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International Guarantees: General and Specific

Jurisprudence
Good Practices
Challenges

International Standards

A) General

 

(1) Universal treaties

      International Covenant on Civil and Political Rights, Articles 5, 20 and 22

Article 5
1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
Article 20
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
Article 22
1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

      International Convention on the Elimination of All Forms of Racial Discrimination, Articles 4 and 5(d)

Article 4
States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law. (...)
Article 5
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(d) Other civil rights, in particular:
(ix) The right to freedom of peaceful assembly and association;


(2) Regional treaties

      European Convention on Human Rights, Articles 11, 16 and 17

Article 11
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of 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.
Article 16
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.
Article 17
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity pr perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

      The Charter of Fundamental Rights of the European Union, Articke 12

Freedom of assembly and of association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.
2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.


(3) Other texts

      Universal Declaration of Human Rights, Articles 20 and 30

Article 20
(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.
Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

      Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Copenhagen, 29 June 1990, Paras. 9 and 10

[The participating States] recognize that co-operation among themselves, as well as the active involvement of persons, groups, organizations and institutions, will be essential to ensure continuing progress towards their shared objectives.
(9) The participating States reaffirm that (...)
   (9.3) - the right of association will be guaranteed. The right to form and - subject to the general right of a trade union to determine its own membership - freely to join a trade union will be guaranteed. These rights will exclude any prior control. Freedom of association for workers, including the freedom to strike, will be guaranteed, subject to limitations prescribed by law and consistent with international standards;
(10) In reaffirming their commitment to ensure effectively the rights of the individual to know and act upon human rights and fundamental freedoms, and to contribute actively, individually or in association with others, to their promotion and protection, the participating States express their commitment to
   (10.3) - ensure that individuals are permitted to exercise the right to association, including the right to form, join and participate effectively in non-governmental organizations which seek the promotion and protection of human rights and fundamental freedoms, including trade unions and human rights monitoring groups;

      Charter of Paris for a New Europe/Supplementary Document to give effect to certain provisions contained in the Charter of Paris for a New Europe, Paris, 21 November 1990

We affirm that, without discrimination, every individual has the right to (...) freedom of association and peaceful assembly (...)

      Document of the OSCE Moscow Meeting, 1991, Para. 43

(43) The participating States will recognize as NGOs those which declare themselves as such, according to existing national procedures, and will facilitate the ability of such organizations to conduct their national activities freely on their territories; to that effect they will
   (43.1) - endeavour to seek ways of further strengthening modalities for contacts and exchanges of views between NGOs and relevant national authorities and governmental institutions;
   (43.2) - endeavour to facilitate visits to their countries by NGOs from within any of the participating States in order to observe human dimension conditions;
   (43.3) - welcome NGO activities, including, inter alia, observing compliance with CSCE commitments in the field of the human dimension;
   (43.4) - allow NGOs, in view of their important function within the human dimension of the CSCE, to convey their views to their own governments and the governments of all the other participating States during the future work of the CSCE on the human dimension.
   (43.5) During the future work of the CSCE on the human dimension, NGOs will have the opportunity to distribute written contributions on specific issues of the human dimension of the CSCE to all delegations.
   (43.6) The CSCE Secretariat will, within the framework of the resources at its disposal, respond favourably to requests by NGOs for non-restricted documents of the CSCE.

      Istanbul Document, Istanbul, 19 November 1999, Para. 27

27. Non-governmental organizations (NGOs) can perform a vital role in the promotion of human rights, democracy and the rule of law. They are an integral component of a strong civil society. We pledge ourselves to enhance the ability of NGOs to make their full contribution to the further development of civil society and respect for human rights and fundamental freedoms.

      Document of the Eleventh Meeting of the Ministerial Council, Maastricht, 1-2 December 2003, Para. 36

36. (…) Based on its human dimension commitments, the OSCE strives to promote conditions throughout its region in which all can fully enjoy their human rights and fundamental freedoms under the protection of effective democratic institutions, due judicial process and the rule of law. This includes secure environments and institutions for peaceful debate and expression of interests by all individuals and groups of society. Civil society has an important role to play in this regard, and the OSCE will continue to support and help strengthen civil society organizations.

      Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe

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 and that this aim may be pursued through the adoption of common rules;
Aware of the essential contribution made by non-governmental organisations (NGOs) to the development and realisation of democracy and human rights, in particular through the promotion of public awareness, participation in public life and securing the transparency and accountability of public authorities, and of the equally important contribution of NGOs to the cultural life and social well-being of democratic societies;
Taking into consideration the invaluable contribution also made by NGOs to the achievement of the aims and principles of the United Nations Charter and of the Statute of the Council of Europe;
Having regard to the Declaration and Action Plan adopted at the Third Summit of Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005);
Noting that the contributions of NGOs are made through an extremely diverse body of activities which can range from acting as a vehicle for communication between different segments of society and public authorities, through the advocacy of changes in law and public policy, the provision of assistance to those in need, the elaboration of technical and professional standards, the monitoring of compliance with existing obligations under national and international law, and on to the provision of a means of personal fulfilment and of pursuing, promoting and defending interests shared with others;
Bearing in mind that the existence of many NGOs is a manifestation of the right of their members to freedom of association under Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms and of their host country’s adherence to principles of democratic pluralism;
Having regard to Article 5 of the European Social Charter (revised) (ETS No. 163), Articles 3, 7 and 8 of the Framework Convention for the Protection of National Minorities (ETS No. 157) and Article 3 of the Convention on the Participation of Foreigners in Public Life at Local Level (ETS No. 144);
Recognising that the operation of NGOs entails responsibilities as well as rights;
Considering that the best means of ensuring ethical, responsible conduct by NGOs is to promote self-regulation;
Taking into consideration the case law of the European Court of Human Rights and the views of United Nations human rights treaty bodies;
Taking into account the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, United Nations General Assembly Resolution A/RES/53/144;
Drawing upon the Fundamental Principles on the Status of Non-Governmental Organisations in Europe;
Having regard to the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations (ETS No. 124) (hereinafter Convention No. 124) and to the desirability of enlarging the number of its contracting parties;

Recommends that the governments of member states:
– be guided in their legislation, policies and practice by the minimum standards set out in this recommendation;
– take account of these standards in monitoring the commitments they have made;
– ensure that this recommendation and the accompanying Explanatory Memorandum are translated and disseminated as widely as possible to NGOs and the public in general, as well as to parliamentarians, relevant public authorities and educational institutions, and used for the training of officials.

I. Basic principles
1. For the purpose of this recommendation, NGOs are voluntary self-governing bodies or organisations established to pursue the essentially non-profit-making objectives of their founders or members. They do not include political parties.
2. NGOs encompass bodies or organisations established both by individual persons (natural or legal) and by groups of such persons. They can be either membership or non-membership based.
3. NGOs can be either informal bodies or organisations or ones which have legal personality.
4. NGOs can be national or international in their composition and sphere of operation.
5. NGOs should enjoy the right to freedom of expression and all other universally and regionally guaranteed rights and freedoms applicable to them.
6. NGOs should not be subject to direction by public authorities.
7. NGOs with legal personality should have the same capacities as are generally enjoyed by other legal persons and should be subject to the administrative, civil and criminal law obligations and sanctions generally applicable to those legal persons.
8. The legal and fiscal framework applicable to NGOs should encourage their establishment and continued operation.
9. NGOs should not distribute any profits which might arise from their activities to their members or founders but can use them for the pursuit of their objectives.
10. Acts or omissions by public authorities affecting an NGO should be subject to administrative review and be open to challenge by the NGO in an independent and impartial court with full jurisdiction.

II. Objectives
11. NGOs should be free to pursue their objectives, provided that both the objectives and the means employed are consistent with the requirements of a democratic society.
12. NGOs should be free to undertake research, education and advocacy on issues of public debate, regardless of whether the position taken is in accord with government policy or requires a change in the law.
13. NGOs should be free to support a particular candidate or party in an election or a referendum provided that they are transparent in declaring their motivation. Any such support should also be subject to legislation on the funding of elections and political parties.
14. NGOs should be free to engage in any lawful economic, business or commercial activities in order to support their not-for-profit activities without any special authorisation being required, but subject to any licensing or regulatory requirements generally applicable to the activities concerned.
15. NGOs should be free to pursue their objectives through membership of associations, federations and confederations of NGOs, whether national or international.

III. Formation and membership
A. Establishment
16. Any person, be it legal or natural, national or non-national, or group of such persons, should be free to establish an NGO and, in the case of non-membership-based NGOs, should be able to do so by way of gift or bequest.
17. Two or more persons should be able to establish a membership-based NGO but a higher number can be required where legal personality is to be acquired, so long as this number is not set at a level that discourages establishment.
B. Statutes
18. NGOs with legal personality should normally have statutes, comprising the constitutive instrument or instrument of incorporation and, where applicable, any other document setting out the conditions under which they operate.
19. The statutes of an NGO with legal personality should generally specify:
a. its name;
b. its objectives;
c. its powers;
d. the highest governing body;
e. the frequency of meetings of this body;
f. the procedure by which such meetings are to be convened;

g. the way in which this body is to approve financial and other reports;
h. the procedure for changing the statutes and dissolving the organisation or merging it with another NGO.
20. The highest governing body of a membership-based NGO should be the membership and its agreement should be required for any change in the statutes. For other NGOs the highest governing body should be the one specified in the statutes.
C. Membership
21. No person should be required by law or otherwise compelled to join an NGO, other than a body or organisation established by law to regulate a profession in those states which treat such an entity as an NGO.
22. The ability of any person, be it natural or legal, national or non-national, to join membership-based NGOs should not be unduly restricted by law and, subject to the prohibition on unjustified discrimination, should be determined primarily by the statutes of the NGOs concerned.
23. Members of NGOs should be protected from expulsion contrary to their statutes.
24. Persons belonging to an NGO should not be subject to any sanction because of their membership. This should not preclude such membership being found incompatible with a particular position or employment.
25. Membership-based NGOs should be free to allow non-members to participate in their activities.

IV. Legal personality
A. General
26. The legal personality of NGOs should be clearly distinct from that of their members or founders.
27. An NGO created through the merger of two or more NGOs should succeed to their rights and liabilities.
B. Acquisition of legal personality
28. The rules governing the acquisition of legal personality should, where this is not an automatic consequence of the establishment of an NGO, be objectively framed and should not be subject to the exercise of a free discretion by the relevant authority.
29. The rules for acquiring legal personality should be widely published and the process involved should be easy to understand and satisfy.
30. Persons can be disqualified from forming NGOs with legal personality following a conviction for an offence that has demonstrated that they are unfit to form one. Such a disqualification should be proportionate in scope and duration.
31. Applications in respect of membership-based NGOs should only entail the filing of their statutes, their addresses and the names of their founders, directors, officers and legal representatives. In the case of non-membership-based NGOs there can also be a requirement of proof that the financial means to accomplish their objectives are available.
32. Legal personality for membership-based NGOs should only be sought after a resolution approving this step has been passed by a meeting to which all the members had been invited.
33. Fees can be charged for an application for legal personality but they should not be set at a level that discourages applications.
34. Legal personality should only be refused where there has been a failure to submit all the clearly prescribed documents required, a name has been used that is patently misleading or is not adequately distinguishable from that of an existing natural or legal person in the state concerned or there is an objective in the statutes which is clearly inconsistent with the requirements of a democratic society.
35. Any evaluation of the acceptability of the objectives of NGOs seeking legal personality should be well informed and respectful of the notion of political pluralism. It should not be driven by prejudices.
36. The body responsible for granting legal personality should act independently and impartially in its decision making. Such a body should have sufficient, appropriately qualified staff for the performance of its functions.
37. A reasonable time limit should be prescribed for taking a decision to grant or refuse legal personality.
38. All decisions should be communicated to the applicant and any refusal should include written reasons and be subject to appeal to an independent and impartial court.
39. Decisions on qualification for financial or other benefits to be accorded to an NGO should be taken independently from those concerned with its acquisition of legal personality and preferably by a different body.
40. A record of the grant of legal personality to NGOs, where this is not an automatic consequence of the establishment of an NGO, should be readily accessible to the public.
41. NGOs should not be required to renew their legal personality on a periodic basis.
C. Branches; changes to statutes
42. NGOs should not require any authorisation to establish branches, whether within the country or (subject to paragraph 45 below) abroad.
43. NGOs should not require approval by a public authority for a subsequent change in their statutes, unless this affects their name or objectives. The grant of such approval should be governed by the same process as that for the acquisition of legal personality but such a change should not entail the NGO concerned being required to establish itself as a new entity. There can be a requirement to notify the relevant authority of other amendments to their statutes before these can come into effect.
D. Termination of legal personality
44. The legal personality of NGOs can only be terminated pursuant to the voluntary act of their members – or in the case of non-membership-based NGOs, its governing body – or in the event of bankruptcy, prolonged inactivity or serious misconduct.
E. Foreign NGOs
45. Without prejudice to applicability of the articles laid down in Convention No. 124 for those states that have ratified that convention, foreign NGOs can be required to obtain approval, in a manner consistent with the provisions of paragraphs 28 to 31 and 33 to 39 above, to operate in the host country. They should not have to establish a new and separate entity for this purpose. Approval to operate can only be withdrawn in the event of bankruptcy, prolonged inactivity or serious misconduct.

