3 at text accompanying 15 Id., Paras. 16, 19-20. The judge at Mrs. Bow- footnote 74. man’s trial ultimately directed her acquittal 25 Bowman, note 10, supra. because the charges against her had not been 26 28 June 2001, Appl. No. 24699/94. issued in accordance with time restrictions 27 Id., Para. 9. established by the Act. The European Com- 28 Id., Para. 8. mission of Human Rights, as well as the Court, 29 The Court describes the commercial as fol- nonetheless found that Mrs. Bowman’s Article lows: 10 rights had been violated because she had The first scene of the film showed a sow been directly affected by the prosecution, building a nest for her piglets in the forest. including press coverage, and could reasonably Soft orchestrated music was played in the expect to be subject to the Act’s limitations in background, and the accompanying voice the future. SPUC’s joint application to the Com- referred, inter alia, to the sense of mission was dismissed as no charges had been which sows had. The second scene showed brought directly against the organization. a noisy hall with pigs in small pens, gnawing 16 Id., Paras. 45, 47. nervously at the iron bars. The accompany- 17 Id., Para. 39. ing voice stated, inter alia, that the rearing of 18 Id., Para. 42. pigs in such circumstances resembled con- 19 Id., Para. 46. The government’s other pro- centration camps, and that the animals were posed alternatives included starting an inde- pumped full with medicaments. The film

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 119 baku_book.qxd 2003. 01. 21. 15:51 Page 120

concluded with the exhortation: ”[E]at less of criminal libel against the three teachers. In meat, for the sake of your health, the ani- finding no violation of Article 10, the Court mals, and the environment!” (Id., Para. 10) observed that alternative terms were available to 30 Id., Paras. 11-15, 28. express applicant’s point. 31 Id., Paras. 19-20. 4719 December 1994, Appl. No. 15153/89, 32 Id., Paras. 21-23. Paras. 27, 40. This discussion focuses its analy- 33 Id., Para. 74. sis on the Court’s judgment in terms of VdSÖ. 34 Id. Gubi, the second applicant and a military con- 35 Id., Paras. 21, 74. script, also successfully claimed an Article 10 36 Id., Para. 75. violation when the military did not permit him 37 See, e.g., id., Para. 66. to personally distribute the association’s publi- 38 Id., Para. 77. cation in the barracks. 39 Id., Para. 78. 48 Id., Para. 7. 40 The European Commission on Human 49 Id., Para. 8. Rights determined in a claim against Belgium 50 Id., Paras. 17-20. that distribution of a publication is a form of 51 Id., Para. 8. protected speech when the distributor identifies 52 Id., Para. 32. with the publication’s contents, regardless if the 53 Id., Para. 38. publication is obtained from abroad. E 54 Id., Para. 36. 6782/74, cited by Frowein, at 388. 55 Id., Para. 37. 41 8 July 1999, Appl. No. 23556/94. 56 Id., Para. 39. 42 Id., Para. 8. 57 Id., Para. 33. 43 Id. 58 29 October 1992, Appl. Nos. 14234/88 and 44 Id., Paras. 8, 33. 14235/88. Additional parties to the case, not 45 Id., Paras. 9–11. discussed here, include women of childbearing 46 Id., Paras. 36. Criticism directed at the gov - age, who successfully claimed an Article 10 vio- ernment is to be distinguished from criticism of lation of their right to receive information. private individuals. Article 10(2) recognizes a 59 The complaint was confined to the part of state interest in limiting the exercise of free the injunction that prohibited the provision of speech in the interest of “protecting the repu- information and not the making of travel tation and rights of others.” Thus, the Court is arrangements, id., Para. 53. “Non-directive” likely to give greater leeway to the state when it counseling means that the organizations’ coun- regulates speech directed against private indi- selors did not recommend what action the viduals. See, e.g., Constantinescu v. Romania, 27 pregnant woman take, but they were ready to June 2000, Appl. No. 28871/95. Mr. Constan- discuss all options with her. tinescu, Secretary General of a teachers’ union, 60 Id., Para. 29. referred to three member teachers as delapidatori 61 In an interesting side note, the injunction (persons found guilty of fraudulent conversion) proceedings against Open Door and Dublin in a newspaper interview critical of the police Well Woman were initiated as a private action and state prosecutor’s office for having slowed brought by the Society for the Protection of an investigation into those teachers’ activities. Unborn Children (SPUC), the same association Mr. Constantinescu was ultimately convicted affiliated with the applicant in Bowman v. United

120 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 121

Kingdom, a case brought six years later. Para. 75. 62 This finding was slightly qualified, however. 67 Id., Para. 76. The Court noted that the wording of the law 68 Id., Para. 77. was unclear, but that Open Door and Dublin 69 1980, Appl. No. 8191/78, cited in Frowein, at Well Woman were on notice that action might 411. be taken against them given the “high threshold 70 See, generally, Frowein, at 410–12. of protection of the unborn provided under 71 Plattform “Ärtze für das Leben” v. Austria (1989), Irish law generally and the manner in which Appl. No. 10126/82, cited in Frowein, at 411. courts have interpreted their role as the guar- 72 Frowein, at 411. antors of constitutional rights . . .” Open Door 73 23 September 1998, Appl. No. 24838/94. and Dublin Well Woman v. Ireland, supra, Para. 60. 74 The terms of breach of peace The Court found its view buttressed by the legal applied to the circumstances surrounding appli- advice that the applicants had actually received cants’ arrest included “constituted or was likely prior to the law’s passage; id. to provoke a disturbance of the peace . . .”. Id., 63 Id., Para. 68. See also Frowein, supra at 403. Para. 22. 64 Open Door and Dublin Well Woman v. Ireland, 75 Id., Para. 21. supra, Para. 80. 76 Id., Para. 64. 65 Id., Para. 73. 77 Id., Paras. 94, 110. 66 The Court addressed this issue when it 78 Id., Paras. 9, 16. observed that “applicants were engaged in the 79 Id., Paras. 6–9. counseling of pregnant women in the course of 80 Id., Para. 105. which the counselors neither advocated nor 81 Id., Paras. 14–16. encouraged abortion, but confined themselves 82 Id., Paras. 60, 109. to an explanation of the options. . . . The deci- 83 26 April 1991, Appl. No. 11800/85. sion as to whether or not to act on the infor- 84 Id., Para. 53. Article 11 claims were not con- mation so provided was that of the women con- sidered, due to a finding on the same facts of an cerned. . . . Accordingly, the link between the Article 10 violation. provision of information and the destruction of 85 Socialist Party, supra n. 5, Para. 47. unborn life is not as definite as contended.” Id.,

3.2 ELEMENTS OF A PUBLIC PARTICIPATION ronment, 2) participation in decision-mak- SYSTEM - CASE STUDY: THE ENVIRONMENT, ing affecting the environment, and 3) access THE ACCESS INITIATIVE APPROACH to justice and remedy in environmental By the Access Initiative* decision-making. These proposed elements are the inte- The elements of a comprehensive national gral components of an ideal national pub- public participation system include laws, lic participation system. Such a system will institutional infrastructure, and practices take time and effort to put in place. Some for 1) access to information about the envi- of its elements are also more important

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 121 baku_book.qxd 2003. 01. 21. 15:51 Page 122

than others. By endorsing these guidelines, •Constitutional guarantees of the public countries indicate their determination to right to information. Such guarantees build a comprehensive national public par- demonstrate political will to ensure access ticipation system over time. They should to information and are a foundation for demonstrate their commitment by priori- action by government and the public. tizing specific elements and designing and They establish a long-term framework executing concrete strategies for imple- for public access to information and a mentation. clean environment, as well as preventing arbitrary action by the executive to limit Access to Information about the Environment access. . . . Environmental information is collected and • Laws for access to information and to disseminated by a broad spectrum of orga- environmental information in particular. nizations ranging from local to national Such laws create the legal framework for agencies and from public authorities to pri- access to information. . . . vate actors. Environmental information • Provisions defining environmental infor- covers a wide range of different informa- mation in the public domain and mecha- tion types, including emergency informa- nisms for disclosure. Implementing pro- tion, product information, information visions, definitions, and mechanisms for about the quality of the environment and dissemination determine what informa- the factors which influence it, pollutant tion should be accessible to the public, release and transfer information, and infor- who is responsible to provide it, and mation about laws, policies, and strategies, through what procedures. as well as information about how to get - Implementation must be supported by environmental information. clear definitions of what information is Access to these different types of envi- in the public domain and what is con- ronmental information enables the public fidential or proprietary. Information in to make informed personal choices, con- the public domain should include infor- tribute to the protection of the environ- mation about environmental quality ment, and urge improvement of environ- and impacts on health, factors that mental performance by industry and gov- influence it, information about legisla- ernment. A comprehensive national system tion and policy and information about for public access to environmental infor- how to get information. mation includes: - Clear mandates, implementing proce- dures, and mechanisms for responding

122 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 123

to requests and actively disseminating closing or actively disseminating infor- information transform the legal frame- mation. Capacity on the part of govern- work into practice and are a key ele- ment agencies to produce and dissemi- ment of a public participation system. nate diverse products describing the state Countries must do much more to devel- of the environment for different popula- op comprehensive and actionable defini- tion groups, in turn, meets different tions of environmental information, clar- needs of different population groups, ify the mandates of public authorities, who differ by education, age, location, and establish working mechanisms for interest, and other variables. . . . dealing with requests and actively dis- seminating information. . . . Participation in Decision-Making Affecting the • Requirements for reporting and public Environment disclosure of information about envi- Informed and meaningful public participa- ronmental performance and compliance tion integrates the public’s social, econom- by industrial facilities. Such requirements ic, and environmental concerns with their enable the public to monitor the sources knowledge and expertise. Such decisions of pollution and the factors that influ- are made at different levels and can have ence the quality of their most immediate varying environmental and social impacts. environment. Countries need to adopt Public participation can be an effective common standards and practices for instrument for integrating social, econom- reporting by facilities and accessibility of ic, and environmental concerns if it is prac- facility-level information about environ- ticed consistently at all relevant levels in mental compliance and performance. . . . economic and development decisions. Pro- • Organizational infrastructure and capaci- cedures and mechanisms are needed for ty to respond to requests and to actively public input to: disseminate information. Such infra- structure and capacity determines • National sectoral policies, strategies, and whether the public has access to envi- plans. Such national policies as energy ronmental information when needed. sector reform or water infrastructure Government officials play a key role in development have significant social determining the difficulty of accessing implications and profound impacts on information through their knowledge of the environment and human health. their obligations as well as their willing- Their effects are long-term and large in ness and ability to serve the public by dis- scope.

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 123 baku_book.qxd 2003. 01. 21. 15:51 Page 124

• Sub-national (regional, state or local) deci- critical for meaningful participation. . . . . sion-making. Regional or city land-use or •Capacity and application of provisions and zoning plans, the siting of logging con- procedures to economic decisions in sec- cessions, the development of electricity tors with significant environmental and generation facilities, and other sub-nation- social impacts. Such sectors include infra- al decisions have significant environmen- structure (e.g., energy, water, transporta- tal impacts and can affect the livelihoods tion) and extraction of natural resources of large groups of people. (e.g., forests, oil, gas, minerals). . . . • Individual development and project-level • Mechanisms and capacity to integrate decisions. Such decisions include, for comments in decisions and to provide instance, permitting for new industrial or feedback on action taken. . . . Govern- other facilities, licensing for water or other ments frequently lack standard working natural resource use, and disposal of mechanisms to incorporate valid feed- waste. These decisions can have a pro- back and to inform the public about what found affect on neighborhoods in the comments were received and whether and vicinity, who must cope with increased how they were addressed. demands on and degradation of land, water, and other resources. Access to Justice and Remedy in Environmental Decision-Making A comprehensive national system for Access to justice and remedy gives the pub- public participation in decision-making lic and interested groups an opportunity to includes: a) protect their rights to information and • Clear provisions, procedures, and man- participation, and b) contest decisions that dates for early notification and comment do not take into account their interests and by the public. The quality and effective- concerns, and particularly those that con- ness of public input to decisions depends travene substantive legal requirements. on whether comments are solicited suffi- Access to justice is both an instrument ciently early in the decision-making to correct the way in which the public par- process while options are still open, and ticipation system works and to protect the whether the public has all the relevant interests and rights of individuals and information to provide informed com- groups who are not part of the decision- ments. The timing of participation and making process. A comprehensive national the availability of relevant information system for access to justice involves: about decisions for public comments are

124 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 125

Constitutional guarantees for access environmental rights. to justice. Such guarantees demonstrate political will and support the develop- ment of a system to ensure justice and *The Access Initiative is a global coalition remedy. They also ensure the fundamen- of civil society organizations promoting nation- al-level implementation of commitments to tal right of people to protect their rights access to information, participation, and justice through legal avenues. in decision-making that affects the environ- Impartial administrative, judicial, and ment. The Access Initiative is led by a Core alternative venues for resolution of con- Team including World Resources Institute flicts and remedy. The judicial systems of (USA), Environmental Management and Law different countries have evolved in dif- Association (Hungary), Corporación Participa (Chile), Thailand Environment Institute, and ferent ways and their impartiality, effec- Advocates Coalition for Development and tiveness, and efficiency varies. However, Environment (Uganda). More information the establishment of a diversity of venues about The Access Initiative, including the new for remedy and conflict resolution allows report, Closing the Gap: Access to Informa- the public to make choices where and tion, Participation, and Justice in Decision-Mak- how to seek justice. . . ing for the Environment, is available at www.accessinitiative.org. Affordable and timely legal services. The time and money required to seek justice and remedy can be a huge—even insurmountable—obstacle for many indi- 3.3 ACCESS TO INFORMATION viduals, communities, and public interest By Public Interest Law Initiative groups. Affordable justice and timely response are essential to making the jus- Timely access to information is essential to tice system accessible to the public. . . . the full realization and meaningful exercise • Active education by government on the of freedom of association. The impor- participation and environmental rights tance of access to information has also of the public and how they can use the been affirmed by the Council of Europe, legal system to protect these rights. through its Committee of Ministers, in a Such education ensures that both citi- recommendation to member states that zens and the regulated community are sets out principles that should guide their aware of their rights and responsibili- law and practice. See Council of Europe ties and that the justice system is used Recommendation R (2002) 2 (21 February effectively to enforce participation and 2002).

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 125 baku_book.qxd 2003. 01. 21. 15:51 Page 126

The benefits of timely access to infor- procurement processes, successful bids, mation are many. and government revenues and expendi- tures, it is more difficult for officials to • It promotes political participation, for engage in unfair and illegal practices. the realization of people’s basic right to • It makes it more difficult for senior offi- participate in the governing of their cials to make policy decisions that are not country and live under a system built on supported by sound analysis. Access to informed consent of the citizenry. In any information about the formulation of state, and particularly in states where the policy can reveal instances in which pol- policy analysis capabilities of civil society icy decisions were taken without careful are poorly developed, political participa- consideration and instances in which tion rights cannot be exercised effective- decisions contradicted advice provided ly without access to government infor- by professionals within the public service. mation. • It is essential if institutions hope to main- • In addition to freedom of association, it tain popular credibility and legitimacy. is important for the full realization of the basic rights to freedom of opinion and On environmental matters, access to expression, rights guaranteed by the information is a key principle in the Con- European Convention, the International vention on Access to Information, Public Covenant on Civil and Political Rights, Participation in Decision-making and and other widely ratified international Access to Justice in Environmental Matters, treaties. popularly known as the Aarhus Convention • It discourages arbitrary state action and (http://www.unece.org/env/pp), which thereby protects the basic rights to due went into force on 30 October 2001. process and equal protection of the law. Parties to the Aarhus Convention agree • It reduces the probability that decisions to “guarantee the rights of access to infor- will be taken for inaccurate or improper mation, public participation in decision- reasons. This is particularly true in the making, and access to justice in environ- context of public administration and reg- mental matters” so as to “contribute to the ulatory and policing actions and deci- protection of the right of every person of sions. present and future generations to live in an • It plays an important role in reducing cor- environment adequate to his or her health ruption within government institutions. and well-being” (Article 1). They are oblig- By making available information about ed to take “the necessary legislative, regu-

126 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 127

latory and other measures . . . to establish In conclusion, access to information is and maintain a clear, transparent and con- both an important right and a process. The sistent framework to implement the provi- ability to receive information in a timely sions of this Convention” (Article 3). fashion not only is the essence of the right Access to information provisions calls for to know, but also is a cornerstone to the parties (a) to create a system to allow enabling citizens and civil society to make the public to request and receive environ- a constructive and effective contribution to mental information from public authorities the formulation on government policies (Article 4) and (b) to create a system under and their implementation. And without which public authorities collect environ- their active engagement, progress toward a mental information and actively dissemi- pluralistic and democratic society with gov- nate it to the public without request (Arti- ernment that is transparent and account- cle 5). able for its actions will be slowed.

COUNCIL OF EUROPE, COMMITTEE OF MINISTERS RECOMMENDATION R (2002) 2 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON ACCESS TO OFFICIAL DOCUMENTS (Adopted by the Committee of Ministers on 21 February 2002 at the 784th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to achieve greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage; Bearing in mind, in particular, Article 19 of the Universal Declaration of Human Rights, Articles 6, 8 and 10 of the European Convention on Human Rights and Fundamental Free- doms, the United Nations Convention on Access to Information, Public Participation in Deci- sion-making and Access to Justice in Environmental Matters (adopted in Aarhus, Denmark, on 25 June 1998) and the Convention for the Protection of Individuals with regard to Auto- matic Processing of Personal Data of 28 January 1981 (ETS No. 108); the Declaration on the freedom of expression and information adopted on 29 April 1982; as well as Recommenda- tion No. R (81) 19 on the access to information held by public authorities, Recommendation No. R (91) 10 on the communication to third parties of personal data held by public bodies; Recommendation No. R (97) 18 concerning the protection of personal data collected and processed for statistical purposes and Recommendation No. R (2000) 13 on a European pol - icy on access to archives;

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 127 baku_book.qxd 2003. 01. 21. 15:51 Page 128

Considering the importance in a pluralistic, democratic society of transparency of public administration and of the ready availability of information on issues of public interest; Considering that wide access to official documents, on a basis of equality and in accor- dance with clear rules: • allows the public to have an adequate view of, and to form a critical opinion on, the state of the society in which they live and on the authorities that govern them, whilst encourag- ing informed participation by the public in matters of common interest; • fosters the efficiency and effectiveness of administrations and helps maintain their integri- ty by avoiding the risk of corruption; • contributes to affirming the legitimacy of administrations as public services and to strength- ening the public’s confidence in public authorities;

Considering therefore that the utmost endeavour should be made by member states to ensure availability to the public of information contained in official documents, subject to the protection of other rights and legitimate interests; Stressing that the principles set out hereafter constitute a minimum standard, and that they should be understood without prejudice to those domestic laws and regulations which already recognise a wider right of access to official documents;

Considering that, whereas this instrument concentrates on requests by individuals for access to official documents, public authorities should commit themselves to conducting an active communication policy, with the aim of making available to the public any information which is deemed useful in a transparent democratic society,

Recommends the governments of member states to be guided in their law and practice by the principles set out in this recommendation.

I. Definitions For the purposes of this recommendation: “public authorities” shall mean: i. government and administration at national, regional or local level; ii. natural or legal persons insofar as they perform public functions or exercise admin istrative authority and as provided for by national law. “official documents” shall mean all information recorded in any form, drawn up or received and held by public authorities and linked to any public or administrative function, with the exception of documents under preparation.

II. Scope 1. This recommendation concerns only official documents held by public authorities. How- ever, member states should examine, in the light of their domestic law and practice, to what

128 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 129

extent the principles of this recommendation could be applied to information held by leg- islative bodies and judicial authorities. 2. This recommendation does not affect the right of access or the limitations to access pro- vided for in the Convention for the Protection of Individuals with regard to Automatic Pro- cessing of Personal Data.

III. General principle on access to official documents Member states should guarantee the right of everyone to have access, on request, to official documents held by public authorities. This principle should apply without discrimination on any ground, including that of national origin.

IV. Possible limitations to access to official documents 1. Member states may limit the right of access to official documents. Limitations should be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting: i. national security, defence and international relations; ii. public safety; iii. the prevention, investigation and prosecution of criminal activities; iv. privacy and other legitimate private interests; v. commercial and other economic interests, be they private or public; vi. the equality of parties concerning court proceedings; vii. nature; viii. inspection, control and supervision by public authorities; ix. the economic, monetary and exchange rate policies of the state; x. the confidentiality of deliberations within or between public authorities during the internal preparation of a matter. 2.Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned in para- graph 1, unless there is an overriding public interest in disclosure. 3.Member states should consider setting time limits beyond which the limitations mentioned in paragraph 1 would no longer apply.

V. Requests for access to official documents 1.An applicant for an official document should not be obliged to give reasons for having access to the official document. 2.Formalities for requests should be kept to a minimum.

VI.Processing of requests for access to official documents 1.A request for access to an official document should be dealt with by any public authority holding the document.

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 129 baku_book.qxd 2003. 01. 21. 15:51 Page 130

2.Requests for access to official documents should be dealt with on an equal basis. 3.A request for access to an official document should be dealt with promptly. The decision should be reached, communicated and executed within any time limit which may have been specified beforehand. 4.If the public authority does not hold the requested official document it should, wherever possible, refer the applicant to the competent public authority. 5. The public authority should help the applicant, as far as possible, to identify the requested official document, but the public authority is not under a duty to comply with the request if it is a document which cannot be identified. 6.A request for access to an official document may be refused if the request is manifestly unrea- sonable. 7.A public authority refusing access to an official document wholly or in part should give the reasons for the refusal.

VII. Forms of access to official documents 1.When access to an official document is granted, the public authority should allow inspec- tion of the original or provide a copy of it, taking into account, as far as possible, the prefer- ence expressed by the applicant. 2.If a limitation applies to some of the information in an official document, the public author- ity should nevertheless grant access to the remainder of the information it contains. Any omis- sions should be clearly indicated. However, if the partial version of the document is misleading or meaningless, such access may be refused. 3.The public authority may give access to an official document by referring the applicant to easily accessible alternative sources.

VIII. Charges for access to official documents 1.Consultation of original official documents on the premises should, in principle, be free of charge. 2.A fee may be charged to the applicant for a copy of the official document, which should be reasonable and not exceed the actual costs incurred by the public authority.

IX. Review procedure 1.An applicant whose request for an official document has been refused, whether in part or in full, or dismissed, or has not been dealt with within the time limit mentioned in Principle VI.3 should have access to a review procedure before a court of law or another independent and impartial body established by law. 2.An applicant should always have access to an expeditious and inexpensive review procedure, involving either reconsideration by a public authority or review in accordance with paragraph 1 above.

130 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 131

X. Complementary measures 1. Member states should take the necessary measures to: i. inform the public about its rights of access to official documents and how that right may be exercised; ii. ensure that public officials are trained in their duties and obligations with respect to the implementation of this right; iii. ensure that applicants can exercise their right. 2. To this end, public authorities should in particular: i. manage their documents efficiently so that they are easily accessible; ii. apply clear and established rules for the preservation and destruction of their docu- ments; iii. as far as possible, make available information on the matters or activities for which they are responsible, for example by drawing up lists or registers of the documents they hold.

XI. Information made public at the initiative of the public authorities A public authority should, at its own initiative and where appropriate, take the necessary mea- sures to make public information which it holds when the provision of such information is in the interest of promoting the transparency of public administration and efficiency within administrations or will encourage informed participation by the public in matters of public interes

3.4 T HE JUDICIARY: GUARDIAN OF Standards for judicial independence are COMMITMENTS TO CIVIL SOCIETY set out in key international treaties. Article By Public Interest Law Initiative 14 of the International Covenant on Civil and Political Rights (ICCPR) establishes Judicial independence is a cornerstone of the right to a hearing before a “competent, the rule of law and is essential to the judi- independent, and impartial tribunal estab- ciary’s legitimacy as a guarantor of rights lished by law”; Article 6 of the European and freedoms. This is particularly true for Convention of Human Rights sets out freedom of association. In the communist standards for court proceedings, which period, there was no culture based on the have implications for judicial independence. rule of law and judiciaries were subordi- These principles have also been elaborated nated to the executive and its political inter- by the United Nations General Assembly ests. The legacy of this period continues and the UN Human Rights Committee today in many countries. (regarding the ICCPR), and, in Europe, by

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 131 baku_book.qxd 2003. 01. 21. 15:51 Page 132

the European Court of Human Rights and drawing on existing international standards, the Council of Europe. Among these has developed a list of factors that will guidelines are the UN Basic Principles on facilitate the development of the judiciary the Independence of the Judiciary (set out which are set out in a sidebar. in chapter 5.2); UN Human Rights Com- The judiciary holds a unique position in mittee General Comment 13 (regarding securing an environment that supports and ICCPR Article 14) (see chapter 5.2); Coun- protects civil society and non-governmen- cil of Europe Recommendation R (1994) tal organizations (NGOs). It upholds the 12 (see accompanying sidebar); and Coun- law for all—and in so doing, it safeguards cil of Europe’s European Charter on the the rights of individuals and groups against Statute for Judges (see chapter 5.2). the excesses of other branches of govern- In addition, non-governmental efforts ment, political parties, and majorities. Only have sought to further articulate standards when the judiciary is effective will NGOs applicable to the judiciary. For example, and the larger civil society be able to fully the American Bar Association’s Central develop and grow. European and Eurasian Law Initiative,

COUNCIL OF EUROPE, COMMITTEE OF MINISTERS RECOMMENDATION R (94) 12 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON THE INDEPENDENCE, EFFICIENCY AND ROLE OF JUDGES (Adopted by the Committee of Ministers on 13 October 1994 at the 518th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Having regard to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”) which provides that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”; Having regard to the United Nations Basic Principles on the Independence of the Judi- ciary, endorsed by the United Nations General Assembly in November 1985; Noting the essential role of judges and other persons exercising judicial functions in ensur- ing the protection of human rights and fundamental freedoms; Desiring to promote the independence of judges in order to strengthen the Rule of Law in democratic states; Aware of the need to reinforce the position and powers of judges in order to achieve an efficient and fair legal system;

132 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 133

Conscious of the desirability of ensuring the proper exercise of judicial responsibilities which are a collection of judicial duties and powers aimed at protecting the interests of all per- sons,

Recommends that governments of member states adopt or reinforce all measures necessary to promote the role of individual judges and the judiciary as a whole and strengthen their inde- pendence and efficiency, by implementing, in particular, the following principles:

Scope of the recommendation 1.This recommendation is applicable to all persons exercising judicial functions, including those dealing with constitutional, criminal, civil, commercial and administrative law matters. 2. With respect to lay judges and other persons exercising judicial functions, the principles laid down in this recommendation apply except where it is clear from the context that they only apply to professional judges, such as regarding the principles concerning the remuneration and career of judges.

Principle I - General principles on the independence of judges 1.All necessary measures should be taken to respect, protect and promote the independence of judges. 2.In particular, the following measures should be taken: a.The independence of judges should be guaranteed pursuant to the provisions of the Con- vention and constitutional principles, for example by inserting specific provisions in the or other legislation or incorporating the provisions of this recommendation in internal law. Subject to the legal traditions of each state, such rules may provide, for instance, the following: i. decisions of judges should not be the subject of any revision outside any appeals procedures as provided for by law; ii. the terms of office of judges and their remuneration should be guaranteed by law; iii. no organ other than the courts themselves should decide on its own competence, as defined by law; iv. with the exception of decisions on amnesty, pardon or similar, the government or the administration should not be able to take any decision which invalidates judicial decisions retroactively. b. The executive and legislative powers should ensure that judges are independent and that steps are not taken which could endanger the independence of judges. c. All decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selec- tion and career of judges should be independent of the government and the administra- tion. In order to safeguard its independence, rules should ensure that, for instance, its mem-

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 133 baku_book.qxd 2003. 01. 21. 15:51 Page 134

bers are selected by the judiciary and that the authority decides itself on its procedural rules. However, where the constitutional or legal provisions and traditions allow judges to be appointed by the government, there should be guarantees to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions will not be influenced by any reasons other than those related to the objective criteria mentioned above. These guarantees could be, for example, one or more of the following: i. a special independent and competent body to give the government advice which it follows in practice; or ii. the right for an individual to appeal against a decision to an independent authority; or iii. the authority which makes the decision safeguards against undue or improper influ- ences. d. In the decision-making process, judges should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such manner. Judges should have unfet- tered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judi- ciary. e. The distribution of cases should not be influenced by the wishes of any party to a case or any person concerned with the results of the case. Such distribution may, for instance, be made by drawing of lots or a system for automatic distribution according to alphabet- ic order or some similar system. f. A case should not be withdrawn from a particular judge without valid reasons, such as cases of serious illness or . Any such reasons and the procedures for such withdrawal should be provided for by law and may not be influenced by any interest of the government or administration. A decision to withdraw a case from a judge should be taken by an authority which enjoys the same judicial independence as judges. 3. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retire- ment age or the expiry of their term of office, where such exists.

Principle II - The authority of judges 1. All persons connected with a case, including state bodies or their representatives, should be subject to the authority of the judge. 2. Judges should have sufficient powers and be able to exercise them in order to carry out their duties and maintain their authority and the dignity of the court.

Principle III - Proper working conditions 1. Proper conditions should be provided to enable judges to work efficiently and, in particu-

134 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 135

lar, by: a. recruiting a sufficient number of judges and providing for appropriate training such as practical training in the courts and, where possible, with other authorities and bodies, before appointment and during their career. Such training should be free of charge to the judge and should in particular concern recent legislation and case-law. Where appropriate, the training should include study visits to European and foreign authorities as well as courts; b. ensuring that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities; c. providing a clear career structure in order to recruit and retain able judges; d. providing adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that judges can act efficiently and without undue delay; e. taking appropriate measures to assign non-judicial tasks to other persons, in conformity with Recommendation No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts. 2. All necessary measures should be taken to ensure the safety of judges, such as ensuring the presence of security guards on court premises or providing police protection for judges who may become or are victims of serious threats.

Principle IV - Associations Judges should be free to form associations which, either alone or with another body, have the task of safeguarding their independence and protect their interests.

Principle V - Judicial responsibilities 1.In proceedings, judges have the duty to protect the rights and freedoms of all persons. 2.Judges have the duty and should be given the power to exercise their judicial responsibili- ties to ensure that the law is properly applied and cases are dealt with fairly, efficiently and speedily. 3.Judges should in particular have the following responsibilities: a. to act independently in all cases and free from any outside influence; b. to conduct cases in an impartial manner in accordance with their assessment of the facts and their understanding of the law, to ensure that a fair hearing is given to all parties and that the procedural rights of the parties are respected pursuant to the provisions of the Convention; c. to withdraw from a case or decline to act where there are valid reasons, and not otherwise. Such reasons should be defined by law and may, for instance, relate to serious health prob- lems, conflicts of interest or the interests of justice; d. where necessary, to explain in an impartial manner procedural matters to parties; e. where appropriate, to encourage the parties to reach a friendly settlement; f. except where the law or established practice otherwise provides, to give clear and complete

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 135 baku_book.qxd 2003. 01. 21. 15:51 Page 136

reasons for their judgments, using language which is readily understandable; g.to undergo any necessary training in order to carry out their duties in an efficient and prop- er manner.

Principle VI - Failure to carry out responsibilities and disciplinary offences 1.Where judges fail to carry out their duties in an efficient and proper manner or in the event of disciplinary offences, all necessary measures which do not prejudice judicial independence should be taken. Depending on the constitutional principles and the legal provisions and tra- ditions of each state, such measures may include, for instance: a. withdrawal of cases from the judge; b. moving the judge to other judicial tasks within the court; c. economic sanctions such as a reduction in salary for a temporary period; d. suspension. 2. Appointed judges may not be permanently removed from office without valid reasons until mandatory retirement. Such reasons, which should be defined in precise terms by the law, could apply in countries where the judge is elected for a certain period, or may relate to incapacity to perform judicial functions, commission of criminal offences or serious infringements of disciplinary rules. 3. Where measures under paragraphs 1 and 2 of this article need to be taken, states should consider setting up, by law, a special competent body which has as its task to apply any disci- plinary sanctions and measures, where they are not dealt with by a court, and whose decisions shall be controlled by a superior judicial organ, or which is a superior judicial organ itself. The law should provide for appropriate procedures to ensure that judges in question are given at least all the due process requirements of the Convention, for instance that the case should be heard within a reasonable time and that they should have a right to answer any charges.

JUDICIAL REFORM INDEX The Judicial Reform Index was developed by the Central European and Eurasian Law Ini- tiative of the American Bar Association, drawing from fundamental international norms, such as those set out in the UN Basic Principles on the Independence of the Judiciary; Council of Europe Recommendation R (94) 12 On the Independence, Efficiency, and Role of Judges; and the Council of Europe’s European Charter on the Statute for Judges. The 30 statements below set out factors that facilitate the development of an accountable, effective and inde- pendent judiciary.

I. Quality, Education, and Diversity Factor 1: Judicial Qualification and Preparation. Judges have formal university-level legal train-

136 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 137

ing and have practiced before tribunals or, before taking the bench, are required (without cost to the judges) to take relevant courses concerning basic substantive and procedural areas of the law, the role of the judge in society and cultural sensitivity. Factor 2: Selection/Appointment Process. Judges are appointed based on objective criteria, such as passage of an exam, performance in law school, other training, experience, profes- sionalism, and reputation in the legal community. While political elements may be involved, the overall system should foster the selection of independent, impartial judges. Factor 3: Continuing Legal Education. Judges must undergo, on a regular basis and without cost to them, professionally prepared continuing legal education courses, the subject matters of which are generally determined by the judges themselves and which inform them of changes and developments in the law. Factor 4: Minority and Gender Representation. Ethnic and religious minorities, as well as both genders, are represented amongst the pool of nominees and in the judiciary generally.

II. Judicial Powers Factor 5: Judicial Review of Legislation. A judicial organ has the power to determine the ulti- mate constitutionality of legislation and official acts, and such decisions are enforced. Factor 6: Judicial Oversight of Administrative Practice. The judiciary has the power to review administrative acts and to compel the government to act where a legal duty to act exists. Factor 7: Judicial Jurisdiction over Civil . The judiciary has exclusive, ultimate juris- diction over all cases concerning civil rights and liberties. Factor 8: System of Appellate Review. Judicial decisions may be reversed only through the judicial appellate process. Factor 9: Contempt/Subpoena/Enforcement. Judges have adequate subpoena, contempt and/or enforcement powers which are utilized, and these powers are respected and supported by other branches of government.

III. Financial Resources Factor 10: Budgetary Input. The judiciary has a meaningful opportunity to influence the amount of money allocated to it by the legislative and/or executive branches, and, once funds are allocated to the judiciary, the judiciary has control over its own budget and how such funds are expended. Factor 11: Adequacy of Judicial Salaries. Judicial salaries are generally sufficient to attract and retain qualified judges, enabling them to support their and live in a reasonably secure environment, without having to have recourse to other sources of income. Factor 12: Judicial Buildings. Judicial buildings are conveniently located and easy to find, and they provide a respectable environment for the dispensation of justice with adequate infra- structure. Factor 13: Judicial Security. Sufficient resources are allocated to protect judges from threats

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 137 baku_book.qxd 2003. 01. 21. 15:51 Page 138

such as harassment, assault and assassination.

IV. Structural Safeguards Factor 14: Guaranteed Tenure. Senior level judges are appointed for fixed terms that pro- vide a guaranteed tenure, which is protected until retirement age or the expiration of a defined term of substantial duration. Factor 15: Objective Judicial Advancement Criteria. Judges are advanced through the judi- cial system on the basis of objective criteria such as ability, integrity and experience. Factor 16: Judicial Immunity for Official Actions. Judges have immunity for actions taken in their official capacity. Factor 17: Removal and Discipline of Judges. Judges may be removed from office or other- wise punished only for specified official misconduct and through a transparent process, gov- erned by objective criteria. Factor 18: Case Management. Judges are assigned to cases by an objective method, such as by lottery or according to their specific areas of expertise, and they may be removed only for good cause, such as a conflict of interest or an unduly heavy workload. Factor 19: Judicial Associations. An association exists, the sole aim of which is to protect and promote the interests of the judiciary, and this organization is active.

V. Accountability and Transparency Factor 20: Judicial Decisions and Improper Influence. Judicial decisions are based solely on the facts and law without any undue influence from senior judges (for example, court presi- dents), private interests or other branches of government. Factor 21: Code of Ethics. A judicial code of ethics exists to address major issues, such as conflicts of interest, ex parte communications and inappropriate political activity, and judges are required to receive training concerning this code both before taking office and during their tenure. Factor 22: Judicial Conduct Complaint Process. A meaningful process exists under which other judges, lawyers and the public may register complaints concerning judicial conduct. Factor 23: Public and Media Access to Proceedings. Courtroom proceedings are open to, and can accommodate, the public and the media. Factor 24: Publication of Judicial Decisions. Judicial decisions are generally a matter of pub- lic record and significant appellate opinions are published and open to academic and public scrutiny. Factor 25: Maintenance of Trial Records. A transcript or some other reliable record of court- room proceedings is maintained and is available to the public.

VI. Efficiency Factor 26: Court Support Staff. Each judge has the basic human resource support necessary

138 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 139

to do his or her job, for example, adequate support staff to handle documentation and legal research. Factor 27: Judicial Positions. A system exists so that new judicial positions are created as need- ed. Factor 28: Case Filing and Tracking Systems. The judicial system maintains a case filing and tracking system that ensures cases are heard in a reasonably efficient manner. Factor 29: Computers and Office Equipment. The judicial system operates with a sufficient number of computers and other equipment to enable it to handle its caseload in a reason- ably efficient manner. Factor 30: Distribution and Indexing of Current Law. A system exists whereby all judges receive current domestic laws and jurisprudence in a timely manner, and there is a national- ly recognized system for identifying and organizing changes in the law.