V. Management
46. The persons responsible for the management of membership-based NGOs should be elected or designated by the highest governing body or by an organ to which it has delegated this task. The management of non-membership-based NGOs should be appointed in accordance with their statutes.
47. NGOs should ensure that their management and decision-making bodies are in accordance with their statutes but they are otherwise free to determine the arrangements for pursuing their objectives. In particular, NGOs should not need any authorisation from a public authority in order to change their internal structure or rules.
48. The appointment, election or replacement of officers, and, subject to paragraphs 22 and 23 above, the admission or exclusion of members should be a matter for the NGOs concerned. Persons may, however, be disqualified from acting as an officer of an NGO following conviction for an offence that has demonstrated that they are unfit for such responsibilities. Such a disqualification should be proportionate in scope and duration.
49. NGOs should not be subject to any specific limitation on non-nationals being on their management or staff.

VI. Fundraising, property and public support
A. Fundraising
50. NGOs should be free to solicit and receive funding – cash or in-kind donations – not only from public bodies in their own state but also from institutional or individual donors, another state or multilateral agencies, subject only to the laws generally applicable to customs, foreign exchange and money laundering and those on the funding of elections and political parties.
B. Property
51. NGOs with legal personality should have access to banking facilities.
52. NGOs with legal personality should be able to sue for the redress of any harm caused to their property.
53. NGOs with legal personality can be required to act on independent advice when selling or acquiring any land, premises or other major assets where they receive any form of public support.
54. NGOs with legal personality should not utilise property acquired on a tax-exempt basis for a non-tax-exempt purpose.
55. NGOs with legal personality can use their property to pay their staff and can also reimburse all staff and volunteers acting on their behalf for reasonable expenses thereby incurred.
56. NGOs with legal personality can designate a successor to receive their property in the event of their termination, but only after their liabilities have been cleared and any rights of donors to repayment have been honoured. However, in the event of no successor being designated or the NGO concerned having recently benefited from public funding or other form of support, it can be required that the property either be transferred to another NGO or legal person that most nearly conforms to its objectives or be applied towards them by the state. Moreover the state can be the successor where either the objectives or the means used by the NGO to achieve those objectives have been found to be inadmissible.
C. Public support
57. NGOs should be assisted in the pursuit of their objectives through public funding and other forms of support, such as exemption from income and other taxes or duties on membership fees, funds and goods received from donors or governmental and international agencies, income from investments, rent, royalties, economic activities and property transactions, as well as incentives for donations through income tax deductions or credits.
58. Any form of public support for NGOs should be governed by clear and objective criteria.
59. The nature and beneficiaries of the activities undertaken by an NGO can be relevant considerations in deciding whether or not to grant it any form of public support.
60. The grant of public support can also be contingent on an NGO falling into a particular category or regime defined by law or having a particular legal form.
61. A material change in the statutes or activities of an NGO can lead to the alteration or termination of any grant of public support.

VII. Accountability
A. Transparency
62. NGOs which have been granted any form of public support can be required each year to submit reports on their accounts and an overview of their activities to a designated supervising body.
63. NGOs which have been granted any form of public support can be required to make known the proportion of their funds used for fundraising and administration.
64. All reporting should be subject to a duty to respect the rights of donors, beneficiaries and staff, as well as the right to protect legitimate business confidentiality.
65. NGOs which have been granted any form of public support can be required to have their accounts audited by an institution or person independent of their management.
66. Foreign NGOs should be subject to the requirements in paragraphs 62 to 65 above only in respect of their activities in the host country.
B. Supervision
67. The activities of NGOs should be presumed to be lawful in the absence of contrary evidence.
68. NGOs can be required to submit their books, records and activities to inspection by a supervising agency where there has been a failure to comply with reporting requirements or where there are reasonable grounds to suspect that serious breaches of the law have occurred or are imminent.
69. NGOs should not be subject to search and seizure without objective grounds for taking such measures and appropriate judicial authorisation.
70. No external intervention in the running of NGOs should take place unless a serious breach of the legal requirements applicable to NGOs has been established or is reasonably believed to be imminent.
71. NGOs should generally be able to request suspension of any administrative measure taken in respect of them. Refusal of a request for suspension should be subject to prompt judicial challenge.
72. In most instances, the appropriate sanction against NGOs for breach of the legal requirements applicable to them (including those concerning the acquisition of legal personality) should merely be the requirement to rectify their affairs and/or the imposition of an administrative, civil or criminal penalty on them and/or any individuals directly responsible. Penalties should be based on the law in force and observe the principle of proportionality.
73. Foreign NGOs should be subject to the provisions in paragraphs 68 to 72 above only in respect of their activities in the host country.
74. The termination of an NGO or, in the case of a foreign NGO, the withdrawal of its approval to operate should only be ordered by a court where there is compelling evidence that the grounds specified in paragraphs 44 and 45 above have been met. Such an order should be subject to prompt appeal.
C. Liability
75. The officers, directors and staff of an NGO with legal personality should not be personally liable for its debts, liabilities and obligations. However, they can be made liable to the NGO, third parties or all of them for professional misconduct or neglect of duties.

VIII. Participation in decision making
76. Governmental and quasi-governmental mechanisms at all levels should ensure the effective participation of NGOs without discrimination in dialogue and consultation on public policy objectives and decisions. Such participation should ensure the free expression of the diversity of people’s opinions as to the functioning of society. This participation and co-operation should be facilitated by ensuring appropriate disclosure or access to official information.
77. NGOs should be consulted during the drafting of primary and secondary legislation which affects their status, financing or spheres of operation.

      Explanatory Memorandum

Introduction
1. For several years now the Council of Europe has been working to reinforce the legal framework for civil society in Europe. The work has led to the adoption of the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations (hereinafter Convention No. 124), which is the only binding international legal instrument to date on these organisations (hereinafter NGOs).
2. In 1996 specific discussions began on the status of non-governmental organisations in the Council of
Europe, leading to the adoption in 1998 of “Guidelines for the Development and Reinforcement of NGOs in Europe”, followed in 2002 by the “Fundamental Principles on the Status of Non-governmental organisations in Europe”, which constitute a logical and vital complement to Convention No. 124 where national action by NGOs is concerned. Even though these Fundamental Principles have no legal force under the rules and regulations of the Council of Europe, the Committee of Ministers took note of them with satisfaction in 2003 and recommended circulating them as widely as possible in the member states.
3. Also in 2003, the Council of Europe carried out a survey of its member states concerning the legal framework for the setting up and functioning of NGOs. This survey was geared to analysing national legislation on NGOs from the angle of its compatibility with the aforementioned Fundamental Principles. The results were utilised in the Secretary General’s thematic monitoring report on “freedom of association”, which the Ministers' Deputies considered in October 2005.
4. In December 2005, in the light of this monitoring report, the Committee of Ministers decided to set up a Group of Specialists on the Legal Status of Non-Governmental Organisations (CJ-S-ONG), mandating it, under the authority of the European Committee on Legal Co-operation (CDCJ), to continue examining the proposal for a new non-binding legal instrument in the form of a draft recommendation on the legal status of NGOs in Europe, taking account of the “Fundamental Principles on the Status of Non-governmental
Organisations in Europe” and the Secretary General’s thematic report on “freedom of association”.
5. The CJ-S-ONG met twice in 2006 to prepare the draft recommendation on the legal status of nongovernmental organisations in Europe. It was chaired by Mr Eberhard Desch (Germany), member of the CDCJ. Its scientific expert, Mr Jeremy McBride (United Kingdom), provided an invaluable contribution to its work.
6. Approved on 1 March 2007 by the CDCJ, the text of Recommendation CM/Rec (2007) 14 was adopted by the Committee of Ministers on 10 October 2007, at the 1006th meeting of the Ministers' Deputies.
7. This instrument targets the legislator, the national authorities and the NGOs themselves. It aims to recommend standards to shape legislation and practice vis-à-vis NGOs, as well as the conduct and activities of the NGOs themselves in a democratic society based on the rule of law.
8. None of the provisions of this Recommendation can be interpreted as implying a limitation of a right or safeguard already recognised by a member state vis-à-vis the NGOs, or as preventing a member state from recognising wider rights and safeguards.

Preamble
9. The success of efforts to bring about societies committed to democracy and human rights in all the member states of the Council of Europe owes much to the activities of NGOs, whether as formal entities or less formal ones. Their contribution is of historical importance and they continue to have a significant part to play in ensuring that this commitment is not weakened and that indeed democracy and human rights are more effectively secured. The importance of their role has been recognised recently at the universal level in the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, United Nations General Assembly Resolution A/RES/53/144 (hereinafter UN Declaration on Human Rights Defenders) and at the regional level in the Action Plan of the Third Summit. Without the extensive campaigning and educational work of NGOs, many would be unaware of, and uninvolved in, the decision making that will affect them and the societies in which they live. Although this contribution to matters of public choice is vital, their part in developing and maintaining a rich cultural life and promoting and securing the social well-being of all in society is equally indispensable.
10. Moreover NGOs, in view of their continuing contribution in the fields of culture, democracy, human rights and social justice, are inevitably central to fulfilment of the goals for which the United Nations and the Council of Europe were established. They do so through their work in individual countries, whether as partners of the two organisations or in reliance on the standards that they have elaborated, and through their participation in international and regional fora.
11. At its Third Summit, Heads of State and Government envisaged the Council of Europe “as the primary forum for the protection and promotion of human rights in Europe” playing “a dynamic role in protecting the right of individuals and promoting the invaluable engagement of non-governmental organisations, to actively defend human rights.”
12. It is important to recognise the diverse ways in which NGOs can operate, not least because this needs to be borne in mind when establishing the legal framework applicable to them and determining the support (both direct and indirect) that public authorities can provide towards ensuring the success of their undertakings. The list here is illustrative of this diversity and should not be regarded as exhaustive.
13. Although NGOs play an essential part in securing human rights, the ability to establish and operate those that are membership-based organisations is itself a human right, guaranteed at the regional level for everyone by Article 11 of the European Convention on Human Rights (hereinafter the European Convention) and for particular groups or forms of organisation by Article 5 of the European Social Charter (revised), Articles 3, 7 and 8 of the Framework Convention for the Protection of National Minorities and Article 3 of the Convention on the Participation of Foreigners in Public Life at Local Level. Furthermore the ability of NGOs to contribute to public life and to express a wide range of views is itself a key element of the pluralism that is the hallmark of a true democracy.
14. This Recommendation is particularly concerned with the legal and fiscal framework required to ensure that NGOs can continue to make their various contributions to public and social life. It also draws attention to the limitations on objectives and activities that NGOs must observe, particularly those that are antidemocratic or are concerned with the making and distribution of profits. In addition, it highlights responsibilities that can arise from receiving public support for their activities as well as underlining their responsibility to be transparent and to observe the generally applicable law.
15. This Recommendation reflects and builds upon the elaboration given to broadly framed guarantees of freedom of association and other human rights and fundamental freedoms that has been provided in rulings of the European Court of Human Rights (hereafter the European Court) and the views of the UN human rights treaty bodies. It has also drawn upon the formulation of standards specifically concerned with NGOs. This is important because they also deal with matters which do not have a foundation in the right to freedom of association.
16.  Although most NGOs are established within, and restrict their operations to, the territory of an individual member state, there are many NGOs which have objectives of relevance to two or more member states and which also have a membership which is international in character. Convention No. 124 was adopted in order to facilitate the operation of the latter NGOs. While implementation of this Recommendation could also contribute to this objective, the absence from it of any requirement to recognise the legal personality of NGOs established in other member states means that the further enlargement of the number of contracting parties to Convention No. 124 remains highly desirable.
17. Implementation of this Recommendation will require member states to take full account of the standards that it sets out in all their legislation, policies and practices that have any bearing on the formation, operation and termination of NGOs. Moreover, as an elaboration of more general commitments, these standards should provide a useful basis for assessing how satisfactory have been the steps taken to fulfil those commitments. Furthermore implementation of this Recommendation will only be fully successful through the widest possible dissemination of the standards set out in it. This would need them to be made available not only to all who have some role in regulating NGOs and NGOs themselves but also to the public which a) has a legitimate interest in the work of NGOs in particular as beneficiaries of their activities and b) is the source of members for those that are membership-based. In addition realisation of the standards will require them to be used in the training of all officials concerned with the activities of NGOs.