KEY CHALLENGES TO FREEDOM OF ASSOCIATION • 139 baku_book.qxd 2003. 01. 21. 15:51 Page 141

Four THE ENABLING ENVIRONMENT FOR NGO GROWTH AND D EVELOPMENT

“[F]reedom of association is effective only where it goes hand in hand with legislative measures facilitating its exercise and respecting the value of NGOs’ contribution to society. . . .” (Paragraph 3, Council of Europe’s Explanatory Memorandum to the Fundamental Principles on the Status of Non-governmental Organizations in Europe )

“Although they can be fostered by passing favourable legislation, awareness of and respect for NGOs’ contribution develop only where NGOs themselves undertake to behave in a responsible, efficient and ethical manner.” (Paragraph 3, Council of Europe Explanatory Memorandum to the Fundamental Principles on the Status of Non- governmental Organizations in Europe )

Many factors contribute to creating an envi - Why Support NGOs?: There are many ronment in which legally constituted non- benefits that grow out of the existence of governmental organizations (NGOs) can a vibrant and active civil society. This chap- flourish and be effective and constructive ter highlights the value and contributions of participants in the economic and social civil society and NGOs to national eco- development. Some factors derive from an nomic, social, and cultural development. affirmative government role to foster civil society, some come from internal NGO Governmental Tax Policy: The ability regulation, and others come from cooper- of NGOs to adequately finance their activ- ation among NGOs. This chapter focuses ities is fundamental to the exercise of free- on four areas: a reminder of the justifica- dom of association. “Tax Preferences for tion for support for NGOs, governmental Non-Governmental Organizations” by the tax policy, voluntary NGO self-regulation, International Center for Not-for-Profit and NGO structure and governance. Law (ICNL) outlines a variety of tax bene-

141 baku_book.qxd 2003. 01. 21. 15:51 Page 142

fits for NGOs, including types of exemp- These principles, while not ends in them- tions and preferences, as well as related selves, are particularly important where issues, that can facilitate and foster support NGOs have received benefits from the for NGOs. Tax and other concessions to government or the public. NGOs by the government carry with them duties and responsibilities of NGOs both in their own governance and in transparen- 4.1 WHY SUPPORT CIVIL SOCIETIES cy and accountability. AND NGOS? Prepared for the Open Society Institute by the Voluntary NGO Self-Regulation: International Center for Not-for-Profit Law* The boom in growth of the NGO sector can result in a variety of concerns related to There are many reasons why a country the values, ethics, and organizational com- should want to have laws that assure the petence of NGOs. In “Corporate Gover- existence of a strong, vigorous, and inde- nance for NGOs?,” Mick Moore and Shee- pendent civic sector. The most important lagh Stewart examine these concerns and of these is to protect the internationally rec- suggest an approach for NGOs that draws ognized freedoms of expression, associa- on the experience of the corporate sector, tion, and assembly. These freedoms are including self-regulatory activities. A side- enshrined in international and regional bar identifies a range of self-regulatory agreements that bind most countries. In mechanisms used by NGOs around the addition, the constitutions and sub-consti- world. tutional laws of many countries protect these fundamental freedoms…. Structure and Governance of NGOs: In addition to protecting fundamental The internal organizational structure of an freedoms, there are several other reasons NGO directly affects its ability to operate why societies should adopt laws that help to effectively and responsibly in pursuit of its support a vigorous and independent sector goals. The Open Society Institute and of formal civic organizations. These ICNL provide guidance and international include encouraging pluralism, promoting experience on appropriate internal frame- respect for the rule of law, supporting works in their contribution to this chapter. democracy, promoting economic efficiency, Overarching principles of transparency and and addressing “public sector market fail- accountability of NGOs are discussed in a ure.” There are many differences among sidebar accompanying this discussion. the members of any society; individuals

142 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 143

and groups have diverse interests and respect for the rule of law that is promot- needs. Civic organization laws help indi- ed by legal support and protection of the viduals and groups pursue their varied civic sector. Democracy is an inherently interests (e.g., sports, folk music, and the imperfect and often messy form of gov- preservation of a particular language or ernment. It can be frustrating and ineffi- culture). By encouraging the pluralism that cient. However, it is the only form of gov- results from permitting formal civic orga- ernment that ensures the government will nizations to exist, a society demonstrates generally serve the interests of the people, that it values and respects the diversity rather than vice-versa. For democracy to among us. In a word, the society endorses succeed, each segment of society must the principle of tolerance. believe in state institutions and that it will Not only is diversity desirable, it is have a chance to influence decisions, or unavoidable. In many societies, people even gain a majority voice in the govern- come from different ethnic backgrounds, ment. A vigorous civic sector that is pro- speak different languages, and practice dif- tected and accountable helps to build the ferent religions. They are of different sexes, pluralism, social stability, public trust, and ages, professions, and avocations. These respect for the rule of law that is necessary differences can be expressed in a legal or an for the long-range success of democracy. illegal manner. Rather than drive a group Civic organizations play another vital underground and sharpen social antago- role in democracy. They allow individuals nism, the laws for the civic sector allow the and groups to mitigate the majoritarianism group legal existence and special benefits that can otherwise make a democratic gov- under the law, as long as the group meets ernment insufferable for marginal groups basic standards of responsible behavior. In that are never able to win sufficient backing other words, civic organizations provide an to see their ideas and values reflected in the essential safety valve for social pressures policies of the state. For these groups, civic and energies that inevitably build up in any organizations offer a key way in which they society. The existence of numerous and can peacefully pursue their interests and diverse civic organizations is characteristic goals without interfering with, or being of, and in itself helps promote, peaceful suppressed by, the wishes of the majority. and stable societies where there is respect Civic organizations can often provide for the rule of law. public goods and services more efficient- The success of democracy over time ly—that is, with higher quality and lower requires the pluralism, social stability, and costs—than state organs. There are many

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 143 baku_book.qxd 2003. 01. 21. 15:51 Page 144

reasons for this. One is the fact of volun- economic incentives for the private sector to teerism itself. To the extent that private indi- step in. Laws that permit individuals and viduals devote time and energy to the solu- groups to come together to alleviate this tion of public problems on a free and vol- play a vital role in enriching untary basis (e.g., assistance for the elderly or society and assuring that those public goods the handicapped), there can be a cost sav- and services to which individuals are willing ings to a government. More importantly, to to devote their own resources will be pro- the extent that civic organizations rather vided. than a monolithic state organ provide pub- Finally, many countries are moving lic goods and services, there can be cost sav- toward market economies, and the exis- ings that result from competition among tence of a well-developed civic sector pro- organizations seeking to provide such ser- vides indirect support for the success and vices. Finally, there is the factor of market growth of a market economy. Market knowledge. A small, local civic organization economies flourish best where pluralism, is far more likely to know the real needs of social stability, public trust of institutions, the people to be served and how best to and respect for the rule of law exists. Laws meet those needs than a large and often dis- for the civic sector foster these societal val- tant state organ. Many states have begun to ues. recognize the superior efficiency of civic While not all countries will subscribe to organizations in many situations. all of the basic rationales for having laws State and for-profit entities simply can- that permit formal civic organizations to not and do not anticipate and provide all of exist, the reasons described here indicate the public goods and services that are why it is useful for any society to allow for- desired by the citizenry. For example, Hun- mal civic organizations to exist and to pro- gary may have a large number of citizens tect them from undue intrusion in their who are passionately interested in American affairs.… Indian art and who would be willing to pro- vide substantial funds and services to assure the creation of a museum for such art. It is *This selection is drawn from Chapter 1, unlikely that state officials will be able to Open Society Institute and International Center identify this or thousands of other desires for Not-for-Profit Law, Guidelines for Laws Affect- and interests of society and meet those ing Civic Organizations (OSI, revision forthcom- needs in a responsive, adequate, and even- ing 2002) and is reproduced with permission of handed manner. There may be insufficient the Open Society Institute.

144 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 145

4.2 TAX PREFERENCES FOR NON-GOVERN- income, property, and transfer taxes. Some MENTAL ORGANIZATIONS countries may, for example, make certain By the International Center for Not-for-Profit transactions of NGOs exempt from VAT, Law* while others will include them in the VAT system but give them a low or zero rating. Introduction and Overview The tax laws also tend to state the This paper provides a brief look at the vari- extent to which NGOs are to be taxed on ety of tax preferences that are granted to their income from economic activities. It is non-profit-distributing, non-governmental important to permit NGOs to conduct organizations (NGOs) and their donors such activities for their support, particular- around the world, with particular emphasis ly in countries where there is little private on developing and transition countries. It is wealth. As will be seen in the discussion based on various research projects con- below, countries differ on whether profits ducted by the International Center for Not- from activities not directly related to an for-Profit Law (ICNL), including the organization’s principal purpose should be research conducted for the World Bank. taxed. ICNL has also completed two major tax Tax preferences for donations. Countries surveys – one for Anglophone Africa and also frequently allow tax preferences—tax one for Central and Eastern Europe. This deductions, tax credits, or the right to paper is intended to help focus the reader reclaim a tax benefit—with respect to con- on design issues that exist when attempting tributions by individuals or commercial to develop a fair set of tax preferences for entities to a defined class of non-govern- a given country. Various source materials mental organizations (e.g., public benefit that deal with specific country situations organizations). Individuals may be allowed should be consulted for more specific solu- similar deductions from or credits against tions to the problems discussed. wealth transfer (estate and gift) taxes for Tax exemptions. It is clear that there are similar contributions. The class of NGOs several different taxes from which NGOs to which such tax preferred gifts may be may be exempt: income and profits taxes, made is generally smaller than the class of property taxes, transfer taxes (on gift and tax exempt entities and generally includes death transfers), excise taxes, value added only “public benefit” or “public interest” taxes (VAT), sales taxes, etc. NGOs are NGOs. There also may be numerical or typically not exempted from employment percentage limits on deductible, creditable, taxes, but frequently are exempted from or tax reclaimable contributions.

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 145 baku_book.qxd 2003. 01. 21. 15:51 Page 146

In defining whether or not an organiza- 1. Income or Profits Tax Exemption in General tion is entitled to receive tax-preferred The definition of NGO being used here donations, most tax laws focus on the func- precludes the possibility of personal bene- tions or purposes of the organization and fit to founders, donors, members, employ- its activities in pursuance of those purpos- ees, etc., as well as the distribution of prof- es. For example, the tax laws of a particu- its to such persons. Thus, there is a power- lar country might extend the privilege of ful argument that these organizations are receiving tax deductible contributions only not proper objects of an income tax in any to organizations formed for the primary system. Income taxes are imposed on the purpose of advancing religion, education, “profits” of legal entities because they are health, science, culture, or the relief of surrogates for the individuals who own poverty. Some countries add other purpos- them or who can receive a distribution of es to the list, such as the protection of the profits from them. In countries, such as interests of minority groups or the envi- New Zealand, which have fully integrated ronment. It is also common to find, tacked their corporate and individual income taxes, on to the end of such a list, a final, catch- there is no need to impose separate income all category such as “or any other organi- taxes on corporations. There is a single zation formed primarily for public benefit.” income tax and it is imposed on corporate In such a catch-all category the unifying profits once, at the shareholder level and at principle emerges and, in a sense, informs shareholder rates. Profits at the corporate the entire list. It is education, health, and level are subject to a tax, but all dividends scientific organizations serving the public inter- are “franked”—that is, the shareholder est that are entitled to the tax preference for receiving franked dividends is entitled to donations. take a credit against his or her own taxes for In addition to these more typical tax the taxes paid at the corporate level. preferences, in a fairly recent development, NGOs, as defined here, stand on an Hungary, Slovakia, and Lithuania have cre- entirely different footing from business ated “tax designation” laws, which permit corporations. They are not “owned” by taxpayers to direct that a small percentage anyone and cannot distribute profits as of the taxes they owe in a given year be paid such. Whatever profits they may earn from to NGOs designated by them. This type of their economic and investment activities tax preference is discussed in more detail in are reinvested or spent on appropriate Section 4 below. statutory activities. NGOs are not surro- gates for shareholders who own them, and

146 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 147

thus it can be strongly argued that they increases net worth. Under this approach should not be subject to income taxation at and in common understanding, it is clear all. Unfortunately, most countries around that dividends, interest, and gains are gen- the world assume that NGOs, like for-prof- erally considered income for tax purposes. it entities, are natural subjects of taxation, Accordingly, the approach taken here is to and that not applying tax to them is a mat- recognize all these receipts of an NGO— ter of grace and exemption. interest, dividends, and capital gains—as Apart from receipts from economic income, but to advocate tax exempt status activities, which are considered below, typ- for all NGOs for these items. ical sources of revenue for NGOs include In the countries of Central and Eastern donations (including grants), membership Europe as well as in countries of Africa, the dues, interest and dividends on investments, question has arisen whether it is proper to and gains from sales of investment assets. provide for income tax exemption with With respect to the first two of these respect to interest earned on invested assets items—donations and membership dues— that constitute an organization’s endow- there is general agreement that these items ment. In Madagascar, for example, the should not be taxed to NGOs. investment income of a foundation is taxed, consistent with the practice in Fran- 2.Income Earned on Investments (Endowments) cophone countries of taxing all passive With respect to dividends, interest, and income of all taxpayers. France, on the gains on asset sales, however, opinions dif- other hand, grants a set of special tax fer, although many countries do not tax exemptions for the investment income of such items when they are received by public benefit foundations, which do not NGOs. There are two different ways of seem to have found their way into the Mala- arriving at this result. One approach assures gasy legislation. that NGOs are not taxable on these ordi- In both the Czech Republic and Serbia nary sources of revenue by defining some special rules exist with respect to the invest- sources as not constituting “income” for ment income of foundations, but in the tax purposes. The other approach recog- Czech Republic the rules are very restric- nizes these receipts as income but confers tive. Although it is important to have rules exempt status on NGOs who apply for it. that require foundations to spend their Generally accepted tax theory defines assets for their tax exempt purposes (in income as any receipt during a defined peri- order to avoid unreasonable accumula- od of time that is either expended or that tions), it makes more sense to have rules

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 147 baku_book.qxd 2003. 01. 21. 15:51 Page 148

that require minimum distributions or for all kinds of economic activities vary spending of the earnings, as in the United considerably from country to country. States or Germany. There are essentially five different pos- sibilities for taxing income from economic 3.Income or Profits Taxation of Economic Activ- activities. Any net profit or surplus earned ities by an NGO from the active conduct of Unlike income from donations and mem- income-producing activities may be bership fees, income from more active income-producing activities or economic • exempted from income taxation; • subjected to income taxation; activities may or may not be treated as tax • subjected to income taxation only if exempt, depending on the rules applied in the activity constitutes a trade or busi- a given country. Such income may come ness that is not related to and is not in from the revenues earned from activities furtherance of the not-for-profit pur- carrying out the organization’s not-for- poses of the organization; profit purposes (school tuition fees, for • subjected to income taxation under a example) or income from the active con- mechanical test that allows a modest amount of profits from economic activ- duct of a trade or business engaged in sole- ities to escape taxation, but imposes tax ly to gain revenue for support of the NGO. on all revenues from economic activities In general, NGOs are allowed to engage in in excess of the limit; or income-producing activities as long as • subjected to income taxation under a those activities are part of the purposes complex rule that combines some stated in their governing documents. More aspects of the preceding rules. importantly, however, an NGO must ensure that its “principal” purpose or activ- The issues involved in selecting among ity is not the conduct of economic or these possible tax rules are complex and income-producing activities unconnected technical. Under a “destination of income” with advancing its not-for-profit purposes. test, alternative would apply to a properly Stated positively, the “principal purpose” test formed NGO. Thus, all income from eco- requires that if an NGO is going to con- nomic activities would be exempt from tax duct income-producing or economic activ- as long as all of the profits earned from the ities, those activities must be in furtherance income-producing activity were committed of the not-for-profit purposes of the orga- to and were actually used to carry out the nization. Within these broad parameters, principal purposes for which the NGO was our research shows that the taxation rules formed. If such a rule applies, an organi-

148 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 149

zation that spent 99 percent of its time on issue, particularly when the scale and num- and received 99 percent of its profits from ber of economic activities by NGOs begins a purely commercial activity, such as man- to pose a threat to private enterprises. Obvi- ufacturing noodles, could possibly be treat- ously, if a large and wealthy NGO can ed as a tax exempt NGO if each year it ded- engage in a particular activity (e.g., book icated all of its profits to its not-for-profit publishing) without paying taxes, it has an purposes. Whether such a result would economic advantage over its for-profit actually apply in practice depends on competitors. When this issue becomes sig- whether the proper authorities accepted nificant for the fiscal policy of a country, the idea that such an organization was the obvious solution is to tax such profits, properly registered as an NGO. They at least if they are unrelated to the purpos- might, for example, require it to reregister es of the organization. as a business entity. A rule taxing “unrelated business income,” In a country with a developing market and exempting the profits from “related” economy, it may be appropriate to strike the activities makes a great deal of theoretical balance in favor of a “destination of sense. Often the most effective way for an income” test for all profits intended for use NGO to achieve its purpose is to pursue it by an NGO to carry out its purpose-relat- through economic means. For example, the ed activities. Countries in which the market most effective way to disseminate informa- economy is still young are generally also tion about a particular kind of art or culture countries where civil society is just begin- that an NGO wants to promote may be to ning to flourish. NGOs in such countries publish and sell a high-quality magazine are often desperate for money simply to devoted to that topic. If the “principal” survive, and the profits from economic purpose of the organization is to promote activities may make the difference between the particular kind of art or culture, if it is their continued existence and termination. not primarily seeking to make a profit by In such countries it is also possible to argue operating in a commercial manner, and if that there is such a strong need to develop no profits are distributed, then publication economic activities independent of the and sale of the magazine may be viewed state that all entities, whether NGOs or simply as the method that has been chosen business entities, ought to be encouraged to to pursue the not-for-profit purpose of the engage in them. organization. Exempting profits from such On the other hand, the problem of activities related to the organization’s prin- unfair competition can become a serious cipal and not-for-profit purpose makes

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 149 baku_book.qxd 2003. 01. 21. 15:51 Page 150

good sense in theory. activity) or to pursue not-for-profit pur- Unfortunately, it is extremely difficult to poses. To the extent that economic activities distinguish “related” economic activities (e.g., publication of a magazine or of books) from “unrelated” economic activities, and are simply a chosen means by which most hence the related/unrelated rule is very dif- effectively to pursue a given end (e.g., pro- ficult to administer in practice. For exam- motion of a particular art or culture), there ple, if a museum sets up a shop on its is a strong argument that they should not be premises to sell copies of the outstanding counted as economic activities that would works of art in its collection, or perhaps disqualify the entity for status as an NGO books that picture them or postcards that even if they constitute the principal activi- replicate them, this can easily be argued to ty of the organization. be “related” to the museum’s purpose. But One could say, of course, that if “relat- what should happen if the museum opens ed” economic activities constitute the only a chain of retail stores that sell books relat- activities of an NGO, one would in effect ed to art and culture, most of which have have come back to a “destination of no connection with its collection? Is it income” test, under which economic activ- engaging in an “unrelated” activity, or has it ities can constitute the entire active work of simply broadened its purpose and chosen an NGO as long as all profits go to a prop- to pursue the broader purpose using eco- er public purpose. But the distinction is a nomic means? The fact that a distinction subtle one—as applied in many countries, a between related and unrelated economic “destination of income” test applies to all activities is very difficult to apply is demon- income-producing activities, not to those strated by the fact that very little revenue is that are merely in furtherance of the orga- raised by a tax that is imposed only on nization’s not-for-profit purposes. Thus, a “unrelated” activities. “relatedness test” replaces a “destination of If the “principal purpose” test described income” test in many countries. Designing above is applied, it is necessary to determine administrable rules for making the relat- how economic activities undertaken in fur- ed/unrelated distinction that adequately therance of the purposes of an NGO— respond to all these considerations is not “related” economic activities as that term is easy. being used here—are to be counted in One possible alternative, adopted in determining whether the principal purpose Poland until fairly recently, would permit an of an organization is to engage in econom- NGO to be exempt on profit from any ic activities (i.e., business or commercial economic activities (both purpose-related

150 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 151

and regular business activities) as long as One aspect of the new rules recently that profit was spent for statutory pur- adopted in South Africa is similar to the poses within the year of receipt or the next mechanical test used in Hungary–South succeeding tax year. Although this may be African public benefit organizations may a useful modification of the “pure” desti- engage in trading activities when the nation of income test, it nevertheless suf- income generated from the given activity fers from the necessity of distinguishing does not exceed the greater of 15 percent between related and unrelated activities if of gross receipts or 25,000 Rand. But the income is retained and not spent. result there is worse than in Hungary—if A mechanical test for determining the the threshold is exceeded, public benefit difference between taxable economic status is entirely lost! activities and nontaxable economic activi- The “principal purpose” test is also a ties may create a simpler system for taxing mechanical test in some sense. It takes a NGOs. It might be possible, for example, mechanical approach to determine eligi- to tax profits from all economic activities bility for classification as an NGO as only if they exceed a certain figure or a opposed to treatment as a business entity. percentage of all revenue. This sort of Thus, if more than 50 percent of the remedy has been chosen by Hungary, activities and expenditures of an NGO where NGOs are exempt on the net prof- constitute non-purpose-related activities its from all economic activities—whether for a significant period of time (e.g., 3 related or unrelated—if the annual profit years), the organization might be required from such activities does not exceed the to be reclassified as a business entity. As lesser of 10 million forint or 10 percent of long as “related” economic activities are total revenue. This works fine as a tax permitted, this mechanical test will gener- rule, for the only consequence of exceed- ally be adequate to permit an organization ing the minimum in any year is that taxes to conduct significant economic activities must be paid on actual profits. But in the (presumably requiring tax to be paid on Hungarian case taxes are levied on all the ones not related to the tax exempt pur- income from economic activities if the pose) while not creating the risk that the threshold is exceeded, whether the activi- entire sector will develop a bad reputation ties are related or not, presumably on the for competing with commercial enterpris- theory that if the organization has a lot of es. economic activity income it is more like a 4. Political Activities of Tax Exempt NGOs business than an NGO. The issue of whether tax or other laws

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 151 baku_book.qxd 2003. 01. 21. 15:51 Page 152

restrict the political activities of NGOs has can be found in the regulations under the not been well-researched in recent years. general tax law. These regulations state There has been a tendency, as exemplified quite clearly that political purposes “are by a paper that IJNL published in 1996 fundamentally not” public benefit purpos- entitled “Public Policy Activities of Not-for- es. On the other hand, “political” is fairly Profit Organizations,” to note differences narrowly defined by the regulations. between common law countries and civil Although it specifically includes trying to law countries in this regard. The former influence public opinion and supporting countries tend to have more limits on polit- political parties, the regulations go on to say ical activities in their framework legislation that a certain amount of “influencing pub- than do countries. As the paper lic opinion” is permissible for “public ben- notes, this is because the common law clas- efit” organizations. In fact, it is permissible sifies organizations not by the type of legal so long as the accomplishment of a public person they are but more by what they do. benefit purpose is linked with setting a In common law jurisdictions, “charities” political goal, and the actual attempts to are not permitted to engage in political influence the political parties and the state activities, and the tax laws in those countries are not foremost in what the organization tend to reflect this approach by limiting does. The regulations cite a specific case, political activities of public benefit organi- which held that an organization could take zations. a specific political position, consistent with When one looks at some civil law juris- its public benefit purposes, so long as that dictions, however, there is more similarity was not its primary activity. In contrast, an than difference as between common law organization that has the political goal as its and civil law. In France, for example, the tax only or its primary purpose would fail as a law and the administrative law both define public benefit organization. organizations that are entitled to specific As this brief discussion makes clear, tax benefits (organizations of “general inter- laws frequently restrict political activities of est” in the tax law and organizations of tax exempt organizations. In general, how- “public benefit” (utilité publique) in the ever, such restrictions are tied to the level of administrative law). Neither type of orga- tax benefits received. The theory for impos- nization may engage primarily in political ing such restrictions is one of subsidy (e.g., activities. the fisc should not subsidize political activ- In Germany, the restrictions on political ities). According to that theory, organiza- activities of “public benefit organizations’ tions that receive no actual subsidy should

152 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 153

have no restrictions imposed by the tax 5.Income Tax Preferences for Donations laws on their political activities. In the Unit- Within reasonably generous limits, individ- ed States, for example, both membership uals and business entities should be entitled organizations of various types (under Sec- to an income tax deduction or credit or tion 501) as well as political parties (under income tax should be permitted to be Section 522) are exempt from income tax reclaimed with respect to donations made on their membership dues, but not on other to public benefit organizations. Such tax sources of income, such as investment preferences are an important and useful income and income from commercial activ- tool for encouraging NGO-business-gov- ities. However, organizations that are per- ernment partnerships for social and eco- mitted to receive tax deductible contribu- nomic development. tions are more restricted with respect to These preferences are part of a normal their political activities, as in the German tax regime that encourages the sustainabil- and French situations cited above, and in ity of NGOs in most countries. In the dis- the with respect to “public cussion of income tax exemptions, it was charities” and “private foundations.” suggested that no NGO should be taxed on It is also important to note that distinc- donations it receives. If, in addition, the tions can and probably should be made donor is entitled to a tax credit or a deduc- among different types of political activities. tion against his or her personal or business Public policy activities that tend to be more income tax or if the NGO is permitted to like educational activities should not inter- reclaim the tax benefit the donor would fere with an organization’s tax exempt sta- have received, the same donation receives a tus. Grass roots lobbying activities are more double tax preference. This generous tax “political” in nature and thus might be treatment is deemed justified when the required to be limited when a tax subsidy is activities of the NGO in question are for available. Electioneering activities, though public benefit. Of course, if there is a tax pref- permitted for NGOs in some civil law juris- erence for contributions to such organiza- dictions, tend to be prohibited for tax tions, there will be great pressure on the tax exempt NGOs in most countries. These authorities to classify NGOs as public ben- laws are sufficiently justified, however, by efit organizations. This distinction is often the need to preserve the integrity of laws difficult to draw, and in actual practice the that separately regulate elections and polit- tax authorities tend to proceed on a case- ical parties. by-case basis, looking at the purposes and activities of each NGO.

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 153 baku_book.qxd 2003. 01. 21. 15:51 Page 154

There are essentially four different efit at all from a charitable contribution. types of tax preferences for donations, On the other hand, there are substantial deductions, credits, tax benefit reclaim schemes, empirical data showing that high income and tax designation schemes. Tax credits are taxpayers are quite sensitive to tax rates applied against and reduce the amount of and that allowing deductions rather than tax owed by a taxpayer, while deductions credits tends to attract more and larger reduce the amount of income subject to gifts from wealthy donors. tax. Tax benefit reclaim schemes and tax If the tax system permits tax deductions, designation schemes, on the other hand, it is important to set the limits, if any, on involve a payment of the donor’s actual the amount of tax deductions allowable. tax liability to the designated organization. For example, in Russia individuals can In developing the tax preferences for claim deductions only up to 3 percent of donations that a country uses, it is impor- their income, and business entities are lim- tant to decide matters of tax equity and to ited to 1 percent. In the United States, by design a system that will encourage con- contrast, individuals can claim deductions tributions in a fair manner. for up to 50 percent of their income, and The distinction between credits and in Australia there is no limit at all. Empir- deductions is of great importance in a tax ical studies show that few business entities system with a progressive rate structure. contribute more than 1-2 percent of their Where rates are progressive, deductions income, so it is an essentially empty debate tend to favor higher income taxpayers, whether deduction limits should be high- who are paying higher rates of tax on larg- er than that for businesses. er amounts of income. Tax credits give The same is not true of individuals, each taxpayer the same tax preference for however, and where there is no limit on a contribution of the same amount, and allowable deductions to public benefit hence represent greater equity as a matter organizations, wealthy individuals can of tax policy. Most countries with pro- avoid paying any taxes at all by contribut- gressive rate structures, however, allow ing to charity an amount equal to their tax- deductions rather than credits. This may able income each year. In a democracy it is be justified by data showing that lower appropriate that each citizen who is finan- income individuals tend to make charitable cially able to should bear a fair share of the contributions without regard to their tax costs of government, and it is therefore impact, and, indeed, other tax rules may not generally thought to appropriate to preclude them from receiving any tax ben- allow unlimited deductions. At the same

154 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 155

time, if deductions are limited to contri- administered in a fairly straightforward butions to public benefit organizations— and easily understandable fashion. i.e., organizations contributing to the pub- In addition to these more typical tax lic good and often relieving the burdens of preferences, Hungary, Slovakia, and government—generous deduction limits Lithuania have created “tax designation” are appropriate. laws, which permit taxpayers to direct that With respect to tax credit schemes, the a small percentage of the taxes they owe in situation in Canada is an interesting one. a given year be paid to NGOs designated Canada offers a two-tier tax credit system, by them. By providing a simple mecha- which gives high marginal rate taxpayers a nism for directing tax funds to NGOs, the credit equal to a deduction while offering “1% Law” in Hungary, which has been in to those in lower brackets a credit worth operation since 1996, can create a signifi- more than a deduction. This scheme, cant pool of resources—$9 million in its which is not nearly as complex as it first year—to support socially beneficial sounds, has not led to any significant activities. This scheme draws on a similar decrease in tax revenues since it began scheme long available for faith-based insti- being implemented in 1988. tutions in other European countries (e.g., The use of tax benefit reclaim schemes Italy), but it makes tax designation more seems to be limited to the UK. In general widely available for public benefit NGOs. this type of preference does not provide a strong incentive for donors because it does 6. VAT Preferences not reduce their taxes, but it is popular in Many activities of NGOs are given pref- some instances. The United Kingdom has erential treatment under a value added tax various tax benefit reclaim schemes that (VAT), although the precise activities vary permit donors to designate charities to from country to country. For example, in which a portion of their tax payments Germany the preferences were tradition- may go. These are complex schemes with ally quite broad, but now with VAT har- overall limits and special rules, but they monization underway in the European share the feature of having the donor’s tax Union, the range of preferred activities is benefit being paid directly to the charity by smaller. the Treasury. The “Give As You Earn” Design of VAT preferences is impor- scheme, which permits individual wage- tant. If an organization is excluded from a earning taxpayers to set up a tax reclaim VAT system by not being defined as a account, is very popular and seems to be “taxable person” or by being exempt, it

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 155 baku_book.qxd 2003. 01. 21. 15:51 Page 156

pays VAT on goods and services it buys 7.Customs Duty Preferences and VAT on from others, for the tax is built into the Imports price it must pay (input VAT). However, Customs duties and the import VAT are since it is not in the VAT system, it cannot among the most contentious and difficult apply for a rebate of the input VAT when issues faced by NGOs in practice. If the it sells its good or services, and is treated law of a particular country provides for like a final consumer. Although exclusion exemption for NGOs from both customs from the VAT system is thus not very duties and the VAT on imports, customs desirable from a tax point of view, NGOs officials often disregard the law, and may rationally prefer it in order to be NGOs must spend a disproportionate relieved of compliance burdens. amount of time dealing with senior offi- A better situation for an NGO that is cers to actually receive the benefit of the willing to deal with the compliance bur- exemption. At the same time, laws allow- dens would be to elect to be included in ing customs and import VAT exemptions the VAT system and to be zero-rated with for NGOs tempt charlatans and crooks respect to the goods and services provid- into the NGO sector with the prime ed that are related to its public purposes. motive of establishing an NGO to get This would mean that, although the NGO exemptions on the import of certain would pay input VAT on the goods and goods. services it bought, it would not have to If customs duties and import VAT are collect output VAT, at least with respect to imposed on legitimate NGOs, however, the exempted outputs. If it could then they can dramatically increase the costs of receive a rebate of the input VAT paid, it operations. This difficulty faces both for- would receive a rather significant subsidy. eign and domestic NGOs. It can be par- This approach is not adopted in many ticularly severe for humanitarian relief countries. The more general approach is organizations that typically must import allow to reduce the potential revenue loss all of their goods and services in order to by giving certain goods and services pro- meet emergency relief needs. It is a prob- duced by public benefit organizations a lem, though, for even the smallest NGO, favorable VAT rate, but not a zero rate. which might want to import a fax machine For example, if the general rate of VAT is or computer to make its work more pro- 20 percent, the special rate for listed ductive. goods and services might be 6-10 percent. Many countries therefore provide cus- toms duty and import VAT exemptions to

156 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 157

public benefit organizations. But if such Europe give different types of real estate exemptions are available, there must also tax benefits to NGOs, which are discussed be a fair but thorough process for assur- in the ICNL’s Tax Survey for Central and ing that only genuine public benefit orga- Eastern Europe. Most countries have a vari- nizations qualify for the exemption. Coun- ety of additional tax or rate preferences tries have generally provided for a certifi- for NGOs, generally limiting them to pub- cation, licensing, or similar process to lic benefit NGOs and to the public bene- ensure that an organization’s exemption fit activities of such NGOs. will be honored at the border. To protect against the improper use of the exemp- 9. Employment Tax Preferences tion, it is also appropriate to provide that Despite the fact that NGO employees imports will be exempt only if they are typically expect and receive a lower level going to be used by the NGO in its oper- of compensation than that which is paid ations. To avoid abuses, if an item is sold for comparable work in the for-profit sec- by an NGO (e.g., a computer, a truck or an tor, there is no justification for exempting automobile) within a short period (e.g., 2- them from the usual social security and 3 years) after its import, it should be sub- related employment taxes that are exacted ject to customs duties and import VAT at from workers in the governmental or for- the time of sale. profit sectors. Social security and similar taxes are exacted on the basis of actuarial 8. Other Tax Preferences estimates of what is required in order to Depending upon the extent to which a meet the state’s obligations to retired government wishes to encourage NGOs, workers over the long term. Those who exemption from or preferential treatment are employed in the not-for-profit sector under other tax laws (e.g., taxes on real or should not be excluded from the benefits personal property, sales taxes, estate or of state-provided benefits, nor should inheritance taxes) should be considered. they be exempted from the benefits that Practices in this respect vary widely are provided for those who participate in around the globe. As one example, these state schemes. Indonesia, Thailand, and the Philippines In short, although it is a valuable tax exempt religious organizations from land preference to provide exemptions for taxes, while Australia provides no similar NGOs from many forms of regular taxa- preferences for religious organizations. tion, it would prefer such organizations Many countries of Central and Eastern over the long-term interests of their

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 157 baku_book.qxd 2003. 01. 21. 15:51 Page 158

employees to exempt them from the 4.3 CORPORATE GOVERNANCE FOR NGOS? employment taxes usually imposed on By Mick Moore and Sheelagh Stewart* employers with respect to employees. Employees of NGOs should not suffer Problems the double disability of working for a In terms of the volume of official fund- lower wage and being excluded from basic ing, the development NGO sector has employee benefit programs imposed on been enjoying a boom since the early other employees in the society. 1980s. Stimulated by concerns about the excesses of ‘statism’ and attracted by Conclusion notions of ‘strengthening civil society,’ This paper has provided a brief overview bilateral and multilateral aid donors of the tax preferences most countries per- switched significant fractions of their bud- mit for NGOs. NGOs will always desire gets from national governments to to have the most favorable tax treatment NGOs.1 Many countries saw an explosive possible. However, as can be seen from growth in the number and variety of the overview, the preference systems are development NGOs. Endowed as it is not uniform, and each country has made with a high proportion of reflective decisions about the design of its tax pref- thinkers, the NGO community was not erences by taking into account the specif- content simply to bask in the sunshine. ic economic, social, and political situation There has been a ferment of concern, first it confronts. It is hoped that this paper will about possible effects of this growth on assist tax professionals and policy-makers the ethics, values, and organisational com- to consider some of the issues involved in petence of NGOs, and, increasingly, about tax preference design. For further infor- how to adapt to a less luxuriant future with mation and to obtain copies of some of a decline in the rate of funding increases. the materials cited in the paper, please do The problems have been diagnosed in not hesitate to contact ICNL at infoic- many different ways, and a wide variety of [email protected]. solutions propounded. It is, however, striking that there appears to have been *This paper was prepared in late 2001 and very little discussion of an option that is reproduced with the permission of the would be considered standard for a sector International Center for Not-for-Profit Law. Footnotes have not been included here, but of private business whose products or the full paper may be found at www.icnl.org. procedures had come under serious criti- cal public criticism and scrutiny: The intro-

158 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 159

duction of collective self-regulation in These concerns are not entirely mis- order to re-establish public confidence in placed. It is clear that some NGOs are not the sector. We argue that such collective accountable even in the most narrow sense self-regulation could make a significant of the term, i.e., they are not in practice contribution to solving four generic prob- sanctioned if they fail to use their budgets lems faced by development NGOs in poor for the purposes that their financiers countries, NGOs that depend to a signifi- intend. And most of that money is public: cant extent on foreign funding. These are not necessarily ‘public’ in the sense that it labeled the ‘accountability’, ‘structural comes from a government, but in the growth’, ‘evaluation’, and ‘economies of sense that it is given by a public some- scale’ problems respectively. We fire sum- where and/or, more importantly, it is marize these problems and then explain explicitly intended to have impacts over how collective self-regulation could help issues that in contemporary remedy them. are regarded as being the legitimate busi- ness of the state. Further, insofar as 1. The Accountability Problem money is given to NGOs for the purpos- This has both a ‘real’ and a ‘perceived’ es of advocacy or to ‘strengthen civil soci- dimension. The ‘real’ problem is quite ety’, it is intended to change the way in clear and is articulated repeatedly by which public business is done. Every wide- friends and critics of NGOs alike: ly accepted concept of good governance requires some kind of public accountabil- Who are these people accountable to? ity of organisations that (a) use public They set themselves up as specialists money and/or (b) are intended to influ- and experts on problems that they ence public business. The widespread per- define themselves, live entirely on for- ception of weak or absent accountability eign in money, and can do what they becomes a problem for NGOs—and their want provided they keep their funders funders—in many countries. Many nation- happy. They claim to speak on behalf al governments with an authoritarian of the poor, the disadvantaged, streak view NGOs as a threat. They use women, the disabled, AIDS victims or the non-accountability of NGOs—or whatever, but how do we know that accountability to no-one except wealthy they are in any way representing or foreign organisations—as an excuse to serving their clients? harass and control them.