I. Basic principles
Paragraph 1
18. There is no universal definition of NGO, a term which can be used to cover a wide range of bodies operating within both states and intergovernmental organisations. The definition adopted for the purpose of this Recommendation emphasises certain qualities regarded as constituting the essential character of these bodies, namely, that their establishment and continued operation is a voluntary act (i.e., a matter of choice for those founding and belonging to them and, in the case of non-membership bodies, those entrusted with their direction), that they are self-governing rather than under the direction of public authorities and that their principal objective is not to generate profits from the activities that they undertake.
19. NGOs can go under various names such as associations, charities, foundations, non-profit corporations, societies and trusts but it is their actual nature rather than their formal designation that will bring them within the scope of this Recommendation. Thus the designation of a particular entity as “public” or “paraadministrative” should not prevent it from being treated as an NGO if that is an accurate reflection of its essential characteristics; see Chassagnou v. France, nos. 25088/94, 28331/95 and 28443/95, 29 April 1999.
20. Political parties are excluded from the definition as in many countries they are the subject of separate provisions from those applicable to NGOs generally. However, this exclusion does not preclude states from choosing to treat such parties as NGOs.
21. Moreover those professional bodies established by law to which members of a profession are required to belong for regulatory purposes are also likely to fall outside the definition on account of the failure to comply with the requirement of voluntariness and freedom from direction by public authorities – this has led the European Court to consider such bodies as falling outside the protection for freedom of association under Article 11 of the European Convention; see Le Compte, Van Leuven and De Meyere v. Belgium, nos. 6878/75 and 7238/75, 23 June 1981 - but again this exclusion does not prevent states from treating them as NGOs. Nonetheless the voluntary aspects of their activities could be sufficient to bring sub-entities that they establish within the definition; e.g., the human rights committee of a bar association.
Paragraph 2
22. The diversity of NGOs is reflected in the fact that they can be both membership and non-membershipbased bodies, echoing the distinction in the explanatory report on Convention No. 124 between “associations” (“a number of persons uniting together for some specific purpose”) and “foundations” (“an identified property devoted to a given purpose”). Furthermore the persons establishing NGOs can be natural or legal, including a combination of these, and NGOs themselves (uniting several such bodies to pursue aspects of their objectives collectively).
Paragraph 3
23. In many instances, as the European Court recognised in Sidiropoulos and Others v. Greece, no. 26695/95, 10 July 1998 and Gorzelik and Others v. Poland [GC], no. 44158/98, 17 February 2004, the
right to act collectively would have no practical meaning without the possibility of creating a legal entity in order to pursue the objectives of an organisation. The absence of this possibility will thus result in a violation of Article 11 of the European Convention. Nonetheless those establishing NGOs may find that their objectives, particularly if they are relatively limited in scope or duration, can be achieved through a less formal structure and that there is, therefore, no need for them to have legal personality.
24. It should, therefore, be generally open to those forming NGOs (or their members if the decision is taken after they have been established) to choose whether they should become an entity which has legal
personality or they will be (or remain) one that has no formal legal status. However, this does not preclude the law of a member state from conferring legal personality as an automatic consequence of the establishment of an NGO, i.e., without the need for any formal approval before this status can be obtained.
Paragraph 4
25. Although many NGOs may have a focus that is local or regional in character, the objectives of some NGOs may be best pursued at the national or international level and in the case of others there may be a need to work at several or even all of these levels. The choice of level(s) at which to operate should always be a matter for those founding and belonging to the organisations concerned. It may well be that those belonging to an NGO will wish to change the level(s) at which it operates and they should be free to make such a change.
Paragraph 5
26. Freedom of expression is especially important for NGOs in the pursuit of their objectives. However, although some human rights and freedoms are only enjoyed by those who found and belong to NGOs (see Appl. No. 7805/77, X and Church of Scientology v. United Kingdom, 16 DR 68 (1979) and Wilson, National Union of Journalists and Others v. United Kingdom, nos. 30668/96, 30671/96 and 30678/96, 2 July 2002), there are many others which contribute to their ability to operate effectively, notably, the prohibition on discrimination, the right to a fair hearing, the prohibition on retrospective penalties, the right to respect for private life and correspondence, the right to freedom of assembly, the right to peaceful enjoyment of possessions and the right to an effective remedy.
27. Furthermore a failure to respect the human rights and freedoms of those who belong to membership-based NGOs – especially the right to life, the right to liberty and security of the person, the right to freedom of thought, conscience and religion, the right to freedom of association, the right to political participation and freedom of movement – will often undermine the pursuit by those organisations of their objectives.
Paragraph 6
28. Although subject to the law like everyone else, the freedom from direction by public authorities is essential to maintain the “non-governmental” nature of NGOs. This freedom should extend not only to the decision to establish an NGO and the choice of its objectives but also to the way it is managed and the focus of its activities. In particular there should be no attempts by public authorities to make NGOs effectively agencies working under their control (see the finding of a violation of Article 11 of the European Convention in Sigurdur A Sigurjónsson v. Iceland, no. 16130/90, 30 June 1993 as a result of an attempt to use a taxi association to administer the provision of taxi services) or to interfere with the choice by an NGO of its leaders or representatives (see the finding of violations of freedom of religion under Article 9 of the European Convention, which imposes a similar obligation to Article 11 in this regard, in Serif v. Greece, no. 38178/97, 14 December 1999, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, 26 October 2000 and Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, 13 December 2001 following such interferences).
29. This does not mean that public authorities cannot choose to provide particular assistance to NGOs pursuing objectives that they consider to be of particular importance but the latter should be free to decide whether to accept or continue to receive such assistance. Furthermore neither legislation nor other forms of pressure should be used to make NGOs undertake particular activities considered to be of public importance.
Paragraph 7
30. The conferment of legal personality on NGOs need not involve the grant of any greater legal powers than those enjoyed by other legal persons; the most essential ones for their operation are likely to be those inherent in such personality, namely, the ability to enter into contracts related to the pursuit of their objectives, to make payments for the goods and services thereby obtained, particularly through the operation of bank accounts, and the ability to own property. However, it ought always to be possible to confer greater capacities on certain types of NGOs and indeed this may be essential for the pursuit of their objectives. Thus additional rights that have been recognised as necessary for NGOs include: the observation of trials and other proceedings [1 UN Declaration on Human Rights Defenders, Art. 9(3)(b) and Document of the OSCE Moscow Meeting, 1991, para. 43]; participation in public affairs and criticism of governmental actions [2 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“Aarhus Convention”), Arts. 6-8, European Charter on the Statute for Judges, Art. 1.8, UN Declaration on Human Rights Defenders, Art. 8 and Document of the OSCE Moscow Meeting, 1991, para. 43]; promotion of human rights ideas [3 UN Declaration on Human Rights Defenders, Art. 7]; provision of advice [4 UN Declaration on Human Rights Defenders, Art. 9(3)(c)]; provision of information to international organisations [5 UN Declaration on Human Rights Defenders, Art. 9(4)]; and seeking information [6 Aarhus Convention, Art. 4]. At the same time, the enjoyment of legal capacities carries with it the responsibility to act within the law and NGOs should not expect any exemption from the application of the administrative, civil and criminal law obligations and sanctions that are generally applicable to legal persons. The application of the general law to NGOs does not, as the following paragraph makes clear, preclude the extension to NGOs of financial and other benefits not available to other legal persons.
Paragraph 8
31. In view of the contribution that NGOs can make to the achievement of a wide range of societal objectives, it is appropriate to have a legal and fiscal framework applicable which facilitates their establishment and continued operation. The former entails in particular a flexible regime governing the acquisition of legal personality and an approach towards the regulation of their activities that is not overly strict or heavy -handed. The latter can be best achieved through non-taxable grants, direct relief from certain taxes on income and expenditure and the provision of incentives to taxpayers to support the activities of NGOs (see further Paragraph 57 of the Recommendation).
Paragraph 9
32. The freedom to establish NGOs is essentially civil and political in character rather than an economic right. So NGOs should not be established with the principal objective of making profits from their activities. Any profits accruing from those activities should be ploughed back into the pursuit of their objectives rather than be distributed to their members or founders. Nevertheless this does not mean that membershipbased NGOs cannot exist to advance the interests of their members, securing economic as much as moral, physical, social or spiritual benefits for them.
Paragraph 10
33. The Recommendation recognises the need for some regulatory controls over the establishment and continued operation of NGOs. However, it is essential that such controls are not applied in either a mistaken or improper manner. Fundamental safeguards against such a possibility occurring will be provided by the administration being prepared itself to review decisions that it has taken and by the supervisory control of the courts. Indeed in a state governed by the rule of law it is essential that NGOs
and their members should be able to challenge acts or omissions affecting them in an independent court
which has the capacity to review all aspects of their legality. Without this latter possibility there is likely to be a violation of the right to an effective remedy under Article 13 of the European Convention.

II. Objectives
Paragraph 11
34. NGOs should be able to pursue any objective that can be pursued by an individual since a grouping  of individuals cannot make that objective inherently objectionable. Although the pursuit of unlawful objectives can generally be prohibited, this should not preclude the pursuit of a change in the law (including the constitution) by lawful means as it is of the essence of democracy to allow diverse political programmes to be proposed and debated; see Appl. No. 7525/76, X v. United Kingdom, 11 DR 117 (1978) (advocacy of criminal law reform) and The Socialist Party and Others v. Turkey [GC], no. 21237/93, 25 May 1998) (advocacy of a federal constitution).
35. Moreover it is essential that activities prohibited by the law do not cover any activities that are protected under universally and regionally guaranteed rights and freedoms; see the reliance in Sidiropoulos and Others v. Greece, no. 26695/95, 10 July 1998 on the fact that Conference on Security and Cooperation in Europe documents allowing the formation of associations to protect cultural and spiritual heritage had been signed by the respondent state in supporting the conclusion that the objective of preserving and developing the traditions and folk culture of a region was perfectly legitimate.
36. However, it is not permissible either to use anti-democratic means to pursue a change in the law or the constitution or to seek a change that is inherently anti-democratic; see Refah Partisi (The Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, 13 February 2003.
Paragraph 12
37. The ability of NGOs to undertake research, education and advocacy on issues of public debate will often be crucial in the pursuit of their objectives. It would be pointless of them to undertake such research, education and advocacy if they were not also able to disagree with governmental policy or propose changes in the law.
Paragraph 13
38. Although NGOs are not political parties, support by the former for the latter in elections and referenda can be an important means of realising a particular objective, whether in whole or in part, as the outcome of an election or referendum may lead to a change in law or policy favourable to that objective. NGOs should, therefore, be free to provide that support but this may be conditioned on them being transparent in declaring their motivation, particularly to ensure that their members and funders are aware of such support being given and that the law on the funding of elections and political parties is observed. That law may, for example, set limits on the level of funding that can be provided or prohibit funding from sources outside the state concerned.
39. Furthermore, while NGOs should be able to support political parties on particular issues, such support may be incompatible with the objectives of some funders, whether because they are prohibited from supporting any form of advocacy or because their public status requires them to be non-partisan, and they should, therefore, be able to refuse or withdraw financial and other benefits where this support is given.
Paragraph 14
40. The fact that NGOs are non-profit-making is one of their essential characteristics, distinguishing them in particular from commercial enterprises. However, NGOs will be unable to pursue their objectives without some source of income and this can be provided not only by fees, grants and donations but also through undertaking economic, business or commercial activities.
41. There should, therefore, be no obstacle to them undertaking such activities subject to the prohibition on the income thereby derived being distributed to their members and founders (see Paragraph 9 of the Recommendation) and to the licensing and regulatory requirements generally applicable to those activities.
42. The ability to undertake economic, business or commercial activities should also not preclude a requirement that certain modalities be followed, such as the formation of a subsidiary company for this purpose.
Paragraph 15
43. Associations, federations and confederations of NGOs (which are themselves NGOs) play an important role in that they foster complementarity amongst such bodies and allow them to reach a wider audience, as well as enabling them to share services and set common standards. NGOs, in pursuit of their objectives, should thus be free to join or not join such associations, federations and confederations.