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 159 baku_book.qxd 2003. 01. 21. 15:51 Page 160

2. The Structural Growth Problem come even more suddenly to NGOs than Once they are successful, small businesses to small businesses, and the consequent world-wide commonly face the problems crises and conflict—between founders and of replacing one-person-management (or their values, and ‘new professionals’ and family-management) with a more institu- their values respectively—tend to be even tionalised structure. The founder is used to more severe and, sometimes, devastating. having total control and doing things his or Sheelagh Stewart’s research into NGO her way. It is difficult to persuade her/him funding in Nepal and Zimbabwe shows to create independent management or that NGOs often achieve ‘funding suc- expert roles, or to respect the authority and cess’ (e.g., large volumes of donor financial autonomy of independent managers and support) very quickly. Once they are ‘dis- experts once they are in place. The founder covered’ and funded by one donor, the wants to continue to hire and fire staff as word about their existence quickly gets s/he feels like it, or to be the only person around small, in-country donor funding with full access to the accounts. It is at this communities. Donors are keen to find point — when individual or family man- good NGOs to fund. Partly because they agement ceases to match up to needs— lack criteria to judge NGOs (see below), that many small businesses fail to realise donors tend to adopt what is for them indi- their potential, or simply fail. There are vidually a rational rule of thumb: do what close parallels with NGOs, which are often other donors are doing. The result can be founded and run by individuals or small similar, on a much smaller scale, to the groups who are dedicated to the organisa- early 1980s when most international banks tion and the cause it represents. Perhaps decided that Third World governments they see their own dedication and commit- were the best available borrowers for all ment as the reason for success, and feel that money sitting in the oil exporters’ they are entitled to reap the fruits of suc- accounts. The result was over-lending and cess, even if these fruits only come in the the Third World debt crisis. In Nepal and form of such intangibles as recognition, Zimbabwe, Stewart examined in detail the respect, and status. Like small business external funding history of 30 local NGOs people, the founders of NGOs may not in the period 1989-96. These were all want to share managerial authority and sta- urban-based organisations involved in tus with newcomers at the point where the advocacy issues. It is clear in retrospect that organisation has the potential to, take off these organisations grew much faster over into rapid growth. But take-off is likely to the research period than many other local

160 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 161

NGOs.2Within a mere eight months of ly between 18 months and three years after receiving their first significant tranche of the receipt of the first major grant. The external funding, their budgets had on main point is that development NGOs average increased fivefold, and the number face the same types of organisational of staff employed had grown fourfold, as growth problems as small business, but had the number of organisations from often in a very concentrated form. which they received funding. At the base- The founders of NGOs often do not line point, they each received support want to adopt the more formal (‘bureau- from, on average, 1.7 donors. At the end of cratic’) structures that are implied by rapid the period, each was funded by an average growth in funding and in the diversity of of seven donors. Their experiences of donor sources. Why should they accept rapid organisational growth were extreme, the ‘institutionalised suspicion’ that the but illustrate in a graphic fashion a set of new professionals represent: strict external processes that have beset development auditing; recruitment of personnel by open NGOs world-wide.3 competition; submission of frequent, Very rapid rates of funding growth detailed reports to funders; formal minutes pose difficulties to all organisations, but of meetings; and elaborate measurement especially to development NGOS. Their and reporting of the ‘impacts’ and ‘out- styles, ethos, and values are often severely comes’ of their activities? Founders may challenged by the formality and the suspect that all this is an excuse to place bureaucratic discipline that is imposed by power, authority, and perhaps even illicit the volume and variety of external funding resources, in the hands of the incoming from public organisations. Suddenly, it is professionals, managers, accountants, and the donors’ needs, the regular reports, the impact evaluation specialists. Their suspi- accounting and honouring the ‘contract’ cions may be true. But that is a matter of with the funder, that have priority. Internal individual cases. The fact is that ‘institu- power and status may shift to the staff tionalised suspicion’ is essential to the members, often new ‘professional’ recruits proper functioning of any large scale who can understand donors’ needs and organisation and especially to one that, like can interact effectively with them. This is all development NGOs, has a significant not the place to tell in detail how such ten- public dimension. sions affect NGOs. Let us simply note that There is plenty of scope to debate the half the NGOs in Stewart’s sample had precise arrangements for institutionalised undergone a severe internal crisis, typical- suspicion (and we return to this below), but

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 161 baku_book.qxd 2003. 01. 21. 15:51 Page 162

arrangements of this kind must be in place. world-wide norm. Performance evaluation Without them, organisations lose the con- is relatively easy in ‘post-office’-type organ- fidence of those stakeholders who do not isations where (a) activities are routine, (b) exert direct, personal control over the objectives are few and clear, (c) there is no organisation. NGOs need institutionalised great distinction between immediate ‘out- suspicion as much as any other public puts’, medium-term ‘effects’, and long-term organisation. Indeed, the whole of the ‘impacts’, and, (d) outputs, effects, or NGO community has an interest in the impacts can be measured relatively cheaply establishment of effective arrangements and reliably without the measurement for such suspicion within all organisations process itself distorting the objectives of in the sector. It is a matter of the reputation the organisation or the goals of the staff. and trustworthiness of the sector as a Few public organisations are like post- whole. Allegations that some NGOs are offices. Many, including many development unaccountable or untrustworthy will reflect NGOs, are very different: their activities are on the sector as a whole in the eyes of the experimental rather than routine; their goals public, government, and donors. Donors are often intangible (such as changing the will find it far easier to justify the continu- consciousness of clients or the opinions of ing shift of development funds to NGOs if policy-makers); they may be operating in NGOs in general meet the standards of the face of official obstruction and hostili- institutionalised suspicion that are normal ty; and it may be difficult to find other in other types of organisations. organisations with which their perfor- mances can usefully be compared in any 3. The Evaluation Problem quantitative sense. This is most immediately a problem for In such circumstances, people (donors) donors, but failure to resolve it eventually who wish and need to evaluate organisa- reflects back on NGOs, so it should be per- tional performance have to do the best they ceived as their problem. This, simply stated, can. They have three broad sets of options, is: “How do we know whether NGOs are and will tend to choose a variety rather being effective and making good use of than any one approach. The first is direct- their money?” The consequent debate is ly to measure performance where this wide-ranging and not at all specific to appears feasible and is not likely to lead to NGOs. Demands for formal, quantitative too much distortion. The second is to performance evaluation of organisations obtain feedback from clients and other receiving public funding are becoming the stakeholders about how well they perceive

162 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 163

the organisation to be doing. The third is to fers from the demands of the Swedish see how far the organisation matches up to International Development Cooperation norms for organisations of its type in terms Agency. Or, they may succumb to a very of its structure and processes: is the audit- tempting funding offer from a hitherto ing process as rigorous as one would unknown source without being able to expect? Are the assets and liabilities report- check out the donor. Only later do they dis- ed to the extent one would expect? Are the cover that part of the price they pay is pro- procedures for recruiting and renewing viding support to Christian evangelism. staff contracts adequate in the circum- Informal communication and various types stances? The more an organisation meets of national NGO resource centres help to (or exceeds) norms about structure and deal with these issues, but not very effec- process, the less its evaluators (donors) tively. One major problem is that the NGO need concern themselves with other types sector is internally competitive, in the worst of evaluation. Being seen to be a well-struc- sense of the term (see below). This mili- tured and well-run organisation may be a tates against co-operation to overcome valid alternative to direct quantitative per- economies of scale problems. formance evaluation, if that evaluation is problematic and intrusive. Solutions There is no silver bullet that in one shot will 4. The Economies of Scale Problem solve these four problems of accountabili- Most NGOs are very small. They lack easy ty, structural growth, evaluation, and and cheap access to the specialist knowl- economies of scale. There is, however, a edge they require. For example, they may be relatively standard set of organisational aware that ‘staff development’ is important, technologies that take us a good way with but have little idea about how to do it. each of them: the introduction and They end up sending their staff for English enforcement, by NGOs collectively, of language and computer training and asking national norms of corporate governance donors to fund someone to go on such for NGOs. Because NGOs in many coun- overseas training seminars as come to their tries are, with good reason, nervous of any- attention. They may be struggling with the thing that even hints of more regulation different reporting requirements of differ- and control by government, it is appropri - ent donors, and have no access to someone ate to talk first of who should be setting fluent in written English who knows what norms before discussing what the norms Oxfam America requires, and how this dif- might look like, and how they might

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 163 baku_book.qxd 2003. 01. 21. 15:51 Page 164

improve things. be appropriate to local circumstances and NGOs could (we mean should) form take on moral force. Second, norms have to voluntary national professional associa- be country-specific because they are addi- tions, like associations of engineers, tional to existing national legislation under accountants, or insurance companies, which NGOs are generally registered, and aimed at promoting the sector, partly to which they are certainly subject. Each through self-policing of standards. ‘Polic- national legal framework is different. The ing’ is, however, too strong a term. We are only element we would wish to see blue- talking of ‘norms’ rather than ‘rules’. One printed is diversity: the existence of a range would not want nor expect these norms to of sets of norms applicable to different cat- be applied rigidly. This would be contrary to egories of NGO . To explain why and how the flexibility and adaptability that should this should be so, it is useful to take the be as central to the practice of NGOs as it analogy of business or company legislation. is to their values. Norms might take the fol- And the analogy is far less stretched than it lowing general form: an NGO that has might first appear to those who believe been in existence for three years or more NGOs to be very distinct types of organi- and has an annual budget exceeding X sations, a world apart from commerce or should be expected (a) to publish an annu- government. The private sector, too, is very al report within Y months of the end of diverse: from the one-person street-trader each financial year, (b) to disclose in that to the large and highly bureaucratised report all payments made, in cash and in transnational corporation with an annual kind, to all staff, directors, consultants, etc., turnover that is a multiple of the GNPs of by staff category, and (c) to have a written many individual countries. This vast diver- policy on staff development, and report sity and flexibility exists under the law annually on policy compliance. Particular because the law allows for many categories provisions might not be appropriate to par- of enterprise, each with different reporting ticular cases; there would be no expectation and taxation obligations, and with different of universal compliance, but an implied public responsibilities. In the typical Anglo- expectation that NGOs would wish to phone model, economic enterprises can be explain their non-compliance. treated as: individual self-employment; This is no place to lay out a blueprint partnerships; private companies; public about the substantive content of these companies; or public companies quoted on norms, for at least two reasons. First, norms the . Their obligations in rela- should be evolved ‘in country’ if they are to tion to employment law (e.g. in relation to

164 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 165

redundancy payments or the requirement norms would tend to mandate a relatively that they employ disabled persons) will typ- clear division of power and responsibility ically vary according to the number of between the internal management and a employees or some other indicator of size. supervisory board representing a mixture National codes of practice for the corpo- of internal and external stakeholders— rate governance of NGOs should embody along the lines of a large public company. the same principle: a range of statuses, with Indeed, encouraging movement toward corresponding obligations, determined by such arrangements within larger NGOs is the size of the organization, its age, or one of the most important single reasons other factors that appeared relevant. Simi- for introducing self-regulation. Not only larly, the issues covered by self-regulation should these bring greater transparency, but norms would vary according to status. The they should also provide the opportunity to typical list is likely to include several of the introduce greater accountability, by reserv- following issues: ing places on boards for, for example, (a) elected members, in the case of those • timeliness of issuing of annual reports; NGOs that are also membership organisa- • issues to be included in the annual report tions, (b) (elected) representatives of client (or elsewhere publicly available), such as groups, and (c) other members of the degree of disclosure of assets and liabil- ‘NGO community’—chosen perhaps from ities, of salaries and all other benefits a list of eligible board members maintained paid to staff, directors, board members, by the ‘professional’ NGO association. and consultants; Such ‘professional’ board members would • employment, recruitment, and staff devel- play the same role as the reputed indepen- opment, policies and practices; dent business people who sit as directors on • sources of finance; the boards of large companies: voices rep- • arrangements for internal or external resenting broad shareholder or public inter- scrutiny of financial transactions, ests. employment practices, organisational Independent supervisory boards—and policies, etc.; and the institutionalised tension between board • arrangements for the evaluation of organ- and management that they imply—may not isational performance. be appropriate for small NGOs leading a precarious or unstable life. In this context, One would expect that, for larger and other, lighter methods of regulation are more established NGOs, self-regulation appropriate. If the professional NGO asso-

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 165 baku_book.qxd 2003. 01. 21. 15:51 Page 166

ciation does its job and only gives and that much more willing to fund members renews membership to those NGOs that without attaching tight strings. If member- observe the self-regulation norms appro- ship of reputable NGO Associations priate to them, the regulation function becomes the norm, then the reputation (and becomes quasi-automatic. Membership of financial health) of the NGO sector as a the Ruritanian NGO Association itself whole can only improve. becomes a certificate of professional quali- 4. They require the creation of collective ty. organisations for self-regulation that will What are the advantages of such a self- have an incentive to provide the collective regulation system? They parallel the four services that their members cannot effi- generic problems of NGOs set out above: ciently provide for themselves. NGO Asso- ciations need to fund themselves, and will 1. By providing clear standards and prac- tend to want to expand their activities. Pro- tices of accountability and transparency, vided they are not funded by donors — they take much of the sting out of the which would be a great mistake—they will charge of non-accountability, and much of do what business associations do: supple- the force out of the argument that govern- ment membership fees by finding services ment must step in to regulate NGOs they can sell to their members. Business and because one else is doing the job. professional associations sell their members 2. They ease the problem of introducing information and research, insurance, arbi- ‘institutionalised suspicion’ mechanisms tration, specialised technical advice, meeting into NGOs that have out-grown their facilities, and dozens of other services. founders’ management and leadership NGO Associations could provide: staff capacities. There is now an objective argu- training, shared management consultancy ment for doing the right thing: ‘unless we do services, insurance, or information on it, we shall lose our membership of and potential funding to give their sources. The recognition by the NGO Association.’ best NGO Associations should be able to 3. They provide donors with some kind give their members reliable advice on the of quality rating that can be traded off demands, quirks, needs, pitfalls, and oppor- against more expensive, detailed, intrusive tunities they face with particular funders. individual inspections or output evaluations. If donors know that membership of the The beauty of self-policing through vol- Ruritanian NGO Association is really untary association is that it needs no central ‘earned’ and not a rubber stamp, they will be initiative or control, but can be done in

166 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 167

decentralised fashion. Let six NGOs work- querading as doves. It is that the NGO sec- ing on AIDS issues establish the Ruritanian tor has grown so fast in developing coun- Association of AIDS NGOs and initiate a tries that the appropriate sector-wide insti- self-policing system. If it seems to be effec- tutions have yet to emerge, and their funders tive, donors will like it and have a bias in have yet to provide encouragement. favour of directing their funds to Associa- The sector is, however, changing. There tion members. More NGOs are likely to are signs in some countries that donors are want to join. Alternatively—and especially if coming together formally to share informa- they feel that the founder members of the tion about the NGOs they are funding. This Association want to preserve founders’ is a rational thing for them to do, especially privileges—other NGOs may elect to estab- in large countries where they face serious lish a rival association. Fine. That is also problems in obtaining information about what private business does. There may be a local NGOs. National NGOs need not little, competition, a little uncertainty, and a complain: insofar as it helps to improve little experimentation. But that is fully with- transparency and honesty in the NGO sec- in the spirit of NGO-ism. The associations tor as a whole, we should all be in favour of that are doing a good job and are not acting such processes. Just as the existence of cen- to exclude new members will tend to win tralised national trade unions movements out in the end. But the possibility of com- have historically stimulated the formation of petition from other actual or potential asso- national employers’ associations, and vice ciations will help to keep those that are in versa, the collective organisation of NGO business honest and decent. Large parts of donors is likely to stimulate the national the private business sector regulate them- organisation of local NGOs. The NGOs selves in these ways, to the long term advan- have a great deal to gain from this, includ- tage of their members and society at large. ing more information on their donors and It is a little anomalous that private enter- more bargaining capacity. Their gains are prise, viewed by many people as the cockpit likely to be larger if they get organised first. of competition, should co-operate so wide- ly while NGOs, characteristically the advo- References Farrington, J. and D. Lewis (1994), Non-gov- cates of a more co-operative pattern of ernment Organisations and the State in South social organisation, should often appear to Asia; rethinking roles in sustainable agricultural compete so much among themselves and to development, London: Routledge. Fowler, A. (1992),’Distant obligations: spec- co-operate so little. The reason is not that ulations on NGO funding and the global market’, NGO staff are psychological hawks mas- Review of African Political Economy, 55. pp. 9-29.

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 167 baku_book.qxd 2003. 01. 21. 15:51 Page 168

*From Deborah Eade, ed., “Development, 1 ‘The Gift Relationship’, The Economist, 18-24 NGOs, and Civil Society,” Development in Practice March 1994; Farrington and D. Lewis, Non-gov- Readers, pp. 80-90 (Oxfam GB, 2000). This paper ernment Organisations and the State in South Asia: was first published in Development in Practice, rethinking roles in sustainable agricultural development, Volume 8, Number 3, 1998. It is reproduced with London, Routledge, 1994; and Fowler, A. ‘Dis- permission of Oxfam Publishing, 274 Banbury tant Obligations: speculations on NGO funding Road, Oxford, OX2 7DZ, UK. The authors and the global market’, Review of African Political gratefully acknowledge the financial support of Economy, 55, 119. the Economic and Social Committee for Over- 2 This was not part of the research design: the seas Research (ESCOR) of the Department for organisations were chosen because they were International Development. The Department is urban-based and involved in advocacy, not in no way responsible for any of the views because their budgets had grown so fast. expressed here. A copy of the research report 3 Oxfam has a rule of thumb that an annual bud- may be obtained from the authors (‘Final Report get increase of more than 25 per cent in real Number 5968. The Impact of External Funding terms is ‘likely to lead to severe organisational dif- on the Capacity of Local Non-Government ficulties’ (Deborah Eade, private communica- Organisations’). We are most grateful to Debo- tion, 3 July 1997, citing Deborah Eade and rah Eade and to Judith Tendler for very helpful Suzanne Williams, The Oxfam Handbook of Devel- comments on an earlier draft of this paper. opment and Relief, Oxford: Oxfam, p. 439).

ALTERNATIVE APPROACHES TO NGO VOLUNTARY CODES FOR SELF- REGULATION

NGO voluntary codes of conduct have been adopted by NGO networks in a number of countries. Given differences in local circumstances and law, no one code can fit in all situa- tions. But some of the codes that have been adopted can be found at the Internet links identified below.

ETHIOPIA: NGO Networking Service, InterAfrica Group Code of Conduct for NGOs in Ethiopia (March 1999) http://www.mesob.org/ngo/code.html

INDIA: Voluntary Action Network India Voluntary Development Organizations, The Guiding Principles (1999) http://www.ccic.ca/volsect/code_of_ethics/ce11a- links_vanI.htm

PHILIPPINES: Caucus of Development NGO Networks Revised Covenant on Philippine Development and Code of

168 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 169

Ethics (2001) http://www.codengo.org/netscape/majdocs.html

POLAND: Association for the Forum of Non-Governmental Initiatives Charter of Principles for Non-Governmental Organization Activity (1996) http://www.fip.ngo.pl/english/standards.php

SOUTH AFRICA: South African National NGO Coalition (SANGOCO) Code of Ethics for NGOs (1997) http://www.sangoco.org.za/progs/consol_sector/code.htm

4.4 S TRUCTURE AND GOVERNANCE nization should be required in an organiza- OF NON-GOVERNMENTAL ORGANI- tion’s governing documents. The require- ZATIONS ments may be different for membership and non-membership organizations. Non- Prepared for the Open Society Institute by the membership organizations are often International Center for Not-for-Profit Law* required to have additional governing organs because they are not accountable to There are essentially four different types of members. internal governance rules for formal civic organizations: 1) those that are required by Discussion law; 2) those that are required by voluntary The governing documents of a formal civic regulation through umbrella organizations organization should be required to include or otherwise; 3) those that are required by clauses pertaining to certain essential mat- donors and other supporters; and 4) those ters.1 The law should require that the doc- that are purely discretionary. This [discus- uments state the purpose(s) of the organi- sion] distinguishes between the mandatory zation and set forth its basic governance rules required by law and those that are structure. For example, the governing doc- purely discretionary. . . . uments should identify the highest govern- ing body of the organization (assembly of 1. Mandatory Provisions for Organizational Doc- members or governing board) and stipulate uments the minimum number of times it must Certain minimum provisions necessary for meet each year. The basic powers of the the operation and governance of the orga- highest governing body should be spelled

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 169 baku_book.qxd 2003. 01. 21. 15:51 Page 170

TRANSPARENCY AND ACCOUNTABILITY By Public Interest Law Initiative

Transparency and accountability of non-governmental organizations are important principles, but they must be understood particularly in regard to the regulatory role of the government. There is nothing intrinsically good or bad in the idea of “transparency” or “accountability” for NGOs. There will be instances in which

• transparency and accountability are essential, • they are desirable, in varying degrees, and • they may be nothing more than a pernicious cover for governmental interference with an individual’s right to self-expression, individuality, or privacy.

Transparency and accountability are not ends in themselves. It may be useful for an organi- zation to be transparent, for a particular reason; it may be desirable that it be accountable, to a particular audience. And an NGO may be accountable to different audiences for different rea- sons. In general, NGOs will be accountable in every respect to its members (if any), in respect of finances to those who provide its funds, and in respect of government, perhaps not at all unless government or the public has a particular, legitimate interest. That interest might arise from provision of public funds, grant of tax concessions, or some other govern- ment involvement in an NGO’s activities and operations. If an NGO receives such a benefit from some arm of government, it should report to the relevant part of government about that benefit. If it receives tax concessions, for example, the taxation authorities have a legiti- mate interest in ensuring that any conditions on the concession are complied with. However, there is no overarching governmental or public interest in an NGO’s operations that warrants general transparency and accountability to government. In all cases in which there is accountability, it is such accountability as is necessary for the protection of the legitimate interest concerned. For instance, with respect to govern- ment, if it is to check on whether an NGO is legitimately claiming tax concessions, then the relevant arm of government to which information must be disclosed is the tax ministry, pre- cisely the same in the case of individuals and commercial ventures. Certain activities must obviously be subject to state regulation. For example, to ensure proper health and educational standards, there must be controls and inspections of orphan- ages, medical centers, and the like. This oversight applies whether the institution is run by an individual, a profit-making commercial venture, an NGO, or even a governmental body. This type of regulation or monitoring can and must take place under ordinary, generally applica- ble law. It is dependent on the nature of the activity and not on who is doing it. Thus, it fol- lows that any regulatory mechanisms or state intervention should relate to the nature of the activity engaged in, and not depend on whether the actor is an individual, a not-for-profit

170 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 171

group, a commercial venture, a political party, or other grouping. In those instances in which accountability and transparency are necessary and appropriate, mechanisms need to be designed to meet the purposes intended. In the case of member organizations, other than periodic updates of registration information, no reports to the state are generally necessary or desirable. If an NGO gets substantial benefits from the state or the public, however, it is appropriate to require that it provide information on its finances and activities, both to appropriate agencies of the state and to the public. The basic tools for achieving accountability and transparency are a variety of reports required to be filed with various agencies, such as the general organ supervising formal civic organizations, licensing authorities, and tax authorities. These reporting obligations must, of course, be applied in the context of the need to protect the freedoms of expression, associ- ation, and peaceful assembly of the individuals associated with civic organizations, and the obligations should be commensurate with the benefits the organizations obtain from the state. If, for example, the organization receives no state benefits whatsoever, including tax exemp- tion, then reporting to state authorities should involve no more than periodic updates of infor- mation required to be available in the public registry, such as the identity and contact infor- mation for the general representative authorized to receive official notices on behalf of the organization. If, on the other hand, an organization engages in activities that affect the public safe- ty, health, or welfare (for example, by setting up a day care center for small children), it will likely need to obtain a license to open such a center and meet many kinds of reporting require- ments to ensure the health and safety of the children. In addition, if a civic organization obtains the highest level of tax benefits, if it seeks a state grant to support its operations, or if it engages in a significant amount of public fundraising, then the reporting is once again properly more burdensome. Required reports vary in scope, detail, information required, etc., depending on the particular reason for which the agency is requiring them. It would be much easier for NGOs if there could be a single and simple form of reporting for all formal organizations and for all of their activities. Unfortunately, the activities of formal organizations are too diverse and the legitimate interests of the state spread over too many agencies to make this feasible. Still, reports should be as simple and as uniform among agencies as possible. Because the reports are the basic method used by state organs to supervise formal NGOs, there should be penalties for failing to file reports, for failing to file them on time, or for filing false reports. Furthermore, it is not sufficient for the state to require only that the various reports be filed. The reports that are filed must receive adequate scrutiny, and NGOs laws need to be fairly and adequately enforced as well as being well conceived and well draft- ed. Information about formal civic organizations and about the rules that apply to them should be available to the public. These reports not only should serve the supervisory role of the state, but also assist citizens themselves in performing a watchdog role. Thus, it is in the

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 171 baku_book.qxd 2003. 01. 21. 15:51 Page 172

interest of the state to insist on public disclosure of basic information about formal organi- zations. There are two caveats, however, about the enforcement of reporting obligations. First, some information should not be subject to public scrutiny. It is essential to protect truly confidential or proprietary information from public disclosure. Confidential information might include the names of alcoholics assisted by an organization or even the identities of an orga- nization’s members. Second, there is the ever-present danger of over-regulation by the state or the use of reporting and audit requirements to harass groups that are critical of the state or otherwise unpopular. There is no certain protection against state abuse. The opportunity to appeal enforcement decisions to an independent judiciary is an important correction for state abuse and a deterrent to future abuses.

out, 2 together with any restrictions on its siderable discretion to determine, for exam- power to delegate duties to others. For ple, the voting rules of the organization (e.g., example, the governing documents might which members have voting rights and appropriately reserve to the highest govern- which do not) so long as they are spelled out ing body the right to amend the governing in the governing documents. Governing documents or to merge or terminate the documents for membership organizations organization. Any restrictions on the powers should also be required to contain member- of the organization, such as a prohibition on ship rules, such as requirements for mem- the distribution of any profits, should be bership, rules governing suspension or stated in the governing documents. expulsion, etc. The law should not require additional It is often necessary to include certain governing bodies. Such requirements can limitations or prohibitions in the governing create inefficient and burdensome gover- documents in order to obtain tax benefits or nance structures. The law should, however, receive a grant from a donor. For example, allow an organization to create additional the purposes may need to be limited to pub- bodies (such as a supervisory board or audit lic benefit activities and it may be necessary commission) if the founders or highest gov- to restrict the distribution of profits and of erning body so desire. See Section 3.2. assets on dissolution. Such rules are not legal Local tradition usually plays a significant requirements for establishment (legal exis- role in determining what kinds of provisions tence), but are necessary in order to obtain must be included in the governing docu- certain additional benefits (e.g., tax prefer- ments.3 Usually the founders are given con- ences).

172 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 173

2. Optional Provisions for Organizational Docu- 3. Liabilities of Officers, Board Members, and ments Employees A formal civic organization (through its A. Officers, members of the governing founders or its highest governing body) board and the supervisory board (if one is should have broad discretion to set and required), and managerial and other change the governance structure and oper- employees of a civic organization should ations of the organization within the limits not be personally liable for the obligations provided by law. of the civic organization.

Discussion Discussion A structure must be set out in the govern- Officers, board members, and employees of ing documents outlining basic matters con- a formal civic organization are ordinarily cerning the purposes and governance of not liable in their individual capacity for the the organization. On the other hand, debts, liabilities, or other obligations of the because organizations change and grow organization. They may, of course, become over time, there also needs to be flexibility liable by private contract, such as when a on non-essential matters. It should not be board member guarantees a loan incurred necessary to amend the governing docu- by the civic organization. ments to make relatively small changes in Individuals remain responsible for their the organization (e.g., creating a finance individual acts even when the organization committee). Therefore the highest govern- they work for has derivative liability. For ing body of an organization should be example, if an employee of a civic organi- allowed, consistent with the terms of the zation injures a third party while negligent- law and its governing documents, to adopt ly driving a vehicle belonging to the orga- rules, regulations, or resolutions that govern nization, in some legal systems the civic the details of operation.4 It should also be organization employing that person may able to increase or decrease the number of be responsible for the harm caused if the directors from time to time, perhaps with- employee was driving the vehicle in the in limits specified in the governing docu- course of, or for a purpose arising out of, ments,5 and to create or eliminate officer his or her employment. This is the doctrine positions. This governing body should then of respondeat superior. The fact that the civic have authority to create subsidiary govern- organization may be derivatively liable, ing bodies as it deems necessary. however, would not relieve the individual of liability as well.

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 173 baku_book.qxd 2003. 01. 21. 15:51 Page 174

B. Officers and board members should or board members directly. ensure that the organization operates with- in the requirements of the law (e.g., the 4. Duties of Loyalty, Diligence, and Confiden- Civil Code, the Labor Code, and other gen- tiality eral laws) and should be liable to the orga- A. Officers and board members of a civic nization and/or to injured third parties for organization should have a duty to exercise willful or grossly negligent performance or loyalty to the organization, to execute their neglect of their duties. responsibilities to the organization with care and diligence, and to maintain the con- Discussion fidentiality of non-public information Civic organizations have primary responsi- about the organization. bility for their own acts, but the officers and board members may also bear responsibil- Discussion ity for the acts of the civic organization if This rule is similar to the rule for officers they act in a willful or grossly negligent and board members of other legal persons. manner in their oversight of the organiza- It may be provided for in a law separate tion. The officers and board members from the law governing formal civic orga- should not be liable if they act properly and nizations, or it may simply be an established in good faith.6 However, if an improper act doctrine in the legal system. or omission of an officer or board member injures a third party, that person should B. The civic organization itself, or any ordinarily be entitled to sue the civic orga- affected person in the society, should be nization. If the civic organization is allowed to sue for redress of any violations required to pay damages, it should have a of these duties. right to sue the officers or board members for dereliction of duty. Many systems allow Discussion the claim by the civic organization against Not only do civic organizations have the the officers or board members to be tried right to sue to protect their interests, in in the same suit as the claim by the third some systems the public prosecutor or state party. To prevent an injured third party attorney has the right to bring civil actions from being without remedy if the civic on behalf of a civic organization.7Because organization has been terminated or many civic organizations are small, weak, becomes bankrupt, the third party should and unable to defend their own rights, espe- have the right to sue the offending officers cially in cases requiring the expense and

174 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 175

burden of bringing a lawsuit, this can be a tions could also be required to adopt spe- desirable feature. cific internal conflict of interest rules in A lawsuit may only be brought by some- light of their particular facts and circum- one who has the right to bring such a suit, stances. which is often determined by the degree of In some legal systems the obligation to the person’s interest in the outcome. 8Rules avoid or correct a conflict of interest is an differ among legal systems, but most sys- established doctrine of law that has gener- tems require that a plaintiff show a direct al application to anyone in a fiduciary posi- and personal interest before he or she can tion, and thus no special rules are required initiate a lawsuit. for civic organizations.

5. Prohibition on Conflicts of Interest B. Potential conflicts should at a minimum A. Either the law or internal regulation be disclosed. should provide that officers, board mem- bers, and employees of a formal civic orga- Discussion nization avoid any actual or potential con- Members of the staff and governance flict between their personal or business structures of a civic organization should be interests and the interests of the formal required to disclose any potential interest civic organization. they might have in a decision affecting the civic organization. Thereafter, an organiza- Discussion tion can choose a number of ways to Because of the many differences in the address the potential conflict, including structures and activities of formal civic waiver, refusal, or additional review. organizations and because of the innumer- Waivers of any conflict or potential able ways that individuals may be involved conflict should be made in writing. Alter- with a civic organization and with another natively, the organization may choose to entity that relates to the civic organization recuse a person with a conflict of interest in some way, it is nearly impossible to stip- from the discussion of relevant issues. For ulate with specificity the kinds of conflicts example, if an individual who sits on the of interest that should be avoided. One board of a civic organization is also an good approach is to prohibit conflicts of officer of a local bank, the individual could interest in general terms and allow courts to be required to recuse him- or herself from determine on a case-by-case basis whether any decisions by the civic organization there has been a violation.9 Civic organiza- about where it should establish its banking

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 175 baku_book.qxd 2003. 01. 21. 15:51 Page 176

business or obtain a loan. ees for redress of any harm caused by a In addition to procedural rules, the law conflict of interest or return of any profits should provide that financial transactions resulting from the improper behavior. between a civic organization and its officers, board members, or employees be conclud- Discussion ed at fair market value or on terms more This right should be part of the general favorable to the civic organization. . . . laws applicable to all legal persons, includ- C. A civic organization should be entitled to ing civic organizations. sue its officers, board members, or employ-

*Chapter 4, Open Society Institute and Inter- tain the objective of the association, the national Center for Not-for-Profit Law, Guide- endowment, the source of its donations, and lines for Laws Affecting Civic Organizations the framework for the management and admin- (OSI, revision forthcoming 2002). This chapter istration of the same. Article 60(2) provides is reproduced with permission of the Open that the statutes must determine the condition Society Institute. for the admission and exclusion of members 1 Many laws regulating civic organizations set and the rights and obligations of members and minimum standards for governance. For exam- the procedures for terminating the association. ple, the Czech Republic Act on Public Benefit 4 The Constitutional Court of Croatia has Corporations (1995) states: “The Board of ruled that freedom of association also encom- Directors shall have at least three (3) and at passes the freedom of founders to regulate the most fifteen (15) members. The number of association’s internal governance. The Court members of the Board of Directors shall be held that § 11.3 of the Croatian Law of Asso- always divisible by three. At least two thirds of ciations, which prescribed a number of issues the members of the Board of Directors shall to be addressed in an organization’s bylaws. be citizens of the Czech Republic.” Art. 10. The Court held that these issues should be left 2 Under Article 10 of the Civil Code of Chile, to the discretion of founders or addressed in the members of the Board of Directors of an other acts. Decisions of the Constitutional association are elected at the annual meeting of Court of Croatia on 3 Feb. 2000, Official the Asamblea General Ordinaria. Under Arti- Gazette No. 20 (16 Feb. 2000). See also Dragan cle 14 the function of the Directors is to direct Golubovic, Croatian Constitutional Court Strikes the corporacion and administer its assets; Down a Number of Provisions in the Law on Asso- report to the Asamblea General Ordinaria; ciations, 2 Int’l J. of Not-for-Profit Law 3 (Mar. submit to the approval of the Asamblea Gen- 2000), at eral Ordinaria proposals, a budget, and any www.icnl.org/journal/vol2iss3/cn_croatia1.ht other business matters which are necessary for m. the functioning of the corporacion. 5 The Estonian Non-profit Associations Act, 3 Under Article 60(1) of the Bolivian Civil sec. 7(8), requires that the Articles of associa- Code, the statutes of an association must con- tion of a non-profit include “the number of

176 • ENABLING CIVIL SOCIETY baku_book.qxd 2003. 01. 21. 15:51 Page 177

members of the management board or the one in which a US state attorney general inter- maximum and minimum number of mem- vened and asked a probate court to appoint bers.” (Note that sec. 7 has two paragraphs new trustees—is found in the case of Kona numbered 8.) Enters v. Estate of Bishop, 51 F. Supp. 2d 1048 (D. 6 This is known, even in the not-for-profit sec- Haw. 1998), aff’d 179 F. 3d 767 (9th Cir. Haw. tor, as the “business judgment rule.” This rule 1999). See also, Randall W. Roth, Overview of the protects directors from liability for decisions Bishop Estate Controversy, 1 Int’l J. of Not-for- made reasonably and in good faith in the Profit Law 2 (Dec. 1998), at course of conducting operations, even if they http://www.icnl.org/journal/vol1iss2/index.h turned out to be disadvantageous to the orga- tml. nization. The Australian Corporate Law Eco- 8 In a recent Scottish case, the Court found that nomic Reform Program Act of 1999 amended two members of the Muslim community had the Corporations Law § 180(2) to provide such standing to sue to correct mismanagement of a protection. The amendment—which only pro- trust established to advance the teaching of tects directors and officers from civil duty of Islam. The court held that the petitioners were care and diligence imposed by § 180(1) and not beneficiaries, but their membership and common law/equity equivalents—provides participation in the community was a substan- that the director or officer will be found to have tial enough connection to enable them to sue. met his duty so long as he (1) makes the judg- Shariff v. Hamid, 2000 S.L.T. 294 (Outer House ment in good faith for a proper purpose, (2) 1999). does not have a material personal interest in the 9 For example, the Albanian Law on Non- subject matter of the judgment, (3) informs Profit Organizations (No. 8788, May 7, 2001) himself about the subject matter of the judg- states that “a conflict of interests between a ment to the extent he reasonably believes to be non-profit organization and a member of the appropriate, and (4) rationally believes that the decision-making or executive organ or its judgment is in the best interests of the corpo- employees is not permitted.” Id. at Art. 26. Arti- ration. The law further provides that this fourth cle 27 provides that in case of a conflict of “rational belief” element will be found to be interest, whether direct or indirect, economic satisfied “unless the belief is one that no rea- or personal, the person with the conflict must sonable person in [his] position would hold.” withdraw from participating in the issue. 7 An extreme example of trustees gone awry—

THE ENABLING ENVIRONMENT FOR NGO GROWTH AND DEVELOPMENT • 177 baku_book.qxd 2003. 01. 21. 15:51 Page 319

BIBLIOGRAPHY AND OTHER RESOURCES

PUBLICATIONS: Commonwealth Foundation, Non-Governmental Organizations: Guidelines for Good Policy and Practice (1995) Council of Europe, Council of Europe—Freedom of Association (1994) D. J. Harris and J. Darcy, The European Social Charter (2nd ed., 2001) International Labour Organization Freedom of Association: Digest of Decisions and Principles of the Freedom of Asso- ciation Committee of the Governing Body of the ILO (4th ed., revised, 1996) International Labour Standards (4th ed., revised, 1998) Lawyers Committee for Human Rights, The Neglected Right: Freedom of Association in Inter- national Human Rights Law (December 1997) (available at http://www.lchr.org/pubs/neglrt.htm) Open Society Institute and International Center for Not-for-Profit Law, Guidelines for Laws Affecting Civic Organizations (OSI, revised, forthcoming 2002) OSCE/ODIHR “Freedom of Association: The Question of NGO Registration,” OSCE Human Dimension Implementation Meeting, Background Paper 5 (October 1998) [available at http://www.osce.org/odihr/documents/background/ngobackg.pdf] “NGOs in the Caucasus and Central Asia: Development and Co-operation with the OSCE Organization,” OSCE Human Dimension Implementation Meeting, Background Paper 2000/1 (October 2000) [available at http://www.osce.org/odihr/documents/back- ground/bp00-1-ngo.pdf] Lester M. Salamon, The International Guide to Nonprofit Law (John Wiley & Sons, Inc., 1997)

319 baku_book.qxd 2003. 01. 21. 15:51 Page 320

INTERNET RESOURCES AND ORGANIZATIONAL LINKS: Aarhus Convention and Implementation Guide: http://www.unece.org/env/pp Council of Europe: http://www.coe.int European Court of Human Rights: http://www.echr.coe.int International Labour Organization: http://www.ilo.org Organization for Security and Cooperation in Europe: http://www.osce.org United Nations: http://www.un.org UN Development Program: http://www.undp.org UN High Commissioner for Human Rights: http://www.unhchr.org UN High Commissioner for Refugees: http://www.unhcr.org UNICEF: http://www.unicef.org World Bank: http://www.worldbank.org

INTERNATIONAL NON-GOVERNMENTAL ORGANIZATION LINKS: Amnesty International: http://www.amnesty.org Central and East European Law Initiative, American Bar Association: http://www.abanet.org/ceeli CIVICUS: http://www.civicus.org Committee to Protect Journalists: http://www.cpj.org Commonwealth Foundation: http://www.commonwealthfoundation.org European Foundation Centre: http://www.efc.be Human Rights Watch: http://www.hrw.org Fédération Internationale des Ligues des Droits de I’Homme (FIDH): http://www.fidh.org INTERIGHTS: http://www.interights.org International Center for Not-for-Profit Law: http://www.icnl.org International Commission of Jurists: http://www.icj.org International Helsinki Federation for Human Rights: http://www.ihf-hr.org International League for Human Rights: http://www.ilhr.org Lawyers Committee for Human Rights: http://www.lchr.org Open Society Institute: http://www.soros.org Open Society Institute–Assistance Foundation Azerbaijan: http://www.osi-az.org Open Society Institute Central Eurasia Project: http://www.eurasia.org Public Interest Law Initiative: http://www.pili.org

320 • ENABLING CIVIL SOCIETY baku_materials.qxd 2003. 02. 21. 15:56 Page i

E NABLING C IVIL S OCIETY

Practical Aspects of Freedom of Association Azerbaijan Materials baku_materials.qxd 2003. 02. 21. 15:56 Page ii baku_materials.qxd 2003. 02. 21. 15:56 Page iii

E NABLING C IVIL S OCIETY

Practical Aspects of Freedom of Association Azerbaijan Materials

P UBLIC I NTEREST L AW I NITIATIVE Columbia University Budapest Law Center BUDAPEST • HUNGARY

with the support of

O PEN S OCIETY I NSTITUTE - ASSISTANCE F OUNDATION BAKU • AZERBAIJAN baku_materials.qxd 2003. 02. 21. 15:56 Page iv

Copyright © 2003 by the Public Interest Law Initiative, Columbia University Kht.

All rights reserved. Parts of this book may be quoted or distributed as long as the Public Interest Law Initiative is duly acknowledged as the source. No part of this publication may be reproduced or transmit- ted for commercial purposes without permission in writing from the Public Interest Law Initiative.

ISBN: 0-9662725-8-7

Price: $9.95

Public Interest Law Initiative Public Interest Law Initiative Columbia University Budapest Law Center Columbia Law School Szent István tér 11/c, 7th Floor Mail Code 3525 1051 Budapest 435 West 116th Street Hungary New York, NY 10027, USA Tel: (36-1) 327-3878; Fax: (36-1) 327-3879 Tel: (1-212) 851-1060; Fax: (1-212) 851-1064

E-mail: [email protected] Web: www.pili.org

Cover Design and Layout: WebGrafika Studio

Copy Editing: Richard Slovak

Printed in Azerbaijan

Parts of the following publications have been excerpted or adapted with permission: Annagi Hajiev, Freedom of Association in Azerbaijan: An Analysis of the Laws That Affect Civic Organizations (OSI-AF, 2001). baku_materials.qxd 2003. 02. 21. 15:56 Page v

ACKNOWLEDGMENTS

Enabling Civil Society: Practical Aspects of Freedom of Association, Azerbaijan Materials, which is a companion volume to a Source Book of the same name, is a compilation of key laws, decrees, and court decisions affecting non-governmental organizations (NGOs) in Azerbaijan. It also includes a seminal work on this area of the law by Annagi Hajiev. It is the hope of the Public Interest Law Initiative (PILI) and the Open Society Institute–Assistance Foundation Azerbaijan (OSI-AF) that this volume can serve as a useful resource for NGOs and others in Azerbaijan in dealing with challenges undermining the growth and development of NGOs and the wider civil society. We hope that it can be a dynamic resource as well, which can be updat- ed to reflect ongoing changes in law and practice in Azerbaijan. Azerbaijan Materials has been compiled by Columbia University’s PILI in close cooperation with, and with the assistance of, OSI-AF. The effort was led by Edwin Rekosh, the Executive Director of PILI, with assistance from Patricia Armstrong, consultant to PILI. Farda Asadov, the Executive Director, and Fuad Suleymanov, the Law Coordinator in the Civil Society Department, led the OSI-AF contribution. The publishing process was ably overseen by Elvin Aliyev, PILI Legal Fellow, and Eniko Garai, PILI Executive Assistant. For his cooperation and contribution to this volume, we would like to thank Annagi Hajibeyli, to whom we are very grateful. We want to acknowledge and express our appreciation for the work of Professor Jeremy McBride and the Council of Europe on issues of freedom of association in Azerbaijan. Their work has been important in the development of an enabling environment for civil society in Azerbaijan. And we also wish to acknowledge the willingness of the Government of Azerbaijan to openly discuss NGO concerns and consider seriously the importance of greater openness to enable the Azeri third sector to be a full, engaged and constructive participant in the development of Azerbaijan. Finally, PILI is grateful for the generous support of the Open Society Institute, Budapest, and OSI-AF. baku_materials.qxd 2003. 02. 21. 15:56 Page vi baku_materials.qxd 2003. 02. 21. 15:56 Page vii

C ONTENTS

Introduction 1

One NATIONAL LAW AND PRACTICE REGARDING FREEDOM OF ASSOCIATION IN AZERBAIJAN 3 1.1 Freedom of Association in Azerbaijan: Analysis of the Laws That Affect Civic Organizations, by Annagi Hajibeyli 3 1.2 The Role of the Judiciary in Protecting Freedom of Association in Azerbaijan, by Public Interest Law Initiative 30

Two RESOURCES: NATIONAL LAW OF AZERBAIJAN 33

Bibliography and Other Resources 61 baku_materials.qxd 2003. 02. 21. 15:56 Page viii baku_materials.qxd 2003. 02. 21. 15:56 Page ix

TABLES

TABLE OF SIDEBARS International Human Rights Law Regarding Freedom of Association in Force in Azerbaijan 3 Azerbaijan’s Commitments to the Council of Europe Related to Freedom of Association 7

TABLES OF RESOURCES • Constitution of the Azerbaijan Republic, Selected Provisions 33 Article 25 (Right to Equality) 34 Article 36 (Right to Strike) 34 Article 47 ( and Speech) 34 Article 49 (Freedom of Assembly) 34 Article 50 () 34 Article 58 (Freedom of Association) 34 Article 60 (Guarantee of Rights and Liberties by Law Court) 34 Article 69 (Rights of Foreign Citizens and Stateless Persons) 34 Article 127 (Principles of Justice) 34 Article 148 (Acts Constituting Legislative System) 35 Article 151 (Legal Force of International Acts) 35 • Constitutional Court Act, Article 11 35 • Law on the Grant 35 • Decree of President on Law on the Grant 35 • Decree of Cabinet of Ministers According to Law on the Grant 37 • Civil Code, Chapter IV, Legal Entities, Articles 43, 47, 48, 50, 114–119 38 • Law on State Registration of Legal Entities (1996) 39 • Law on Non-Governmental Organizations 42 • Decree of President on Implementation of Law on Non-Governmental Organizations 46 • Tax Code, Excerpts 47 Chapter I, Article 13 (Main Definitions) 47 Chapter IX, Article 106 (Exemptions and Privileges) 47 Chapter X, Article 109 (Non-Deductible Expenses) 47 Chapter XI, Article 164 (Exemption from Tax) 47 Chapter XIII, Article 199 (Property Tax) 47 • Law on Trade Unions, Articles 1–6, 10, 11, 16, 17, 19 48 • Constitutional Law on the Human Rights Commissioner (Ombudsman) 50 • Law on Presidential Elections, Article 4 54 • Law on Procedure of Elections to Municipalities, Articles 10, 12, 15, 17 54 • Decision, Constitutional Court, on Interpretation of Article 5, Item 3, of the Law on the Grant, 26 October 1999 55 • Decision, Constitutional Court, on Interpretation of Article 109.5 of the Law on Courts and Judges, 27 June 2001 58 baku_materials.qxd 2003. 02. 21. 15:56 Page x baku_materials.qxd 2003. 02. 21. 15:56 Page xi

E NABLING C IVIL S OCIETY

Practical Aspects of Freedom of Association Azerbaijan Materials baku_materials.qxd 2003. 02. 21. 15:56 Page xii baku_materials.qxd 2003. 02. 21. 15:56 Page 1

I NTRODUCTION

Since independence in 1991, civil society in mitments is provided in the companion Source Azerbaijan has grown and is in the early stages of Book. becoming an active and constructive participant in The ratification of these international agree- issues of national importance. Central to the devel- ments constitutes Azerbaijan’s commitment to opment of civil society—and its ability to con- bring its domestic law into conformity with the tribute to Azerbaijan’s economic, political, and cul- international standards set out in those instru- tural development—is freedom of association, the ments, in both content and application. Article 151 ability of citizens to interact and organize with and of the Azeri Constitution states: “Whenever there among one another for any purposes that are not is disagreement between normative legal acts in the illegal and do not infringe on the rights of others. legislative system of the Azerbaijan Republic Associational rights require supportive laws, (except the Constitution of the Azerbaijan institutions, and practices in order to find mean- Republic and acts accepted by way of referendum) ingful exercise. In the past decade, Azerbaijan has and international agreements wherein the undertaken much legal reform intended to bring it Azerbaijan Republic is one of the parties, provi- into compliance with international norms general- sions of international agreements shall prevail.” ly, and with European standards in particular. As Nonetheless, non-governmental organizations regards freedom of association, not only does the (NGOs) in Azerbaijan face numerous obstacles in Constitution of the Azerbaijan Republic guarantee conducting even the most basic of their affairs. the equal right of persons to freely gather and Indeed, the ability to register is an initial hurdle form organizations with others, but recent legisla- many NGOs have not been able to cross. More tion and international commitments provide a generally, the Government has been unwilling or basis for the realization of these guarantees. unable to enforce uniformly and effectively those Azerbaijan has ratified a number of important laws that affect NGOs. Compounding the problem international treaties, among them the International is a high level of mutual distrust between the Covenant on Civil and Political Rights, the Government and civil society, resulting in laws, Convention on the Elimination of All Forms of policies, and procedures being formulated without Discrimination Against Women, the Convention the participation of the NGOs that are affected. on the Rights of the Child, and, most recently, the Government and civil society must work European Convention of Human Rights. (See together to implement Azerbaijan’s new commit- sidebar on international treaties in force in ments if civil society is to be able to make needed Azerbaijan.) The European Convention, in force in contributions to economic and social development Azerbaijan as of 15 April 2002, together with in the country. Enabling Civil Society: Practical Aspects Azerbaijan’s accession to the Council of Europe, of Freedom of Association is intended to be a resource gives new strength to freedom of association prin- in that effort. In two parts—A Source Book and ciples. (See sidebar on Azerbaijan’s commitments Azerbaijan Materials—it aims to provide informa- related to freedom of association in advance of its tion and assistance to Azeri NGOs and accession.) In many of these agreements, Government officials alike on relevant law and Azerbaijan has agreed to respect, protect, and good practice, both national and international. encourage the right to freedom of association. A This volume, of Azerbaijan Materials, addresses the more extensive discussion of international com- Azeri national situation. It includes an analysis of baku_materials.qxd 2003. 02. 21. 15:56 Page 2

freedom of association in Azerbaijan by Annagi Azeri NGOs. The law and practice in Azerbaijan Hajiev and a discussion of the ability of the Azeri continue to develop. We hope this volume will be a judiciary to protect civil society (chapter 1). For dynamic resource that can reflect relevant law and further reference, chapter 2 contains excerpts of practice as they emerge. relevant laws, decrees, and court decisions affecting

2 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 3

One N ATIONAL L AW AND P RACTICE R EGARDING F REEDOM OF A SSOCIATION IN A ZERBAIJAN

1.1 FREEDOM OF ASSOCIATION IN AZERBAIJAN: AN international standards on the freedom of associa- ANALYSIS OF THE LAWS THAT AFFECT CIVIC tion. ORGANIZATIONS* NGOs functioning in conformity with the By Annagi Hajibeyli Azerbaijan Republic’s Constitution, international norms and domestic laws have become one of the Introduction realities of contemporary Azerbaijan society. The Open Society Institute’s publication, Unfortunately, the problems related to the law on “Guidelines for Laws Affecting Civic registration, taxes, relationship of NGOs with gov- Organizations” mentions several reasons for ernmental bodies and their implementation ham- enacting NGOs laws that allow for a strong and per NGOs development. Hundreds of NGOs independent third sector. Some of these reasons operate without being officially registered; in many are: cases these NGOs work more actively than those • To realize the freedoms of expression, that are registered. Such a situation is caused by thought and association; strict registration requirements set out in the laws • To stimulate pluralism and tolerance; and relating to NGOs and registration of legal entities, • To support a economy. as well as the arbitrary interpretation and applica- tion of these laws by government officials. The These political and economic reasons are vital major problem is related more to the arbitrary issues for every state, especially for those in transi- actions of government officials than to the incom- tion from a centrally to a market patibility of the domestic legislation with interna- based economy, from an authoritarian regime to a tional standards. Because the courts and other gov- democratic state, and from the rule of rulers to the ernment bodies do not function properly, govern- rule of law. The existence of a strong, independent ment officials are free to interpret legal norms as third sector is one of the most important condi- they please without worry that their decision will tions for creating a vibrant civil society. The main be overturned by a court. criteria for measuring the state’s sincerity to create Azerbaijan’s admission to the Council of a strong, independent third sector are whether Europe created some high expectations that such democratic laws regarding NGOs have been barriers would soon be eliminated. These expecta- adopted, whether these laws are properly enforced, tions have not been met but to some extent, there and whether favorable environment for NGOs has been some advancement. Since late 1999, a operations exist. This report was commissioned by large number of NGOs that had been denied reg- the Open Society Institute to review the current istration on several occasions have successfully reg- status of the laws regulating the third sector in istered. Also, the adoption of a new law on NGOs Azerbaijan, the legal problems facing NGOs, and is a step forward. whether the legal regime is in accordance with the

ENABLING CIVIL SOCIETY • 3 baku_materials.qxd 2003. 02. 21. 15:56 Page 4

The Relationship of Civic Organization Laws domestic legislation to recognize and protect the to Other Laws rights enumerated in these documents. The Relationship of Civic Organizations Laws to Inter- Accordingly, Azerbaijan may only restrict the free- national Law Guaranteeing Freedoms dom of association and peaceful assembly if the The rights to peaceful assembly and association are restriction is prescribed by law and is necessary to provided for in a number of international declara- serve the legitimate interests of national security, tions and treaties, these include the Universal public order, public morals or health, or the rights Declaration of Human Rights of 1948 (see, articles or freedoms of others. 19 and 20) and the International Covenant on Civil Article 11 of the European Convention on and Political Rights of 1966 (see articles 21 and Human Rights of 1950 provides for the freedom 22). In 1992 the Azerbaijan Republic ratified the of association. [As a result of its accession into the ICCPR and in so doing, Azerbaijan undertook to Council of Europe, Azerbaijan ratified the Euro- make necessary changes and amendments to their pean Convention.] . . . .

INTERNATIONAL HUMAN RIGHTS LAW REGARDING FREEDOM OF ASSOCIATION IN FORCE IN AZERBAIJAN ( as of December 1, 2002 )

Universal Declaration of Human Rights, Articles 20, 29(2) International Covenant on Civil and Political Rights, Article 22 (13 August 1992) International Covenant on Economic, Social and Cultural Rights, Article 8 (13 August 1992) International Convention on the Elimination of All Forms of Racial Discrimination, Article 5 (16 August 1996) Convention on the Elimination of All Forms of Discrimination Against Women, Article 7 (10 July 1995) Convention on the Rights of the Child, Article 15 (13 August 1992) Convention Concerning Freedom of Association and Protection of the Right to Organize, ILO Convention No. 87, Part I, Articles 1-10 (19 May 1992) Convention Concerning the Application of the Principles of the Right to Organize and to Bargain Collectively, ILO Convention No. 98 (19 May 1992) European Convention of Human Rights, Article 11 (15 April 2002) Protocol [No. 1] to the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (15 April 2002) Protocol No. 4 to the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, as amended by Protocol No. 11 (15 April 2002) Protocol No. 6 to the [European] Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty, as amended by Protocol No. 11 (1 May 2002) Protocol No. 7 to the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (1 July 2002) Protocol No. 11 to the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby ( 15 April 2002) Framework Convention for the Protection of National Minorities, Articles 3, 7, 8 (26 June 2000) European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1 August 2002) Protocol No. 1 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1 August 2002) Protocol No. 2 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1 August 2002) Final Act of the Conference on Security and Cooperation in Europe (8 July 1992) Charter of Paris for a New Europe (20 December 1993)

4 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 5

Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Paragraphs 7, 7.6, 9, 9.3, 10, 10.3 and 10.4 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), Article 3(4) (30 October 2001) UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to pro- mote and Protect Universally Recognized Human Rights and Fundamental Freedoms (adopted by con- sensus of the General Assembly 9 December 1998)

The Relationship of Laws Governing Civic Organizations In some cases these norms have superior Laws to Other Laws in the Legal System power, consistent with international human rights A generally accepted opinion is that the NGO documents but are restricted by provisions of laws serve as safety valve for social tension and other legislative acts. For instance, article 12 of the energy that build up inevitably in any society. To Law on Mass Media (1992/231), groundlessly reduce social tension citizens should be ensured extends the scope of cases when abuse of the free- the autonomy to deal with societal problems and dom of the media is prohibited. It also extends the the opportunity to freely express their attitude scope of information regarded as state secret, toward political and economic events. A state empowers the executive to confiscate media prod- monopoly over addressing all problems increases ucts without a court decision (article 36) and pro- social tension; the attempt to pacify citizens mar- hibits the use of audio-visual technology and ginalizes the people, and blocks the establish- video-recording by journalists without permission ment of an open civil society. of officials (article 59). The essential and necessary legal basis to Article 58 of the Constitution states that every- ensure a favorable environment for NGOs are one has the right to associate with others. the Constitutional guarantees of freedom of Everyone has the right to found and belong to an association and the laws that give this provision organization, as well as a political party, trade union effect. Azerbaijan’s 1995 Constitution conforms or other social community. The free functioning of to the international human rights standards and organizations is guaranteed. No one may be forced principles on the right to freedom of assembly to join or remain a member of an organization. and association. Article 49 of the Constitution Organizations created with the intent to overthrow states that everyone has the right to peacefully legal governmental power within the whole territo- assemble, hold meetings, demonstrations, hold ry or in any part of Azerbaijan are prohibited. pickets, street procession, provided that appro- Organizations accused of violating the Consti- priate government bodies have been informed in tution may be liquidated by a court order. advance. Though the last section of the article contains The Law on Freedom of Peaceful Assembly a number of restrictions, in comparison with those (1998/357), which was intended to improve the defined by laws enacted before the adoption of the constitutional provision, actually contains more Constitution, they are more reasonable and demo- restrictions than improvements. The entire third cratic. The new Law on Non-Governmental chapter of the law, articles 7-11 and other provi- Organizations (Social Communities and Foun- sions, deal with restrictions and preliminary noti- dations) contains fewer absurd restrictions than the fication requirement has been replaced by prelimi- Law on Social Communities (1992/368). Article 2 nary permission. Articles 47 and 50 of the of the new law stipulates that purposes of a foun- Constitution provide for the freedom of expres- dation and operation of an NGO must be consis- sion and the press.1 tent with the Constitution and the laws of the

ENABLING CIVIL SOCIETY • 5 baku_materials.qxd 2003. 02. 21. 15:56 Page 6

Azerbaijan Republic. viduals and organizations, and causes many prob- Non-governmental, not-for-profit organiza- lems and results in the restriction of rights. The tions are defined as including “social communities” Lawyers Association managed to bring a case to and “foundations” in the title and articles 1 and 2 the Constitutional Court by appealing through the of the new law. The reason why these organiza- Attorney General’s office. The Association’s appeal tions are called “social communities” in the resulted from the Mayor of Baku’s decree that Constitution, “non-commercial organizations” in imposed a public utility rate hike of more than a the Civil Code (1999/779-1G), and “non-govern- thousand percent. The Constitutional Court, in mental organizations” in the Law on NGOs is not reviewing the application, revoked the decree and clear. Presumably, the three-component term was recommended that it be brought into conformity used in the new Law in order to reach conformity with other legislation. Unfortunately, other success with the Constitution. Nevertheless for at least two stories are hard to come by. reasons, this “innovation” gives rise to problems. The term “non-governmental organization” Legal Existence of Civic Organizations should have been used in the title of the law or all Creation the forms of NGOs (centers, societies, clubs, asso- The Law on Non-governmental Organizations, ciations, charities) should have been enumerated. which uses the terms “social community” and The “terminological anarchy“ that surrounds laws “foundation,” states in articles 2, Sec. 2 and 3: governing NGOs has had an impact in Azerbaijan. Apart from the terms “non-governmental” and A ‘social community’ is a voluntary, self reg- “non-commercial,” the term “non-profit” is also ulating non-governmental organization used. The wide variety of organizations involved in formed by the initiative of a number of the third–sector make it difficult to establish rigid people associated on the basis of objectives terms. In fact, no single term can carry the entire specified in constituent documents and meaning. If the term “non-governmental organiza- common interests, and which does not tion” stresses the relationship of the organization intend to gain profit as a main goal of its to the government, the terms “non-commercial” activity, share gained profit among its mem- and “non-profit” bring economic activity to the bers. A foundation is an NGO with no foreground. To include every NGO in one catego- members, set up by a number of natural ry is to give an incomplete picture and can be mis- persons and /or legal persons on the leading. Many organizations undertake a wide grounds of voluntary endowments, to carry range of activities, but are labeled according to a out civic, charitable, cultural, educational or single criterion. other socially useful objectives. To understand and apply the law on NGOs apart from other laws in Azerbaijan is nearly Article 2 identifies three distinctive features of impossible. For example, the legal provisions gov- a social community: (1) it is creation by a number erning NGOs’ activity and the norms regulating of persons with shared interests; (2) it is self-reg- the responsibility of a legal entity to its employees ulating; and (3) the main goal of its operation is are set forth in different laws. Requiring re-stipula- not to make a profit. The main characteristics of a tion of these provisions in the law on NGOs is foundation are that it has no members and natural unnecessary, though, in practice, this situation cre- and/or legal persons create it to achieve socially ates difficulties and confusion for the leaders of useful goals. NGOs. Unfortunately, some specific features defined Another important restriction is the prohibition in materials issued by international organizations on appealing decisions directly to the are not reflected in these definitions. Articles 2-4 Constitutional Court. This rule effects both indi- of the new law fails to give an adequate definition

6 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 7

of these organizations. Article 4 of the law stipu- munity.” On the one hand, by not indicating lates: “Non-governmental organizations may be NGOs organizational legal forms, the law allows a established in any legal organizational form.” variety of NGOs. On the other hand, by specify- However, it is difficult to characterize a wide range ing the main forms and features of social commu- of different, multi-faceted organizations using the nities, the law contributes to confusion for those features enumerated above. who intend to form a NGO. In Azerbaijan, about 1,400 various types of The decision of the founders and the adoption NGOs (foundations, charities, children’s and of the organization’s statutes (or bylaws) is youth organizations) are registered and function- required to establish an NGO (article 12 of the ing without being properly classified. The absence Law on NGOs). The Law on Social Communities of legal classification results in disputes and dis- does not provide for creation by a single person, agreements between citizens and government nor does the Law on NGOs because under article bodies in charge of registration. 2, an NGO is an organization created by the ini- The organizational legal forms were also not tiative of a number of people. One person cannot specified in the Law on Social Communities. The establish an NGO. In practice the Ministry of Law on Social Communities provides a rather Justice requires the presence of at least three primitive definition of the concept a “social com- founders.

ASSURANCES OF THE GOVERNMENT OF AZERBAIJAN RELATED TO FREEDOM OF ASSOCIATION THAT LEAD TO ITS MEMBERSHIP IN THE COUNCIL OF EUROPE

From Opinion No. 222 by the Parliamentary Assembly (2000) [text adopted on 28 June 2000]

14. The Parliamentary Assembly takes note of the letters from the , the speaker of the parliament, the Prime Minister and the chairmen of the political parties represented in Parliament, and notes that Azerbaijan undertakes to honour the following commitments: i. as regards conventions: a. to sign, at the time of its accession,[*] the European Convention on Human Rights (ECHR) as amend- ed by Protocols Nos. 2 and 11 thereto, and Protocols Nos. 1, 4, 6 and 7; b. to ratify the ECHR and Protocols Nos. 1, 4, 6 and 7 thereto during the year following its accession; . . . . d. to sign and ratify, within one year of its accession, the Council of Europe’s Framework Convention for the Protection of National Minorities; . . . . h. to sign the European Social Charter within two years of its accession and ratify it within three years of its accession, and to strive forthwith to implement a policy consistent with the principles contained in the Charter; . . . .

iii. as regards domestic law: . . . e. to adopt, within one year of its accession, the law on the Ombudsman; . . . .

iv. as regards human rights and fundamental freedoms: . . . . d. to guarantee freedom of expression and the independence of the media and journalists, and particular- ly to exclude the use of administrative measures to restrict the freedom of the media; e. to re-examine and amend the law on the media, within two years of its accession at the latest; f. to turn the national television channel into a public channel managed by an independent administrative board; g. to adopt, within three years of its accession, a law on minorities which completes the provisions on non- discrimination contained in the constitution and the penal code and replaces the presidential decree on national minorities;

ENABLING CIVIL SOCIETY • 7 baku_materials.qxd 2003. 02. 21. 15:56 Page 8

h. to re-examine and amend, at the latest within one year of its accession, the rules governing registration of associations and appeals procedures; . . . .

15. The Parliamentary Assembly notes that Azerbaijan shares fully its understanding and interpretation of the commitments entered into, as spelt out in paragraph 14 and intends: i. to re-examine and amend the law on the Bar, at the latest within three years of its accession; ii. to re-examine the conditions of access to the Constitutional Court and grant access also to the Government, the Prosecutor General, courts at all levels and – in specific cases – to individuals, at the latest within two years of its accession; iii. to re-examine and amend the procedures for appointing judges and the duration of their term of office, at the latest within three years of its accession.

16. On the basis of these commitments, the Assembly is of the opinion that, in accordance with Article 4 of the Statute of the Council of Europe, Azerbaijan is able and willing to fulfill the provisions of Article 3 of the Statute, setting forth the conditions for membership of the Council of Europe: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the real- isation of the aim of the Council (of Europe). . . ”

*Accession occurred on 25 January 2001.

Registration means. More than 60 percent of 240 NGOs that The Law on Social Communities (1992/368) (arti- are members of the NGO Forum are not regis- cles 5-11), as well as the Law on Public Registration tered. Most, if not all, have applied for registration. of Legal Persons (1996/17-1G) (article 2) and the According to article 14 of the Law on Public Civil Code (1999-779-1G) (article 25-1) require the Registration of Legal Persons (1996/17-1G) and registration of all legal entities. Under these laws, to other aforementioned norms, a certificate of public obtain the status of a legal entity, the organization registration is the primary document that enables must by officially registered by the Ministry of an organization to have its own seal, stamp, letter- Justice within 10 days. head and commodity mark. These allow the organ- Though the law does not allow for an inordinate ization to open a bank account and be registered number of reasons by which an application for reg- with the governmental tax authorities. istration can be rejected, in practice a high percent- While it is true that an unregistered NGO can age of applications are rejected. The Ministry of operate, the absence of seal, stamp, bank account, Justice subjects many applications to an inappropri- registration by tax and social security authorities ately strict examination. Some are rejected outside deprive the organization of operating as a legal the scope of the law and most times the Ministry entity. This places heavy burdens on the founders does not provide written explanations. A large of the organization, both in terms of liabilities and number of applications are rejected for hidden logistics. political reasons, rather than for violations of the Currently, the economic situation in Azerbaijan registration procedure. This places heavy burdens is not good, most citizens do not enjoy a high stan- on the exercise of freedom of association and dard of living. As a result, grants from foreign inhibits the growth and development of the third organizations and foundations are the main source sector in Azerbaijan. of NGO support. It is almost impossible for an Though the Ministry of Justice does not pro- unregistered organization to receive such grants vide access to the information on the percentage of from foreign donors. Moreover, unregistered rejection cases, it can be determined by indirect organizations that are willing and able to operate

8 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 9

from private financial sources find it difficult to of the Ministry gives no grounds to suppose that carry out financial transactions. They do not receive on the day of submission of notification the any of the tax exemptions that an officially regis- NGO’s representative will be presented the docu- tered NGO receives. The founders are under con- ment confirming submission. Furthermore, notifi- stant threat of bearing responsibility for any illegal cation does not give the unregistered NGO the sta- action, such as, operating without registration. This tus of a legal entity, and so is not of considerable prevents unregistered organizations from undertak- significance to NGOs. ing any wide-scale or high profile activities. A NGO’s application for registration can be The best solution is to rescind all formal regis- rejected for the following reasons under article 17 tration principles and recognize the legality of of the Law on NGOs: unregistered organizations. Even if the formal reg- 1. Existence of another NGO under the same istration requirement is retained, the law should name; reduce the possibility for arbitrary review. The 2. Incompatibility of documents submitted process should be simplified so that is more a noti- for registration with the Constitution of the fication and less of a necessity for permission. It Azerbaijan Republic or this law or other would be better to use protocols of intention to laws; establish an organization rather than an application 3. Presenting of false information in the docu- for registration. The Ministry’s powers of review ments. should be limited in both scope and duration, and The Law on Public Registration of Legal Persons the recognition of legality should become automat- (1996/17-1G) (article 15) provides only two ically effective if the Ministry does not approve the grounds for rejection: protocol within the fixed time frame. 1. Violation of legal norms defining procedure Given the heavy bureaucracy and the discrimi- for establishment of legal persons; native attitude involved in the registration of 2. Inconsistency of constituent documents with NGOs, the authority to review the protocols and legislation. NGOs activities ought to be granted to the courts. The new Civil Code (article 48) also providers only It is true that the courts are not yet able to operate two grounds for rejection: independently of other branches of government, 1. Violation of the rules on the establishment but they are less political than the Ministry of of a legal person; Justice. 2. Inconsistency of the statute with article 47 of In contrast with the Law on Social Communities this Code (on the Statute of a legal Person). (1992/368), the new Law on NGOs provides for Because the reasons provided for rejection are two ways of legalizing NGOs: (1) notification on expressed differently in the three different laws on the formation of a social community (article 15); the subject, the Ministry has many opportunities to and (2) public registration of an NGO (article 16). arbitrarily deny legal personality to organizations. Under the first procedure, the Ministry of Justice A public register of NGOs is kept by the must receive a written application within 30 days Ministry of Justice in accordance with article 32 of after adopting the decision to form a social com- the Law on NGOs, article 13 of the Law on Public munity. The application, signed by an NGO’s Registration of Legal Persons(1996/17-1G), and leader, is to be supplemented by a protocol of the article 132 of the Civil Code. The register is open constituent meeting. On the day the written notice to the public (articles 48 and 134 of the Civil Code is received, the Ministry of Justice must provide or (1999/779-1G) but is difficult to obtain. The pub- post a document confirming submission of the lic has the right to review extracts from the registry notice to the leader. and make copies of registration documents. It is hard to believe that notification procedure However, the Ministry does not make the state reg- will succeed in practice. Red tape in the operation istry open enough to the public. Ministry officials

ENABLING CIVIL SOCIETY • 9 baku_materials.qxd 2003. 02. 21. 15:56 Page 10

decline to answer questions concerning registered required to either accept or reject the amendments NGOs and deliver no information on the state reg- within 10 days of receipt under article 18 of the istry to the media. Law on Public Registration of Legal Persons (1996/17-1G). “Organization legal forms” refer to The Responsible Organ of the State the types and terms of legal entities. The new Law The Ministry of Justice is authorized to register all on NGOs has created problems for NGOs. Under legal persons, including NGOs under article 4 of article 32, NGOs registered under the old law are the Law on Public Registration of Legal required to re-register in the state registry. The Persons”(1996/17-1G) and article 16 of the Law Ministry has abused this requirement to force revi- on NGOs Social Communities and Foundations sions in these NGOs’ structure. NGOs registered (1992/368). The Ministry’s internal regulations del- under the old law were enrolled in the state registry. egate this authority to the College of the Ministry There is no principal difference between the old of Justice and the Legal Persons Registration and new requirements so it is unnecessary and Department. The College is consultative body groundless to allow the Ministry to re-review the (board) that makes decisions by simple majority. NGO’s documents so that its name and contact The Legal Persons Registration Department is a data can be entered into the new state registry. Ministry division that administers applications for Article 14, Section 3, of the Law states: registration. It supervises compliance with the laws “Appropriate executive body of the government by all legal persons. The Department is only exercises registration of amendments made to empowered to register commercial entities. statute of an NGO. Amendments to the statute of Applications made by political parties, religious an NGO enter into force immediately after their organizations and NGOs are examined for consis- official registration.” Though this provision seems tency with the law and then passed on to the benign, in fact it creates obstacles to the operation College. The College is empowered to either accept of an NGOs by retarding its development and pre- or reject the application. If an application is reject- venting the abolition of obsolete prohibitions. ed, a written document indicating the reasons for Moreover, given that registering a NGO is a seri- the rejection and any violations of law or proce- ous problem, the requirements of article 14, sec- dure are to be submitted to the NGO’s representa- tion 3, provide ample opportunities for the gov- tive. ernment to deny NGOs the right to legal existence. A major problem with the registration process The law should enable NGOs to operate, to make occurs because the Departments overstep their necessary amendments to their basic documents authority. Although the College is required by law without any barriers. to decide on an NGO’s application for registration, If the main purpose of an organization in many instances, the Department decides to changes, or if it becomes a commercial organiza- reject an application without passing it up to the tion, re-registration is appropriate. But, in all other College for review. cases, amendments to an NGO’s founding docu- Though the law ensures the right to appeal any ments should not require re-registration. It is suffi- decision rejecting registration to a court, the lack of cient to notify the Department of the amend- an independent court system results in all cases ments. Unfortunately, the new law does not put an being decided in favor of the Ministry. In reality, end to the poor practice in the field of re-registra- the entire appeal procedure is a mere formality – tion. an idee fixe. Re-organization Amendments to Registration Re-organization is usually done following the liqui- Amendments to the organizational legal forms dation of an old NGO and the establishment of a require re-registration. The Ministry of Justice is new one. Five forms of re-organization are set out

10 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 11

in article 19 of the Law on NGOs. These are: article 19 of the Law on Public Registration of 1. Merging – creation of a new legal person by Legal Entities (1996/17-1G). These are: terminating independent existence of merg- 1. Voluntary liquidation of NGOs (re-organi- ing organization; zation); and 2. Joining – incorporation of one legal person 2. Compulsory liquidation of NGOs. to another; 3. Splitting-up – creation of new legal persons In the first situation, an NGO is terminated on the basis of a terminated one; under the decision of its highest body, usually the 4. Separation – disintegration of legal persons general assembly (conference, meeting). More from an existing one; and, detailed rules on termination are usually included 5. Transformation – alteration of the organiza- in the NGO’s statute (or other basic documents). tional – legal form of a legal person. Generally, voluntary termination takes place in the following cases: Re-organization under article 55 of the Civil • Achievement of the statute objectives; Code (1999/779-1G) can be done by a decision of • Impossibility of the achievement of the the founders (participants), the organization’s gen- statute objectives; or eral assembly or a court of law. Registration is not • Operations cease. required; under article 55, Section 4, one NGO is joined to another because one NGO is terminated. In the second situation (compulsory termina- The remaining NGO is considered re-organized tion), an NGO is terminated by a court order. after the Ministry receives the termination docu- Governmental bodies (the judiciary and procura- ments. cy), political parties, social communities and indi- Another nuance: It appears that article 19 of vidual citizens may initiate a suit to terminate an the Law on NGOs does not require re-registration, NGO under the Law on Social Communities but only re-enrollment in the state registry, which is (1992/368). The grounds for taking such action are considered re-registration under article 55 of the provided for in Sections 2, 3 of article 4 of the Civil Code. It is of not only theoretical importance, Law on Social Communities. These are engage- because the Ministry takes advantage of gaps, inac- ment in political activities or activities outside the curacies or contradiction in the legislation to scope of NGOs, conducting activities outside the increase the re-registration requirements. scope of the statute objectives, or violations of the After a decision on re-organization is made by laws. the NGO’s general assembly (conference, meet- Article 14 of the Law on Social Communities ing), the newly formed NGO should be officially (1999/368) extended groundlessly the circle of registered. Under article 19 of the law, an NGO is persons and government bodies that might file an considered as officially re-organized only after tak- action for termination of a social community. ing of appropriate records by the registration body. While political parties, social communities and cit- The rights and duties of the former NGO transfer izens did not have powers to terminate NGOs, to the newly established NGO in accordance with however to increase the number of persons having the deed of transfer under article 56 of the Civil the right to request termination of an NGO was Code (1999/779-1G). unnecessary. The new law does not solve all these problems. Termination, Dissolution and Liquidation One improvement is that the number of persons Clear and detailed regulations governing the termi- who have the right to request the termination of nation and liquidation are of great importance for an NGO is not as large as it was before. Although NGOs. Two forms of liquidation are provided for the new law does not contain any provisions indi- in articles 18, 20, and 31 of the Law on NGOs and cating these persons, it can be deduced that only

ENABLING CIVIL SOCIETY • 11 baku_materials.qxd 2003. 02. 21. 15:56 Page 12

the Ministry of Justice– as the body responsible for Structure and Governance registration– may bring an action to terminate an Mandatory Provisions for Organizational Documents NGO. The law requires an application be submitted to the The Civil Code does not provide a clear expla- Ministry of Justice to establish a NGO. The Law nation. It only stipulates that the government body on Registration of Legal Entities, article 8 holding the right to appeal for termination of an (1996/17-1Ã) requires that the following docu- organization may lodge such a claim. The grounds ments be attached to the registration application: for initiating liquidation are not clearly defined in 1. The NGO’s statute (regulations or other the new Law on NGOs (Social Communities and basic documents such as bylaws); Foundations). Article 31 of the Law provides only 2. A decision or constituent treaty on the for an abstract basis “carrying out actions inconsis- establishment of the NGO, except individ- tent with the purposes of the Law.” ual (family) enterprises; The purpose of the Law on NGOs is, “to reg- 3. A receipt for payment of registration fee; and ulate relations concerning the establishment and 4. A document confirming the founder’s functioning of foundations (other forms of NGOs address (location of a legal person, mailing are not mentioned) and to implement the right to address of a natural person). associate with others set forth in article 58 of Azerbaijan’s Constitution” (article 1 of the Law on A brief comment on terminology: The terms NGOs). It is difficult to determine what will be “statute” and “regulations” are generally used as considered as an infringement of this purpose and synonyms. Both of the words refer to constituent how a court will apply this norm. documents of a legal entity. There is almost no dif- Article 59 of the Civil Code stipulates five con- ference between these words in law or in practice. crete grounds: As a rule, the word “regulations” is used to address 1. Infringement of legislative norms while basic documents of governmental bodies. establishing a legal person; The submission of other documents not listed 2. Undertaking activities without having neces- in these provisions that are relevant to the estab- sary license or carrying out activities prohib- lishment of an NGO is only required if stipulated ited by a law; by law. In practice, however, the Ministry of Justice 3. Systematic and grave breaches of the law; requires two or three times the legally required 4. Engagement in activities inconsistent with documents. These extra items usually include a list statute objectives on regular basis; and of founding members, their addresses and places 5. Other cases specified in this law (Civil Code of employment, copies of service records, copies of 1999). of their passports, and the like. This goes far beyond the “certain minimum The Law on NGOs empowers the Ministry of provisions necessary to the operation and gover- Justice to warn a NGO that takes actions inconsis- nance of the organization” as recommended in tent with law and give directions on how to elimi- OSI’s Guidelines. Requiring extra documents, nate the violations (article 31). The NGO has the which are usually unimportant, greatly complicates right to file an appeal against the warning with a the registration process. Also, because the College court. In contrast to the Civil Code (1999), the Law of the Ministry of Justice determines whether to on NGOs provides other conditions: “If an NGO register a NGO, all the founders must make a trip gets more than two written warning letters or to Baku, the capital city, because it is effectively orders to eliminate violations within one year, it impossible to deliver the documents otherwise. It may be liquidated in accordance with article 20, by is also important to be in Baku because founders order of the court.” will be asked to respond to questions and provide explanations and present other documents.

12 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 13

Another ground to reject an application for ing membership can be appealed to a court of law. registration is provided in article 17 of the Law on Though provisions concerning membership NGOs. This article prohibits the submission of are clear, the same cannot be said of collective false information in the documents. In practice, membership, which, in practice, gives rise to many officials have abused this provision by interpret- questions. For instance, do all NGO members ing applications that contain minor careless mis- who took a decision to enter the collective mem- takes or inaccuracies as fraudulent. Moreover, if bership of another NGO automatically become the founder (or founders) is a natural person, the members of the latter? Whether the answer to constituent document must be notarized. this question is yes or no gives rise to further questions. If yes, then the legal freedoms of the Optional Provisions for Organizational Documents. persons voting against such collective member- Membership ship are violated. If no, then what rights and Membership issues are covered in articles 8-11 of duties do these persons have? If the NGO’s the Law on NGOs. Article 8 defines some new statutes and other basic documents do not terms such as “participant of an NGO” and address these issues, the law should provide a “assistant of an NGO.” “Participants” include default rule. founders, members and assistants. “Assistants” There is no constitutional basis for claiming are natural persons and legal persons (except gov- that an NGO’s members who oppose member- ernment and municipal bodies) that support the ship in another NGO automatically become NGO through participating in its activity, render- members of the latter. The Constitution requires ing services or help without having a formal rela- that the law recognize that collective membership tionship with the NGO. The purpose for and sig- duties are optional. Another gap in the law con- nificance of providing a legal definition for those cerns the relationship between collective mem- persons who support a NGO without a formal bers, social community and the individual mem- relationship is not clear. bers themselves. Addressing these issues will con- All natural persons and legal persons may be tribute to preventing confusion in this area. founders of an NGO (article 9). The minimum age requirement is 18 and persons over 16 can Liabilities of Officers, Board Members and Employees found a social community of youth. Government The new Law on NGOs contains no special pro- and municipal bodies cannot become a founder of visions regarding liabilities of board members, an NGO. Preventing those under 18 and munici- officers and employees. This is left to other laws pal bodies from founding a NGO is a groundless and the NGO’s statutes. Other laws impose finan- deprivation of the right to be a member of a cial, administrative and criminal responsibility for social community and negatively affects social failure to file required reports on time or fraudu- development. lently. The rights and duties of NGO members are The Law on NGOs generally refers only to the enumerated in article 10 of the Law on NGOs. responsibility of an NGO (article 31), which Any natural or legal person (except government states: “In cases of violation of the provisions of authorities and municipal bodies) may become a this law by an NGO, the NGO bears responsibil- member of a NGO. All members have equal ity under legislation of the Azerbaijan Republic”. rights. They have the right to elect or to be elect- The Civil Code (1999/779-1G) regulates issues ed to the NGO’s governing body, to participate in relating to responsibility of persons for breaches and control the activities of the NGO and all of contractual and tort duties. The Civil Code other rights provided in the NGO’s statute. The also stipulates norms on the responsibility of statute regulates the issues of admission and ter- legal persons, including social communities, mination of membership. Any decision terminat- though without identifying torts concretely.