III. Formation and membership
A. Establishment
Paragraph 16
44. As it is a fundamental principle that any person or group of persons should be free to establish an NGO, restrictions on the formation of NGOs either by persons who do not have the nationality of the state in which this takes place or by legal persons should not be imposed. In the case of non-nationals, this freedom is also specifically recognised in Article 3 of the Convention on the Participation of Foreigners in Public Life at Local Level (ETS No. 144).
45. Moreover, subject to their evolving capacities, the freedom of association explicitly guaranteed to children by Article 15 of the Convention on the Rights of the Child would enable them to found NGOs.
46. In the case of a non-membership-based NGO, establishment should be possible through the making of a gift where the founder is alive or of a bequest following his or her death. However, this provision should not be interpreted as being applicable to all legal forms. In some countries, for instance, the possibility of establishment by will does not exist for all non-profit-making legal forms.
Paragraph 17
47. No minimum number is prescribed in guarantees of freedom of association for the number of persons required to establish a membership-based NGO. The guarantee of this freedom to everyone should, in principle, mean that only two persons are required to establish such a body. However, it is accepted that the acquisition of legal personality might afford a justification for setting a higher threshold for the establishment of a membership-based NGO. Nonetheless there could be no justification for setting a minimum that clearly discouraged or inhibited the establishment of membership-based NGOs.
B. Statutes
Paragraph 18
48. NGOs, especially those with legal personality, must heed the needs of various parties – members, founders, users, beneficiaries, donors, staff and public authorities – as regards their organisation and decision-making processes. This is most easily achieved by NGOs with legal personality having clear statutes, howsoever described under the law of the member state in which they have been established, setting out the conditions under which they are to operate. Nonetheless it is recognised that in some legal systems it is possible to achieve this goal without formally adopted statutes (e.g., informal associations in the Netherlands).
Paragraph 19
49. The requirements set out in this paragraph concern the matters that are most likely to be crucial to establishing the conditions under which NGOs are to operate. Those establishing or belonging to NGOs
(as well as those responsible for their direction in the case of non-membership-based bodies) are free to
specify additional matters in their statutes but they should not normally be under any obligation to do so. The term “powers” refers to the authority given by the statutes (expressly or impliedly) to do particular things in pursuit of an NGO’s objectives.
Paragraph 20
50. The requirement that the membership should form the highest governing body of a membership-based NGO is a manifestation of the exercise of freedom of association by their members. This does not mean that the members cannot delegate the authority to take action to other bodies but they should always be able to revoke that delegation and determine the matter themselves.
51. Such a consideration does not apply in the case of non-membership-based NGOs and so the highest
governing body should be determined by the statutes, whether as originally drawn up by their founders or as subsequently amended in the prescribed manner.
C. Membership
Paragraph 21
52. Freedom of association has a very important negative dimension, namely, that persons should not be unduly coerced into joining or remaining members of an NGO to which they do not wish to belong on account of ethical, philosophical, political or religious grounds. In particular individuals should not be required to forego their objections to membership of a particular NGO in order to retain a job or to continue to pursue their livelihood; see in the context of trade unions, Young, James and Webster v. United Kingdom, no. 7601/76 and 7806/77, 13 August 1981.
53. Outside of the context of work, it would also be unacceptable for someone to be compelled to belong to an NGO where they had a deep-seated objection to one or more of its objectives; see Chassagnou v. France, nos. 25088/94, 28331/95 and 28443/95, 29 April 1999 with regard to enforced membership of a hunting association. It does not matter whether the constraints imposed on someone to belong to an NGO are directly imposed by the law or are merely facilitated by it.
54. However, a requirement that someone join a professional association as part of the regulatory control of that profession would not be objectionable so long as there is no restriction on the members setting up their own organisation in addition to the one which they were obliged to join; see Le Compte, Van Leuven and De Meyere v. Belgium, nos. 6878/75 and 7238/75, 23 June 1981.
Paragraph 22
55. The guarantee of freedom of association in Article 11 of the European Convention and in other human rights instruments is applicable to “everyone” within a State’s jurisdiction and the scope for imposing limitations will thus be quite narrow. Certainly children should not be excluded – particularly since this freedom is also specifically guaranteed to them by Article 15 of the Convention on the Rights of the Child – but that does not preclude the adoption of protective measures to ensure that they are not exploited or exposed to moral and related dangers. Any limitations on their ability to join membership-based NGOs will need to take account of their evolving capacities and, as well as being proportionate and respecting legal certainty, should never be such as totally to exclude them from becoming members.
56. Similarly the freedom should normally be exercisable by persons who are non-nationals and any limitation on this would need to be compatible with the limited authorisation to restrict the political activity of nonnationals allowed under Article 16 of the European Convention; see Piermont v. France, nos. 15773/89 and 15774/89, 27 April 1995. It would thus be hard to justify a bar on political activity in the non-party context and impossible to do so for one where no politics was involved at all (e.g., in the field of sport and culture).
57. It is possible that a prohibition on involvement in NGOs might be a legitimate consequence of having committed certain offences but its scope and duration must always respect the principle of proportionality (see Applic. No. 6573/74, X v. The Netherlands, 1 DR 87 (1974)) and a ban on membership as an automatic consequence of imprisonment would never be justified.
58. The essence of freedom of association is that individuals should be free to choose with whom they associate and so the law should not normally enable someone to join an NGO against the wishes of its members. However, there would be a good justification for constraining the freedom of members of an
association to determine whom to admit as new members where this was done in order to fulfil obligations to prevent discrimination on any inadmissible ground and thereby protect the rights of others, as permitted by Article 11(2) of the European Convention.
Paragraph 23
59. As with admission, the expulsion of someone from a membership-based NGO is generally a matter for the organisation itself. However, the rules governing membership in its statute must always be observed and national law should thus ensure that someone facing expulsion or who has been expelled has available an effective means on insisting on such observance; see Applic. No. 10550/83, Cheall v. United Kingdom, 42 DR 178 (1985). Moreover the rules governing expulsion should not be wholly unreasonable or arbitrary; in particular there should be a fair hearing before any decision is taken.
Paragraph 24
60. Improper sanctions should not be imposed on persons merely because of their membership of an NGO. Thus there ought to be a remedy for anyone dismissed because he or she belongs to a trade union (see Appl. No. 12719/87, Frederiksen v. Denmark , 56 DR 237 (1988)) or because of the objectives of any other organisation to which they belong (see Vogt v. Germany [GC], no. 17851/91, 26 September 1995).
61. Similarly there ought to be protection for any other forms of sanction or pressures not to belong to an NGO, such as the loss of eligibility for certain benefits or posts; see Grande Oriente D’Italia di Palazzo Giustiniani v. Italy, no. 35972/97, 2 August 2001 and Wilson, National Union of Journalists and Others v. United Kingdom, nos. 30668/96, 30671/96 and 30678/96, 2 July 2002.
62. There is also a need to provide protection against even more aggressive forms of action taken against persons on account of their membership of an NGO, namely, harassment, intimidation and the use of violence. However, some sanctions will be admissible where membership of an NGO is clearly incompatible with the performance of either a person’s responsibilities as an employee or office-holder (see Appl. No. 11002/84, Van der Heijden v. The Netherlands, 41 DR 264 (1985)) or of other obligations that have been undertaken (such as where there is a conflict of interest between the interests of two organisations to which a person belongs).
63. The risk of incompatibility where the member is a public employee is expressly recognised in the stipulation in Article 11(2) of the European Convention that the guarantee of freedom of association does 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”. However, as with any other conflict of interest, the existence of such an incompatibility must be demonstrated by direct evidence and should not thus be a matter of supposition. Moreover the restrictions must always have a basis in law and respect the principle of proportionality; see the Vogt case, Ahmed and Others v. United Kingdom [GC], no. 22954/93, 2 September 1998 and Rekvényi v. Hungary [GC], no. 25390/94, 20 May 1999. Furthermore those regarded as belonging to the administration of the State should be seen as covering only higher-ranking officials and not all employees paid out of public funds; see the Vogt and Grande Oriente cases.
Paragraph 25
64. This paragraph confirms that membership of an NGO need not be a precondition to becoming  nvolved in any activities that it might undertake. Whether or not membership is required for this purpose – whether as regards some or all of its activities - should be a matter for the NGO itself to determine. However, membership is essential for participation in meetings of the highest governing body of a membershipbased NGO since membership must be a precondition to take part in such meetings (see Paragraph 20 of the Recommendation).

IV. Legal personality
A. General
Paragraph 26
65. The existence of legal personality has been recognised by the European Court as essential for the functioning of many NGOs (see Sidiropoulos and Others v. Greece, no. 26695/95, 10 July 1998 and Gorzelik and Others v. Poland [GC], no. 44158/98, 17 February 2004) and such personality would be meaningless if it were not distinct from that of those who have established the organisation or who belong to it. However, as Paragraph 75 of the Recommendation makes clear, the distinct personality of an organisation from that of its founders and members should not be an obstacle to either of the latter being held liable to third parties or the NGO itself for any professional misconduct or neglect of duties arising from their involvement in the activities of the NGO.
Paragraph 27
66. It follows from the fact that an NGO has a distinct personality from that of its founders and members that it should be the new organisation created in the event of a merger of two or more existing ones that succeeds to their rights and liabilities.
B. Acquisition of legal personality
Paragraph 28
67. Where the acquisition of legal personality is not an automatic consequence of forming an NGO, there will inevitably have to be a process of assessing whether the legal requirements have been met. In order to minimise the risk of the resulting discretion being inappropriately exercised, the grounds for taking a decision on the grant or refusal of legal personality should always be stated with an appropriate degree of precision and be such as to permit objective assessment of the observance of these legal requirements. The formulation in Paragraph 34 of the Recommendation should serve as a guide in this respect.
Paragraph 29
68. The formation of NGOs will be facilitated if those interested in so doing have ready access to the applicable rules and the process to be followed is easy to understand and to satisfy. The latter requirement could be met by producing a guide to the requirements for establishing an NGO.
Paragraph 30
69. Although the ability to form an NGO ought, in principle, to be open to anyone, some disqualification on being able to do so might be an appropriate consequence of the past activities of the person concerned. This might be particularly the case where the person concerned has been found guilty of an offence which entailed the pursuit of objectives that are not ones for which an NGO might be formed. Similarly a bankruptcy determination might mean that someone ought not to be allowed to establish an NGO, or at least not ones that can be expected to be in receipt of significant funding. In all cases the scope of such restrictions would need to be clearly connected with the activities concerned and their duration should also not be disproportionate.
Paragraph 31
70. In order to ensure that those seeking to establish NGOs are not unduly burdened and that any  decisionmaking process is appropriately focused, the only information that should need to be filed with an application for legal personality will be the statute, the address of the NGO and the details needed to identify the persons concerned.
71. In the case of non-membership-based NGOs, which are likely to require some form of funding or property before they can pursue their objectives, there could be an additional requirement of demonstrating that such funding or property is available so that entities that will never operate cannot be created. However, it is not essential that there be such a requirement, particularly as the circumstances in a particular country may be such that the acquisition of the necessary funding or property is dependent upon the intended recipient first obtaining legal personality.
Paragraph 32
72. The requirement that the members of a membership-based NGO should first adopt a resolution in favour of acquiring legal personality is a reflection of the fact they are its highest governing body. In order for the members to have an opportunity to take part in such an important decision, the invitation of the meeting at which such a resolution is to be adopted must be one that gives them a reasonable prospect of attending - two weeks’ notice might be appropriate for this purpose – but it cannot be expected that every member actually attends and the use of proxies ought to be permitted.
73. Proof that the necessary meeting had been held could be provided by a copy of the invitation, evidence of how the invitation to attend was communicated, a record of the proceedings and the signatures of those attending, as well as any authorisations for proxies.
Paragraph 33
74. Although there will be costs involved in the processing of applications to acquire legal personality, the level at which any fees are set should reflect both the desirability of encouraging the formation of NGOs and the fact that their character is essentially non-profit-making.
Paragraph 34
75. The grounds stipulated for refusal of legal personality reflect the only considerations relevant for such a decision. As to names belonging to another or which are confusing, see Apeh Uldozotteinek Szovetsege, Ivanyi, Roth and Szerdahelyi v. Hungary (dec.), no. 32367/96, 31 August 1999 and as to inadmissible objectives, see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, 13 December 2001. This underlines the structured nature of the discretion that must be established by national law.
Paragraph 35
76. The case law of the European Court demonstrates the real risk of authorities being too ready to assume the worst about the objectives of an NGO; see, e.g., United Communist Party of Turkey and Others v. Turkey, no. 19392/92, 30 January 1998 and Sidiropoulos and Others v. Greece, no. 26695/95, 10 July 1998. As the European Court has made clear it is particularly difficult to draw adverse conclusions about broadly framed objectives where an NGO has yet to undertake activities which demonstrate a commitment to the pursuit of inadmissible objectives.
77. It is not appropriate to rely on suspicions or to draw conclusions simply from the use of certain terms in a statement of objectives. While an NGO’s stated aims might conceal certain inadmissible objectives and intentions, this is likely to be demonstrated only by concrete action and not in an application for legal personality. Although past behaviour might give some indication as the way in which someone will behave in the future, there will be a need for significant corroboration that a risk exists before such personality could be legitimately refused.
78. Furthermore the importance of political pluralism in a democracy means that the establishment of NGOs with objectives that challenge the established order must be permitted unless there is compelling evidence that they will be pursued in a manner that is anti-democratic and this cannot be assumed simply because change is being proposed; see Refah Partisi (The Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, 13 February 2003.
Paragraph 36
79. Although in some countries the responsibility for decisions relating to grant of legal personality to NGOs is vested in courts, this is not an essential means of ensuring that the process is not affected by political considerations. It is sufficient that the body with this responsibility is genuinely independent not only of an executive elected or chosen as part of the political process but also of any other entity whose interests might be affected by the coming into being of a new NGO; see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, 13 December 2001.
80. The body concerned may thus be an administrative one but, whatever its formal status, it is essential that it have an appropriate level of staff to ensure that the requirement of expeditious decision making is fulfilled and that those staff be persons who are suitably qualified and trained for the task expected of them.
Paragraph 37
81. The right to form NGOs with legal personality will only be truly meaningful where any process of approval that may be involved is completed in a reasonably speedy manner; delay in decision making should not be allowed to frustrate the pursuit of the objectives of the proposed organisation. A useful point of comparison in judging what is reasonable might be the time taken to register corporations or business since these also have objectives to be scrutinised and the fulfilment of requirements to be checked. However, in most countries this is something that can be completed in a matter of days rather than of weeks or months. Failure to decide within the prescribed time limit should then be automatically treated as either a refusal of legal personality or the granting of it.
Paragraph 38
82. The provision of a reasoned decision to the person affected by it is a fundamental principle of good
administration that not only assists acceptance of a well-founded but adverse decision but also ensures that such a decision can be subjected to appropriate scrutiny. Although the review of a refusal of legal personality might in the first instance be a matter for internal review within the decision-making body, the ultimate guarantee that the rights of those seeking legal personality for an NGO have been respected can only be afforded by an appeal to an independent and impartial court.
Paragraph 39
83. The separation of decision making about the grant of legal personality from that about the grant of financial or other benefits is necessary in order to avoid the possibility of these two quite discrete matters becoming confused, with the result of inappropriate conclusions being reached in respect of the former. Such a risk might be most easily avoided by having two different decision-making bodies but this objective could also be achieved by giving these two functions to separately run units within the same body.
Paragraph 40
84. In order to protect the interests of all who may have dealings with NGOs with legal personality, the fact that this has been granted and the information submitted for this purpose should be recorded in a manner that allows members of the public to check any details that may be of concern to them. Ideally this should take the form of an electronic database that can be accessed without formality or fee over the internet.
Paragraph 41
85. The legal personality granted to an NGO should normally be for an indefinite duration, with this being determined only in accordance with the terms of its statute or pursuant to termination fulfilling the requirements of this Recommendation (see Paragraphs 44 and 74 of the Recommendation). The grant of legal personality should not, therefore, be for a limited duration or subject to a requirement of renewal unless this is the wish of those establishing the NGO concerned.
C. Branches; changes to statutes
Paragraph 42
86. The establishment or accreditation by an NGO of branches should be a matter for its own internal organisation and thus subject only to the requirements of its statute. The only circumstance in which any official authorisation for the establishment of a branch could be required would be where a discrete legal personality for the branch from that of the NGO establishing it was being sought for this purpose. In such a case the grant of approval could be made subject to the rules generally applicable to the grant of legal personality to NGOs.
Paragraph 43
87. Approval for a change in the statutes of an NGO should only be required where this concerns a matter that might be the basis for a refusal to grant legal personality (see Paragraph 34 of the Recommendation). However, the legitimate interest of members of the public in being able to verify the content of the statute of an NGO with which they have dealings would justify a requirement that other changes are notified prior to their coming into force. Therefore a member state may require that a change in the statutes must be entered in the register before it can be applied. This requirement may be necessary for members, those intending to join as members and creditors, bodies granting subsidies, authorities and other contact groups.
88. Although seeking approval for a change should be governed by the procedure already set out with respect to the initial grant of legal personality, the grant of approval should not involve the NGO concerned first having to establish itself as an entirely new entity. The term “approval” for the purpose of this paragraph does not cover any involvement of a lawyer or notary in preparing the change to the statutes.
D. Termination of legal personality
Paragraph 44
89. The termination of the legal personality of an NGO against the will of its members or, in the case of a nonmembership-based organisation, its founders is not something that should be easily done as this would undermine the principle that such bodies ought not to be subject to the direction of public authorities (see Paragraph 6 of the Recommendation). Involuntary termination ought, therefore, only to be possible where there is a compelling public interest in so doing. This will be where the NGO concerned has become bankrupt, has not been active for an extensive period – this is probably not something that can be claimed unless at least several years have elapsed between meetings of the highest governing body and there have been at least two failures to file annual reports on their accounts - or has engaged in serious misconduct in the sense of wilfully engaging in activities that are inconsistent with the objectives for which an NGO can be founded (including becoming an essentially profit-making body).
E. Foreign NGOs
Paragraph 45
90. States that have not ratified Convention No. 124 may retain some discretion as to whether they recognise the legal personality of foreign NGOs and as to whether they allow them to operate within their territory but neither can be absolute on account of both the freedom of association guaranteed to those who are resident within them and the recognition by instruments such as the UN Declaration on Human Rights Defenders (Articles 5, 16 and 18) of the legitimacy of international human rights NGOs operating within individual countries. Certainly any process of prior approval to operate should be restricted and should not entail any requirement that NGOs first establish a new and separate entity under the law of the state in which they are seeking to operate. Furthermore the process of approval and its withdrawal should emulate, insofar as appropriate, the approach required for granting and terminating legal personality to NGOs set out in this Recommendation.

V. Management
Paragraph 46
91. In a membership-based NGO the members should ultimately determine who carries out its management but, while in some cases they might decide this directly, they should be free to delegate the task to an intermediary body which may be especially desirable where the membership is particularly large Nonetheless the status of the membership as the highest governing body must mean that any such delegation cannot be irrevocable.
92. In the case of a non-membership-based NGO the statutes do not have to protect the rights of members and are thus not subject to any particular limitations regarding the choice of management.
Paragraph 47
93. Although the decision-making process of an NGO must always comply with the requirements of its
statutes, the limited requirements as to what these must contain and the principle of self-regulation (see
Paragraphs 1 and 67 of the Recommendation) mean that there should be no other constraints on how they decide to pursue their objectives and manage the organisation.
94. Thus the NGO should be free to adopt organisational arrangements that it considers appropriate and to change them as and when it considers this to be necessary. Such internal matters should not require the approval of anyone outside the organisation concerned.
95. The freedom that NGOs ought to have with respect to decision making should not, however, lead their management to ignore the wide range of persons with a legitimate interest in the way in which the organisations concerned conduct themselves. The taking into account of these interests will require the use of a number of different techniques – notably consultation and reporting – and their precise form and scope will vary according to the character of the interest in question.
Paragraph 48
96. The freedom of NGOs to determine the arrangements for pursuing their objectives also extends to the choice of officers and the admission and exclusion of members.
97. It is possible that, as with the ability to form an NGO (see Paragraph 30 of the Recommendation), a prohibition on acting as an officer in an NGO might be a legitimate consequence of committing certain offences. In all cases the scope of such restrictions would need to be clearly connected with the activities constituting the offences and their duration should also not be disproportionate.
98. The freedom of NGOs to determine the admission or exclusion of members is subject to the  prohibition on discrimination and the right to be protected against arbitrary exclusion.
Paragraph 49
99. Foreign nationals employed by NGOs or involved in their management should be subject to the  generally applicable laws of the country in which they are established or operate as regards entry, stay and departure but there should not be any special limitation on such nationals becoming employees or being involved in the management of such organisations.

VI. Fundraising, property and public support
A. Fundraising
Paragraph 50
100. The ability of NGOs to solicit donations in cash or in kind will, notwithstanding the possibility of them also engaging in some economic activity, always be a crucial means for them to raise the funds required in order to pursue their objectives. It is important that the widest range of possible donors can be approached by NGOs.
101. The only limitation on donations coming from outside the country should be the generally applicable law on customs, foreign exchange and money laundering, as well as those on the funding of elections and political parties. Such donations should not be subject to any other form of taxation or to any special reporting obligation.
B. Property
Paragraph 51
102. Access to banking facilities will be essential if NGOs with legal personality are to be able to receive donations and to manage and protect their assets. This does not mean that banks should be placed under an obligation to grant such facilities to every NGO seeking them. However, their freedom to select clients should be subject to the principle of non-discrimination and the ability to operate bank accounts should be a necessary incident of the grant of legal personality to NGOs.
Paragraph 52
103. The possibility of NGOs protecting their property rights, as well as any other legal interests, through being able to bring and defend legal proceedings is essential since any taking of, the loss of control over or damage to their property could frustrate the pursuit of their objectives; see the finding of a violation of the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the European Convention in The Holy Monasteries v. Greece, nos. 13092/87 and 13984/88, 9 December 1994 which concerned a religious entity that had lost the right to bring legal proceedings in respect of its property.
Paragraph 53
104. The fact that assets of some NGOs have come from public bodies and that their acquisition has been assisted by a favourable fiscal framework are reasons to ensure that these assets are carefully managed and that the best value is obtained when buying and selling them. It would, therefore, be appropriate to adopt a requirement in these cases that NGOs be guided by independent advice when engaging in some or all such transactions.
Paragraph 54
105. It is a corollary of the adoption of a special tax regime to facilitate the acquisition of property for certain purposes that that property should not be utilised for other purposes. In the event of an NGO not being in a position to use the property for such purposes, it could thus be required to return the property concerned to the donor, to transfer it to another NGO that can use it for those purposes or to retain it on payment of the applicable taxes.
Paragraph 55
106. Most NGOs are unlikely to be able to pursue their objectives without employing some staff and/or having volunteers carrying out some activities on their behalf. It should, therefore, be recognised that it is a legitimate use of NGOs’ property to pay their employees and to reimburse the expenses of those who act on their behalf. While market conditions and/or legislation will influence the level of payments made to staff, the need to ensure that property is properly used for the pursuit of an NGO’s objectives would justify imposing a criterion of reasonableness for the reimbursement of expenses.
Paragraph 56
107. National law should permit an NGO to designate, whether in its statutes or by resolution of its highest governing body, another NGO to receive its assets in the event of its termination. This should, however, only apply to assets left after all the liabilities of the NGO being terminated have been met and this would include the fulfilment of a condition in a donation that funds unspent on the purpose for which it was given should either be returned to the donor or transferred to an NGO specified by the donor.
108. The freedom otherwise left to the NGO to determine who should succeed to its assets will, however, be subject to the prohibition on distributing any profits that it may have made to its members (see Paragraph 9 of the Recommendation) and may also be constrained by an obligation to transfer assets obtained with the assistance of tax exemptions or other public benefits to other NGOs pursuing objectives for which such exemptions or benefits are granted. In addition an NGO whose objectives or activities have been found to be inadmissible for reasons set out in Paragraph 11 of the Recommendation should not have any right to determine the successor to its assets but these should instead be applied by the State for public purposes.
C. Public support
Paragraph 57
109. It is appropriate to grant public support to NGOs since they are often able to answer the needs of society in ways that public bodies cannot. The forms that such support can take will be wide-ranging and will need to be settled according to the conditions prevailing in a country at a particular time. However, various forms of tax exemption, whether directly to the NGOs themselves or indirectly to those who might thereby be encouraged to make donations to them, are likely to be the most useful as they enable NGOs to determine the best use of the resulting income.
Paragraph 58
110. It is essential that clear and objective criteria should govern the grant or refusal of any form of public support to NGOs so that any such decision can be scrutinised by all who may be interested in it - not only the NGOs concerned but also other NGOs working in the same field and members of the public interested in the use made of public resources - and subject to challenge in a court where it is considered that they have not been properly applied.
Paragraph 59
111. In deciding whether to grant public support, or particular forms of it, to an NGO or a certain category of NGO, it will be appropriate to take into account the nature and beneficiaries of any activities undertaken by such an organisation or category of organisation and thereby establish whether they address those needs of society considered to be a particular priority. What is seen as a priority and thus what forms of activity are regarded as worthy of public support can change over the course of time.
Paragraph 60
112. The provision of public support (in the form of financial or other benefits) for the activities of NGOs is something that can be made contingent upon them qualifying for a special category or regime (e.g., a charity), or even a specific legal form (e.g., a trade union, church or religious association). A failure to obtain such a status or classification or to be allowed to take on such a legal form should not, however, lead to the loss of any legal personality already acquired.
Paragraph 61
113. Since the granting of public support can be conditional upon certain objectives being pursued or certain activities being undertaken, it should be expected that a material change in either those objectives or activities will lead to a review of the provision of this support and possibly its modification or termination.

VII. Accountability
A. Transparency
Paragraph 62
114. Those NGOs receiving any form of public support should expect to account for the use made of it. It is not unreasonable for NGOs to be required to report each year on the activities that they have undertaken and the accounts for the income and expenditure concerned. However, such a reporting obligation should not be unduly burdensome and should not require the submission of excessive detail about either the activities or the accounts. This reporting obligation is without prejudice to any particular reporting requirement in respect of a grant or donation. This requirement is distinct from any generally applicable requirement regarding the keeping and inspection of financial records and the filing of accounts.
Paragraph 63
115. In order to allay any concern that NGOs might not be devoting as much of their resources as is practicable to the pursuit of their objectives, an obligation to require them to disclose the proportion in fundraising and administrative overheads can be imposed. This provision is not meant to set a particular limit for expenditure on fundraising and administrative overheads but to ensure transparency.
Paragraph 64
116. Obligations to report should be tempered by other obligations relating to the right to life and security of beneficiaries and to respect for private life and to confidentiality. In particular a donor’s desire to remain anonymous should be respected. However, the need to respect private life and for confidentiality are not absolute and should not be an obstacle to the investigation of criminal offences (e.g., in connection with money-laundering). Nonetheless any interference with respect for private life and confidentiality should observe the principles of necessity and proportionality.
Paragraph 65
117. In order to guarantee objectivity there can be a requirement that NGOs have their accounts audited by a person or institution independent of its management. The scope of any such requirement should take account of the size of the NGO concerned. In smaller ones the requirement of independence might be satisfied where the audit is carried out by a member who has no connection with the management. For those with substantial income and expenditure the use of the services of a professional auditor is likely to be considered more appropriate. It is recognised that there may also be a general legal obligation for all entities with legal personality (including NGOs) of meeting certain objective criteria, such as net value of assets or average number of employees, to have their accounts audited, which would be applicable even where NGOs do not receive any public support.
Paragraph 66
118. Although there is no reason to differentiate between foreign and other NGOs as regards the applicability of reporting and inspection requirements, it is only appropriate to subject foreign NGOs to them in respect of the activities that they actually carry out in the host country.
B. Supervision
Paragraph 67
119. The best means of ensuring ethical, responsible conduct by NGOs is to promote self-regulation in this sector at the national and international level. Certainly responsible NGOs are conscious of the fact that their success depends to a large extent on public opinion concerning their efficiency and ethics. Nonetheless states have a legitimate interest in regulating NGOs so as to guarantee respect for the rights of third parties (whether donors, employees, members or the public) and to ensure the proper use of public resources and respect for the law.
120. In most instances the interests of third parties can be adequately protected by enabling them to bring the relevant matter before the courts; there should generally be no need for a public body to take any other action on their behalf.
121. Whatever the form of regulatory control employed, it is essential that it be governed by objective criteria and be subject to the principle of proportionality so that its exercise can be amenable to control by the courts. It is also vital that public authorities, in supervising the activities of NGOs, apply the same assumption that holds good for individuals, namely, that their activities are lawful unless the contrary is proved.
Paragraph 68
122. It should be possible to scrutinise the financial records and activities of NGOs where there are sufficient grounds for inquiry. In most instances this is only likely to be justified where an NGO has failed to comply with reporting requirements, whether because no report has been made or because what has been produced gives rise to genuine concerns, but it is possible that circumstances will warrant an inquiry even before a report is due. Mere suspicion should not be the basis for any such inquiry; there must always be reasonable basis for believing that impropriety has occurred or is imminent.
Paragraph 69
123. This provision requires that NGOs should have the benefit of the guarantees applicable to the search of persons and premises under Article 8 of the European Convention; see, e.g., Funke v France, no. 10828/84, 25 February 1993.
124. Judicial authorisation should normally be obtained prior to any such search taking place but this can be dispensed with where the power is subject to both very strict limits and subsequent judicial control, providing a sufficient guarantee against arbitrary interference with the right to respect for private life; see Camenzind v. Switzerland, no. 21353/93, 16 December 1997.
Paragraph 70
125. Intervention by an external body in the actual running of an NGO should be extremely rare. It should be based on the need to bring an end to a serious breach of legal requirements where either the NGO has failed to take advantage of an opportunity to bring itself into line with those requirements or an imminent breach of them should be prevented because of the serious consequences that would follow.
Paragraph 71
126. The possibility of seeking suspension of administrative action is something expected of all administrative law systems – see Recommendation Rec(2003)16 of the Committee of Ministers on the execution of administrative and judicial decisions in the field of administrative law – but it is especially important that this is available in respect of directions to an NGO to desist from particular activities as these are often tied to particular moments in time and so could not usefully be undertaken at a later date after a challenge to the directions has been successfully pursued.
127. Although there may be good reasons in a particular case for refusing suspension of an order to desist from certain activities or of any other measure taken in respect of an NGO, the significance of so doing is such that there should then be the possibility of this being subjected to a prompt judicial challenge.
Paragraph 72
128. NGOs, like everyone else, are subject to the law and sanctions may thus be imposed on them for failing to observe its requirements. However, it is essential that the principle of proportionality be respected in both framing and applying sanctions for non-compliance with a particular requirement. Moreover there should always be a clear legal basis for any sanctions that are imposed in a given case.
Paragraph 73
129. Although there is no reason to differentiate between foreign and other NGOs as regards the applicability of inspection requirements, it is only appropriate to subject foreign NGOs to them in respect of the activities that they actually carry out in the host country.
Paragraph 74
130. The need to respect the principle of proportionality should mean that resort to the sanction of enforced termination of an NGO for the reasons set out in Paragraph 44 of the Recommendation should be very rare. An extremely well-founded basis for such drastic action as enforced termination is essential; see United Communist Party of Turkey and Others v. Turkey, no. 19392/92, 30 January 1998, Socialist Party and Others v. Turkey [GC], no. 21237/93, 25 May 1998 and Refah Partisi (The Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, 13 February 2003.
131. Moreover in making any assessment about the need for enforced termination it will be important to be sure that the reprehensible activities of members and even office-holders of an NGO can justifiably be regarded as engaging the responsibility of the latter; see Dicle for the Democratic Party (DEP) of Turkey v. Turkey, no. 25141/94, 10 December 2002.
132. Where enforced termination does appear to be justified, it is a measure that must be adopted by a court and should be subject to appeal. It should only be in the most exceptional case that the effect of a
termination ruling would not be suspended until the outcome of an appeal; see the contribution of the absence of such a possibility to the measure being found to be disproportionate in the United Communist and Socialist Party cases.
C. Liability
Paragraph 75
133. The principles set out in this provision are a necessary consequence of the legal personality of an NGO. Such personality confers on it a separate existence from its members and founders and it should
normally, therefore, be the only one liable for its debts, liabilities and obligations. However, legal personality cannot operate as a barrier to liability on the part of an NGO’s members, founders and staff for any professional misconduct or neglect of duties with regard to its functioning that affects the rights or other legal interests of third parties.
134. In some countries it is possible to choose to establish an NGO with legal personality where the officers can be held personally liable for the NGO’s debts, liabilities and obligations (for example, informal associations in the Netherlands).