ENABLING CIVIL SOCIETY • 13 baku_materials.qxd 2003. 02. 21. 15:56 Page 14

Article 52 of the Civil Code states: “A legal per- Responsibility of natural and legal persons for son with all its assets is responsible for its own lia- violations of tax laws, accounting rules, rules relat- bilities.” The founder (i.e., a “participant”) is not ing to statistics, licenses, currency exchange trans- responsible for a NGO’s liabilities nor is the NGO actions and sales is provided in the Code of responsible for a founder’s liabilities, except in cases Administrative Wrongdoings (1984/1869-X). The specified by the Civil Code or by the NGO’s Criminal Code (chapters 23, 24 on Crimes Against statute.” The founder’s responsibilities are Property, and Crimes in the Field of Economic addressed in article 46 of the Civil Code. A founder Activity) provides for criminal responsibility for bears joint responsibility for liabilities arising out of crimes against property and crimes in the econom- the creation of the NGO and all liabilities incurred ic field (robbery, embezzlement, concluding illegal while registration is pending. The Civil Code transactions, illegal or fictitious entrepreneurship requires that the person acting on behalf of a and illegal currency exchange transactions). NGO “act reasonably and in good faith for the Penalties include deprivation or restriction of lib- interests of the represented legal person” (article erty, confiscation of property, pecuniary fines, cor- 49). If not otherwise provided by a contract, the rectional labor, deprivation of the right to hold an representative is liable to redress any damage inflict- office or deprivation of the right to engage in a ed to the NGO by his or her misdeed. certain activities. The Labor Code (Chapter 32, articles 198-206; 1999/618-1Ã) regulates the material responsibility Duties of Loyalty, Diligence and Confidentiality of an employee for harm caused to employer. The NGO laws do not contain any provisions on Under article 198, an employee who causes harm to the duties of loyalty, diligence and confidentiality an employer is liable up to an amount not exceed- owed by directors and officers. These can be found ing one month’s salary. The employee will bear full in the Civil Code and the NGO’s statutes and other responsibility in the cases provided for in articles basic documents. In general, a person (or legal per- 199-200. These are: son) acting on behalf of the legal person is 1. When concluding an agreement to ensure the required to act honestly and in the interest of the preservation of assets given to the employee organization represented (article 49 of the Civil for preserving or for other purposes, and Code). If this duty is violated, the legal person is when in the process of labor relations, due entitled to compensation for the damage caused to to the nature of the work, an employee it. enters into agreement with an employer The law allows individuals to be simultaneous regarding his undertaking full material members of several NGOs but does not impose a responsibility; duty of confidentiality on directors, officers or 2. When an employee receives assets and other other members of several NGOs. Maintaining valuables on the basis of a power of attorney confidentiality of working plans, grant proposals provided that he/she will report to an and other projects is of considerable importance employer or representative of an employer; and some have turned to rules regulating “com- 3. When an employee commits an action or mercial secrets” as an alternative. The Law on omission punishable by administrative, crimi- Enterprises provides: “The commercial secret of nal or tax law; the enterprise is the information which does not 4. When an employee willfully spoils, destroys constitute a state secret and is related to the pro- or otherwise causes harm to an employer; duction, technological issues, management, finan- and, cial and other activity of the enterprise, and dis- 5. When the damage is caused as a result of the semination (delivery, loss) of which may cause employee’s drunkenness or drug abuse. harm to that enterprise” (article 39). Article 1 defines the enterprise as a business commercial

14 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 15

organization engaging in the production and sales addressed in the constituent documents. There is operation or the rendering of services. Extending no basis to consider this a distribution of profits. these provisions to non-commercial organizations is difficult. The Law on NGOs should provide for Private Inurement the duty of confidentiality of directors and offi- OSI’s Guidelines point out the accepted principle cers because the way NGOs operate is not similar that the law should not prohibit the employees of to the way commercial enterprises operate. a NGO from receiving just compensation for their efforts in the form of a salary and other Prohibition on Conflicts of Interest appropriate benefits (Guidelines Section 5.2A). In Remedies for conflicts of interest of directors or Azerbaijan, NGO employees do not receive ade- officers of NGOs are not addressed in the Law quate salaries for the most part. In some cases, on Social Communities, the Law on NGOs or any employees work without compensation for long other law. The issue is covered in the Law on periods of time. The Labor Code requires Enterprises, but it is difficult to say that these employers to pay full-time employees compensa- rules will be successfully applied to NGOs. In tion that is adequate to the quantity and quality of some cases, the peculiarity of NGOs will not the work performed (article 154 of the Labor allow application by analogy. Therefore, it is bet- Code). ter that the NGO’s self-regulatory documents However, many times donors do a disservice provide rules even though this will have some to NGOs and put the leaders of NGOs in a dif- shortcomings. Self-regulatory documents do not ficult position. As a rule, donors insist that no satisfy necessary legal requirements. But umbrella more than 30 percent of a grant be allocated to organizations, such as the Forum of NGOs, employee salaries. Sufficient guarantees to prevent ought to prepare model documents that could be inadequate payment or non-payment to NGO included in all NGO statutes. employees should be elaborated by the Forum of NGOs. Given the importance of a professional Prohibition on Direct or Indirect Private third sector, it is important that NGOs be as com- Benefit mitted to their employees as they are to the NGO. Prohibition on the Distribution of Profits Article 2.22 of the Law on NGOs prohibits the Prohibition on Self-Dealing distribution of any profits to its members. This is The Law on NGOs does not contain any provi- in accord with international norms as expressed sions prohibiting self-dealing. These issues are in the OSI Guidelines. Also prohibited are pay- regulated in detail by civil and criminal legislation. ments (in the form of salaries) to “employees” Article 1091 of the Civil Code stipulates reim- who do not perform any work. This is aimed at bursement of any earnings obtained groundlessly protecting donors from fraudulent payments to at the expense of other persons. This article states relatives and friends of the NGO directors, offi- that the groundless or illegal benefit means the cers and members. Although fraud is addressed in absence of a legal contractual basis, or that the the Criminal Code, it is necessary to prohibit transaction provides an unreasonable benefit at these actions in the Law on NGOs because, in the expense of the NGO. many cases, these actions are not disclosed, or for The Law on NGOs should indicate the neces- other reasons may not result in criminal responsi- sity of observing these rules when concluding bility. transactions between the NGO and its founders, In some situations, the founders, officers or board members, officers, employees or donors. members of NGOs, loan funds to the NGO. The This prohibition should specifically prohibit payment of compensation, in the form of inter- embezzlement of NGO property, self-dealing and est, is not regulated by law and should be concluding fictitious contracts. Important collat-

ENABLING CIVIL SOCIETY • 15 baku_materials.qxd 2003. 02. 21. 15:56 Page 16

eral issues are a procedure to allow a NGO direc- founded at social communities’ own expense, such tor to recuse himself when a decision that could as publishing houses and other institutions, while benefit that person is being taken and the need for in conformity with purposes provided for in their a mechanism to supervise expenditures and the use basic documents, were included as forms of prop- of the NGOs assets. Though the right to sue for erty. If this was regarded as typical when NGOs redress for any harm caused to NGOs and the were in their nascent stages, it soon became obso- prohibition on the transactions not related to the lete, hampering the development of NGOs in NGO activity are stipulated in the civil legislation, Azerbaijan. NGOs’ economic activity was not they should also be included in the Law on NGOs directly stipulated by law, but derived only from its and internal self-regulatory documents. interpretation, while institutions and publishing houses were not mentioned in the list of permissi- Prohibition on Reversion of Assets ble assets. The new Law on NGOs (like the earlier Law on Article 8, while failing to directly allow eco- Social Communities) does not provide default rules nomic activities, stated that “other functions may on the distribution of assets after a NGO is termi- also be implemented.” NGOs are able to engage in nated and liquidated. Article 21 of the Law on economic activities because of the ambiguity of NGOs refers this issue to the Civil Code, which in this phrasing. Article 10 went on to say that funds article 114 states: “Upon liquidation of a social might be generated by “other sources not prohib- community, its assets are to be allocated as indicat- ited by law.” Meanwhile, the law’s drafters again ed in its Statute. If this is not possible, the assets forgot sources of income gained from economic transfer to the state budget.” activities. In a situation where the government follows Activities of Civic Organizations only concrete and direct instructions and rules, to Economic Activities merely imply that NGOs have the right to engage The Law on Social Communities does not provide in economic activities invites disputes between rules on obtaining profits as a result of economic NGOs and government bodies. Civil legislation, activities. Restricting opportunities to obtain funds particularly the Law on Enterprises (1994/847) necessary to conduct activities is one of the main and the Tax Code, regulate operation of enterpris- obstacles to the development of the NGO sector. es founded by NGOs. It is necessary to provide an Rules need to be elaborated that permit NGOs to outline for their operation in the Law on NGOs. undertake economic activities. Because NGOs are Article 23 of the Law on NGOs states that NGOs non-commercial organizations, regulations should are entitled to any type of assets not prohibited by insure that the funds are used in the furtherance of law. An NGO with assets is responsible for its lia- the NGO’s purpose and objectives and not distrib- bilities. Moreover, these assets may be alienated uted in violation of law. (See Section 5.1 above.) only in conformity with the law. It is also important that NGOs have a legal Assets of a foundation consist of those basis to obtain property and sources of income. endowed by its founder or founders. However, if An attempt to create these conditions in the Law someone has granted assets to the foundation after on Social Communities (article 10, 1992/368) was its formation, does this person not acquire the sta- imperfect. The article listed the following kinds of tus of a founder? Founders are not responsible for property to which NGOs were entitled: premises, the liabilities of the foundation, nor is the founda- installation, apartments, equipment, inventory, tion responsible for its founders’ liabilities. means of income, shares, other securities and Article 17 of the Law on Property (1991/156- other property required for insuring the fulfillment X) provided for more financial sources than article of activities specified in the organization’s statutes 10 of the Law on Social Communities (1992-368), and other basic documents. Charities that were which was adopted a year later. Article 17 of the

16 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 17

Law on Property (1991/256-X) stated that social laws. The new Law on NGOs addresses this issue communities regarded as legal persons may have in a special article, and is in conflict with the premises, installations, apartments, equipment, other laws. So, it needs to be analyzed separately. inventory, assets designated for education or In the Law on Social Communities, sources of healthcare financial resources, shares, securities, finances are divided into four groups: and other assets necessary to carry out the activ- 1. Admission and membership dues; ities specified in the organization’s statutes. It 2. Voluntary payments and donations; may also engage in business activities and have or 3. Income gained from lectures, exhibitions, procure other assets in order to carry out this lotteries and sport or other events; and activity to the extent necessary to fulfill its objec- 4. Other funds not prohibited by law. tives. Articles 114 and 115 of the Civil Code The last item includes funds gained from eco- (1999/779-1G) stipulate the general norms but nomic activity, as well as grants obtained from do not indicate the structure of assets of an the government, foreign organizations, founda- NGO. According to these provisions, assets tions, other organizations and individuals. granted to the social community by its founders Though the principal and most important finan- or members are the social community’s property cial sources for NGO operations are grants, with so long as the social community uses it for the issues relating to taxes, the law does not accu- purposes provided for in its statutes. rately regulate obtaining and expending grants. Donors have neither the right to the assets Hence, there are numerous difficulties in this granted to the NGO or to membership dues. field as well. Donors are not responsible for the NGO’s liabil- Regarding admission and membership dues, ities nor is the NGO responsible for donor’s lia- the amount of money generated is so small it is bilities. Under article 115 of the Civil Code virtually symbolic. The government’s unfriendly (1999/779-1G), assets granted by founders are attitude towards NGOs means government assis- the property of the foundation. The foundation tance is unattainable. In turn, public and private may use these assets for the purposes specified in enterprises that can afford to assist NGOs often its statutes. The foundation must issue an annual refrain from doing so. NGOs cannot solely rely report on the use of its assets. The founders bear upon foreign foundations and therefore should no responsibility for the foundation’s liabilities, search for more reliable and permanent sources nor does the foundation bear responsibility for of finance. From this point of view, the most the founders` liabilities. favorable source of income is gained from eco- Interestingly, the title of article 114, Social nomic activities. Financing NGO activity Communities (1992/368), contradicts its content. through income gained from economic activity is Despite its title, it deals with property, not the a reliable guarantee for the existence of inde- characteristic features of these types of legal pendent and self-sustaining NGOs. entities. Though article 114 states that character- NGOs are permitted to engage in economic istics and legal status of various legal entities are activities, provided that the following require- determined by this Code, and seems to refer to ments are satisfied: the Law on NGOs, it addresses neither issues 1. They may not become the main objective; regarding property, nor the characteristics of dif- 2. They must contribute to the implementa- ferent kinds of NGOs. tion of non-commercial activity; and 3. Distribution of income gained from eco- Sources of Finance nomic activity among an NGO’s founders, As mentioned, sources of a social community’s directors or members is not permitted. property are differently specified in different

ENABLING CIVIL SOCIETY • 17 baku_materials.qxd 2003. 02. 21. 15:56 Page 18

One more condition may be added: “If the Legally, the clause “business activity intended major part of an NGO’s assets is not obtained for the achievement of the purposes of the from members’ contributions, distribution of organization” is a vague and rather groundless assets among the NGO’s members upon the restriction. It is difficult to determine which busi- NGO’s liquidation is prohibited by law.” If the ness activity corresponds to the purpose of cre- majority of an NGO’s assets are not obtained at ation of an NGO operating in the field of pro- the expense of another organization’s or person’s duction of non-material values. Proving this private assets, the assets should be allocated for before the registration body is impossible. charitable purposes, as well as for other NGOs The clause “business activity which con- upon liquidation of the NGO. tributes to and complies with the objectives Most of these conditions are reflected in the intended at the time of establishment of the Law on NGOs, although the approach toward NGO” of article 43 of the Civil Code provides NGOs’ economic activities remains contradictory. almost the same restrictions. The criteria for Article 24 of the Law on NGOs lists sources of restrictions intended for the prevention of com- assets (monetary or otherwise) as: mercialization of the non-commercial sector are • Membership dues of founders or members not defined successfully. In many cases business of social communities; activity will not be in accordance with the main • Voluntary endowments and donations; objectives set at the time of establishment. • Income gained from the sale of goods, ren- Conformity with the objectives should not be the dering of services or performance of work; only criterion. It should also consider the amount • Dividends or income gained from shares or of income and expenditures for an NGO’s statute other securities: objectives. • Income gained from use and sales of its own property; Licenses and Permits • Grants; In contrast with the Law on Social Communities, • Other kinds of income not prohibited by article 22 of the Law on NGOs permits NGOs to law. engage in business activities. This article requires that the NGOs should obtain special permission Article 22 of the Law on NGOs provides a or a license to carrying out certain kinds of activ- number of restrictions or conditions on NGO’s ities determined by Law. business activity: This rule mirrors article 11 of the Law on • An NGO may only carry out business activi- Business Activity, which states: “Some kinds of ties intended for the achievement of the business activities may be carried out only upon purposes of creation of the organization; receiving a license. The list of the activities requir- • Such activities include production and sale of ing a license and the rules on issuing licenses must goods and services that are profitable and be confirmed by the appropriate government compatible with the purposes of the organi- ministry.” zation, acquisition of shares, property and The rules regarding licenses are found in a non-property rights, participation in business Presidential Decree (October 4, 1997/637). associations and societies as an investor; Licensing of services is regulated by the rules on • Income gained from an NGO’s business issuing licenses for paid services, which was con- activity may not be distributed among its firmed by a Cabinet of Ministers’ Decree (May 1, founders (members); 1998/103). • An NGO must provide records în expenditure These legislative acts do not stipulate any spe- and income gained from business activity. cial rule for NGOs.

18 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 19

Political Activities ties. Article 1 of the Law on Grants (1998/483- Regarding relations of NGOs with political parties 1G) states that grants cannot be used for political and other political organizations, it is necessary to purposes. NGOs are, however, entitled to take part clarify the attitude of the law toward NGOs engag- in discussions of government policy, legislation ing in political activity. This issue was addressed, and other issues related to increasing awareness of though not sufficiently and adequately, by the Law the population in this area. Generally, it is impossi- on Social Communities. Articles 1 and 4 of the law ble to isolate NGOs from politics and political state, “Statute of social communities may not pro- organizations. A large number of NGO partici- vide for political activities,” meaning NGOs are pants also belong to a political party; they must bal- prohibited from engaging in political activities. The ance party membership with their activity within expression “political activity,” however, is vague NGOs, independently from one another. Thus, and raises many questions of interpretation in solving these matters by law would assist the gov- practice. ernment bodies that supervise NGO operations, as The current situation is that most NGOs have well as activity of NGOs and their members’ dis- some relations with political parties (except NGOs putes. under the control of the ruling party). Therefore, International practice shows that in many coun- this area requires more detailed regulations. Such tries NGOs do participate in the formation of necessity flows out of the fact that the laws regu- public policy, support political candidates, criticize lating elections permit NGO representatives to the appointment of government officials, engage participate in the capacity of observers and mem- in lobbying and carry out socially useful activity, bers of the election commissions, and this can be etc. There are no reasonable grounds to view considered political activity. Unfortunately, the new NGOs engaging in such large spectrum of activi- Law on NGOs does not resolve this issue, but ties negatively. rather complicates it. The term “political activity” should be defined Political activity of NGOs is a contentious concretely in the law, and the terms “political activ- issue. The first draft of Law on NGOs prohibited ity” and “the purposes of political parties” require political activity in general. Objections from clarification. For example, the law can be clarified NGOs led to a second draft stating that NGOs are that NGOs may engage in political activity but are not entitled to seek political power. The majority of not entitled to stipulate specific purposes for polit- NGOs have accepted this version. The second ical parties in their statutes. NGOs have many draft was further amended so that NGOs may not opportunities to draw attention to the problems in participate in presidential elections, parliamentary society without serving any political interests and elections and elections of municipal bodies, or take an active part in their solution. Ensuring provide political parties with financial and other favorable conditions for NGO activities in this kinds of assistance. This is contradictory to other area is one of the factors positively influencing the legislative acts, such as article 2-1 of the Law on promotion of democracy, pluralism, civic activity, Central Election Commission, article 20 of the and society striving to become open and demo- Law on the Elections of the President of the cratic. Azerbaijan Republic (1998), and articles 12, 15 and 17 of the Law on Elections to Municipal Bodies Reporting, Supervision and Enforcement (1999/699-Ã), which permit NGOs to assist elec- According to article 12 of the Law on Social tion commissions and serve as observers and elec- Communities, bodies authorized to supervise an tion commissions, carry out pre-election propa- NGO’s activity include tax and financial authorities ganda and grant donations to election foundations. and the Ministry of Justice. The Law on Social NGOs are not entitled to engage in activities Communities stipulates a quite normal rule on that constitute the main purposes of political par- supervision of NGO activity, while the Law on

ENABLING CIVIL SOCIETY • 19 baku_materials.qxd 2003. 02. 21. 15:56 Page 20

NGOs does not provide for any relevant super- establish a department exercising supervision vision at all. Article 29, referring to the supervi- within the Ministry of Justice. Adequate supervi- sion of NGO activities, states: “Information on sion over NGOs would contribute to improved the amount and structure of income of an NGO, NGO functioning, proper organization of paper its assets, expenditures, the number of employ- work and prevention of violations of law. This is ees and payment for work may not constitute a a challenge in a country where only 15 to 20 per- state or commercial secret”. cent of the 1,400 NGOs have been registered. It can be deduced from other provisions of Information provided by the Ministry of this law and other laws that tax and financial Justice focuses on a number of NGOs engaged bodies supervise NGOs’ income and tax pay- in political activity, participating in attempts to ments. The supervisory function of the Ministry overthrow governmental power and embezzling of Justice as a public registration body is more of assets and other violations of law. These cases comprehensive. In practice, the Ministry exercis- are not common, but they are consequences of es powers not provided for in the law, from improper organization of supervision over requiring explanations regarding the observance NGOs. Unfortunately, in many instances exami- of the NGO statute or requiring copies of deci- nation of NGO activities is carried out for polit- sions, to even participating in NGOs decision- ical reasons or in an attempt to bring criminal making. charges against certain persons. The Ministry of Justice’s registration and supervision powers accumulates too much power Internal Reporting and Supervision in this one body, which enhances opportunities Reporting duties have significant importance for to influence and pressure NGOs. On the other NGOs normal activity. The Law on Social hand, such a situation also limits its ability to Communities contained no provision for report- provide regular, adequate and efficient imple- ing activities by NGOs. However, other statutes mentation of its supervision functions. The of these organizations provided for NGOs’ Ministry’s insufficient number of employees reporting to various authorities. These include results in it being unable to carry out its powers. the duty to file quarterly, semi-annual and annual Consequently, both of these powers are degrad- accounting reports to tax authorities, financial ed and the supervision is limited to asking NGOs authorities and social security foundations. to inspect themselves and submit relative infor- Article 25 of the new law also provides for mation. This situation suggests that granting reg- “approval of annual reports” and article 26 pro- istration powers to the courts would improve the vides that executive body of public association situation. It seems that one of the reasons that “manages day-to-day activities and reports to the the third sector is thriving in neighboring highest governing body.” The term “report” in Georgia is because the courts are responsible for this article means not only accounting reports registering NGOs. but activity and decision-making reports as well. In a number of countries, a special body Reporting includes internal reporting and supervises NGOs. A large deficit in the state supervision; reporting to supervisory bodies and budget and a crisis in management do not afford agencies (e.g., tax, licensing authorities, social a basis for the establishment of a similar body in foundations, and donors); and reporting to the Azerbaijan. Granting registration power to the public. Ministry of Justice does not provide support for Statutory or internal provisions on reporting changing the body in charge of registration in the to the public is aimed at ensuring transparency, as near future. However, if registration and supervi- well as helping to attract potential donors, phi- sion powers are not shared between the Ministry lanthropists and sponsors. The new Law on and courts or another body, it is necessary to NGOs determines the rules for accounting and

20 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 21

reporting by referring to other laws. Article 29 Reporting to and Audit by Responsible Supervisory provides that “non-governmental organizations Authorities maintain accounting in accordance with legisla- Article 34 of the Law on Accounting (1994/882), tion.” Accounting reports are specified in four requires all enterprises (except for enterprises cre- articles of the new law. Article 22 states that ated with foreign investments) to file quarterly and NGOs shall account for revenues and expenses annual accounting reports with state tax authori- from business activities. This provision is one of ties. the general requirements repeated in article 29. According to article 4 of the Law on Reporting to and Audits by Tax Authorities Accounting (1995/998), any economic entity that The tax authorities have the right to inspect com- is not a legal person and engages in business pliance with tax legislation by legal persons. The activity with or without the purpose of receiving Law on NGOs prohibits inspections of NGOs profits shall maintain accounting books. Article more than once annually, except in cases where 34 requires monthly, quarterly and annual there is information about criminal financial accounting reports. The enterprise shall file its operations or illegal transactions. According to quarterly and annual accounting reports to own- tax legislation, including paragraph 1 of the Rules ers (participants, founders), tax authorities, state for Conducting Inspections of Taxpayers statistics authorities, and other state authorities approved by the Order of State Main Tax specified in legislation. Administration of the Republic of Azerbaijan of The nature, purpose and public functions of July 18, 1996, documentary inspections of adher- NGOs require them to be more transparent. It ence to tax legislation and pricing discipline shall would be beneficial if NGOs’ reports covered a be conducted not more than once annually, and greater scope of issues. In order to supervise no later than two years from period of com- NGOs, including the use of funds, the statutes mencing activity or previous inspection. of all NGOs should provide for the creation of However, the same paragraph, its previous provi- audit commissions. If necessary, the law permits sion notwithstanding, contains numerous cases for independent audits of the NGOs’ books. permitting documentary inspections. Thus, a According to the Law on Audit Services statutory limitation of number of documentary (September 16, 1994), mandatory or voluntary inspections of NGOs which differ from other audits may be conducted of all enterprises, enti- organizations that have the main purpose of gain- ties and organizations, regardless of form, prop- ing profit, is necessary. erty and organizational subordination, in order to check the accuracy of the accounting reports. Reporting to and Audit by Licensing Authorities Naturally, the level and volume of reports On the basis of the Presidential Decree on depends on the size of NGOs. It is more desir- Approval of List of Activities Requiring a able to simplify reporting procedures for small Special Permit (License) (1997/637), the Cabinet NGOs or NGOs having a narrow scope of activ- of Ministers determines the rules for issuing ity. Filing of reports by non-registered NGOs special permits (licensing) for certain types of leads to certain problems. Reporting documents activity. However, these normative documents are not accepted from organizations that volun- do not provide express requirements for report- tarily provide reports about their activity. State ing to the licensing authorities. Regardless, some authorities that accept taxes from such organiza- provisions of these normative documents envis- tions consider accepting reports from them ille- age reporting to and supervision by licensing gal. Elimination or modification of formal regis- authorities. For example, inspection of a license tration principle will remove these problems. holder by the licensing authority, or the right to request documents or cause an inspection by

ENABLING CIVIL SOCIETY • 21 baku_materials.qxd 2003. 02. 21. 15:56 Page 22

other authorities, means jurisdiction of the licensing Special Sanctions authority to supervise and audit the license holder. The Civil Code, in addition to being responsible for all legal entities for breach of obligations aris- Reporting to Donors ing from contracts or torts, provides for responsi- Neither the Law on NGOs nor the Law on Grants bility of legal entities, including NGOs, but with- contains provisions on reporting or rules of report- out determining specific violations. First, let’s clar- ing to donors. However, articles 3 and 4 of the Law ify responsibility of legal entities. Article 52 of the on Grants provide that relationships between Civil Code (1999/779-1G) says that a legal entity donors and recipients shall be regulated by the grant is responsible for its obligations with all of its agreement. Article 4 determines that an agreement property. Unless otherwise provided in this Code shall specify the purpose of the grant, the amount, or statute of the legal entity, the founder of the the subject and other conditions stipulated by the legal entity shall not be responsible for the obliga- donor before contribution. In practice, reporting to tions of the legal entity, just as the legal entity shall donors is provided for in agreements and other not be responsible for obligations of its founder. accompanying documents. Reports are usually pre- Other laws contain provisions determining pared on a quarterly or annual basis and are filed in responsibility of a legal entity, its officers and the pre-determined periods. Usually donors request employees. Chapters 30 through 32 (articles 191 reports on activity and financial operations related through 206) of the Labor Code (1999/618-1G) to a grant. provide for mutual material responsibility of the employer and employee. Chapter 30 (articles 191 Transparency: Disclosure or Availability of Information to through 194) determines cases (general conditions the Public of responsibility) of mutual material responsibili- It is well known that some NGOs function for the ty of employer and employee. Chapter 31 (articles benefit of society. Therefore, it is important that 195-197) determines material responsibility of the their activity is open to inspection by society. employer for damages rendered to an employee Generally, information concerning an NGO should and rules for its settlement. Chapters 23 and 24 of be easily available to the public. Legislative provi- the Criminal Code (September 1, 2000) (Crimes sions for transparency of NGOs and their activity, Against Property and Crimes in Sphere of as well as the availability of their reports, is for the Economic Activity) provide for criminal responsi- benefit of NGOs. Transparency and dissemination bility (fines, public service, deprivation of the of information to the public through mass media right to hold certain positions or to engage in cer- also helps to promote such organizations publicly. tain activities, confiscation of property, correc- Neither old nor new laws on NGOs contain any tional works for various terms, restraint of liberty specific provisions for disclosure. However, accord- and imprisonment) of officers of organizations ing to article 4 of the Law on Grants (1998/483- and individuals for economic crimes (theft, misap- 1G), an NGO in receipt of a grant shall inform the propriation, misuse of property, conclusion of corresponding state executive authority. At least illegal transactions, illegal or misrepresented entre- once annually the state executive authority shall preneurial activity, making and selling counterfeit publish generalized information about grants money or securities and violation of rules for cur- received or issued by legal persons in Azerbaijan. rency operations). Information shall also be made public pertaining to all printed, audio, audio-video materials, movies Tax Preferences and other materials, conferences, seminars and Income or Profits Tax Exemption for Civic Organi- other public events produced or organized with zations grants. The new Law on NGOs does not differ from the old law regarding this issue. Under article 30, reg-

22 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 23

istered NGOs enjoy tax privileges. It is too early to of privileges and gaining illegal revenues, it should determine how this provision will be applied, since be noted that depending on the value of goods, the Tax Code is under consideration by Parliament terms of services, etc., NGOs have no right to and has not yet been enacted. However, review of sell, grant or lease such goods during its first three the Tax Code draft shows no reason for optimism years. This restriction may prevent the illegal alien- because there are no provisions for privileges to ation of the NGOs’ property. NGOs, contradicting the Law on NGOs. NGOs should be exempted from payment of With one exception in the Law on Grants (483- property, excise, land and other taxes, or be afford- 1G), tax privileges for NGOs have not been pro- ed privileges in payment of these taxes. For exam- vided by the legislation. A review of provisions of ple, their tax rate should be at least 50 percent tax legislation shows that NGOs are mentioned in lower than other organizations. According to one provision of the Law on Tax from Profit of existing legislation, NGOs engaged in entrepre- Enterprises and Organizations (1994/221-1G). neurial activity or their enterprises shall pay taxes, Article 6.1.b, devoted to privileges under profit which is why provision for privileges in payment tax, provides that taxable profit of enterprises of these taxes may increase the funds of NGOs. shall be reduced with regard to allocations made to charity, ecology and health foundations, reli- Taxation of Economic Activities gious organizations (associations), social commu- The Law on Social Communities and the Law on nities for the handicapped and their enterprises Public Registration of Legal Entities (1996/17- and entities and unions registered in due order, but 1G) have no provisions on taxation of NGOs. only if the aggregate amount of such allocations Article 12 of the former law and article 14 of the does not exceed one percent of taxable profit. latter law have general provisions stating that tax It is commercial organizations that seem to authorities shall supervise payment of taxes by benefit most from this profit tax, not NGOs. NGOs. The certificate of state registration is the Pursuant to article 19, financial aid to youth basis for registration of NGOs with tax authori- organizations is provided in the form of exemp- ties. As mentioned, articles 22 and 24 of the new tion from tax of profit received by youth organi- Law on NGOs allow NGOs to engage in eco- zations, including revenues received from their nomic activities. enterprises, shares, bonds and other securities, Article 5 of the Law on Tax on Profit of revenues received from use of funds belonging to Enterprises and Organizations requires the pay- such organizations as credit reserves, as well as ment of a 28 percent profit tax. While not men- revenues from other paid events and economic tioned in Law on Land Tax, article 19 of the Law activity. No tax is imposed on revenues (profit) of on State Youth Policy states that youth organiza- enterprises subordinated to youth organizations tions are exempted from land tax. Such exemp- with respect to the part allocated for such organi- tions, while not provided for NGOs’ enterprises, zations. Except for enterprises of youth organiza- should be specified for NGOs in a general form in tions and other accounting organizations subordi- legislation instead of being a specified casually in nated to youth organizations, all other youth various laws, as they are now. Direct exemption of organizations are either exempted from payment NGOs is provided in article 5 of the Law on of fees for use of land (rent, lease payments) or Grants (1998/483-1G). Considering its signifi- pay such fees under privileged conditions. cance, it is discussed in greater detail below. Article Article 10 provides that “enterprises of war, 5 states: labor or armed forces veterans shall be exempted from profit tax if the number of veterans com- In accordance with this Law, money and/or any prises at least 70 percent of the staff of employ- other material assistance received under a grant ees of such enterprises.” In order to prevent abuse agreement or decision shall be exempted of all

ENABLING CIVIL SOCIETY • 23 baku_materials.qxd 2003. 02. 21. 15:56 Page 24

taxes, fees and other mandatory payments to Pursuant to articles 75 and 80 of this Law, deci- the state budget. Legal entities participating in sions of the Constitutional Court are final, have implementation of projects and programs binding force and may not be annulled or modi- under a grant shall pay taxes determined in fied by any state body or state officer. legislation for amounts received from recipi- The Constitutional Court, having considered ent. Individuals participating in the implemen- the above matter on October 26, 1999, decided tation of projects and programs under a grant that article 5 of the Law on Grants did not pro- shall pay income tax in a determined order for vide for payments to social insurance founda- amounts received from recipient. The recipi- tions. Further, article 5.3 of the Law on Grants ent shall be exempted from mandatory pay- contains no provision for mandatory payments by ments from amounts paid to individuals. individuals. It does, however, contain a provision Funds remaining at the disposal of the recipi- that such individuals shall pay only income tax in ent after completion of a project for which a accordance with legislation. grant has been extended, or value received The Constitutional Court considered the right under a grant or acquired at the expense of a for social insurance as one of the basic rights and grant, which after completion of such project freedoms of humans contained in the had been sold and transferred into money at Constitution, and this right of individuals for the disposal of the recipient, as well as funds social insurance may not be restricted regardless allocated for implementation of projects and of whether or not it is provided in article 5. In programs which may become a subject to a order to clarify contradictions between para- grant, shall be exempted from taxation. graphs 1 through 3 of article 5 of the Law on Grant, as well as corresponding provisions of Because of the ambiguous language of the other laws, the Court recommended that law, in practice there are often disputes between Parliament make changes to legislation related to NGOs and tax authorities. One such dispute is this matter. related to payments to social foundations. Taxation of individuals using grant funds is Considering that payments to social foundations regulated by the Law on Income Tax of were not mentioned, using instead the term “state Individuals (1992/181). Issues related to taxation budget” in article 5, tax authorities concluded that of proceeds received from economic activity and NGOs shall make payments to these foundations other sources are not reflected in legislation and from grant proceeds and other sources. This situ- are resolved without taking into consideration the ation was partially solved when several NGOs peculiarities of NGOs. Legislation shall expressly appealed to Parliament, which explained in a let- provide for exemption of NGOs from revenues ter of December 25, 1998 that only income tax received from sources specified in article 24 of from salaries of those working under a grant shall the Law on NGOs, namely membership fees, be paid to the state budget. Recipients of a grant contributions, voluntary contributions, revenues shall be exempted from all other mandatory pay- from lectures, exhibitions and sport and other ments (social protection, employment and pen- events. Neither the above article or tax laws have sions foundation). The dispute relating to pay- any provisions on this issue. Revenues from these ments to social foundations between state author- sources are not included in the category of rev- ities and NGOs arose once more and was referred enues received from business activity. Presently, to the Constitutional Court. revenues of NGOs from these sources are not According to article 130 of the Constitution substantial and are expected to remain that way and article 3 of the Law on the Constitutional for some time. Court, the Constitutional Court has the authority Taxation of revenues received exclusively to interpret the Constitution and the laws. from economic activity is a more complicated

24 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 25

issue where the worst case would be to impose on It is unwise to prohibit NGOs from engaging NGOs all taxes and duties applicable to commer- in commercial activities. However, in order to cial entities without considering any tax privileges. prevent possible disputes with tax and other state There are three methods of taxation of NGOs authorities, the safest option is to conduct com- for economic activity: 1) exemption of NGOs mercial activity through specially established from taxes; 2) taxation of revenues from com- commercial structures (subsidiaries). This will mercial activity not related to non-commercial facilitate the identification of boundaries between purposes of organization; and 3) taxation of rev- commercial and non-commercial activity. Article enues that exceed a determined level. 43 of the Civil Code (779-1G) demonstrates leg- Complete exemption and full taxation are not islators’ attitude towards the second method: expedient options. The other two methods have “Non-commercial legal entities may establish or some shortcomings. The problems in determin- participate in economic companies in order to ing non-commercial purposes in the second implement entrepreneurial activity.” method and determining a taxable level in the third method are conditional and disputable. Value Added Tax and Customs Duties Difficulties in finding the “golden mean” present Under articles 1 and 6 of the Law on Value conflicts of interest between the state budget and Added Tax (December 31, 1991), enterprises pro- the interests of NGOs. Solving these problems is ducing goods, works or services shall pay VAT at vital for countries in crisis or transition. rate of 20 percent. Customs duties and special The last two methods propose the most duties imposed on individuals and legal entities accommodating settlement considering their transferring goods across the border are deter- practicability and addressing different interests. mined in the Law on Customs Tariffs. This legis- Without repeating the problems in determining lation contains no special provision for NGOs. the “main purpose” and “destination of rev- NGOs engaged in economic activity are often enues” tests, note that both of these two methods treated like commercial organizations, without have been applied in various countries and both considering their uniqueness. methods may be applied here. The simplicity of According to article 33 of the Law on the first method (for example, if during a certain Customs Tariffs (1995/1064), customs privileges period of time 50 percent of the revenues of an are granted by the Cabinet of Ministers, as are organization were received from economic activi- rules for granting tariff privileges (tariff prefer- ty, the organization shall change its status and be ences). The only condition that may be used by registered as commercial organization) and the NGOs is provided in article 34, which states that attractiveness of the second method for NGOs goods imported to or exported from Azerbaijan are the main advantages. Allocation of the major- under auspices of states, governments, interna- ity of revenues for implementation of statute tional organizations with charitable purposes or duties of NGOs provides an opportunity to uti- as gratuitous aid, including technical assistance, lize bigger non-taxable amounts. are exempted from customs duties. Payment of Value Added Tax (VAT) at a rate of zero percent and application of customs duties Other Taxes only to the extent not covered by the main activi- Until the enactment of the new Law on NGOs, ties of NGOs are acceptable variants. Exempting existing legislation provided the right to engage in customs duties in all cases would be associated economic activity to certain NGOs. Article 52 of with receiving permits from the authorities, which the Law on Prevention of Invalidity, causes certain difficulties. However, it is unrealis- Rehabilitation and Social Protection of Invalids tic to expect legislators to provide a “general per- (1992/284), article 19 of the Law on State Youth mit” for NGOs. Policy (1993/269-X) and article 10 of the Law on

ENABLING CIVIL SOCIETY • 25 baku_materials.qxd 2003. 02. 21. 15:56 Page 26

Veterans (1994/841) allow for the creation of Another important issue is fees for utility serv- corresponding public associations having the ices paid by NGOs. According to legislation, rates right to engage in economic activities. These and of utility services are determined based upon the other laws provide tax privileges for such enter- following three categories of customers: citizens, prises. For example, article 52 of the Law on organizations financed from the state budget and Prevention of Invalidity, Rehabilitation and Social commercial organizations. According to these Protection of Invalids provides that “social com- categories, payment for gas, water and electricity munities of invalids are exempted from payment substantially increases for each category of cus- of rent, fees for communication and communal tomer. For example, the cost of 1 kilowatt of services for buildings where mass culture and electricity is 96 manat for citizens, 265 manat for sport clubs, palaces of culture and libraries are organizations financed from the state budget and located.” 408 manat for commercial organizations. While According to articles 2 and 3 of the Law on NGOs are not included in any of the above cate- Property Tax (March 24, 1995), enterprises shall gories, utility providers require NGOs to pay at pay tax at a rate of 0.5 percent of the value of the highest rate established for commercial organ- fixed assets recorded on their balance sheets. izations. Special legislative provisions dealing with Articles 1 and 4 of the Law on Excises this issue are needed. NGOs should pay for util- (1991/43) stipulate that excise shall be paid on ities at a rate determined for organizations consumer and other goods and services according financed from the state budget. to a list of goods and rates determined annually upon approval of the state budget. Article 1 of Foreign Civic Organizations and Foreign the Law on Land Tax (1996/215-1G), article 1 of Sources of Funding the Law on Royalty (March 24, 1995) and articles Creation of and Supervision over Foreign Social Commu- 3 through 7 of the Law on State Road Foundation nities (1994/787) assert that enterprises shall pay taxes Many international organizations have erroneous- based on special rates and table sheets. ly reported that the law prohibits foreigners from Regarding payments into the social welfare creating a NGO. Article 6 of the Law on Social system, the best solution would be to not exempt Communities and article 20 of the Law on Legal NGOs. This is required for future social welfare Status of Foreigners and Stateless Persons (March of NGOs’ employees and is also considered as 13, 1996) provides this right, although the former NGOs aid to the state in solution of social prob- law required that members of a public association lems. A legislative approach towards NGOs in reside in Azerbaijan. The new Law on NGOs, this respect is unsatisfactory. Like other organiza- however, contains no restriction as regards to res- tions, NGOs must allocate more than 1/3 of idence or . their salary foundation for this purpose. Article 6 of the Law on NGOs determines the Allocations to these foundations are made on a types of NGOs, depending on their territory of monthly basis from salary foundations of all operation. It stipulates that in Azerbaijan, NGOs organizations, including NGOs, and also are are established and function on a national, region- withdrawn from the salaries of employees. al or local level. The territory of operations of Except for grants, neither employers nor employ- non-governmental organizations is independently ees are exempted from this payment. Such alloca- determined by the organization. tions must be reduced because of low standards Operation of national NGOs covers all of living and salaries. These allocations have an Azerbaijan, regional NGOs two or more territori- adverse effect on the financial situation of al units and local NGOs one territorial unit. NGOs’ employees and reduce their material International NGOs are social communities, the incentives. activity of which covers Azerbaijan and at least