VIII. Participation in decision making
Paragraph 76
135. Notwithstanding the different perspective of NGOs and public authorities, it is in their common interest and that of society as a whole for them to have available effective mechanisms for consultation and dialogue so that their expertise is fully exploited. Certainly competent and responsible input by NGOs to the process of public policy formulation can contribute greatly to efforts to find solutions to the many problems that need to be addressed.
136. Although direct consultation and dialogue with all interested NGOs may not be feasible in every instance, the adoption of techniques to facilitate their input through bodies playing a co-ordinating role should be encouraged.
137. No NGO should be excluded from participation on a discriminatory basis and the expression of a diversity of views should be ensured.
138. The quality of the input of NGOs should not be undermined by inappropriate restrictions on access to official information.
Paragraph 77
139. It is essential that NGOs not only be consulted about matters connected with their objectives but also on proposed changes to the law which have the potential to affect their ability to pursue those objectives. Such consultation is needed not only because such changes could directly affect their interests and the effectiveness of the important contribution that they are able to make to democratic societies but also because their operational experience is likely to give them useful insight into the feasibility of what is being proposed.

      Fundamental Principles on the Status of Non-Governmental Organisations in Europe

The participants at the multilateral meetings held in Strasbourg from 19 to 20 November 2001, 20 to 22 March 2002 and 5 July 2002,
Having regard to Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms which provides that “everyone has the right to freedom of peaceful assembly and to freedom of association with others”;
Having regard to the European Convention on the Recognition of the Legal Personality of International Non-governmental Organisations (ETS No. 124) and to the desirability of enlarging the number of its contracting parties;
Considering that non-governmental organisations (hereinafter NGOs) make an essential contribution to the development, realisation and continued survival of democratic societies, in particular through the promotion of public awareness and the participatory involvement of citizens in the res publica, and that they make an equally important contribution to the cultural life and social well-being of such societies;
Considering that NGOs make an invaluable contribution to the achievement of the aims and principles of the United Nations Charter and of the Statute of the Council of Europe;
Considering that their contributions are made through an extremely diverse body of activities which can range from acting as a vehicle for communication between different segments of society and public authorities, through the advocacy of change in law and public policy, the provision of assistance to those in need, the elaboration of technical and professional standards, the monitoring of compliance with existing obligations under national and international law, and on to the provision of a means of personal fulfilment and of pursuing, promoting and defending interests shared with others;
Considering that the existence of many NGOs is a manifestation of the right of their members to freedom of association and of their host country’s adherence to principles of democratic pluralism;
Recognising that the operation of NGOs entails responsibilities as well as rights,
Have adopted the present Fundamental Principles on the Status of Non-governmental Organisations in Europe.

Scope
1. NGOs are essentially voluntary self-governing bodies and are not therefore subject to direction by public authorities. The terms used to describe them in national law may vary, but they include associations, charities, foundations, funds, non-profit corporations, societies and trusts. They do not include bodies which act as political parties.
2. NGOs encompass bodies established by individual persons (natural and legal) and groups of such persons. They may be national or international in their composition and sphere of operation.
3. NGOs are usually organisations which have a membership but this is not necessarily the case;
4. NGOs do not have the primary aim of making a profit. They do not distribute profits arising from their activities to their members or founders, but use them for the pursuit of their objectives.
5. NGOs can be either informal bodies or organisations which have legal personality. 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.
Basic principles
6. NGOs come into being through the initiative of individuals or groups of persons. The national legal and fiscal framework applicable to them should therefore permit and encourage this initiative.
7. All NGOs enjoy the right to freedom of expression.
8. NGOs with legal personality should have the same capacities as are generally enjoyed by other legal persons and be subject to the same administrative, civil and criminal law obligations and sanctions generally applicable to them.
9. Any act or omission by a governmental organ affecting an NGO should be subject to administrative review and be open to challenge in an independent and impartial court with full jurisdiction.
Objectives
10. An NGO is free to pursue its objectives, provided that both the objectives and the means employed are lawful. These can, for instance, include research, education and advocacy on issues of public debate, regardless of whether the position taken is in accord with stated government policy.
11. An NGO may also be established to pursue, as an objective, a change in the law.
12. An NGO which supports a particular candidate or party in an election should be transparent in declaring its motivation. Any such support should also be subject to legislation on the funding of political parties. Involvement in political activities may be a relevant consideration in any decision to grant it financial or other benefits in addition to legal personality.
13. An NGO with legal personality may engage in any lawful economic, business or commercial activities in order to support its non-profit-making activities without there being any need for special authorisation, but always subject to any licensing or regulatory requirements applicable to the activities concerned.
14. NGOs may pursue their objectives through membership of federations and confederations of NGOs.
Establishment
15. Any person, be it legal or natural, national or foreign national, or group of such persons, should be free to establish an NGO.
16. Two or more persons should be able to establish a membership-based NGO. A higher number may be required where legal personality is to be acquired, but this number should not be set at a level that discourages the establishment of an NGO.
17. Any person should be able to establish an NGO by way of a gift or bequest, the normal outcome of which is the creation of a foundation, fund or trust.
Content of statutes
18. Every NGO with legal personality should have statutes. The “statutes” of the NGO shall mean the constitutive instrument or instrument of incorporation and, where they are the subject of a separate document, the statutes of the NGO. These statutes generally specify:
– its name;
– its objectives;
– its powers;
– the highest governing body;
– the frequency of meetings of this body;
– the procedure by which such meetings are to be convened;
– the way in which this body is to approve financial and other reports;
– the freedom of this body to determine the administrative structure of the organisation;
– the procedure for changing the statutes and dissolving the organisation or merging it with another NGO.
19. In the case of a membership-based NGO, the highest governing body is constituted by the members. The agreement of this body, in accordance with the procedure laid down by law and the statutes, should be required for any change in the statutes. For other NGOs the highest governing body is the one specified in the statutes.
Membership
20. Membership of an NGO, where this is possible, must be voluntary and no person should therefore be required to join any NGO other than in the case of bodies established by law to regulate a profession in states which treat them as NGOs.
21. National law should not unjustifiably restrict the ability of any person, natural or legal, to join membership-based NGOs. The ability of someone to join a particular NGO should be determined primarily by its statutes, and should not be influenced by any unjustified discrimination.
22. Members of an NGO should be protected from expulsion contrary to its statutes.
23. Persons belonging to an NGO should not be subject to any sanction because of their membership. However, membership of an NGO may be incompatible with a person’s position or employment.
Legal personality
24. Where an NGO has legal personality this should be clearly distinct from that of its members or of its founders who should, in principle, not therefore be personally liable for any debts and obligations that the NGO has incurred or undertaken.
25. The legal personality of an NGO should only be terminated pursuant to the voluntary act of its members – or, in the case of a non-membership NGO, its management – in the event of bankruptcy, prolonged inactivity or misconduct. An NGO created through the merger of two or more NGOs should succeed to their rights and liabilities.
Acquisition of legal personality
26. Where legal personality is not an automatic consequence of the establishment of an NGO, the rules governing the acquisition of such personality should be objectively framed and not subject to the exercise of discretion by the relevant authority.
27. National laws may disqualify persons from forming an NGO with legal personality for reasons such as a criminal conviction or bankruptcy.
28. The rules for acquiring legal personality should be published together with a guide to the process involved. This process should be easy to understand, inexpensive and expeditious. In particular, an NGO should only be required to file its statutes and to identify its founders, directors, officers and legal representative and the location of its headquarters. A foundation, fund or trust may be required to prove that it has the financial means to accomplish its objectives.
29. A membership-based NGO should only seek legal personality after a resolution approving this step has been passed by a meeting which all its members have been invited to attend, and it may be required to produce evidence of this.
30. Any fees that may be charged for an application for legal personality should not be set at a level that discourages applications.
31. Legal personality should only be refused where there has been a failure to submit all the clearly prescribed documents required, if a name has been used that is patently misleading or is not adequately distinguishable from that of an existing natural or legal person in the country concerned, or if there is an objective in the statutes which is clearly incompatible with the law.
32. Any evaluation of the acceptability of the objectives of an NGO when it seeks legal personality should be well informed and respectful of the notion of political pluralism and must not be driven by prejudices.
33. The body responsible for granting legal personality need not be a court, but it should preferably be independent of control by the executive branch of government. Consistency in decision-making should be ensured, and all decisions should be subject to appeal.
34. The body concerned should have sufficient, appropriately qualified staff for the performance of its functions and it should ensure that appropriate guidance or assistance for an NGO seeking legal personality is available.
35. There should be a prescribed time-limit for taking a decision to grant or refuse legal personality. All decisions should be communicated to the applicant and any refusal should include written reasons.
36. Decisions on qualification for financial or other benefits to be accorded to an NGO should be taken separately from those concerned with its acquisition of legal personality and preferably by a different body.
37. Without prejudice to the applicability of the articles laid down in the European Convention on the Recognition of the Legal Personality of International Non-governmental Organisations for those states that have ratified that convention, foreign NGOs may be required to obtain approval to operate in the host country, but they should not have to establish a new and separate entity for this purpose. This would not preclude a requirement that a new and separate entity be formed where an NGO transfers its seat from one state to another.
38. The activities of NGOs at the international level should be facilitated by ratification of the European Convention on the Recognition of the Legal Personality of International Non-governmental Organisations.
39. Where the acquisition of legal personality is not an automatic consequence of the establishment of an NGO, it is desirable for the public to have access to a single, national registry of all NGOs with such personality.
40. An NGO whose statutes allow it to establish or accredit branches should not require any other authorisation for this purpose.
41. An NGO should not be required to renew its legal personality on a periodic basis.
42. A change in the statutes of an NGO with legal personality should require approval by a public authority only where its name or its objectives are affected. The granting of such approval should be governed by the same process as that for the initial acquisition of such personality. However, such a change should not entail an NGO being required to establish itself as a new entity.
Management
43. In a membership-based NGO, the persons responsible for its management should be elected or designated by the members or by an organ statutorily delegated this task.
44. The management of a non-membership-based NGO should be determined in accordance with its statutes.
45. The bodies for management and decision-making of NGOs should be in accordance with their statutes and the law, but NGOs are otherwise sovereign in determining the arrangements for pursuing their objectives. In particular, the appointment, election or replacement of officers, and the admission or exclusion of members are a matter for the NGO concerned.
46. The structures for management and decision-making should be sensitive to the different interests of members, users, beneficiaries, boards, supervisory authorities, staff and founders. Public bodies providing NGOs with financial and other benefits also have a legitimate interest in their performance.
47. Changes in an NGO’s internal structure or rules should not require authorisation by a public authority. No external intervention in the running of NGOs should take place until and unless a breach of the administrative, civil or criminal law, insurance obligations, fiscal or similar regulations occurs or is thought imminent. This does not preclude the law requiring particular supervision of foundations and other institutions.
48. An NGO should observe all applicable employment standards and insurance obligations in the treatment of its staff.
49. NGOs should not be subject to any specific limitation on foreign nationals being on their board or staff.
Property and fund-raising
50. NGOs may solicit and receive funding – cash or in-kind donations – from another country, multilateral agencies or an institutional or individual donor, subject to generally applicable foreign exchange and customs laws.
51. NGOs with legal personality should have access to banking facilities.
52. NGOs with legal personality should be able to sue for redress of harm caused to their property.
53. In order to ensure the proper management of their assets, NGOs should preferably act on independent advice when selling or acquiring any land, premises or other major assets.
54. Property acquired by an NGO on a tax-exempt basis should not be used for a non-exempt purpose.
55. An NGO may designate a successor to receive its assets, in the event of its termination, but only after its liabilities have been cleared and any rights of donors to repayment have been honoured. Such a successor should normally be an NGO with compatible objectives, but the state should be the successor where either the objectives, or the activities and means used by the NGO to achieve those objectives, are found to be unlawful. In the former case, and in the event of no successor being designated, the property should be transferred to another NGO or legal person that conforms most with its objectives or should be applied towards them by the state.
56. The funds of an NGO can be used to pay its staff. All staff and volunteers acting on behalf of an NGO can also be reimbursed for reasonable expenses which they have thereby incurred.
Public support
57. There should be clear, objective standards for any eligibility of NGOs for any form of public support, such as cash and exemption from income and other taxes or duties on membership fees, funds and goods received from donors or governmental and international agencies, income from investments, rent, royalties, economic activities and property transactions, as well as incentives for donations through income tax deductions or credits.
58. In granting such support, relevant considerations may be the nature of activity that the NGO undertakes and whether or not it exists for the benefit of its membership or for the benefit of the public (or a section of this). Such support may also be contingent on an NGO having a particular status and be linked to specific requirements for financial reporting and disclosure.
59. A material change in the statutes or activities of an NGO may lead to the alteration or termination of public support.
Transparency and accountability
60. NGOs should submit an annual report to their members or directors on their accounts and activities. These reports can also be required to be submitted to a designated supervising body where any taxation privileges or other public support has been granted to the NGOs concerned.
61. NGOs should make a sufficiently detailed report to any donors who so request, on use made of donations to demonstrate the fulfilment of any condition which was attached to them.
62. Relevant books, records and activities of NGOs may, where specified by law or by contract, be subject to inspection by a supervising agency. NGOs can also be required to make known the percentage of their funds used for fundraising purposes.
63. All reporting and inspection shall be subject to a duty to respect the legitimate privacy of donors, beneficiaries and staff, as well as the right to protect legitimate business confidentiality.
64. NGOs should generally have their accounts audited by an institution or person independent of their management.
65. Foreign NGOs should be subject to these reporting and inspection requirements only in respect of their activities in the host country.
Supervision
66. NGOs may be regulated in order to secure the rights of others, including members and other NGOs, but they should enjoy the benefit of the presumption that any activity is lawful in the absence of contrary evidence.
67. NGOs should not be subject to any power to search their premises and seize documents and other material there without objective grounds for taking such measures and prior judicial authorisation.
68. Administrative, civil and/or criminal proceedings may be an appropriate response where there are reasonable grounds to believe that an NGO with legal personality has not observed the requirements concerning acquisition of such personality.
69. NGOs should generally be able to request suspension of administrative action requiring that they stop particular activities. A refusal of the request of suspension should be subject to prompt judicial challenge.
70. In most instances the appropriate sanction against an NGO will merely be the requirement to rectify its affairs and/or the imposition of an administrative, civil or criminal penalty on it and/or any individuals directly responsible. Penalties shall be based on the law in force and observe the principle of proportionality.
71. In exceptional circumstances and only with compelling evidence, the conduct of an NGO may warrant its dissolution.
Liability
72. The officers, directors and staff of an NGO with legal personality should not in principle be personally liable for its debts, liabilities and obligations.
73. The officers, directors and staff of an NGO with legal personality may be liable to it and third parties for misconduct or neglect of duties.
Relations with governmental bodies
74. NGOs should be encouraged to participate in governmental and quasi-governmental mechanisms for dialogue, consultation and exchange, with the objective of searching for solutions to society’s needs.
75. Such participation should not guarantee nor preclude government subsidies, contracts or donations to individual NGOs or groups thereof.
76. Consultation should not be seen by governments as a vehicle to co-opt NGOs into accepting their priorities nor by NGOs as an inducement to abandon or compromise their goals and principles.
77. Governmental bodies can work with NGOs to achieve public policy objectives, but should not attempt to take them over or make them work under their control.
78. NGOs should also be consulted during the drafting of primary and secondary legislation which affects their status, financing or spheres of operation.