26 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 27

one other country. These were called “interna- Other Government Relations tional social communities” in the Law on Social Quasi-NGOs (QUANGOs) and NGOs Founded by the Communities. Article 11 of the Law on Public State (GONGOs) Registration of Legal Entities (1996/17-1G) calls Articles 9 and 10 of the new Law on NGOs pro- these organizations “foreign legal entities”. The hibit state authorities from being founders of, or term “international NGOs” used in the law is participants in, NGOs. Despite this legal bar, in unclear and contradictory in legal terms. NGOs fact many NGOs founded by state authorities labeled “international NGOs” are in fact inter- operate in Azerbaijan. This is due to both the state or foreign NGOs. In international law, inter- abstract meaning and absence of statutory defini- national NGOs are organizations of a different tion of the term “state authorities” and the fact type and status, and have broader activity. that organizations founded and managed by the The Law on Legal Status of Foreigners and government (for example, museums, scientific and Stateless Persons provides equal treatment under research institutes and special credit programs) are tax laws to foreign individuals and legal entities as acknowledged and exist in many countries. to Azeri citizens and legal entities. Furthermore, Organizations founded or managed by the gov- as mentioned, international social communities – ernment may become beneficiaries for society or organizations engaged in charity or humanitarian distributors of foreign aid, grants and government activity – may enjoy other privileges in the legisla- financial support. In the latter case, the law pro- tion. vides a mechanism for the prevention of such activity. Multiplicity of legislative provisions and Foreign Funding avoidance of laws by management does not create The Law on NGOs contains no special provision favorable conditions required to prevent the cre- related to foreign funding. However, the Law on ation of faux NGOs. Regardless, NGOs created Grants allows foreign funding as a source of for illegal purposes are prohibited. financing for NGOs. Azerbaijan legislation knows of no restrictions related to foreign fund- State Grants and Contracts ing in the laws of foreign countries (prior Article 9 of the Law on Social Communities approval of the government, exchange of foreign (1992/368) asserts that the state may provide currency for local currency at a disadvantageous financial aid to social communities and create con- rate, payment of special taxes). In practice, ditions for performance of their duties, and that Azerbaijan NGOs accept and use foreign funding issues related to social communities shall be solved without obstacle. Article 2 of the Law on Grants by state authorities. Article 28 of the new Law on (1998/483-1G) specifies that donors may be NGOs does not expound on this provision. Article international organizations and their representa- 2 of the Law on Grants (483-1G) provides for tives, foreign governments and their representa- state grants through tenders to individuals and tives, charities, humanitarian, development and legal entities. However, this option is not available other public oriented international organizations, to numerous NGOs. Declarative formulations like financial and credit institutions, foreign social those above are not sufficient to regulate the communities (including foundations, associations, numerous relationships that may develop between federations and committees) in the spheres of NGOs and the state. development of education, science, , The application of article 9 proved that eventu- arts and sport, as well as foreign legal entities and al transformation of general provisions into rights individuals not pursuing profits. It also stipulates and obligations of the parties involved remains that Azerbaijan may make grants to foreign indi- illusory. Other legislative acts permit the regulation viduals and legal entities. of such relationships, but they lack specific provi- sions for this. For example, article 21 of the Law

ENABLING CIVIL SOCIETY • 27 baku_materials.qxd 2003. 02. 21. 15:56 Page 28

on Veterans (1994-841) allows the government to • Free transfer of non-operating enterprises, finance veteran’s organizations, while article 53 of abandoned buildings and installations; the Law on Prevention of Invalidity, • Cooperation in the enactment and monitor - Rehabilitation and Social Protection of Invalids ing progress of application of laws govern- (1992/284) allows the government to support ing various sectors; enterprises and organizations for invalids from • Discussion of issues of national impor- the state budget. Overall, this is insignificant. tance or of special concern to the public That is why such abstract regulations impede spe- and coordination in seeking a solution of cific forms of cooperation. Nevertheless, state problems, etc. authorities use this as a reason to reject workable projects. This, in addition to involuntary cooperation of A joint revitalization or the free transfer to NGOs the state with NGOs, prevents prospective forms of numerous small enterprises for reconstruction of cooperation in various sectors, such as educa- for which the state does not have the necessary tion, health care, culture, science and research, resources and the use of NGO assistance in pro- provision of goods and services to the population viding social and is need- and distribution of financial resources from the ed. Free and preferential transfer or sale of aban- state to NGOs. Often, only NGOs close to the doned buildings to active NGOs will also help to government benefit from such cooperation. achieve beneficial results for society. Cooperation in these sectors may release the state Articles 5 and 8 of the Law on Privatization of from or support the state in performing certain State Property, and the State Program for duties. It may facilitate allocation of additional Privatization of State Property (1995–1998) have resources, such as resources for individuals or for general provisions allowing Azerbaijan and for- solving problems of society, and will help in eign legal entities and individuals to participate in developing and strengthening activities of NGOs. privatization. In practice, however, NGOs do not A step should be taken toward “privatization,” actively participate in privatization because no and authority of state organizations should be specific privileges or advantages have been pro- transferred to NGOs as part of their scope of vided. activity. However, this should not be considered a transfer of duties of the state to NGOs. Methods of Voluntary Regulation In summary, it can be concluded that cooper- Methods and Subjects of Voluntary Regulation ation and assistance between state organizations The necessity for self-regulation usually arises and NGOs can be improved by: from inadequate legislation or inadequate enforcement of the laws governing NGOs. Self- • Engagement of NGOs in the process of regulation decreases interference of the state with elaboration and enactment of legislation NGOs’ activities, answers the needs of legislative governing and regulating NGO activity; regulation and provides NGOs with the opportu- • Setting a preferential tax regime for NGOs; nity to gain experience in developing legal provi- • Assistance in financing activity of NGOs; sions. Neither old nor new laws on NGOs pro- • Assistance in provision of assets to NGOs; vide for self-regulation of NGOs. Experience • Allow NGOs to participate in privatization shows that such documents are often required for on preferential conditions; NGOs. Self-regulation becomes particularly • Establishment of joint ventures and joint urgent during major changes in legislation of implementation of projects based on agree- Azerbaijan and contradictions between new laws ments between state organizations and and old existing laws. NGOs; In issues related to internal discipline, labor

28 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 29

legislation (payment for labor, business trip enemy, anti-state organizations that tell the world expenses, conditions of labor, compensations and the country’s “secrets.” These beliefs may exist in privileges) and relations between NGOs and com- any country, but the democratization of the coun- mercial enterprises, self-regulation becomes try determines which approach the country will markedly important. Self-regulation is also neces- choose. Experience in other countries shows that sary in situations where NGOs have not become a any government concerned with alleviating social strong sector and their managers and employees problems must understand that the government do not have sufficient expertise and knowledge of alone does not have sufficient resources to solve laws. Important types of self-regulation are rules all problems. of conduct and codes of ethics. These documents While discrimination, either active or passive, are usually adopted as regulations or rules and towards NGOs delays the development of NGOs, help to regulate issues not covered by the law. it also causes increased social and political tension in society as well. This creates undesirable results Umbrella Organizations and NGO Unions for the state. Obstructing the activity of NGOs NGO unions help to ensure self-regulation and not only violates international and domestic law, create mandatory rules of conduct. They can also but also hinders access to solutions for the prob- provide training for NGO leaders and staff and lems faced by the state. In addition, it prevents are a mechanism for NGOs to coordinate their international organizations from helping to solve activities. This serves to decrease governmental these problems. This delays the development of control. While the new Law on NGOs does not society and democracy. The participation of indi- contain any pertinent provisions on this issue, cur- viduals means more minds are involved in solving rent legislation allows for the establishment of societal problems - a pluralism of thoughts. In this such organizations. According to articles 43.6 and regard, NGOs have enormous potential and 117.2 of the Civil Code (1999/779-1G), NGOs ignoring this potential hinders the solution of may create unions in order to coordinate their problems. activity, as well as to represent and protect their Any member of society has the right to partic- common interests. Participants in such unions ipate in the solution of society’s problems, and the retain their independence and rights of legal enti- most efficient and liberal way of exercising this ty. right is to participate in the activity of NGOs. The The scope of an NGO union’s activities is not basic preliminary condition of building normal covered by legislation. Most of these issues are relationships between NGOs and the state is to regulated by documents prepared and approved by enact normal, democratic laws governing NGOs such unions. On the one hand, this situation may and to allow freedom of activity for NGOs. In a be considered as providing freedom to NGOs. On normal society, activity of all individuals and the other hand, it may be considered an indirect organizations should be subject to laws. restriction of their rights. In major changes in leg- Relationships between the state and individuals islation, use of such freedom faces certain diffi- and between the state and organizations should be culties. That is why Law on NGOs should contain within a legal framework. Precise legal regulation provisions regulating unions of NGOs. of any activity creates the basis to settle any dis- putes or misunderstandings with the state. Conclusion The level of coordination between the state The number of NGOs functioning in a country and NGOs and the speed that civil society devel- and the attitude of state towards NGOs is a major ops greatly depends on a legal framework that indicator of the country’s level of democracy. The allows independent NGOs on one hand and state state may consider these organizations either as a assistance and incentives, including preferential strong resource in battling social problems or as tax treatment, on the other.

ENABLING CIVIL SOCIETY • 29 baku_materials.qxd 2003. 02. 21. 15:56 Page 30

For countries in transition, it is impossible to immediately help to create better relationships solve the many difficult problems using only the between the state and NGOs. NGO and internal resources of society without State support should not disrupt the independ- the moral and material support of the state. This ence of such organizations, and a government’s is because during such periods, the financial capac- grants should be extended to the most active ity of the population is limited. That is why the NGOs through tenders and competitions. state’s material support, such as the provision of Legislation should provide for the creation of buildings, equipment, facilities and finances, to joint ventures agreements between NGOs and NGOs is very important. Such assistance may governmental organization.

*Published by Open Society Institute-Assistance hatred on the grounds of race, nationality, religion, Foundation Azerbaijan, 2001 and reprinted with per- social position is prohibited.” Article 50 of the mission of Annagi Hajiev and OSI-AF. Constitution states, “everyone has the freedom to search for, obtain, transfer, prepare and disseminate 1 Article 47 states: “Everyone has the right to freedom information as long as it is not prohibited by a law.” of thought and expression.” “No one may be forced to “Freedom of the mass media is guaranteed. State cen- disclose his thought and belief or change his belief.” sorship over the mass-media, including the press is “Any conduct of agitation or propaganda to inflame prohibited.”

1.2 THE ROLE OF THE JUDICIARY IN PROTECTING be corrupt and inefficient. The legal framework FREEDOM OF ASSOCIATION IN AZERBAIJAN contributes to this perception. The president By Public Interest Law Initiative appoints Supreme Court and Constitutional Court judges, who are then subject to confirmation by Freedom of association and the ability of non- the Parliament and lower-level judges are appoint- governmental organizations (NGOs) to organize ed by the president without confirmation. While a and operate in Azerbaijan is dependent on an inde- judicial examination process seen as a step forward pendent and impartial judiciary to fairly apply and was introduced in 2000, allegations of corruption enforce the law in accordance with applicable law, surrounded the first set of examinations. including the requirements of international agree- The UN Human Rights Committee, which ments to which Azerbaijan is a party. However, oversees compliance with the International courts in Azerbaijan have not functioned uniform- Covenant on Civil and Political Rights, has ly or consistently in this manner, and have thereby expressed its concerns about judicial independence failed to protect the ability of NGOs seeking to in Azerbaijan: operate independently. In the communist period, there was no culture While appreciating the steps that have been ini- based on the rule of law and judiciaries were sub- tiated by [Azerbaijan] to reform the judiciary, ordinated to the executive and its political interests. including Presidential Decree of 17 January The legacy of this period continues today in 2000 to improve the procedures for the Azerbaijan. Article 127 of the Constitution of appointment of judges, the Committee is con- Azerbaijan, Article 11 of the Constitutional Court cerned at reports of irregularities during the Act, and Article 100 of the Courts and Judges Act selection procedure in practice. Furthermore, all stipulate that judges shall be independent and the Committee is concerned at the lack of secu- subordinate only to the Constitution and laws of rity of tenure for judges, and at the fact that the Azerbaijan Republic. Yet, in practice, judges do decisions concerning the assignment of judges not yet fully function independently of the execu- and affecting their seniority appear to be made tive branch, and the judiciary is widely believed to at the discretion of the administrative authori-

30 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 31

ties, may expose judges to political pressure and civil society and NGOs. It upholds the law for jeopardize their independence and impartiality. all—and in so doing, it safeguards the rights of . . . The Committee recommends the institution individuals and groups against the excesses of of clear and transparent procedures to be other branches of government, particular political applied in judicial appointments and assign- parties, and majorities. The status of the judiciary ments, in order to ensure full implementation in Azerbaijan is still unsettled, but the steps taken of the legislation in practice and to safeguard by the Azeri Government since independence, the independence and impartiality of the judici- including its ratification of key international ary. . . . (UN Human Rights Committee, treaties and its entry into the Council of Europe, Concluding Observations, Consideration of Reports underscore and strengthen its commitment to the Submitted by States Parties under Article 40 of the rule of law and provide a powerful incentive to Covenant, Azerbaijan, Para. 14, Doc. No. solidify the institutions that will implement and CCPR/CO/73/AZE [12 November 2001]) protect that commitment. The degree to which this is successful will directly affect the ability of The judiciary holds a unique position in secur- NGOs and the larger civil society to develop and ing an environment that supports and protects grow in Azerbaijan.

ENABLING CIVIL SOCIETY • 31 baku_materials.qxd 2003. 02. 21. 15:56 Page 32 baku_materials.qxd 2003. 02. 21. 15:56 Page 33

Two R ESOURCES: N ATIONAL L AW OF A ZERBAIJAN

• Constitution of the Azerbaijan Republic, • Law On Non-Governmental Organizations Selected Provisions (Public Organizations and Funds) Article 25 (Right to Equality) • Decree of President on Implementation of Law Article 36 (Right to Strike) on Non-Governmental Organizations Article 47 (Freedom of Thought and Speech) • Tax Code, excerpts Article 49 (Freedom of Assembly) Chapter I, Article 13 (Main Definitions) Article 50 (Freedom of Information) Chapter IX, Article 106 (Exemptions and Article 58 (Freedom of Association) Privileges) Article 60 (Guarantee of Rights and Liberties Chapter X, Article 109 (Non-Deductible by Law Court) Expenses) Article 69 (Rights of Foreign Citizens and Chapter XI, Article 164 (Exemption from Tax) Stateless Persons) Chapter XIII, Article 199 (Property Tax) Article 127 (Principles of Justice) • Law on Trade Unions, Articles 1-6, 10, 11, 16, Article 148 (Acts Constituting Legislative 17, 19 System) • Constitutional Law on the Human Rights Article 151 (Legal Force of International Acts) Commissioner (Ombudsman) • Constitutional Court Act, Article 11 • Law on Presidential Elections, Article 4 • Law On the Grant • Law on Procedure of Elections to • Decree of President on Law On the Grant Municipalities, Articles 10, 12, 15, 17 • Decree of Cabinet of Ministers according to • Decision, Constitutional Court, On Law On the Grant Interpretation of Article 5, item 3 of Law • Civil Code, Chapter IV, Legal Entities, Articles “On the Grant” 26 October 1999 43, 47, 48, 50, 114-119 • Decision, Constitutional Court, On • Law On State Registration of Legal Entities Interpretation of Article 109.5 of the Law (1996) “On Courts and Judges” 27 June 2001

33 baku_materials.qxd 2003. 02. 21. 15:56 Page 34

THE CONSTITUTION OF AZERBAIJAN 3. No one may be forced to joint any union or remain REPUBLIC (excerpts) its member. 4. Activity of unions intended for forcible overthrow Article 25. Right for equality of legal state power on the whole territory of the 1. All people are equal with respect to the law and law Azerbaijan Republic or on a part thereof is prohib- court. ited. Activity of unions which violates the 2. Men and women possess equal rights and lib erties. Constitution and laws may be stopped by decision of 3. The state guarantees equality of rights and lib erties law court. of everyone, irrespective of race, nation ality, reli- gion, language, sex, origin, financial position, occu- Article 60. Guarantee of rights and liberties by law pation, political convictions, membership in politi- court cal parties, trade unions and other public organiza- 1. Legal protection of rights and liberties of every cit- tions. Rights and lib erties of a person, citizen can- izen is ensured. not be restricted due to race, nationality, religion, 2. Everyone may appeal to law court regarding deci- language, sex, origin, conviction, political and social sions and activity (or inactivity) of state bodies, belonging. political parties, trade unions, other public organiza- tions and officials. Article 36. Right to strike 1. Everyone has the right to be on strike, both individ- Article 69. Rights of foreign citizens and stateless ually and together with others. persons 2. Right for strike for those working based on labor 1. Foreign citizens and stateless persons staying in the agreements might be restricted only in cases envis- Azerbaijan Republic may enjoy all rights and must aged by the law. Soldiers and employed in fulfill all obligations like citizens of the Azerbaijan the Army and other military formations of the Republic if not specified by legislation or interna- Azerbaijan Republic have no right to go on strike. tional agreement in which the Azerbaijan Republic is 3. Individual and collective labor disputes are settled in one of the parties. line with legislation. 2. Rights and liberties of foreign citizens and stateless persons permanently living or temporarily staying Article 47. Freedom of thought and speech on the territory of the Azerbaijan Republic may be 1. Everyone may enjoy freedom of thought and restricted only according to international legal stan- speech. dards and laws of the Azerbaijan Republic. 2. Nobody should be forced to promulgate his/her thoughts and convictions or to renounce his/her Article 127. Independence of judges, main princi- thoughts and convictions. ples and conditions of implementation of justice 3. Propaganda provoking racial, national, religious and 1. Judges are independent, they are subordinate only to social discord and animosity is prohibited. Constitution and laws of the Azerbaijan Republic, they cannot be replaced during the term of their Article 49. Freedom of assembly authority. 1. Everyone has the right for meetings. 2. In consideration of legal cases judges must be 2. Everyone has the right, having notified respective impartial, fair, they should provide juridical equality governmental bodies in advance, peacefully and of parties, act based on facts and according to the without arms, meet with other people, organize law. meetings, demonstrations, processions, place pick- 3. Direct and indirect restriction of legal proceedings ets. from somebody’s part and due to some reason, ille- gal influence, threats and interference are not Article 50. Freedom of information allowed. 1. Everyone is free to look for, acquire, transfer, pre- 4. Justice shall be implemented based on equality of pare and distribute information. citizens before the law and law court. 2. Freedom of mass media is guaranteed. State censor- 5. In all law courts hearing of legal cases shall be open. ship in mass media, including press is prohibited. 6. It is allowed to have closed hearing of legal cases only if the law court decides that open hearings may Article 58. Freedom of association result in disclosure of state, professional or com- 1. Everyone is free to associate with other people. mercial secrets, or that it is necessary to keep confi- 2. Everyone has the right to establish any union, dentiality with respect to personal or family life. including political party, trade union and other pub- 7. Except cases envisaged by law it is prohibited to lic organization or enter existing organizations. carry out legal proceedings by correspondence. Unrestricted activity of all unions is ensured. 8. Law proceedings are carried out based on the prin-

34 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 35

ciple of contest. According to Article 127, paragraph 1 of the 9. Everyone has the right for defence at all stages of Constitution of Azerbaijan Republic Judges of the legal proceedings. Constitutional Court shall be independent while exer- 10. Justice is based on . cising their powers and shall be subordinate only to the 11. In the Azerbaijan Republic legal proceedings are car- Constitution of Azerbaijan Republic and the Present ried out in state language of the Azerbaijan Republic Law. The Judges are irremovable during the term of or in a language of majority of population in specif- their office. ic area. Persons—participants of legal proceedings not knowing the language of proceedings have the Source: www.constitutional-court-az.org/law-contents.htm right to be acquainted with materials of proceedings, to take part in legal proceedings using interpreter, to make statements in the law court in their native lan- LAW OF AZERBAIJAN REPUBLIC ON GRANT guage. [unofficial translation]

Article 148. Acts constituting legislative system of The present law shall regulate economical and legal rela- the Azerbaijan Republic tions related to issue, receipt and use of grants. 1. Legislative system consists of the following norma- tive-legal acts: Article 1. Grant Constitution; 1. Grant - assistance rendered pursuant to this law in acts accepted by referendum; order to develop and implement humanitarian, laws; social and ecological projects, works on rehabilita- orders; tion of destroyed objects of industrial and social decrees of Cabinet of Ministers of the Azerbaijan purpose, of infrastructure in the territories damaged Republic; as a result of the war and disaster, programs in the normative acts of central executive power bodies. field of education, health, culture, legal advice, 2. International agreements wherein the Azerbaijan information, publishing, sport, scientific research Republic is one of the parties constitute an integral and design programs as well as other programs part of legislative system of the Azerbaijan being important for the state and public. Grant shall Republic. only be provided for specific purpose (purposes). 3. In Nakhichevan Autonomous Republic 2. A grant shall be provided in the form of financial Constitution and laws of Nakhichevan Autonomous means and/or in any other material form. The grant Republic, decrees of the Cabinet of Ministers of shall be rendered gratis and its repayment in any Nakhichevan Autonomous Republic also possess form may not be requested. legal power. 3. Material assistance used directly for generation of 4.. Legislative system of Nakhichevan Autonomous profit shall not be considered a grant. Financial Republic should conform to legislative system of and/or other material means remaining unused at the Azerbaijan Republic. the grant beneficiary’s disposal should be allocated 5. Within the limits of their authority local bodies of for implementation of projects and programs that, executive power may accept normative acts not con- in the beneficiary views, might be the subject of the tradicting acts constituting the legislative system. grant Niles otherwise provided for by an agreement (award) on the grant. Article 151. Legal value of international acts 4. Material assistance shall not be considered grant Whenever there is disagreement between normative- should it is used directly for the purposes of politi- legal acts in legislative system of the Azerbaijan cal struggle and lobby activity on adoption of law Republic (except Constitution of the Azerbaijan and other legislative acts, for political promotion, for Republic and acts accepted by way of referendum) and financing election campaign of any political organi- international agreements wherein the Azerbaijan zation (organizations), political figure (fugues). Republic is one of the parties, provisions of interna- tional agreements shall prevail. Article 2. Donor 1. Those providing grants shall be donors in respect of Source: www.constitutional-court-az.org/const-contents.htm a beneficiary. 2. The relevant body of the executive power may pro- vide a grant on behalf of the Azerbaijan govern- CONSTITUTIONAL COURT ACT (excerpts) ment to legal and physical persons, to citizens of Azerbaijan Republic and foreign countries and to Article 11. Independence of Judges of the foreign legal and natural entities. Constitutional Court. 3. A grant on behalf of Azerbaijan Republic shall be

ENABLING CIVIL SOCIETY • 35 baku_materials.qxd 2003. 02. 21. 15:56 Page 36

provided at the expense of the state budget of Article 4. Grounds for Award of Grant Azerbaijan Republic. Special means may be allocat- 1. A written agreement between a donor and a recipi- ed as a separate item in revenue of the state budget ent or written award of the donor on provision of a for provision of such grants. Any additional taxes grant shall be grounds for the grant issue, receipt may not be introduced or rates of taxes in force may and use. The objective, amount, subject of the grant not increase in order to form such funds. and specific conditions, should those be laid down 4. Any natural entity and legal entity of Azerbaijan by the donor before the recipient, shall be specified Republic whose basic objective according to a in the agreement (award). Charter is charity or collection of means for projects 2. Grant may only be used for implementation of and programs that may be a subject of a grant and objectives specified in an agreement or award. The whose activity does not be aimed at generation of use of a grant for other purposes, if it is not stipu- profit, could provide the grant to legal and natural lated by the agreement (award) on the grant, shall entities of Azerbaijan Republic and foreign coun- only be possible with the written permission of a tries. donor. 5. International organizations and their representa - 3. Over the period of implementation of a project tions, foreign governments and their representa - being the subject of a grant, the sale or change into tions, international organizations of charitable, money of values provided as a grant or bought at humanitarian and other social directions, financial - the expense of the grant, shall only be admissible in credit institutions, foreign public organizations cases if these operations were provided for by an including funds, associations, federations and com- agreement on grant or with the written permission mittees carrying out activities in the field of devel- of a donor. In these cases financial means trans- opment of education, science, health, culture and ferred to a recipients disposal should be aimed at sport, and not being aimed at profit generation, as implementation of projects and programs that well as foreign natural entities may act as a donor. might be the subject of the grant. 6. Donor shall be fully independent in provision of a 4. Agreements (awards) on provision of grants by grant, selection of a grant beneficiary, projects and donors, being legal or natural entities of Azerbaijan programs for whose implementation the grant is Republic, to foreign recipients shall be registered at provided. On behalf of the Azerbaijan government the relevant body of the executive power. the grant shall be provided to legal and natural enti- 5. A recipient shall be obliged to inform the relevant ties of Azerbaijan Republic based on a tender. body of the executive power on each grant, which it has begun to receive. The mentioned body of the Article 3. Recipient executive power shall be obliged the latest once a 1. A Grant beneficiary is a recipient in respect of a year to make public the summarized information on donor. grants provided and received by entities of 2. The following may be a recipient: Azerbaijan Republic. • The Azerbaijan government in the person of the 6. Published, audio, audio-visual, cinema and other relevant body of the executive power; materials, conferences and other events at the • Municipal bodies; expense of grant should be provided with informa- • Legal entities being residents and non-residents, tion on sources of their financing. their branch offices, representations and depart- ments carrying out activity in Azerbaijan Article 5. Grant taxation Republic, whose basic objective is charity or 1. Money and (or) other pecuniary aid received as a implementation of projects and programs that grant based on an agreement or an award on the may be a subject of a grant, and which are not grant, shall be exempted from all taxes, duties and aimed at direct generation of profit resulting compulsory payments into the state budget. from grant; 2. Legal entities shall pay tax for implementation of • Natural entities of Azerbaijan Republic. grant projects and programs pursuant to legislation 3. Recipients of Azerbaijan Republic are independent in in force. receipt of a grant, selection of a donor, projects and 3. Income tax shall be collected pursuant to legislation programs for which they receive the grant. in force for payments received from a recipient by 4. At provision of a grant by donors from Azerbaijan natural entities participating in implementation of Republic to legal or natural entities of foreign coun- projects and programs during the utilization of a tries the range of recipients shall be identified by grant. The recipient shall be exempted from com- legislation of the relevant country. pulsory payments from the amount paid to natural 5. Recipients shall carry out their activities pursuant to entities. provisions of agreements (awards) on grant. 4. Financial means retaining at a recipients disposal after the completion of a project being the subject

36 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 37

of a grant, as well as financial means provided as a Article 2, paragraph 2 of Article 3, paragraphs 4 and grant or transferred to the recipients disposal from 5 of Article 4 of the Law of Azerbaijan Republic the sale and change into money of values purchased “On Grant” shall be exercised by the Cabinet of at the expense of the grant, and allocated for imple- Ministers of Azerbaijan Republic. mentation of projects or programs that may be the subject of the grant, shall not be the objects of tax- President of Azerbaijan Republic ation. 13 June 1998 N 483-1G Article 6. Responsibility 1. For infringement of the present Law a donor and a recipient shall be liable in accordance with the pro- DECREE OF THE CABINET OF MINISTERS cedure established by legislation. OF AZERBAIJAN REPUBLIC ON SUBMIT- 2. In the event if one of donors and recipients is an TING INFORMATION ON RECEIVING AND organization or a citizen of foreign country, disputes ISSUING GRANTS between them shall be settled pursuant to laws of a [unofficial translation] country selected previously and identified in an agreement (award) on a grant. Otherwise the dis- Cabinet of Ministers of Azerbaijan Republic according putes shall be settled pursuant to legislation of to the law “On Grant” of Azerbaijan Republic Azerbaijan Republic. decided:

President of Azerbaijan Republic HEYDAR ALIYEV 1. In order to register a written contract for issuing 17 April 1998 grants to foreign recipients (foreign natural and legal entities) a natural or legal entity of Azerbaijan Republic whose main goal according to its charter is charitable activities and which does not aim at gain- DECREE OF PRESIDENT OF AZERBAIJAN ing any profit must submit an application to the REPUBLIC ON APPLICATION OF THE LAW Cabinet of Ministers of Azerbaijan Republic within OF AZERBAIJAN REPUBLIC “ON GRANT” at least one month from concluding the contract. [unofficial translation] The application shall be accompanied by a copy of the contract and respectively by the charter or the In connection with entry into force of the Law of identification documents of the donor. Azerbaijan Republic “On Grant”, in order to ensure The Cabinet of Ministers of Azerbaijan application of the present Law, I hereby decree: Republic shall register the contract within one week from its submission and officially inform the donor 1. To charge the Cabinet of Ministers of Azerbaijan of its registration. Republic within a one-month period: 2. Recipients in Azerbaijan Republic (municipalities, •To submit to the President of Azerbaijan resident and non-resident legal entities who act at Republic proposals on updating of legislative the territory of Azerbaijan Republic and who do not acts in force pursuant to the Law of Azerbaijan aim at getting income from receiving grant, whose Republic “On Grant”; purpose by charter is charity or realization of proj- •To ensure updating of regulatory-legal acts of ects or programs that can be subject of a grant, as the Cabinet of Ministers and the relevant bodies well as their branches, representations and depart- of the executive power pursuant to the present ments, natural persons of Azerbaijan Republic) shall Law, and inform the President of Azerbaijan inform the Cabinet of Ministers of Azerbaijan Republic; Republic about the grant to be received within at •To prepare and submit to the President of least a month since acceptance of the very grant. Azerbaijan Republic drafts legislative acts estab- 3. Ministries, committees, companies, concerns, unions lishing types of responsibility for infringements and other central organizations of Azerbaijan of the Law of Azerbaijan Republic “On Grant” Republic shall submit information on grants issued and of terms provided for in an agreement by international organizations and foreign countries (award) on grant; to the Cabinet of Ministers of Azerbaijan Republic •To solve, within its competence, other issues fol- annually on July 1 and December 31. lowing from the Law of Azerbaijan Republic 4. The Cabinet of Ministers of Azerbaijan Republic “On Grant”. must publish in the media general information on grants issued and received by natural and legal enti- 2. To establish that authorities of “the relevant body of ties of Azerbaijan Republic at least once a year. the executive power” provided for by paragraph 2 of 5. The implementation of this decree shall be entrust-

ENABLING CIVIL SOCIETY • 37 baku_materials.qxd 2003. 02. 21. 15:56 Page 38

ed to Department of Affairs (Secretariat) of the achieve goals determined by its charter. Cabinet of Ministers of Azerbaijan Republic. 114.2 Actors of public associations do not reserve the 6. This decree enters into force since the day of its right to the property donated by them to the very asso- signing. ciations, as well as to membership fees. They do not bear any responsibility for obligations of public associ- Prime-minister of Azerbaijan Republic A. RASI- ations and public associations do not bear any responsi- ZADEH bility for obligations of their actors as well. 24 September 1999, #155 114.3 While liquidating, the property of the public asso- ciation shall be directed to the goals stipulated in its charter, or to the state budget, when the former is impossible. CIVIL CODE OF AZERBAIJAN REPUBLIC, 114.4. Characteristic and legal status of different types CHAPTER IV LEGAL ENTITIES (excerpts) of public associations is determined by this Code and [unofficial translation] the legislation.

§ 1. Basic provisions Article 115. Funds Article 43. Concept of the legal entity and its types 115.1 Fund is the organization which has no member- 43.5 Legal entity can be the organization the goal of ship and is founded by natural and (or) juridical persons activity of which is to gain profit (commercial legal enti- on the basis of their voluntary property rights and pur- ties) or which neither aims at gaining profit nor shares sues social, charity, cultural, educational or other gener- gained profit among its actors (non-commercial legal ally useful goals. entities). 115.2 The property donated to the fund by its 43.6 Non-commercial legal entities can be created as founder(s) is the property of the fund. Fund uses this public unions, funds, association of legal entities as well property to achieve goals determined by its Charter. as in other forms provided for by the legislation. Non- 115.3 Fund is obliged to publish annual reports on use commercial legal entities can be engaged in entrepre- of its property. neurial activity only if the very activity serves achieving 115.4 Founders do not bear any responsibility for obli- its goals and corresponds with them. In order to be gations of the fund and the fund does not bear any engaged in entrepreneurial activity non-commercial responsibility for obligations of its founders. legal entities can establish economic associations or par- 115.5 The procedure of management of the fund and ticipate in their work. of organization of its bodies is determined by the char- ter approved by the founders of the fund. Article 47. Charter of the legal entity 115.6 Besides data reflected in Article 47.2. of this 47.2 The charter of the legal entity determines the name Code, the charter of the fund shall cover the following: of the legal entity, its location, procedure of its man- the name of the fund which must include the word agement as well as the procedure of its liquidation. The “fund”, data on the fund’s goals; data on fund’s bodies, charter of the non-commercial legal entity determines including the board of guardians which carries out con- the subject of its activity and goals. trol over activity of the fund, on procedure of appoint- ment and dismissal of the officials of the fund, as well Article 48. State registration of the legal entities as on procedure of disposing of the property of the 48.1 Legal entity must be registered with the relevant fund while its liquidation. body of executive power. Data on state registration 115.7 Characteristic and legal status of different types including the name of non-commercial legal entities of funds, including charity organizations is determined shall be included in the state register of legal entities by this Code and the legislation. open for common familiarization. Article 116. Alterations to charter of fund and its Article 50. Name of legal entity liquidation 50.1 The legal entity shall have the name indicating its 116.1 Charter of the fund can be altered by bodies of organizational-legal form. The name of the non-com- the fund only if this opportunity is provided for by the mercial legal entity shall reflect the character of the charter. If remaining of the charter without alterations activity of the legal entity. causes unpredictable results and charter itself does not specify the opportunity of making alterations and char- § 3. Non-commercial organizations ter is not altered by the authorized persons, the right to Article 114. Public associations make alterations belongs to the court due to the appli- 114.1 The property donated to the public association by cation of the fund’s bodies or of the body which is its founders (actors) is considered property of the asso- authorized to control activity of the fund according to ciation. The public association uses this property to its charter.