      Explanatory Memorandum

Introduction
1. Freedom of association, as declared in Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, is a right recognised by all member states of the Council of Europe.
2. In the majority of member states this freedom is reflected in a flourishing voluntary sector; the number of associations registered in the countries concerned is estimated at 2 to 3 million,1 and this figure does not take account of unofficial, unregistered associations, of which there are many in certain countries. The number of non-governmental organisations (hereinafter NGOs) is therefore increasing, and this trend is inextricably linked to the ideal of freedom and democracy which guides the Council of Europe and its member states.
3. However, freedom 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. 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.
4. It is for these reasons that the Fundamental Principles on the Status of Non-governmental Organisations in Europe have been drawn up. The aim is not to offer model legislation concerning NGOs but to recommend the implementation of a number of principles which should shape relevant legislation and practice in a democratic society founded on the rule of law.
5. The European Convention on the Recognition of the Legal Personality of International Non-governmental Organisations2 (ETS No. 124) deals with existing NGOs which already have legal personality in the state where they are headquartered and wish to have this legal personality recognised by other states in which they intend to carry out some of their activities. On the other hand, the fundamental principles seek to promote national legislation which assists the setting up of NGOs and which, among other things, lays down arrangements for the acquisition of legal personality in the NGO’s state of origin, regardless of whether the NGO’s work is to be purely national or international as well. National law should provide NGOs with a flexible legal framework, enabling them to meet the recommendations contained in the fundamental principles. All legislation on NGOs should be devised in consultation with representatives of the NGO sector.
Background
6. The Fundamental Principles on the Status of Non-governmental Organisations in Europe are the result of discussions initiated as early as 1996. They began with a series of multilateral meetings and regional conferences held from 1996 to 1998,3 which resulted in the adoption of “Guidelines to promote the development and strengthening of NGOs in Europe”, constituting the conclusions of a multilateral meeting on the legal status of NGOs and their role in a pluralist democracy. It was these guidelines that laid the foundations for the fundamental principles.
7. An expert, Professor Jeremy McBride, was commissioned to prepare a preliminary draft of the Fundamental Principles on the Status of Non-governmental Organisations in Europe. This draft text was discussed at three open meetings held in Strasbourg on 19 and 20 November 2001, from 20 to 22 March 2002 and on 5 July 2002.
Preamble
8. The preamble to the Fundamental Principles on the Status of Non-governmental Organisations in Europe stresses the importance and value of NGOs’ contribution to a democratic society, which is made in fields as varied as promotion of human rights, environmental protection, sport, public health and defence of the interests of various sectors of the community. The text lays particular emphasis on NGOs’ role in public awareness-raising and education for democracy, while pointing out that these aims, albeit essential in a society adhering to the values of democracy and the rule of law, are not the sole purposes fulfilled by NGOs. The nature of NGOs’ input in the different fields is equally varied.
9. The preamble emphasises that, through the many different activities they pursue and the ensuing benefits, NGOs contribute to the achievement of the aims and principles set out in the Statute of the Council of Europe and the Charter of the United Nations. As far as the Council of Europe is concerned, this contribution is made through a variety of means, such as education, training, dissemination of Council of Europe standards, participation in expert committees, and especially through the consultative status that some 370 NGOs have acquired with the Organisation.
10. Member states of the Council of Europe undertake to promote the rule of law and protection of the fundamental freedoms which are the foundation of genuine democracy, in particular freedom of opinion, expression and association.
11. Laws enabling NGOs to acquire legal personality play a vital role in giving effect to freedom of association, guaranteed by the European Convention on Human Rights and safeguarded by international and constitutional law. Furthermore, freedom of expression, which is also guaranteed by the European Convention on Human Rights and safeguarded by international and constitutional law, is meaningful only where it is enforced through laws permitting the establishment of associations. This is why the preamble states that the vitality of civil society in a given country is a good indication of that country’s adherence to principles of democratic pluralism, in particular freedom of association.
12. Lastly, the preamble points out that, under the text, NGOs have not only rights, but also certain duties and responsibilities.
Scope
13. There is no general definition of an NGO in international law and the term covers an extremely varied range of bodies within the member states. Reference should be to the different practices followed in each state, notably concerning the form that an NGO should adopt in order to be granted legal personality or receive various kinds of advantageous treatments. Some types of NGOs, trusts, for example, exist only in certain states. NGOs’ sphere of action also varies considerably, since they include both small local bodies with only a few members, for example a village chess club, and international associations known worldwide, for example certain organisations engaged in the defence and promotion of human rights.
14. Among these NGOs the text gives examples of certain forms, but the list is not exhaustive. This list does not include trade unions and religious congregations, but these certainly have a special place among NGOs. In some countries these bodies, or some of them, come within the ambit of legislation on associations, whereas in others they are covered by separate laws. Since Convention No. 124 did not expressly exclude these bodies from its scope, the participants decided to make no explicit mention of trade unions and religious congregations in the fundamental principles.
15. Political parties are expressly excluded from the ambit of the fundamental principles as, under most national laws, they are the subject of separate provisions from those applicable to NGOs in general.
16. Professional bodies, established by law, to which members of a profession are required to belong for regulatory purposes, are also not included in the fundamental principles’ definition of NGOs. However, as is recognised in paragraph 20, national law may treat them as NGOs and some aspects of their activity can be essentially the same as those carried out by voluntary bodies, for example, the human rights committee of a bar association.
17. As indicated in paragraph 4 of the fundamental principles, the main character of NGOs is the fact that profit-making is not their primary aim. All NGOs have in common their self-governing, voluntary nature and the fact that they do not distribute profits from their activities to their members but use these for the pursuit of their objectives.
18. Apart from these common features, the distinction most frequently drawn in the case of NGOs is that between associations and foundations. As stated in the explanatory report on Convention No. 124, an association means “a number of persons uniting together for some specific purpose”. According to the same source, a foundation is “an identified property devoted to a given purpose”.
19. Another distinction of some importance is that addressed in paragraph 5, the distinction between informal NGOs, that is those not wishing to acquire legal personality, and NGOs with legal personality. As is the case with most national laws, the text contains a number of provisions aimed solely at NGOs with legal personality. However, the text acknowledges the principle 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. Furthermore, in some countries, the distinction between NGOs with legal personality and those without does not exist, as NGOs automatically acquire legal personality upon their establishment. Therefore, not all aspects of the fundamental principles are applicable to them.
Basic principles
20. The fundamental principles lay down four basic principles, which are then fleshed out in the subsequent sections:
21. Voluntary establishment: the starting point for any law on NGOs should be the right of any natural or legal person to establish an NGO with a lawful, non-profit-making objective. This should be an act of free will. It is important that national laws on NGOs, and also rules on their taxation, allow and encourage such initiatives.
22. Right to freedom of expression: this principle derives from Article 10 of the European Convention on Human Rights, which provides that “Everyone has the right to freedom of expression”, and is applicable to NGOs on an equal footing with other natural or legal persons.
23. NGOs with legal personality should have the same general rights and obligations as other legal entities: the purpose of this principle is to reaffirm that NGOs must be subject to ordinary domestic law, not special regulations, although separate legislation may grant them additional rights and measures may be taken to encourage their activities.
24. Judicial protection: in a state governed by the rule of law it is essential that NGOs should be entitled, in the same way as other legal entities, to challenge decisions affecting them in an independent court which has the capacity to review all aspects of their legality, to quash them where appropriate and to provide any consequential relief that might be required. The principle established in the previous paragraph holds good, that is any act or decision affecting an NGO must be subject to the same administrative and judicial supervision as is generally applicable in the case of other legal entities. There should be no need for special provisions to this effect in legislation on NGOs.
Objectives
25. The range of objectives that may be pursued by NGOs is commensurate with their own diversity, and the objectives mentioned in the fundamental principles are merely examples. The only requirement here – other than that an NGO should be non-profit-making – is that set out in paragraph 10: lawfulness of the objectives pursued and the means employed. The fundamental principles illustrate a range of the means that might be employed, but these are not exhaustive.
26. Two objectives, namely seeking a change in the law and participating in political debate, are particularly mentioned because limitations on their pursuit have been the subject of successful challenges in the European Court of Human Rights.
27. Pursuit of economic activities is a special case, since it is in fact NGOs’ non-profit-making nature that distinguishes them from commercial enterprises. In this connection, the text lays down the principle that an NGO is free to carry on any economic, business or commercial activity, on condition that any profits are used to finance the pursuit of the common- or public-interest objectives for which the NGO was set up. National legislation governing NGOs should therefore stipulate that none of their earnings or net profits is to be distributed, as such, to any person whatsoever. Such legislation might also prescribe particular modalities for carrying out economic or commercial activities, for example, the formation of a subsidiary company. Subject to this general restriction, no requirements should be imposed on NGOs other than the general rules governing the economic activities in question.
28. The fundamental principles also establish the principle that, in pursuit of their objectives, NGOs are free to join or not to join federations and confederations of NGOs. Such federations and confederations of NGOs have an important role, since they foster complementarity among NGOs and allow them to reach a wider audience, as well as share services and set common standards.
Establishment
29. Paragraph 15 of the fundamental principles reiterates, and develops, the principle that any person or group of persons should be free to establish an NGO, already mentioned in the section on basic principles. Two kinds of restriction are encountered in practice in some states: firstly, on the establishment of NGOs by foreign nationals and, secondly, on establishment by legal entities. There are no grounds for these restrictions.
30. The question of the minimum number of people needed to establish an NGO was discussed at length during the preparatory work, since this number varies under national law. In some states one person is enough, whereas in others the law sets a higher threshold, which may be two, three or five people, or even more. In the end, the participants decided to draw a distinction between informal organisations and those wishing to acquire legal personality. In the first case, two people should suffice to establish a membership-based NGO, whereas a greater minimum number of members may be required before legal personality can be granted. In that event, the figure should not be so large as to discourage the actual establishment.
31. Paragraph 17 of the text deals with foundations, funds and trusts, which are the normal forms taken by NGOs established by means of a donation or bequest.
Content of statutes
32. As regards their organisation and decision-making processes, NGOs, in particular those with legal personality, must heed the needs of various parties: members, users, beneficiaries, their highest governing body, their staff, donors and, in certain circumstances, national or local administrative authorities. They must therefore have clear statutes, setting out the conditions under which they operate and which should be available for consultation by the above-mentioned parties, with a view to ensuring legal certainty. Paragraph 18 of the text lists several examples. They illustrate the type of information of general usefulness which the statutes should contain.
33. Subject to generally applicable administrative, civil and criminal law, the conditions under which an NGO operates, as set out in their statutes, are entirely a matter for the NGO itself, in the persons of its members. A decision to amend the statutes accordingly lies with the NGO’s highest governing body, consisting of its entire membership, so as to ensure that the proposed amendment commands sufficient support among members.
Membership