38 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 39

116.2 The decision on the liquidation of the fund can its liquidation. only be rendered by the court due to the application of the concerned persons. The fund can be liquidated in Article 119. Rights and responsibilities of the actors the following cases: of the union 116.2.1 When the property of the fund is not sufficient 119.1 If another procedure is not provided for by the for realization of its goals and when the possibility of charter of the union, actors of the union can use its obtaining required property is not real; services free of charge. 116.2.2 When it is not possible for the fund to reach its 119.2 The actor can leave the union when the financial goals and these goals can not be duly changed; year is over. In this case, if the other time limit is not 116.2.3 When the fund deviates from the goals provid- stipulated in the charter of the union, within a month ed for by its charter; since his leaving he bears subsidiary responsibility for 116.2.4 In other cases provided for by the legislation. obligations of the union proportionate to his fee. The 116.3 While liquidating, the property of the fund shall actor of the union can be removed from the union by be directed to the goals stipulated in its charter, or to the the decision of other actors in the procedure and cir- state budget, when the former is impossible. cumstances provided for by the charter. Responsibility of the removed actor is regulated according to the rules Article 117. The union of legal entities on leaving the union. 117.1 Commercial organizations can establish unions in 119.3 By a consent of the actors a new actor can join order to co-ordinate their entrepreneurial activity and to the union. Joining of a new actor can be conditioned by represent and protect general property interests. If the his subsidiary responsibility for the obligations of the union is authorized to conduct entrepreneur activity on union appeared before his joining. the basis of the decision of the actors, then such a union becomes an economic companionship or compa- ny in the order provided for by this Code or can create an economic company or participate in such a company LAW OF THE AZERBAIJAN REPUBLIC ON for carrying out entrepreneurial activity. STATE REGISTRATION OF LEGAL ENTITIES 117.2 Non-commercial organizations can establish (1996) unions in order to co-ordinate their activity and to rep- [unofficial translation] resent and protect general interests. 117.3 Actors of the union remain independent and Chapter I. General reserve their rights as legal entities. Article 1. Objective of the law 117.4 The property donated to the union by its founders The present Law establishes legal and organization basis (actors) is the property of the union. The union uses for state registration of legal entities, branches and rep- this property to achieve goals determined by its charter. resentations of foreign legal entities formed in 117.5 The union does not bear any responsibility for Azerbaijan, irrespective of their organization-legal obligations of its actors. For obligations of the union form, form of property and subordination. the actors bear subsidiary responsibility in an amount and procedure stipulated in the charter of the union. Article 2. State registration of legal entities, 117.6 The name of the union shall include the major branches and representations of foreign legal enti- subject of the actors’ activity as well as the word ties “union”. State registration of legal entities, branches and repre- 117.7 While liquidating, the property of the union shall sentations of foreign legal entities consists in granting be directed to the goals stipulated in its charter, or to the status of legal entity to legal entities, issue of certificates state budget, when the former is impossible. of state registration to said legal entities, branches and 117.8 Characteristic and legal status of different types representations of foreign legal entities. of unions are determined by this Code and the legisla- tion. Article 3. Legislation concerning state registration of legal entities, branches and representations of Article 118. Charter of the Association foreign legal entities Besides data mentioned in Article 47.2 of this Code, the In Azerbaijan Republic state registration of legal enti- charter of the union must reflect data on amount of fee ties, branches and representations of foreign legal enti- paid by actors of the union, its composition and proce- ties is accomplished according to Civil Code of the dure of payment, on actors’ responsibility for violation Azerbaijan Republic, the present Law, Laws of the of obligation to pay fee, on composition and authorities Azerbaijan Republic «On enterprises», «On joint stock of the control bodies of the union, on the procedure of companies», other legislative acts and international making decisions by these bodies, as well as on the pro- treaties of the Azerbaijan Republic. cedure of disposing of the property of the union while

ENABLING CIVIL SOCIETY • 39 baku_materials.qxd 2003. 02. 21. 15:56 Page 40

Chapter II. State registration bodies establishment of legal entity and their presentation is Article 4. State registration bodies required according to applicable legislation of the Single state registration of legal entities, branches and Azerbaijan Republic. representations of foreign legal entities in the Azerbaijan Republic is implemented by the bodies of Article 9. Investigation of application justice as specified by the present Law. State registration body, having received application for state registration of legal entity, branch and repre- Article 5. Objectives of state registration bodies sentation of foreign legal entity: State registration bodies implement the following • accepts documents for consideration; tasks: • within 10 days issues certificate of state registra- • take decisions concerning state registration of tion or written notice with refusal in registration legal entities, branches and representations of for- to the person who applied for state registration; eign legal entities; • accepts for investigation documents waiting for • take decisions about refusal in state registration of state registration after elimination of existing legal entities, branches and representations of for- faults and within 5 days makes decision about eign legal entities in cases, specified in the Law; state registration. • inform respective state bodies about implementa- tion of state registration or liquidation of legal Article 10. Specific features of state registration entities, branches and representations of foreign of legal entities with foreign investments legal entities in cases specified in the Law. To carry out state registration of legal entities with foreign investments, in addition to documents speci- Article 6. Status of state registration bodies fied in Articles 7 and 8 of the present Law the fol- State registration bodies are legal entities. They have a lowing documents are presented: seal with image of National Emblem of the • if foreign founder is legal entity – extract from Azerbaijan Republic and its name and are financed trade register certified in an established order in from the budget. the Consulate of the Azerbaijan Republic in the country of residence of foreign founder or in the Chapter III. Procedure of state registration of Consulate of another country representing inter- legal entities, branches and representations ests of the Azerbaijan Republic in the country of of foreign legal entities residence of foreign founder (whenever there are Article 7. Application for state registration no Consulates, as an exception, in respective state To implement state registration of legal entities, body of the Azerbaijan Republic); branches and representations of foreign legal entities, • if foreign founder is physical person – identifica- application should be sent to respective state registra- tion card and document giving the right to carry tion body. Application must be signed by the founder out business activity certified in an established (one of the founders) or by the authorized person order in the Consulate of the Azerbaijan Republic (persons) in an established order. in the country of citizenship or permanent resi- dence of foreign founder, or in the Consulate of Article 8. Documents enclosed with the applica- another country representing interests of the tion for state registration by legal entity Azerbaijan Republic in the country of citizenship The following documents are enclosed with the appli- or permanent residence of foreign founder cation for state registration: (whenever there are no Consulates, as an excep- • By-laws of legal entity (terms of reference of legal tion, in respective state body of the Azerbaijan entity); Republic); • decision about establishment of legal entity, or foundation agreement, except individual (family) Article 11. Specific features of state registration of enterprises; branches and representations of foreign legal • receipt confirming payment of state registration entities duty; To carry out state registration of branches and repre- • document with legal address of the founder (if the sentations of foreign legal entities, in addition to founder is physical person – his postal address). application signed by the Head of legal entity, the fol- If a founder (on of the founders) is physical per- lowing documents are presented: son his foundation agreement must be certified by the • decision of legal entity about establishment of notary. branch or representation (except individual /fam- Other documents for registration of legal entities ily /enterprises); not specified in the present Article are enclosed with • By-laws of legal entity certified as required by leg- the application only when they are connected with islation;

40 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 41

• Regulation on branch or representation; of legal entities, branches and representations of for- • receipt about payment of state registration duty. eign legal entities constitutes a basis for their exclu- sion from State registration book. Article 12. Regulations on activity of legal enti- ties, branches and representations of foreign Article 18. Introduction of amendments into legal entities which requires special permit State registration (license) Legal entities, branches and representations of for- Legal entities, branches and representations of for- eign legal entities whenever their organization-legal eign legal entities can obtain licenses for implementa- form changes, or in other cases envisaged by legisla- tion of activity requiring special permit (license) tion, within 10 days must be re-registered in state reg - according to the Law of the Azerbaijan Republic «On istration bodies. business activity» only after they have been registered. Article 19. Exclusion from state registration book Article 13. Assignment of state registration codes and notification Legal entities, branches and representations of for- Exclusion of legal entities, branches and representa- eign legal entities which have been officially registered tions of foreign legal entities from the Book of state are assigned identification code in state statistical registration consists in return of certificates of state body, and are included into State Register Book under registration to these entities, liquidation of state reg - specific number. istration number, exclusion from the State Register of All documents presented for state registration are the Azerbaijan Republic, notification of respective kept in files under respective number. bodies about cancellation of registration. State registration body excludes legal entities, Article 14. Document of state registration branches and representations of foreign legal entities State registration body issues to legal entity, branch or from the Book of State registration within 5 days representation of foreign legal entity certificates con- after respective decision of the owner(s) of property firming that they have passed state registration or authorized body or respective decision of law (Supplement No.1 to the present Law). court about liquidation of legal entity, branch and Certificate of state registration is the major docu- representation of foreign legal entity. ment for fabrication of seals, stamps, company’ paper State registration bodies, in cases and in an order forms and trade logos of legal entities, branches and specified by the law, inform respective bodies about representations of foreign legal entities, opening bank liquidation of legal entities, branches and representa- accounts, and also registration with tax authorities. tions of foreign legal entities.

Article 15. Refusal in state registration Chapter V. Supplementary Refusal in state registration of legal entities, branches Article 20. Procedure of settlement of disputes and representations of foreign legal entities is possi- related to state registration ble due to violation of legal procedure when estab- Illegal acts and decisions of state registration bodies lishing legal entities, branches and representations of might be appealed against in an order specified by leg - foreign legal entities, or unconformity of their part- islation of the Azerbaijan Republic. nership documents with legislation. Refusal in state registration of legal entities, Article 21. Responsibility for violation of the Law branches and representations of foreign legal entities Officials and citizens are responsible for violation of referring to lack of potential is not permitted. the present Law according to legislation of the Azerbaijan Republic. Article 16. Information about state registration Once a month state registration bodies inform bodies, Article 22. Transition who carry out statistical, taxation, cadastre and other Before the present Law becomes valid, registration registers about state registration of legal entities, documents of legal entities, branches and representa- branches and representations of foreign legal entities. tions of foreign legal entities which have been offi- cially registered in other bodies, are sent to respective Chapter IV. Liquidation and state registration of bodies of justice and are registered in these bodies. liquidation of legal entities, branches and repre- sentations of foreign legal entities President of the Azerbaijan Republic Article 17. Effect of liquidation of legal entities, Heydar ALIYEV. branches and representations of foreign legal 6 February 1996, No. 17-IG entities on state registration According to legislation of the Azerbaijan Republic

ENABLING CIVIL SOCIETY • 41 baku_materials.qxd 2003. 02. 21. 15:56 Page 42

LAW OF THE AZERBAIJAN REPUBLIC ON that points out its organizational-legal form and nature NON-GOVERNMENTAL ORGANIZATIONS of its activities. Residence of a non-governmental (PUBLIC ORGANIZATIONS AND FUNDS) organization shall be determined by address pointed in [unofficial translation] its charter. If legal address on a non-governmental organization is changed, the written notice in this Section I. General Provisions regard shall be provided to relevant executive authori- Article 1. Objective of this Law ty within not less than 7 days. This Law regulates the relations concerned with estab- lishment and operation of social communities and Section II. Organizational-Legal Forms, Types foundations. In this Law, the term “non-governmental and Participants of Non-Governmental Organi- organization” includes social communities and foun- zations dations. This Law determines the rules for establish- Article 4. Organizational-Legal Forms of Non- ment, operations, reestablishment and liquidation of Governmental Organizations non-governmental organizations, and defines their Non-government organizations may be established in activities, administration, and relations with govern- any organizational-legal form. ment bodies. This Law shall not apply to political par- ties, trade unions, religious organizations, local govern- Article 5. Types of Non-Governmental ment bodies and other non-governmental organiza- Organizations tions that are regulated by other laws. Non-governmental organizations may be established for fundamental reasons, or in order to achieve certain Article 2. Non-Governmental Organization objectives. 2.1 Public organization – a voluntary, self-governed non-governmental organization that is not aimed at Article 6. Area of Operations of Non- profits as major objective, and not distributing gener- Governmental Organizations ated profit among its members, and that is created Non-governmental organizations may be established upon initiative of several individuals and/or legal enti- and operated with all-Azerbaijan, regional, and local ties having common interests, for purposes defined in status. The area of operations shall be independently charter documents of such organization. determined by non-government organization. 2.2 Fund – a non-membership non-governmental Operations of all-Azerbaijan non-governmental organization that is founded by several individuals organizations shall apply to the whole territory of the and/or legal entities on the basis of voluntary proper- Azerbaijan Republic. Operations of regional non-gov- ty shares, and is aimed at social, charitable, cultural, ernmental organizations shall cover two or more educational and other public activities. administrative-territorial units of the Azerbaijan 2.3 A non-governmental organization may be estab- Republic. Local non-government organizations shall lished and operated for purposes that are not prohibit- operate within one administrative-territorial unit. ed by the Constitution and laws of the Azerbaijan International non-government organizations – social Republic. communities that have area of operations covering the 2.4 A non-governmental organization may not partici- territory of the Azerbaijan Republic and of at least pate in presidential, parliamentary and municipal elec- one foreign state. tions of the Azerbaijan Republic, and it may not pro- vide financial and other material assistance to political Article 7. Branches and Representations of Non- parties. Non-governmental organizations (except for Government Organizations non-governmental organizations that receive grants or Registered non-governmental organizations may other types of financing from foreign individuals and establish branches and representations in the territory legal entities, as well as from Azeri legal entities with of the Azerbaijan Republic and abroad. Branch of a more than 30 % foreign share in their charter capital) non-governmental organization may be established may observe presidential, parliamentary and municipal beyond the place of residence of that organization and elections in accordance with the legislation of the may fully or partially carry out such organization’s Azerbaijan Republic. A non-governmental organiza- activities. Representation of a non-governmental tion may come up with proposals on improvement of organization shall be established beyond the place of legal and regulatory acts, according to the rules pro- residence of that organization, and shall represent and vided by the laws of the Azerbaijan Republic and by its protect the interests of such organization. Branches own charter. and representations of non-governmental organiza- tion are not legal entities. They receive share of prop- Article 3. Name and Residence of Non- erty of an organization that established them and Governmental Organization operate in accordance with Regulations approved on A non-governmental organization shall have a name behalf of such organi zation. Chiefs of branches and

42 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 43

representations shall be appointed by non-governmen- tions” shall refer to individuals and legal entities tal organization, and shall operate within the scope of (except for state and local government bodies) that powers given to them by that non-governmental support a non-governmental organization by: organization. • participating in operations of such non-govern- mental organization; and Article 8. Participants of Non-Governmental • providing various assistance or services to such Organizations non-governmental organization without formaliz- The term “participants of social communities” shall ing - from organizational point of view - their own refer to their founders, members and assistants. The relations with that non-governmental organization. term “participants of foundations” shall refer to their Existence and legal status of assistants shall be founders and assistants. Under-age members of a pub- determined by foundation documents of a non-gov - lic organization shall have rights and responsibilities in ernmental organization. accordance with the civil legislation of the Azerbaijan Republic. Foreigners and stateless persons may Section III. Creation, Reestablishment And become participants of non-governmental organiza- Liquidation Of Non-Governmental Organizations tions operating in the Azerbaijan Republic. Article 12. Creation of Non-Governmental Organizations Article 9. Founders of Non-Governmental A non-governmental organization may be created as a Organizations result of foundation of such organization, as well as Legal entities (except for state and local government reestablishment of existing non-governmental organi - bodies) and individuals, who reached the age of 18 (16 zation. In foundation of a non-governmental organi - for founders of public youth organizations), may zation its creation shall be implemented by decision of become founders of non-governmental organizations. a founder (founders). In this case, foundation meeting Founders of non-governmental organizations shall shall be summoned and charter of an organization have equal rights. The scope of their mutual rights and shall be adopted. obligations shall be regulated by: • foundation contract (if contract is signed) - in Article 13. Charter of Non-Governmental respect to foundation of a non-governmental Organization organization; and Charter of a non-governmental organization shall • charter - in respect to participation in operations of define: a non-governmental organization. • name and address of organization; • objectives of operation and method of manage- Article 10. Members of Social communities ment; Any individual and legal entity (except for state and • rights and responsibilities of members; local government bodies) in the Azerbaijan Republic • conditions and rules for joining and leaving the may become a member of a public organization. membership of public organization; Members of a public organization shall have equal • sources for formation of property of a non-gov - rights. They may: ernmental organization; • elect and be elected to management bodies of • rules for adoption of the charter, and for making social communities; changes and additions to it; • participate in operations of social communities; • rules for liquidation of a non-governmental organ- • supervise operations of management bodies of ization, and for utilization of its property in case of social communities liquidation. • exercise other rights provided by charters of social Charter of a fund shall include information about: communities. • its name with the word “Fund” in it; Members of social communities shall as well follow • address; requirements stipulated in charters of social communi- • objectives; ties. Issues of acquiring and termination of member- • bodies, including Custody Board, as well as rules for ship of a public organization shall be determined by its establishment of those bodies; charter. Charter of a public organization shall guaran- • rules for appointment and dismissal of fund offi- tee the right to lodge complaint within the organiza- cials; tion and in court regarding termination of member- • future of a fund’s property in case of liquidation. ship. Article 14. Making Changes to the Charter of Article 11. Assistants of Non-Governmental Non-Governmental Organization Organizations Changes to the charter of a public organization may be The term “assistants of non-governmental organiza- made by decision of its supreme management body.

ENABLING CIVIL SOCIETY • 43 baku_materials.qxd 2003. 02. 21. 15:56 Page 44

Changes to the charter of a fund may be made by its eliminated. Custody Board, and only in direction toward objectives Complaint regarding decision to reject state registra- of that fund. Custody Board of a fund may change that tion of a non-governmental organization may be fund’s charter only if the charter provides for possibili- lodged in court. ty of changing it in such manner. If keeping the charter of a fund unchanged leads to results that have not been Article 18. Termination of Operations of Non- envisaged in advance, at the time of establishment of Governmental Organization that fund, and if the charter does not provide for pos- Operations of a non-governmental organization shall sibility of changes or has not been changed by charter be terminated through reestablishment of that non- empowered officials, then the right to make changes to governmental organization (merger, joining, splitting, such charter shall belong to court according to applica- separation, transformation), or through its liquidation. tion by that fund’s Custody Board. State registration of changes to the charter of a Article 19. Reestablishment of Non-Governmental non-governmental organization shall be registered by Organization relevant executive authority. Changes to the charter of a A non-governmental organization may be reestablished non-governmental organization shall become effective in a manner provided by this law. Reestablishment of a from the moment they are registered. non-governmental organization may be carried out through decree of a body that is empowered by Article 15. Notice of Establishment of Public founders or by the charter of that non-governmental Organization organization. Notice of establishment of a public organization shall Reestablishment of a non-governmental organiza- be presented to relevant executive authority in a written tion may be carried out in the form of merger, joining, form, not later than 30 days from the moment when splitting, separation, and transformation. decision on establishment of such public organization Reestablishment of a non-governmental organization, is adopted. On the day when the relevant executive in case if other organization merges with or joins it, authority receives the notice of establishment of a pub- shall be counted from the moment when a relevant lic organization it shall hand acknowledgment of receipt executive authority makes an entry in the state register of the notice to a representative of that public organi- about terminating operations of one of these organiza- zation or send it by mail. tions. Establishment of a non-governmental organiza- tion as a result of separation or splitting shall be count- Article 16. State Registration of Non-Governmen- ed from the moment when a relevant executive author- tal Organization ity makes an entry in the state register of legal entities State registration of non-governmental organizations about separation of one them, or about terminating shall be carried out by relevant executive authority, in operations of organization to be split and establishment accordance with the legislation of the Azerbaijan of new non-governmental organizations. Republic on registration of legal entities. Establishment of a non-government organization A non-governmental organization shall receive the sta - by way of transformation shall be counted from the tus of legal entity only after it passes state registration. moment when a relative executive authority makes an entry in the state register of legal entities about liquida- Article 17. Rejection of State Registration tion of existing organization and establishment of a State registration of non-governmental organizations new organization on its basis. After reestablishment of may be rejected only if: a non-governmental organization, all issues concerned • there is another non-governmental organization with legal inheritance shall be dealt in a manner provid- existing under the same name; or ed by the Civil Code of the Azerbaijan Republic. • documents submitted for state registration contra- dict the Constitution, this Law, and other laws of Article 20. Liquidation of Non-Governmental the Azerbaijan Republic, or contain false informa- Organization tion. A non-governmental organization may be liquidated in Decision on rejection of state registration of a non- a manner provided by the legislation of the Azerbaijan governmental organization shall be submitted to a rep- Republic on registration of legal entities. resentative of that non-governmental organization in a written form, pointing out reasons for rejection, as well Article 21. Property of Liquidated Non- as provisions and paragraphs of legislation that have Governmental Organization been violated in preparation of foundation documents. All property issues concerned with liquidation of a non- Rejection of state registration of a non-governmental governmental organization shall be dealt in a manner organization shall not be an obstacle for resubmission provided by the Civil Code of the Azerbaijan Republic. of documents for state registration after deficiencies are

44 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 45

Section IV. Activities of Non-Government Section V. Management of Non-Governmental Organizations Organizations Article 22. Types of Activities of Non- Article 25. Principles of Management of Public Governmental Organizations Organization A non-governmental organization may carry out any Charter of a public organization shall – in accordance type of activity that is not prohibited by the legislation with this law and other laws – define the structure and of the Azerbaijan Republic and does not contradict composition of that public organization, the powers objectives provided in the charter of the non-govern- of its management bodies, rules for establishment of mental organization. A non-governmental organiza- such bodies, and their term in office, as well as the tion may carry out entrepreneurship activity that is rules for adoption of decrees and acting on behalf of aimed only at reaching objectives of creation of that the public organization. Supreme management body organization, without distribution of generated of a public organization shall be the general meeting income among founders (members). Production and to be summoned not less than once a year. The gener- sales of profitable goods, as well as acquisition of al meeting shall be summoned upon initiative by exec- securities and property and non-property rights, and utive body of a public organization, by one of its acting as depositor with economic agents and partner- founders, or by 1/3 of its members. The main func- ships shall be accepted as types of such activities cor- tion of the general meeting is to follow objectives it is responding to objectives of creation of a non-govern- concerned with. mental organization. A non-governmental organiza- The following issues shall refer to the scope of tion shall keep record of income and expenditures powers of the general meeting: related with its entrepreneurship activities. Restriction 25.5.1 adoption of the charter of a public organiza- per each type of activity a non-governmental organiza- tion, and making changes and additions to it; tion can be engaged with shall be determined only by 25.5.2 determination of principles for formation and law. use of property of a public organization; 25.5.3 creation of executive bodies of a public organ- Article 23. Property of Non-Governmental ization and premature termination of their powers; Organization 25.5.4 adoption of annual report; A non-governmental organization may own or run the 25.5.5 participation in other organizations; types of property that are not prohibited by the legis- 25.5.6 reestablishment and liquidation of a public lation. A non-governmental organization shall be liable organization. for its commitments with its property. This property Founders and members of a public organization may be alienated only in accordance with laws of the shall receive information about place and time of the Azerbaijan Republic. Property of a fund shall comprise general meeting at least 2 weeks in advance. The gen- the property contributed by its founders (founder). A eral meeting may make changes to the charter only if person (legal entity) that contributes property to a fund more than a half of members of a public organization after it is established shall not gain a right of founder. participate in the meeting. Decree of the general meet- Founders shall not be liable for commitments of the ing shall be adopted by majority of votes of the mem- fund, which they created, as well as the fund shall not bers participating in the meeting. Each member shall be liable for commitments of its founders. have one vote. Written minutes shall be kept at the general meeting. The minutes shall be signed by chair- Article 24. Source of Forming the Property of man and secretary of the general meeting. If neces- Non-Governmental Organization sary, the minutes of the meeting shall be distributed to 24.0 Property of a non-governmental organization in all members. cash and other forms shall be raised from the follow- ing sources: Article 26. Executive Body of Public Organization 24.0.1 regular or single-time membership fees by Executive body of a public organization may be colle- founders or members of social communities; gial and/or single. The executive body shall exercise 24.0.2 voluntary property shares and donations; current management of operations of a public organ- 24.0.3 receipts from sales of goods, provision of ization, and shall report to the supreme management works and services; body of the organization. Executive body of a public 24.0.4 dividends and revenues generated from shares, organization shall establish branches and representa- bonds, other securities and savings; tions of that public organization. Executive body of a 24.0.5 income generated as a result of use or sales of public organization shall deal with all of the issues that its own property; do not refer to exclusive powers determined by this 24.0.6 grants; law, other laws, and charter of that public organiza- 24.0.7 other income not prohibited by the legislation tion.

ENABLING CIVIL SOCIETY • 45 baku_materials.qxd 2003. 02. 21. 15:56 Page 46

Article 27. Management of a Fund organization shall have right to lodge complaint about Management of a fund shall be carried out by the pres- such warning or instruction in court. If a non-govern- ident of that fund or its governing board. mental organization is given a written warning or Custody Board is a supervisory body of a fund. The instruction to eliminate violations for more than two Custody Board shall: times within one year, such non-governmental organi- • supervise activities of the fund; zation may be liquidated by court decision. • supervise adoption of decrees by other bodies of the fund, as well as implementation of such decrees; Article 32. Re-registration of Previously Registered • supervise utilization of the fund’s means; Non-Governmental Organizations • adopt changes to the fund’s charter; Non-governmental organizations that passed registra- • adopt decrees on liquidation or reestablishment of tion before enactment of this law shall be entered into the fund. the state register of legal entities by the relevant execu- The Custody Board shall implement its activities in tive authority. accordance with public principles. Rules for establish- ment and operations of the Custody Board of a fund Article 33. Enactment of this Law shall be determined in the charter of that fund This Law shall become effective from the day it is pub- approved by its founders. lished.

Section VI. Non-Governmental Organizations and The President of the Azerbaijan Republic HEYDAR Government Bodies ALIYEV Article 28. Relations Between Government Bodies 13 June 2000 and Non-Governmental Organizations All government bodies shall protect the rights of non- governmental organizations. Non-governmental organ- izations shall have right to independently carry out their DECREE OF THE PRESIDENT OF THE activities within the framework of the legislation. AZERBAIJAN REPUBLIC ON IMPLEMENTA- Government bodies may provide financial and other TION OF THE LAW OF THE AZERBAIJAN aid to non-governmental organizations. REPUBLIC ON NON-GOVERNMENTAL ORGANIZATIONS (SOCIAL COMMUNITIES Article 29. Supervision of Non-Governmental AND FOUNDATIONS) Organization [unofficial translation] A non-government organization shall maintain accounting in accordance with the legislation. For the purpose of implementation of the enacted Law Information about amount and structure of income of “On Non-Governmental Organizations (Public a non-governmental organization, as well as informa- Organization and Foundations)”, I decide that: tion about its property, expenses, number of staff, and salaries shall not be a state or commercial secret. Fund Within two months the Cabinet of Ministers of the shall be obliged to publish annual reports about use of Azerbaijan Republic shall: its property. • present proposals to the President of the Azerbaijan Republic on bringing the existing legislative acts in Article 30. Tax Privileges Used by Non- conformity with the Law “On Non-Governmental Governmental Organizations Organizations (Public Organization and Foun- Non-government organizations that passed state regis- dations)”; tration shall use the tax privileges provided in the Tax • ensure that legal and regulatory acts of the Cabinet Code of the Azerbaijan Republic. of Ministers and of the relevant executive authori- ties conform with this Law, and submit information Section VII. Final Provisions about this to the President of the Azerbaijan Article 31. Responsibilities of Non-Government Republic; Organization • prepare draft legislative act that determines respon- In case of violation of requirements arising from pro- sibility for violation of the Law “On Non- visions of this law, a non-governmental organization Governmental Organizations (Public Organization shall bear responsibility in accordance with the legisla- and Foundations)”, and submit this draft to the tion of the Azerbaijan Republic. President of the Azerbaijan Republic; In case if taken actions contradict the objectives of this • deal with further issues arising from the Law “On law, the relevant executive authority may warn a non- Non-Governmental Organizations (Public Organi- governmental organization in a written form or instruct zation and Foundations)”, within the scope of its it to eliminate the violations. A non-governmental powers.

46 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 47

It shall be determined that the Ministry of Justice of 106.1.2 grants, membership fees and donations the Azerbaijan Republic shall exercise powers of the received by non-commercial organizations; “relevant executive authority” that are provided in 106.1.3 income of international, interstate and inter- Articles 3.3, 14.3, 15.1, 15.2, 16.1, 19.3, 19.4, 19.5, 31.2, governmental organizations - except for the income and 32 of the Law “On Non-Governmental Organi- received from the entrepreneurial activity; zations (Public Organization and Foundations)” 106.2 Income tax rate for production enterprises owned by social communities of disabled people shall be reduced by 50 percent if not less than 50 percent of The President of the Azerbaijan Republic HEYDAR employees at such enterprises are disabled people. ALIYEV When establishing the right for the privilege the average 4 October 2000 number in the list of employees shall not include dis- abled people who work on contract terms at two jobs, as contractors and other agreements civil legislation.

THE TAX CODE OF THE REPUBLIC OF Chapter X. Articles concerning income taxes of AZERBAIJAN (excerpts) natural and profit taxes of legal persons Approved by the Law No. 905-IT of the Azerbaijan Article 109. Non-Deductible Expenses Republic 109.2 Expenses that are not connected with economic 11 July 2000 activity shall not be deducted. . . . [unofficial translation] 109.4 If the expenses of a taxpayer whose entrepre- neurial activity is of entertainment nature are incurred Chapter I. General Provisions within the framework of such activity, expenses Article 13. Main definitions used in this Code incurred on entertainment shall be deducted from the 13.2.27 Non-commercial activity- it is a conduct of income. legal activity the purpose of which is not generation of profit and that stipulates the use of income received in Chapter XI. Value Added Tax non-commercial purposes only, including the purposes Article 164. Exemption from Tax of its charter. Otherwise such activity shall be consid- 164.1 Along with the export of goods, the following ered as commercial . . . types of the realization of goods, performance of work 13.2.35 Charity shall be defined as that activity natural and provision of services, as well as the following types person and/or charity organization performs, which of import shall be exempt from the payment of VAT: . consists of rendering assistance, to include the transfer . . . of monies, without compensation, to physical persons 164.1.7 purchasing of goods, execution of works and in need of material or other assistance (aid), or to services as well as their export on the expense of cred- organizations and charitable organizations that directly its and loans international organizations, governments provide such assistance (aid), including charity organi- of foreign countries, on the expense of credits and zations. Scientific, educational activities performed in loans provided by foreign legal and natural persons on the public interest shall be considered charity except the basis of intergovernmental and interstate agree- where otherwise stipulated in this Code. Assistance ments, as well as the share of Azerbaijani party in proj- (aid) given shall not be construed as charity if: ects implemented on the expense of such credits and 13.2.35.1 the recipient of said assistance (aid) assumes loans; any obligation to the provider, which is of a property or 164.1.8 turnover on all types of purchasing and sale of non-property nature (with the exception of obligations mass media products, editing, publishing, polygraph to utilize the funds or property received as targeted); activity connected with production of mass media pub- 13.2.35.2 the recipient and provider of said assistance lishing (with exception of advertisement services); (aid) are deemed to be interrelated; 164.1.9 editing, publishing, polygraph activity related to 13.2.35.3 said assistance (aid) is rendered to any physi- the production of text-books for schools, children lit- cal person or legal entity with the intent of helping that erature and state publishing funded by state budget; . . person or entity participate in an election campaign. . 13.2.36 Charity organization- non-commercial organi- zation conducting charity activities. Chapter XIII. Property Tax Article 199. Tax privileges and exemptions Chapter IX. Profit tax from legal persons 199.1 Budget-funded institutions and organizations, Article 106. Exemptions and privileges state power and governing bodies, the National Bank of 106.1. The following shall be exempt from tax: the Republic of Azerbaijan and its offices, state funds 106.1.1 income of charitable organizations - except for and public entities for disabled people . . . the income from entrepreneurial activity

ENABLING CIVIL SOCIETY • 47 baku_materials.qxd 2003. 02. 21. 15:56 Page 48

ACT ON TRADE UNIONS, NO. 792 OF 24 of the Republic of Azerbaijan on the activity of trade FEBRUARY 1994 (excerpts) unions in the Republic of Azerbaijan. [Unofficial translation] The legislation of the Republic of Azerbaijan shall not limit the rights of trade unions laid down in gen- Chapter I. General provisions erally accepted provisions of international law and Article 1. Definitions Conventions of the International Labour A trade union is an independent, public, non-political Organization. organization, voluntarily uniting on the basis of indi- vidual membership workers employed in the produc- Article 3. The right to organize tion and non-production sectors, as well as retired per- Workers, retired persons and persons attending educa- sons and persons attending educational establish- tional establishments, without distinction whatsoever, ments, for the defence of their occupational, social shall have the right to establish voluntarily trade and economic rights and legitimate interests at the unions of their own choosing without previous workplace, at the occupational, sectoral and at repub- authorization and to join trade unions for the defence lic level, which acts in accordance with its rules and of their legitimate interests and occupational and with this Act. socio-economic rights, and to carry out trade union For the purposes of this Act: activities. • - “primary trade union organization” means a trade In pursuance of the aims set forth in section 1 of union organization which is established directly at this Act, seven or more persons shall have the right to the workplace by workers in the production or establish a trade union and, having joined together on non-production sector, and by retired persons and a voluntary basis in that trade union, to adopt its rules. persons attending educational establishments; The conditions for trade union membership of • - “occupational and sectoral associations of trade unions” retired persons who no longer work and unemployed means trade union associations established by pri- persons shall be laid down in the rules of trade unions. mary trade union organizations at the occupation- Persons performing military service in the al or sectoral level; Republic of Azerbaijan shall not be permitted to join • - “territorial trade union associations” means trade in trade unions. union associations established by occupational and Managerial staff cannot be members of a trade sectoral trade union associations at the republic or union in the enterprise concerned. other territorial level concerned; Trade unions may, independently and of their own • - “worker” means citizens of the Republic of free will, set up their primary organizations and their Azerbaijan and persons without citizenship, as well occupational and sectoral associations, as well as asso- as foreign citizens working under an employment ciations at the republic and other territorial levels. contract in enterprises, irrespective of their form of ownership and management, in the trade, spe- Article 4. Rules and registration of trade unions cialization or occupation concerned; The rules of trade unions shall not run counter to the • - “management” means managerial personnel of the Constitution and the laws of the Republic of enterprise, irrespective of its form of ownership Azerbaijan. Such rules shall normally provide for the and management, as well as the owner or manage- following: ment body empowered by him or her, which has (1) the name and location; capacity to conclude, terminate or modify employ- (2) the objectives, goals, forms and methods of ment contracts with the workers; their activity; • - “enterprise” means institutions, enterprises, organi- (3) the rules of membership; zations, associations, joint ventures, joint-stock (4) members’ rights and obligations; companies, farms and other workplaces, irrespec- (5) their organizational structures; tive of their form of ownership and management; (6) their elective bodies and rules for their election • - “persons attending educational establishments” means and removal; students or pupils undergoing training in the occu- (7) the powers of their elective bodies and their pations and specializations concerned in higher term of office; and secondary specialized educational establish- (8) sources of financing and the fixing of mem- ments or vocational-technical schools, during bership dues; which they do not work. (9) rules relating to international relations; (10) property matters; Article 2. Legislation on trade unions (11) the procedure for adopting, amending and The legislation on trade unions in the Republic of supplementing the rules; Azerbaijan consists of the Constitution of the (12) the procedure for cessation of the trade Republic of Azerbaijan, this Act and other legislation union’s activity.

48 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 49

A trade union organization shall be deemed to economic rights and interests shall be adopted by state have legal personality and shall enjoy the rights of legal and economic management bodies with not less than personality from the time at which its rules are regis- 15 days’ prior notice to the trade unions concerned. tered. In the cases provided for by legislation, the trade union The rules of a trade union organization shall be association at republic level may participate in drafting registered according to the procedure laid down in the statutory instruments regulating the implementation of Act of the Republic of Azerbaijan respecting public legislation on labour, social and economic matters. associations. Article 11. Right of trade unions to defend labour Article 5. Independence of trade unions rights Trade unions shall carry out their activity independ- Trade unions shall defend their members’ labour rights ently of state bodies, institutions, political parties and and participate in drafting state employment policy. public associations and shall not be accountable to Where the closure of an enterprise or its subdivisions them. Any interference likely to impair the exercise of at the initiative of the management may lead to a com- trade unions’ rights shall be prohibited except where plete or partial cessation of production, workforce otherwise provided by this Act. reductions or a deterioration of working conditions, Trade unions shall independently draw up and such measures, with the exception of cases provided approve their rules and programmes of activity, deter- for by the law, shall not be carried out without prior mine their structures, elect and remove their executive notice of not less than three months to the trade bodies, and convene their meetings, conferences, ple- unions concerned, and consultations with them con- nary sessions, assemblies and congresses and carry out cerning the safeguarding of workers’ rights and inter- their activities on the basis of their constitutional ests. rights. Within the limits of their powers and according to All trade unions, irrespective of their name and the procedure established by the law, trade unions shall organizational system, shall enjoy equal rights. monitor the employment situation and compliance with the legislation on guarantees regarding employ- Article 6. Prohibition of political activity of trade ment. . . . . unions Trade unions shall be prohibited from engaging in Article 16. International relations of trade unions political activity, associating with political parties or In accordance with the aims and objectives laid down carrying out joint activities with them, providing assis- in their rules, trade unions may join international trade tance or donations to political parties or receiving union organizations and engage in foreign economic assistance or donations from them. activity according to the procedure laid down by law. The chairpersons of trade union associations or their deputies shall not at the same time occupy posts Article 17. Rights of trade unions to information on the executive bodies of political parties. In order to carry out the objectives laid down in their Chairpersons of trade union associations or their rules and to exercise the rights and powers for which deputies who have been elected or appointed to the provision is made in this Act, in order to inform their executive bodies of political parties may choose to members, trade unions may establish mass media and continue their activity in either capacity, but not both. publishing houses; set up press services and sociologi- . . . cal research centres; and demand from officials and state and economic management bodies and the man- Chapter II. of trade unions agement information which does not constitute a Article 10. Participation of trade union in the state, commercial or other secret protected by law. adoption of legislation State and economic management bodies and the Trade unions may participate in drafting legislation management are obliged to provide trade unions with concerning labour, social and economic matters. the relevant information without hindrance. . . . The conclusions of the trade union association at the republic level shall be discussed when examining draft Article 19. Right of trade unions to hold mass legislation relating to workers’ labour, social and eco- events nomic rights. In accordance with the legislation in force and in order Trade union associations at the republic level may to carry out the aims and objectives laid down in their address complaints to the competent legislative, exec- rules, trade unions may organize and hold strikes, utive and judicial bodies concerning legislation, deci- meetings, street processions, demonstrations and other sions and instructions of state bodies which violate mass events. . . . workers’ interests and the rights of trade unions. Legislation affecting workers’ labour, social and

ENABLING CIVIL SOCIETY • 49 baku_materials.qxd 2003. 02. 21. 15:56 Page 50

CONSTITUTIONAL LAW ON THE HUMAN Azerbaijan shall, within 15 days, submit a new list RIGHTS COMMISSIONER (OMBUDSMAN) of three candidates of the Milli Mejlis of the OF THE REPUBLIC OF AZERBAIJAN. Republic of Azerbaijan. [unofficial translation] Article 3. Requirements concerning the candida- Chapter I: Foundations Of The Activities And ture of the Commissioner Appointment Of The Human Rights 3.1. Any citizen of the Republic of Azerbaijan of high Commissioner (Ombudsman) moral character and aged not less than 30 years Article 1. Foundations of the activities of the who has a higher education and experience in the Human Rights Commissioner field of human rights may be elected as a 1.1. The office of the Human Rights Commissioner of Commissioner. the Republic of Azerbaijan (hereinafter referred to 3.2. A person who possesses a dual citizenship, or has as “the Commissioner”) shall be set up to restore obligations before other states, or works in legisla- the human rights and freedoms enshrined in the tive, executive and judicial bodies, or is engaged in Constitution of the Republic of Azerbaijan and any activity involving payment, excluding research, the international treaties to which the Republic of teaching and creative activities, or the legal inca- Azerbaijan is a party, violated by governmental pacity of which has been judicially established, or and municipal bodies and officials of the Republic has been convicted of a serious crime may not of Azerbaijan. become a Commissioner. 1.2. The activities of the Commissioner shall not 3.3. The Commissioner may not engage in any political restrict and substitute the competence of other activity and may not be a member of any political governmental bodies ensuring the protection of party. The Commissioner may not be represented and restoration of violated human rights and free- in the leadership of any non-governmental organ- doms. ization. 1.3. Investigation of the activities of the President of 3.4. The Commissioner shall, within five days of his or the Republic of Azerbaijan, deputies of the Milli her election, waive any activity incompatible with Mejlis of the Republic of Azerbaijan and the his or her status. judges of the Republic of Azerbaijan shall not be 3.5. On the day of his or her election the Commissioner subjected to the powers of the Commissioner. shall make an oath at the Milli Mejlis of the 1.4. The Commissioner may submit motions to the Republic of Azerbaijan as follows: “I swear to President of the Republic of Azerbaijan with faithfully and honestly fulfill my powers as the regard to granting pardon, citizenship and political Human Rights Commissioner of the Republic of asylum. Azerbaijan, to observe the Constitution and laws 1.5. The Commissioner may submit motions to the of the Republic of Azerbaijan, and to act inde- Milli Mejlis of the Republic of Azerbaijan with pendently and impartially”. regard to the adoption or review of laws with a view to ensuring human rights and freedoms. The Article 4. Term of office of the Commissioner Commissioner may submit a motion to the Milli 4.1. The Commissioner shall be elected for a period of Mejlis of the Republic of Azerbaijan with regard 7 years. to declaring amnesty. 4.2. The same person may hold the post of Commis- 1.6. The Commissioner may examine complaints on sioner only once. violations of human rights relating to red tape, 4.3. Thirty days before the expiry of the term of office loss or delayed delivery of documents in courts of of Commissioner, the President of the Republic law as well as delays in the execution of court of Azerbaijan shall submit to the Milli Mejlis of judgments. the Republic of Azerbaijan a new list of three can- 1.7. The activities of Commissioner shall be based on didates for the election of a new Commissioner. the principles of publicity, transparency, lawful- The Milli Mejlis of the Republic of Azerbaijan ness, justice and impartiality. shall, within 15 days, adopt an appropriate deci- sion on the election of the Commissioner. Article 2. Election of the Commissioner 2.1. The Commissioner shall be elected by 83 votes Article 5. Safeguards of the independence of the majority of the Milli Mejlis of the Republic of Commissioner Azerbaijan from among three candidates nominat- 5.1. The Commissioner shall be independent and obey ed by the President of the Republic of Azerbaijan. only the Constitution and laws of the Republic of 2.2. If the Milli Mejlis of the Republic of Azerbaijan Azerbaijan. fails to come at decision with regard to these three 5.2. The independence of the Commissioner shall be candidates, the President of the Republic of ensured by the following:

50 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 51

5.2.1 he or she shall not be replaced, while in office; Commissioner before expiry of term of office of 5.2.2 he or she shall enjoy immunities; the latter: 5.2.3 it shall be inadmissible to interfere with his of her 7.2.1. death of the Commissioner; activities by any governmental or municipal body 7.2.2. a judgment of conviction in force delivered in or official; respect of the Commissioner; 5.2.4 he or she shall be provided with financial and 7.2.3. a written request of the Commissioner for resig- social guarantees. nation. 5.3 Declaration of a state of emergency or martial law 7.3. Where powers of the Commissioner are terminated shall not cease or restrict the activities of before expiry of his or her term of office the Commissioner. President of the Republic of Azerbaijan shall, within 30 days, submit to the Milli Mejlis of the Article 6. Immunities of the Commissioner Republic of Azerbaijan a new list of three candi- 6.1. The Commissioner shall be inviolable while in dates for the election of a new Commissioner. The office. Milli Mejlis of the Republic of Azerbaijan shall, 6.2. The Commissioner, while in office, shall not be sub- within 15 days, adopt an appropriate decision on jected to criminal or administrative proceedings, the election of the Commissioner. search, examination, shall not be arrested or detained, save in cases where he or she was caught Chapter II: Investigation Of Complaints On red-handed. In a case, where the Commissioner is Violations Of Human Rights caught red-handed, the body that has arrested the Article 8. Submission of complaints Commissioner, shall, within 24 hours, inform the 8.1.. The Commissioner shall examine complaints on Milli Mejlis of the Republic of Azerbaijan and the violations of human rights from citizens of the Prosecutor-General of the Republic of Azerbaijan. Republic of Azerbaijan, foreigners and stateless 6.3. The inviolability of the Commissioner may be ter- persons, as well as legal entities (hereinafter minated only on a decision of the Milli Mejlis of referred as “applicant”). the Republic of Azerbaijan taken by 83 votes 8.2. A complaint may also be lodged by a third person majority following a motion of the Prosecutor- or a non-governmental organisation with consent General of the Republic of Azerbaijan. of the person human rights of which have alleged- 6.4. The inviolability of the Commissioner shall extend ly been violated. If it is impossible to obtain con- also to his or her home, service premises, means of sent of the person human rights of which have transport and communication, correspondence, allegedly been violated (if that person died, lost his private property and documents. or her legal capacity etc.), a complaint may be 6.5. Any former Commissioner shall remain inviolable lodged by a third person or a non-governmental for the activities conducted and the opinions organisation without consent. expressed while performing the powers of 8.3. The Commissioner shall not receive complaints Commissioner. Criminal or administrative pro- from governmental bodies. ceedings with regard to offences committed by the 8.4. A complaint may be lodged with the Commissioner Commissioner in that period shall be carried out as within a period of one year from the date on which provided for in Art. 6.3 of the present Law. an alleged violation of rights of the applicant occurred or he or she became aware of that viola- Article 7. Termination of powers of the Commis- tion. sioner before expiry of his or her term of office 8.5. Complaints addressed by persons held in peniten- 7.1. Powers of the Commissioner shall be terminated tiary institutions or detention centres shall be deliv - before expiry of his or her term of office by a ered to the Commissioner within 24 hours without decision of the Milli Mejlis of the Republic of being subjected to any kind of censorship. Azerbaijan taken by 83 votes majority on its own initiative or following a recommendation of the Article 9. Contents of a complaint President of the Republic of Azerbaijan in cases, 9.1. A complaint shall set out: the full name and address where: of the applicant; the essence of a decision or an act 7.1.1. the requirements relating to the Commissioner (or an omission) allegedly having violated his or have been violated, her rights; the place and date of writing the com - 7.1.2. the Commissioner has completely lost his or her plaint; and the signature of the applicant. Any capacity to perform his or her duties, other materials or judicial decisions relating to the 7.2. In cases, where the following circumstances are complaint may be added to that complaint. declared at the Milli Mejlis of the Republic of 9.2. If the full name and address of an applicant are not Azerbaijan, the Chairperson of the Milli Mejlis by indicated in a complaint, the latter shall be consid- his or her decree shall terminate powers of the ered to be anonymous and shall not be pursued,

ENABLING CIVIL SOCIETY • 51 baku_materials.qxd 2003. 02. 21. 15:56 Page 52

save in cases referred to in Art 9.3 of the present mental and municipal body, and officials; Law. 12.2.3. to obtain court orders (judgments) in force con- 9.3. If the circumstances indicated in an anonymous cerning criminal, civil and administrative cases, as complaint are attested by sufficiently evidential and well as cases, the proceedings in respect of which substantiated facts, the Commissioner may admit were terminated; such a complaint for examination. 12.2.4. during investigation of a complaint, to receive 9.4. If a complaint is submitted orally, a Commissioner written explanations from officials; Office member shall note down the contents of 12.2.5. to give fact-finding tasks to relevant bodies; the complaint on a special letterhead, which shall such a task may not be given to a body or an offi- be signed by the applicant. cial whose decision or act (omission) is being 9.5. Upon a request of the applicant, the Commissioner complained of; shall keep secret the data concerning that person. 12.2.6. to charge relevant government bodies and organisations with a task of preparing an expert Article 10. Taking of a decision in respect to a opinion, complaint 12.2.7. to be received without delay by heads and other 10.1. In respect to a complaint on violation of human officials of government and municipal bodies, rights lodged with the Commissioner, he or she commanders of military units, by officials of pen- may take one of the following decisions; itentiary institutions and detention centres. 10.1.1. accepts the complaint for investigation; 12.3. With consent of the person whose human rights 10.1.2. refuses to pursue the complaint. have been violated, the Commissioner may carry 10.2. In case of refusing to pursue the complaint, the out investigations on his or her own initiative in Commissioner shall, within 10 days, submit to an cases of special public importance, or in cases applicant substantiated written reply. where the interests of persons which are not capa- ble to vindicate their rights themselves are affect- Article 11. Grounds for refusing a complaint ed. 11.1. The Commissioner shall not investigate com- 12.4. Where, during an investigation, any violations plaints in the following cases: other than those mentioned in the complaint are 11.1.1 .the requirements of article 8.4. of the present revealed, the Commissioner shall carry out rele- Law have been violated. vant investigation provided that this is within his 11.1.2. the complaint is beyond the competence of the or her competence; if not, he or she shall refer the Commissioner; materials to relevant government body. 11.1.3. a complaint is anonymous save in cases referred 12.5. Complaints shall be investigated during 30 days. If to in Art. 9.3 of the present Law; additional investigation or materials are required, 11.1.4. a complaint is being examined within court pro- this term may be extended to more 30 days. With ceedings; consent of an applicant, if it is necessary to con- 11.1.5. the re-submitted petition does not contain any duct additional investigation, tins term may be re- new information, facts and evidence. prolonged.

Article 12. Investigation procedure Article 13. Results of investigation 12.1. While investigating the circumstances indicated in 13.1. The Commissioner shall, within 5 days, submit a complaint on violations of human rights, the written information to an applicant of the meas- Commissioner shall receive observations as to that ures taken in respect of his or her complaint, and complaint from the body or official complained results of the investigation, of. Within 10 days the observations shall be sub- 13.2. If, as a result of an investigation, the Commis- mitted to the Commissioner. sioner finds a violation of the rights and freedoms 12.2. While investigating the circumstances indicated in of an applicant, he or she may take the following a complaint, the Commissioner shall have the fol- measures: lowing rights: 13.2.1. to demand from the governmental or municipal 12.2.1. to have access, without hindrance and prior body, whose decision or act (omission) violated notification, to any governmental and municipal the human rights and freedoms, to remedy those body, military units, penitentiary institutions, violations. The appropriate bodies and officials detention centres; to meet and interview in private shall, within ten days, submit to the Commissioner persons held in penitentiary institutions and written information of the measures taken in detention centres; to obtain the documents con- respect of those violations. Where such informa- firming the lawfulness of their detention; tion is not submitted or the appropriate body fails 12.1.2. to receive necessary information, documents to comply with the demands of the and materials, within 10 days, from any govern- Commissioner, the latter may apply to the superi-

52 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 53

or authorities. ties, shall be carried out in accordance with the 13.2.2. in cases where certain conduct appears to be a Law of the Republic of Azerbaijan “On State criminal offence, to apply to relevant bodies, secrets”. 13.2.3.to apply to the subjects entitled to file additional 15.2. No data concerning personal and family life of cassation complaints, applicants, which became known to the 13.2.4.to submit proposals to relevant bodies on insti- Commissioner while investigating the circum- tuting disciplinary proceedings against the officials stances indicated in a complaint, shall be made whose decision or act (omission) violated human public without consent of those persons. rights and freedoms, 13.2.5.to inform mass media of the results of the inves- tigation conducted in respect of human rights vio- Chapter III: Organisation and Guarantees of the lations; Work of the Commissioner 13.2.6.in cases, where violations of human rights take Article 16. Social, financial and other guarantees for on special public importance, if the means avail- the Commissioner able at the disposal of the Commissioner are not 16.1. The Commissioner shall receive a salary equal to sufficient for remedying those violation, to apply that of the First Vice-Chairman of the Milli Mejlis to the President of the Republic of Azerbaijan, or of the Republic of Azerbaijan. to hold a speech before the Milli Mejlis of the 16.2. The Commissioner shall be exempted from mili- Republic of Azerbaijan; tary service and periodical military training. 13.2.7.to apply to a court of justice with a view to the 16.3. The Commissioner shall be given a diplomatic protection of the rights and freedoms violated by passport during his or her term of office. decision or act (omission) of a government or 16.4. The Commissioner shall be given leave as provid- municipal body, or an official, ed for in the legislation of the Republic of 13.2.9.to apply to the Constitutional Court of the Azerbaijan. Republic of Azerbaijan in cases where the rights 16.5. The term of office of the Commissioner shall be and freedoms of a person are violated by legisla- included in his or her general, special and unbro- tive acts in force. ken record of service. 16.6. On taking a leave, the Commissioner shall be given Article 14. Annual report of the Commissioner an allowance in the amount of his or her 2 months’ 14.1. Not later than 2 months after the end of each salary for the purposes of medical treatment and year, the Commissioner shall submit to the recreation. President of the Republic of Azerbaijan an annu- 16.7. A former Commissioner reached the pension age al report on the protection of human rights in the shall receive a pension in the amount of 80 per country and speak with that report before the cent of his or her salary determined for a Milli Mejlis of the Republic of Azerbaijan. Commissioner for the present period. 14.2. The annual report shall indicate the governmental and municipal bodies or officials having violated Article 17. Office of the Commissioner human rights, and failed to comply with the 17.1. An Office shall be set up for providing to the demands of the Commissioner, and of the meas- Commissioner legal, organisational, research-ana- ures taken in this connection. lytical, informational, material, technical and finan- 14.3. The annual report of the Commissioner shall also cial services. contain general views and recommendations con- 17.2. The Office of the Commissioner shall have a seal cerning the protection of human rights. and letterheads with the State Emblem of the 14.4. The report shall be submitted to the Cabinet of Republic of Azerbaijan imprinted on them. Ministers of the Republic of Azerbaijan, the 17.3. The Office of the Commissioner shall act in Constitutional Court of the Republic of accordance with the “Regulation on the Office of Azerbaijan, the Supreme Court of the Republic of the Commissioner” which shall be affirmed by the Azerbaijan and the Prosecutor-General of the Commissioner. Republic of Azerbaijan. 17.4. The structure, staff listing and expenditure esti- 14.5. The Report shall be published in the newspaper mates of the Office of the Commissioner shall be “Azerbaijan” and “Compilation of legislative acts determined by the Commissioner. of the Republic of Azerbaijan”. Article 18. Rights and responsibilities of the Office Article 15. Confidentiality of information staff 15.1. The protection of information constituting State 18.1. The Office staff shall be appointed and dismissed secrets, which became known to the by the Commissioner. Commissioner while performing his or her activi- 18.2. Rights, duties and responsibility of the Commis-

ENABLING CIVIL SOCIETY • 53 baku_materials.qxd 2003. 02. 21. 15:56 Page 54

sioner Office staff shall be determined in accor- LAW OF AZERBAIJAN REPUBLIC “ON PRO- dance with the Labour Code of the Republic of CEDURE OF ELECTIONS TO MUNICIPALI- Azerbaijan, the Law “On State Service” of the TIES” (excerpts) Republic of Azerbaijan and other legislative acts of [unofficial translation] the Republic of Azerbaijan. Article 10. Organization of the territorial election Article 19. Financing of the work of the commissions Commissioner Territorial election commissions shall be established at 19.1. The work of the Commissioner and his or her least 95 days before the election day in a composition of Office shall be financed from the State budget of 9 members who are citizens of Azerbaijan Republic and the Republic of Azerbaijan. possesses the right to vote. 19.2. The annual expenditure allocated for financing the The members of the territorial election commission work of the Commissioner may not be reduced in shall not be a member of any political party. relation to the previous financial year. The chairman of the territorial election commission, his deputy and secretary shall be elected at the first meet- ing of the commission among members of the commis- sion by secret ballot with simple majority. LAW OF AZERBAIJAN REPUBLIC ON PRESI- Territories where municipalities are to be organized DENTIAL ELECTIONS (excerpts) are determined by the Law of Azerbaijan Republic. [unofficial translation] The composition of the territorial election commis- sion is determined through lot carried out due to the Article 4. Publicity during preparations for and procedure set by the Central Election Commission conducting of presidential elections (CEC) among candidates nominated by public associa- Government bodies, political parties, public associations tions, local representations of political parties and local and citizens shall act publicly and transparently during groups of electorate. In order to carry out lot for deter- preparations for presidential elections. mining composition of the Territorial Election Azerbaijan Republic does not guarantee the right of polit- Commissions, regional, city (region in city) lot commis- ical parties, trade unions, other public associations, mass sions consisting of 3 persons shall be established. The movements, labor collectives and citizens of Azerbaijan procedure of establishing lot commissions is determined Republic to carry on propaganda for or against any can- by CEC. didate to presidency at the meeting of the citizens and Lot among candidates nominated by public associa- through mass media. tions, local representations of political parties and local Carrying on propaganda on election day is prohibited. groups of electorate can be carried out exceptionally in All decisions of the Supreme Council of Azerbaijan case when quantity of those candidates is at least 11. Republic and Central Election Commission on CEC shall approve documents about nominating candi- Presidential Elections about preparations for conducting dates to the membership of the territorial election com- of presidential elections shall be published, declared by mission by public associations, local representations of radio and TV within 7 days since its adoption, except political parties and local groups of electorate at least cases stipulated in the Article 15 of this Law. 110 days before the election day. Election commissions shall inform people in due time A political party nominated for the membership to about composition of commissions, location and working municipality can appoint one member to the territorial hours of polls, lists of voters. election commission who will have the equal status with Representatives of people’s deputies of Azerbaijan the rest of members of the very commission. Republic and those of political organizations, trade If several political parties nominate the same candi- unions, other public unions, mass movements, meetings date to the membership of the municipality, they can of the citizens as well as mass media are entitled to pres- only appoint one member to the territorial election com- ent at the meeting of the election commissions during mission due to the agreement among them. If the regis- voting and at polls when calculating votes as well as dur- tration of the candidate nominated to the membership ing assessing outcomes of elections. of municipality by the political party is canceled accord- Representatives shall have on them certified extract ing to requirements of the very law, the authorities of from protocols of meetings of organizations appointed the members appointed by political parties to the com- them or other documents proving their authority. It is not position of the territorial election commission shall be required to inform commissions in advance about partic - withdrawn after the relevant decision is passed. ipation of the mentioned representatives. Illegal interfer- Members of the territorial election commissions ence in activity of election commissions is prohibited. obtain IDs in a special form determined by Central Electoral Commission.

54 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 55

Article 12. Organization of the Commissions at the Territorial elections commissions as well as commis- Polls sions at polls inform voters about results of registration Commissions at the polls are organized by the relevant of candidates to the membership of the municipality, territorial election commissions at least 80 days before their autobiography, outcomes of voting for each candi- the election day in a composition of 7 persons. date, outcomes of elections. Members of the commissions at the polls shall not Authorities of the observer shall be certified by the be members of any political party. written document issued by the public association or The composition of the commissions at the polls is political party which appointed him. This document determined through lot carried out due to the procedure shall include surname, name, father’s name, place of res- set by the Central Election Commission (CEC) among idence of the observer and number of the poll(s) where candidates nominated by public associations, local rep- he is sent. The very document is valid when accompa- resentations of political parties and groups of electorate nied by ID (passport) and the document on accredita- at the very territory. Lot among candidates nominated tion. It is required to inform in advance whether the by public associations, local representations of political observer is sent to poll(s) or not. parties and local groups of electorate can be carried out Observers can obtain the final protocol on out- exceptionally in case when quantity of those candidates comes of election from the territorial election commis- is at least 9. CEC shall approve documents about nom- sion as well as from the commission at the polls. In this inating candidates to the membership of the commis- case the empty blank of the final protocol is filled in by sion at the polls by public associations, local representa- the observer and approved by the secretary of the com - tions of political parties and local groups of electorate mission. at least 110 days before the election day. Observer possesses the following rights as well: A political party nominated for the membership to • to participate in voting of those who are unable the municipality can appoint one member to the com- to come to the poll for heath reasons or other mission at the polls who will have the equal status with good reasons; the rest of members of the very commission. The very • to address to commissions at polls with propos- members are subject to requirements of part 7 of als and comments; Article 10 of this Law. • to complain to commissions at polls and to ter- The chairman of the commission at the polls, his ritorial election commissions about acts (inac- deputy and secretary shall be elected at the first meeting tion) of the members of the former. of the commission among members of the commission Observers are not allowed to interfere illegally in by secret ballot with simple majority. activity of the commissions at polls. Proposals and Territorial election commissions provide members comments of the observers shall be considered by the of commissions at polls with special IDs. chairman of the commission at poll as well as at meet- ings of commissions at polls. Article 15. Publicity of the activity of the election commission. Participation of the observers at the Article 17. Assistance to election commissions in elections their work Activity of the election commission shall be conducted Government bodies, municipalities, public associations, transparently and publicly. The registered public associ- entities and organizations as well as their officials must ations (organizations), observers from political parties, assist election commissions in carrying out their author- observers from foreign countries (international organi- ities determined by this law. zations) – hereinafter “observers” – and representatives Government bodies, municipalities, public associa- of mass media are entitled to participate at the meetings tions, entities and organizations as well as their officials of election commissions and in other electoral measures must reply to inquires of the election commissions con- held by election commissions. Observers and represen- cerning carrying out their authorities provided for by tatives of mass media shall be informed in advance this law within 3 days or immediately if urgent and sub- about the conducted electoral measures. mit necessary information related to the very inquires. Observers are accredited at Central Election Commission and provided with the respective docu- ment to certify that. Observers and representatives of DECISION OF THE CONSTITUTIONAL mass media are entitled to present at the polls on the COURT OF AZERBAIJAN REPUBLIC election day from the moment when election commis- ON INTERPRETATION OF ARTICLE 5, ITEM sions commence their activity and until legalization of 3 OF LAW “ON THE GRANT” documents on voting outcomes is over. 26 October 1999 Decisions of the relevant election commissions shall be published immediately or brought to the attention of The Constitutional Court of the Azerbaijan Republic the voters by other means. composed of Kh. Hajiyev (Chairman), F. Babayev, B.

ENABLING CIVIL SOCIETY • 55 baku_materials.qxd 2003. 02. 21. 15:56 Page 56

Garibov, R. Gvaladze, S. Salmanova (Reporter Judge), ment of insurance fees to the State Fund of Social A. Sultanov, E. Mamedov, . . . Protection of Azerbaijan Republic. According to Article 73, paras I and IV of the in accordance with Article 130, para III, item 1 of the above-stated Law the total sum of income, from which Constitution of Azerbaijan Republic through the proce- the pension is calculated, includes all kinds of salary and dure of special constitutional proceedings has examined gratuities for work, on which, according to existing in open session the case submitted by the petition of the rules, the insurance fees, including the fees for combi- Prosecutor’s Office of the Azerbaijan Republic of 26 nation, work in days off and holidays, work August, 1999, N 05GK99, in connection with Article and gratuity obtained on the basis of the civil and legal 38, para III on interpretation of Article 5, item 3 of the contracts. The payments of onetime character (com- Law of Azerbaijan Republic “On the Grant”, Articles 3 pensation for the unused holiday, lump sums for days and 73 of the Law of Azerbaijan Republic “On Pension off and others) are not taken into account. The persons Maintenance” of Citizens and Article 12 of the Law of engaged in individual labour and enterprise activity, Azerbaijan Republic “On Social Insurance”. including on conditions of individual (group) rent or in the peasant (farmer) economy, and working on the basis Having heard and discussed Judge B. Garibov’s report, of hiring, as well as members of cooperative societies the statements of N. Allahverdiyev and I. Rafibeyli, the and working in cooperative societies upon the contracts legal representatives of the subjects who are interested the pension are calculated from the actual income, from in special constitutional proceedings, the opinions of I. which the insurance fees were being paid. Akberli, F. Aliyev and J. Mamedov Abdoulazizov, spe- In Article 12 of the Law of Azerbaijan Republic cialists the Constitutional Court of the Azerbaijan “On Social Insurance” it is underlined that the compul- Republic sory state social insurance covers the persons nominat- ed to the post by virtue of the resolutions of the Milli DETERMINED AS FOLLOWS: Mejlis (Parliament) of Azerbaijan Republic, decrees and The Prosecutor’s Office of Azerbaijan Republic in its orders of the President of the Azerbaijan Republic, cit- petition asks for interpretation of Article 5, item 3 of izens of the Azerbaijan Republic and stateless persons the Law of Azerbaijan Republic “On the Grant”, working by the individual labour contracts in all offices, Articles 3 and 73 of the Law of Azerbaijan Republic enterprises and organizations carrying out activity in “On Pension Maintenance” of Citizens, Article 12 of Azerbaijan Republics or belonging to Azerbaijan the Law of Azerbaijan Republic “On Social Insurance”. Republic, but situated in the foreign states; the persons In connection with the matter in question, the working on electable paid posts; the prosecutors, deputy copies of official texts of Article 5, item 3 of the Law prosecutors and assistants to prosecutors, investigators of Azerbaijan Republic “On the Grant”, Articles 3 and of Prosecutor’s Office; the members of Bar; the per- 73 of the Law of Azerbaijan Republic “On Pension sons engaged in competitive and labour activity in the Maintenance” of Citizens, Article 12 of the Law of individual order, foreign citizens according to the inter- Azerbaijan Republic “On Social Insurance”, Article 7 of state agreements. the Law of Azerbaijan Republic On Normative and It is necessary to note, that according to Article 1 of Legal Acts certified by the Parliament of the Azerbaijan the Law of Azerbaijan Republic “On the Grant” the Republic as well as the Decrees N 111 of 16 August grant is an aid rendered via the procedure stipulated by 1996 and N 58 of 9 June 1997 of the Cabinet of the Law, for preparation and realization of the humani- Ministers of Azerbaijan Republic certified by the same tarian, social and ecological projects, works on restora- body are enclosed to case. tion of the destroyed objects both infrastructure of According to Article 5, item 3 of the Law of industrial and social assignment in territories suffered in Azerbaijan Republic “On the Grant” the physical per- the result of war and act of nature, programs in fields sons who take part in realization of projects and pro- of education, public health, culture, consulting, infor- grams in case of using the grants shall pay the tax from mation, publishing and sports, scientific, research and the income for gratuity obtained from the recipient, projecting programs to be of importance for state and according to the current legislation. The recipient is free society. The material aid, allocated as the grant, can not from compulsory payments for gratuity paid to the be used for direct extraction of the income but only be physical persons. spent for preparation and realization of social projects Article 3 of the Law of Azerbaijan Republic “On and programs. This rule is reflected in Article 3 of the Pension Maintenance” of Citizens fixes the circle of Law of Azerbaijan Republic “On the Grant”. persons engaged in public and useful work who have the According to that rule, the material aid used for direct right for the labour pension, at observance of condi- extraction of the profit can not be recognized as grant. tions stipulated by the Law. Para I, items a, b, c and d of With the view to accelerate the social development the same Article provide for occurrence of the right for and stimulate the interest to the given field not connect- obtaining the labour pension under condition of pay- ed with obtaining the profits by foreign donors (grant

56 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 57

givers) and recipients, the legislator by means of liberat- goods (work, services), and this situation influences on ing money and any other material aid obtained as the its formation. grant from all kinds of the taxes, duties and compulso- Thus, according to the item 1.6, subitem 34 of the ry payments in the state budget, creates favorable con- Regulation “On the Structure of Expenses Included ditions for expansion of their activity. So, according to into the Cost Price of Production (of Work, Services)” item 1 of Article 5 Of the Law of Azerbaijan Republic , authorized by the Decree N 111 of Cabinet of “On the Grant”, money and (or) any other aid obtained Ministers of Azerbaijan Republic of 16 August, 1996, as a grant on the basis of the contract or the decision on the acts of the current legislation of Azerbaijan grant, shall liberated from any taxes, duties and compul- Republic related to the cost of a good (work, service), sory payments to the state budget. From the point of all kinds of the taxes, duties, payments to out-of-budg- view of orientation and special taxation the activity etary funds and other payments shall be included into connected to the grant, differs by quality from other the cost price of a good (work, service). kinds of investment activity. From this point of view, one of the purposes of the In this regard item 2 of same Article provides that Law of Azerbaijan Republic “On the Grant” which the legal persons taking part in realization of projects gives the tax privileges, is the creation of conditions for and programs when using the grant shall pay the taxes non-increase of the cost price of a good (work, service). from gratuity obtained from the recipient, and item 3 On the other hand, it is fixed in Article 15 of the states that the physical persons taking part in realization Law of Azerbaijan Republic “On Social Insurance” that of the projects and the programs when using the grant the indemnifications, benefits and incomes, from which shall pay the tax from gratuity obtained from the recip- the fees “On Social Insurance” are not calculated, shall ient, according to the legislation in force. be determined by appropriate body of the executive From the contents of the given item it is obvious authority. In connection with implementation of this that the physical persons are not obliged to carry out Article the Cabinet of Ministers of Azerbaijan Republic compulsory payments “On Social Insurance” from the issued the Decree of 9 June, 1997 “On the List of income obtained from the recipient for realization of Indemnifications, Benefits and Incomes Which Are Not projects and programs. Subject to the Compulsory State Social Insurance”. Article 14 of the Law of Azerbaijan Republic “On According to that list, the social and insurance fees shall Social Insurance” determines various fees “On Social not be calculated from 18 (eighteen) categories of Insurance” depending on categories of the legal per- indemnifications, benefits and incomes. sons, employers and workers. The Law of Azerbaijan Republic On Grant was According to Article of 10 of same Law it is a duty adopted on 17 April, 1998, the Law of Azerbaijan of the employer and persons who are carrying out social Republic “On Social Insurance” - on 18 February, 1997, insurance of others to pass the registration in insurance the Law of the Azerbaijan Republic On Pension organization and to implement social and insurance fees. Maintenance of the Citizens - on 23 September, 1992. In this regard, from the analysis of the Law of the In accordance with Article 7 of the Law of Azerbaijan Azerbaijan Republic “On Social Insurance” one may Republic “On Normative and Legal Acts” in case of conclude that the persons engaged in individual labour non-conformity between laws the one which has and enterprise activity, members of Bar, tenants for the entered into force later in time shall prevail. persons working on a hire basis on transport, physical Article 73, para I of the Constitution of Azerbaijan persons carrying out activity according to the Law of Republic states: “Everyone must pay taxes and other the Azerbaijan Republic On Surtax from the Physical state duties in-time and in full volume as required”. Persons of Azerbaijan Republic as well as physical per- According to para II of the same Article, nobody may sons paying author’s fees, are the payers of social and be forced to pay taxes and other state duties if they are insurance fees, and the same persons according to not envisaged in the law and in excess of amount spec- Article 11 of the above-stated law shall pass the regis- ified therein. tration in insurance organization, carrying out compul- Therefore it is necessary to note, that the duty to pay sory state insurance, and pay fees “On Social Insurance” the taxes and other state payments which is one of the in time. basic social obligations of citizens arises only in the The compulsory state insurance established by the cases provided by law and is regulated by law. As it is vis- Law of Azerbaijan Republic “On Social Insurance”, is ible, Article 5, item 3 of the Law of Azerbaijan Republic naturally aimed at development of social well-being of “On the Grant” determines that the physical persons population to make the maintenance to cover all social participating in realization of the projects and the pro- groups completely and comprehensively. It is necessary grams during use of the grant shall pay the tax from the to note that the taxes determined by the legislation (the income for gratuity obtained, according to the current land taxes, the property taxes), the compulsory pay- legislation, from the recipient. The collection of other ments, including social and insurance payments, are the taxes and compulsory payments from them is not expenses which are included in the cost price of the reflected in Law.

ENABLING CIVIL SOCIETY • 57 baku_materials.qxd 2003. 02. 21. 15:56 Page 58

Taking into account the above-stated, it is necessary to The decision is subject to publication in note that since, with the purposes of economic develop- “Azerbaijan” newspaper. ment of social areas, Article 5, item 3 of the Law of The decision of the Constitutional Court of Azerbaijan Republic “On the Grant” does not provide for Azerbaijan Republic is final, can not be canceled, deduction of compulsory payments from the physical changed or interpreted by any body or official. persons, then according to the current legislation they should pay only surtax. On order to eliminate of non- Source: www.constitutionnal-court-az.org/dec- conformity between item 3 of this Article and Article 12 sions/26_10_99.htm of the Law of Azerbaijan Republic On Social Maintenance as well as between Articles 3 and 73 Of the Law of Azerbaijan Republic “On Pension Maintenance” DECISION OF THE CONSTITUTIONAL of Citizens while applying them one should accept Article COURT OF AZERBAIJAN REPUBLIC 5, item 3 of the Law of Azerbaijan Republic “On the ON INTERPRETATION OF ARTICLE 109.5 OF Grant” for a basis. THE LAW OF AZERBAIJAN REPUBLIC “ON According to Article 25, para I of the Universal COURTS AND JUDGES” Declaration of Human Rights everyone has the right to a 27 June 2001 standard of living adequate for the health and well-being of himself and of his family, including food, clothing, The Constitutional Court of Azerbaijan Republic com- housing and medical care and necessary social services, posed of Kh. Hajiyev (Chairman), Judges, F. Babayev, and the right to security in the event of , B. Garibov, R. Gvaladze (Reporter - Judge), S. sickness, disability, widowhood, old age or other lack of Salmanova, A. Sultanov, E. Mamedov, . . . livelihood in circumstances beyond his control. in accordance with Article 130.4 of the The right for social maintenance is among of funda- Constitution of Azerbaijan Republic has examined in mental human and citizen’s rights and freedoms envisaged open judicial session the petition of the Supreme Court in the Constitution of Azerbaijan Republic. of Azerbaijan Republic of 30 April, 2001, N 8-4/2001 So, according to Article 38, para I of the Constitution concerning the interpretation of Article 109.5 of the of Azerbaijan Republic everyone has the right for social Law of Azerbaijan Republic “On Courts and Judges”; protection. And para III of the same Article provides that having heard the report of Judge R. Gvaladze, everyone has the right for social protection on reaching statements of A.Mirzaliyev and E. Askerov, the repre- specific age according to legislation, in case of illness, dis- sentatives of the interested subjects, examined the ability, loss of bread-winner in the family, due to unem- materials of the constitutional case, the Constitutional ployment and in other cases envisaged by legislation. Court of Azerbaijan Republic As it is shown, the right of physical persons for social protection stipulated in Article 5 of the Law of DETERMINED AS FOLLOWS: Azerbaijan Republic “On the Grant” may not be restrict- Article 109.5 of the Law of Azerbaijan Republic “On ed. Courts and Judges” states that former judges at the Taking in account Articles 38, 73, paras I and III and retirement age after expiry their authority are entitled to based on Article 130, paras IV and VI of the Constitution pension at the rate of 80 percent of official salary of of Azerbaijan Republic and Articles 75, 76, 78, 80 - 83 and the last workplace. 85 of Law of Azerbaijan Republic “On the Constitutional The Supreme Court of Azerbaijan Republic con- Court” , the Constitutional Court of Azerbaijan Republic sider that this provision of the Law is incomprehensi- ble and ask for interpretation of Article 109.5. DECIDED: The official texts of Articles 109 and 113 of the The physical persons provided by Article 5, item 3 of the Law of Azerbaijan Republic “On Courts and Judges” Law of Azerbaijan Republic “On the Grant” who take certified by the Administration of Milli Mejlis of part in realization of the projects and programs, while Azerbaijan Republic are enclosed to materials of the using the grant shall be liberated from compulsory state case. payments of social insurance from gratuity obtained from In connection with the petition, the Constitutional the recipient. Court of Azerbaijan Republic notes that the material To recommend to Milli Mejlis of Azerbaijan Republic and social security of judges is an integral part of the to determine in legislation the implementation procedure judicial independence. of the rights of the physical persons for social protection Not depending on level of the State development, envisaged in Article 5, item 3 of the Law of Azerbaijan the attempt to put some pressure upon the court activ- Republic “On the Grant”. ity is unavoidable. The steadiness of a court to any kind The decision of the Constitutional Court of of influence depends not only on judges’ ethics, quali- Azerbaijan Republic comes into force from the date of its fication, reputation and responsibility but also on real publication. social guarantees.

58 • PUBLIC INTEREST LAW INITIATIVE baku_materials.qxd 2003. 02. 21. 15:56 Page 59

Therefore, Article 7 of the “Basic Principles of the Thus, Articles 113.2.1 and 113.2.9 of the men- Independence of Judiciary” adopted by the General tioned Law provide the basis for the pre-termination of Assembly of the United Nations provides that all States judges’ powers: written application for retirement and shall properly guarantee the material security for the the presence of the medical certificate of the medical effective activity of judiciary. commission established by the Supreme Court on Article 6.1 of the “European Charter on the Statute inability to perform his/her duties in connection with for Judges” provides that judges exercising judicial func- the disease within the period of more than four tions in a professional capacity are entitled to remuner- months. ation, the level of which is fixed so as to shield them However, the Law does not indicate the procedure from pressures aimed at influencing their decisions and of receiving pensions by the judges reached the pen- more generally their behavior within their jurisdiction, sion and willing to retire before the termination of thus impairing their independence and impartiality. office or unable to perform his/her duties because of According to the Constitution of Azerbaijan disease, disablement or other good reason. Meanwhile, Republic (Articles 7, 38, 127) and international legal Article 38 of the Constitution of Azerbaijan Republic acts, para 19 of the Law “On Courts and Judges” pro- provides that everyone has the right for social security vides the material and social security of judges. These upon reaching the age established by legislation, in case guarantees are aimed at the ensuring of the real inde- of disease, disability and other cases provided for by pendence and impartiality of judiciary. legislation. At the same time some uncertainty in Article 109.5 According to Article 94.1.16 of the Constitution of restricts the implementation of the mentioned constitu- Azerbaijan Republic the general rules concerning the tional provisions. labor relationships and social maintenance are estab- The mentioned Article provides the pension for the lished by the Milli Mejlis of Azerbaijan Republic. former judges at the rate of 80 percent of official salary Being guided by Article 130.4 of the Constitution of the last workplace. This provision does not indicate of Azerbaijan Republic, Articles 64, 66, 75, 76, 78, 80, whether the pension must be paid as of the last work- 81, 83 and 85 of the Law of Azerbaijan Republic “On place in a judge’s capacity or the last workplace in other Constitutional Court”, the Constitutional Court of capacity. Therefore, the Supreme Court of Azerbaijan Azerbaijan Republic Republic asks for the interpretation of the mentioned provision of the Law. DECIDED: In connection with the stated the Constitutional The “official salary of the last workplace” provided for Court of Azerbaijan Republic notes that according to by Article 109.5 of the Law of Azerbaijan Republic Article 6.4 of the “European Charter on the Statute for “On Courts an Judges” shall be realized as the official Judges” the judges who have reached the legal age of salary of the last workplace in a judge’s capacity. judicial retirement, having performed their judicial To recommend to Milli Mejlis of Azerbaijan duties for a fixed period are paid a retirement pension, Republic to determine the procedure of payment of the level of which must be as close as possible to the pensions to judges reached the pension and will to level of their final salary for functioning as a judge. retire before the termination of office and judges Thus, the Charter underlines that the official salary unable to perform his/her duties because of disease, of the last workplace in a judge’s capacity shall be con- disablement and other good reason. sidered at the setting of the pension to a former judge. The decision comes into force from the date of its Otherwise, the former judge retired and worked in publication. another capacity before the pension will be in unequal The decision is a subject to publication in the position with the judge retired of the post of a judge. “Azerbaijan” newspaper and “Bulletin of the In this case the principle of equality fixed in Article Constitutional Court of Azerbaijan Republic”. 25 of the Constitution of Azerbaijan Republic can The decision is final, and can not be canceled, infringed. changed or interpreted by any body or official. Moreover, the Law “On Courts and Judges” does not provide any other conditions of payment of the Source: www.constitutional-court-az.org/decisions/27_06_01.htm pensions to judges.

ENABLING CIVIL SOCIETY • 59 baku_materials.qxd 2003. 02. 21. 15:56 Page 60 baku_materials.qxd 2003. 02. 21. 15:56 Page 61

BIBLIOGRAPHY AND OTHER RESOURCES

PUBLICATIONS:

Azerbaijan Young Lawyers’ Union, What Is an Ombudsman? (2002) (available at http://www.ombudsman.aylu.org)

Annagi Hajibeyli, Freedom of Association in Azerbaijan: An Analysis of the Laws That Affect Civil Organizations (2001) (in Azeri and English)

Open Society Institute and International Center for Not-for-Profit Law, Guidelines for Laws Affecting Civic Organizations (OSI, revision forthcoming 2003)

OSCE/ODIHR “Freedom of Association: The Question of NGO Registration,” OSCE Human Dimension Implementation Meeting, Background Paper 5 (October 1998) [available at http:www.osce.org/odihr/documents/background/ngoackg.pdf]

“NGOs in the Caucasus and Central Asia: Development and Co-operation with the OSCE Organization,” OSCE Human Dimension Implementation Meeting, Background Paper 2000/1 (October 2000) [available at http://www.osce.org/odihr/documents/background/bp00-1-ngo.pdf]

INTERNET RESOURCES AND ORGANIZATIONAL LINKS:

Aarhus Convention and Implementation Guide: http://www.unece.org/env/pp Council of Europe: http://www.coe.int European Court of Human Rights: http://www.echr.coe.int International Labour Organization: http://www.ilo.org Organization for Security and Cooperation in Europe: http://www.osce.org United Nations: http://www.un.org UN Development Program: http://www.undp.org UN High Commissioner for Human Rights: http://www.unhchr.org UN High Commissioner for Refugees: http://www.unhcr.org UNICEF: http://www.unicef.org World Bank: http://www.worldbank.org

INTERNATIONAL NON-GOVERNMENTAL ORGANIZATION LINKS:

Amnesty International: http://www.amnesty.org Central European and Eurasian Law Initiative, American Bar Association: http://www.abanet.org/ceeli CIVICUS: http://www.civicus.org Committee to Protect Journalists: http://www.cpj.org Commonwealth Foundation: http://www.commonwealthfoundation.org European Foundation Centre: http://www.efc.be Human Rights Watch: http://www.hrw.org Fédération Internationale des Ligues des Droits de I’Homme (FIDH): http://www.fidh.org INTERIGHTS: http://www.interights.org International Center for Not-for-Profit Law: http://www.icnl.org International Commission of Jurists: http://www.icj.org International Helsinki Federation for Human Rights: http://www.ihf-hr.org International League for Human Rights: http://www.ilhr.org Lawyers Committee for Human Rights: http://www.lchr.org

ENABLING CIVIL SOCIETY • 61 baku_materials.qxd 2003. 02. 21. 15:56 Page 62

Open Society Institute: http://www.soros.org Open Society Institute–Assistance Foundation Azerbaijan: http://www.osi-az.org Open Society Institute Central Eurasia Project: http://www.eurasia.org Public Interest Law Initiative: http://www.pili.org

62 • PUBLIC INTEREST LAW INITIATIVE