34. Membership is a particularly important issue, as it is related to the concepts of liability and legal capacity. The section of the fundamental principles dealing with this subject first reiterates the fundamental requirement that membership of an NGO must generally be voluntary. This negative aspect of freedom of association is, however, something that can be relaxed in the case of professional organisations to which members of a given profession – such as doctors or lawyers – must belong under the regulations in force, for those countries which treat them as NGOs.
35. Apart from its voluntary nature, membership is governed by two important principles: firstly, anyone should be able to join an NGO without being subject to unjustifiable restrictions imposed by law; secondly, questions relating to membership are a matter for the NGO’s statutes.
36. Thus, the statutes may provide for restrictions, such as confining membership of a club for senior citizens to persons belonging to that age group. Furthermore, in some cases membership of an NGO may be incompatible with a person’s office or employment, particularly where these are public. In addition, there may be a need to adopt restrictions to protect vulnerable persons, but any restriction on the ability of children to join an NGO should take into account the freedom of association guaranteed to them both by Article 11 of the European Convention on Human Rights and Article 15 of the Convention on the Rights of the Child. However, subject to these provisos, it should be lawful within a state’s jurisdiction for any person, whether natural or legal, national or foreign national, to join an NGO.
37. In the same way as an NGO’s statutes determine a person’s capacity to become a member, it is for the statutes to deal with the question of expulsion of members and to determine the procedure to be followed in that case.
Legal personality
38. The provisions relating to the legal personality of NGOs are one of the cornerstones of their status, since they permit NGOs to have an existence in their own right, separate from those of their members or founders. This enables them to enjoy elementary civic rights, such as the initiation of legal proceedings, but also to engage in practical dealings essential for their operation, for example rental of premises or opening of a bank account. It is important to note that paragraphs 24 and 25 of the fundamental principles are to be read together with paragraphs 72 and 73 on liability.
39. Some of the provisions contained in the fundamental principles specifically concern NGOs with legal personality. However, it must not be overlooked that some NGOs may well wish to pursue their objectives without acquiring legal personality to that end, and national law should allow them this possibility without being based on the assumption that legal personality is mandatory for all NGOs.
Acquisition of legal personality
40. The moment at which an NGO acquires legal personality varies depending on the state concerned: in some states NGOs automatically have legal personality from their establishment, and this section therefore does not apply. In the majority of states, acquisition of legal personality is governed by rules and a procedure. The text stipulates that these should have an objective basis and that their application should not result in arbitrary treatment of NGOs.
41. Although the moment of acquisition of legal personality varies from one state to another, the same does not apply to its termination, since the rule is that an NGO’s legal personality ends with its dissolution – voluntary or involuntary – in case of bankruptcy, prolonged inactivity – which might arise from insufficient membership – or as an exceptional sanction. It also comes to an end with the merger of two or more NGOs; the resulting new entity assumes the rights and obligations of the NGOs that have merged.
42. The section of the fundamental principles concerned with acquisition of legal personality establishes certain basic principles that should govern this procedure – referred to in some states as the registration procedure – where this personality is not automatically acquired through the establishment of the NGO concerned. The underlying logic is that the procedure must be as simple and undemanding as possible and must not entail the exercise of discretion.
43. For that reason the applicable rules must be clear and easily accessible by NGOs, which is not always the case among states. One means of guaranteeing such accessibility is publication of an explanatory guide to the process by the relevant authority. This may not be possible in all states for budgetary reasons, but in any event the registration authority should provide NGOs with all the information and assistance they may need.
44. It is entirely legitimate for states to make the acquisition of legal personality by an NGO subject to the supply of certain information and documents. In an effort to ensure legal certainty, this information should above all make it possible to answer enquiries from third parties about the NGO’s identity, address and management structures. Any individual having a business relationship with an NGO, for instance in the event of sale of property or recruitment of staff, must be able to ascertain whether the organisation in question is recognised as a legal person. Similarly, for their own protection, private individuals should be able to check that a body presenting itself as an NGO and seeking their support is in fact what it claims to be.
45. The registration procedure should not constitute an opportunity for states to request information to which they have no entitlement. The latter would generally include the identity of donors or an NGO’s financial circumstances, but there may be a need to require disclosure of those circumstances where a body such as a foundation is established. The procedure should also not provide states with an excuse for discriminating between NGOs as to whether their objectives or members are deemed “acceptable”, in so far as the objectives and the means employed are lawful.
46. A state may charge a fee to cover the cost of processing applications, but this should not be set at a dissuasive amount.
47. The text establishes the principle that the authority deciding an application for legal personality should be separate from that awarding any form of public support. As a general rule, legal personality will be granted by an administrative authority, but in some countries it may be appropriate for the courts to fulfil this function.
48. So as to limit the scope for the exercise of discretion by the authorities deciding an application for legal personality, the fundamental principles list the grounds on which an NGO’s application may be refused. However, the list set out in paragraph 31 of the fundamental principles is not exhaustive. States may lay down additional grounds for refusal in their legislation, though such grounds should be based on clear and objective considerations. In accordance with the principles governing decision-making by administrative authorities, it also specifies that there should be a prescribed time-limit for deciding an application. The decision must be final, and it is not acceptable that legal personality granted to an NGO should be subject to periodic review. However, this does not prevent states from re-examining the question of legal personality where a substantial change is made to the the statutes or activities of the NGO. The grounds for the decision must be indicated in writing, particularly where it is a refusal, so as to allow the NGO to challenge it in the relevant administrative authority and in court. Failure to decide within the prescribed time limit should be treated as either a refusal of, or the granting of, legal personality.
49. In the states which have ratified Convention No. 124, the legal personality and capacity acquired by an NGO in one contracting party where it has its registered headquarters should be recognised, as of right, by the other contracting parties, subject to compliance with certain conditions. In other states, foreign NGOs may be required to obtain approval to operate in the host country.
50. Information supplied by NGOs when applying for legal personality should be kept on record in a centralised national register, which, as stated in the text, should be accessible to the public. However, this rule on centralisation of information cannot be made generally applicable, as account should be taken of the particularities of federal states, where registration may be carried out at the level of the entities of the federation.
51. The rule laid down in paragraph 42 of the fundamental principles is intended to ensure that the statutes of an NGO can be amended under a simple, expedited procedure. Approval should only be needed in the case of significant matters, such as the name or objectives of an NGO. The procedure should not normally entail an obligation to re-establish the organisation as a whole, thus allowing the NGO to evolve, while maintaining some continuity. ]
Management
52. As regards their organisation and decision-making processes, NGOs must heed the needs of various parties, both internal and external, as pointed out in paragraph 46. It is therefore in the interests of all concerned that NGOs should have clear statutes, as it is this document which defines the organisation’s structure and operating rules.
53. The statutes should comply with the legislation in force, and it is also desirable that it be compatible with any commitments entered into by the NGO vis-à-vis donors or a network of NGOs to which it belongs.
54. The NGO’s organisation and decision-making processes and determination of levels of responsibility and accountability must be consistent with its statutes, but should not be subject to the supervision of any outside authority, except for the requirement of compliance with the law, as mentioned above.
55. This means that an NGO is sovereign in determining the internal organisation it wishes to adopt in pursuit of its objectives, as defined in the statutes. As long as it does not break the law, external legal bodies should have no say in the conduct of its internal affairs. An exception is made here for those provisions governing certain types of NGOs which require special supervision. All NGOs must, however, observe all relevant applicable employment and social security law and they enjoy no exemption from any requirements as regards the membership of their component bodies or with respect to immigration law. In particular, foreign nationals on the board or staff of NGOs are subject to the laws of the host country with respect to their entry, sojourn and departure.
Property and fund-raising
56. The possibility for NGOs to solicit donations in cash or in kind is a fundamental principle, a national consequence of their non-profit-making nature. Such contributions, along with the proceeds of any economic activity, are NGO’s vital means of financing the pursuit of its objectives. However, this possibility for NGOs to collect funding is not absolute and may be subjet to regulation, with a view to the protection of the targeted audience.
57. Donors may be natural or legal persons – companies or institutions – and may be national or foreign. In general, foreign and national funding should be subject to the same rules, in particular as regards the possible uses of the funds and reporting requirements.
58. The provisions of paragraphs 51, 52, 53 and 55 are designed to safeguard the assets of NGOs and ensure that they are properly managed.
59. The principle set out in paragraph 51 does not imply that banks are under an obligation to provide banking facilities to every NGO requesting it. Subject to the principle of non-discrimination, individual banks are free to choose their clients.
60. The law should permit an NGO to designate, in its statutes or by resolution, another compatible body to receive its assets, after clearing of its liabilities, in the event of its dissolution. This is a principle of good practice, which should be encouraged. In some cases contractual clauses, in particular concerning major donors, may require the return of funds to a donor in the event of the NGO’s dissolution. The successor may also be the state, particularly where no compatible body exists or where the NGO’s objectives or activities have been found to be unlawful. However, this should not give rise to a financial windfall for the state.
61. Paragraph 56 sets out the principle according to which it is perfectly appropriate for an NGO to use its funds for paying its staff and reimbursing staff and volunteers for the costs incurred while acting on its behalf, even if the funds used were obtained by means of public support.
Public support
62. NGOs are sometimes better placed than the state to answer certain needs of society, for instance in welfare and health matters. As a result, states often decide to grant them support, in the form of direct grants or preferential tax treatment.
63. The eligibility for public support should be based on clear, objective criteria. The public should also be able to ascertain which NGOs have received support and on what grounds. The authorities must also be able to verify that associations seeking support or preferential tax treatment do, indeed, serve a non-profit-making purpose, as in some countries tax advantages attract certain entities to apply for NGO status when it would have been more appropriate for them to have been established as commercial companies.
64. As a result, the majority of states make the granting of public support contingent on compliance with certain criteria and, above all, with the NGO’s fulfilment of a public interest objective. In some states this may entail recognition of a special status or classification as an organisation in the public interest, which enables the NGO to receive donations and enjoy tax advantages, while at the same time ensuring the protection of third parties.
65. Since the granting of public support is to a large extent conditional on the objectives and activities of an NGO, it is normal that any major change in those activities or objectives may result in review, alteration and even termination, of public support.
Transparency and accountability
66. As regards its activities and financial position, an NGO is accountable to a number of parties, first and foremost its members. It is thus good practice that it should submit an annual report on its accounts and activities to them. Secondly, an NGO which has benefited from public support or preferential tax treatment can be expected to account to the community concerning the use made of public funds. Lastly, donors may stipulate by contract that an NGO is required to report on the use made of individual donations.
67. However, reporting requirements must be tempered by other obligations relating to the respect for privacy and confidentiality. In particular, a donor’s desire to remain anonymous must be observed. The respect for privacy and confidentiality is, however, not unlimited. In exceptional cases, the general interest may justify authorities’ having access to private or confidential information, for instance in order to combat black market money transfers. Any exception to business confidentiality or to the privacy and confidentiality of donors, beneficiaries and staff shall observe the principle of necessity and proportionality.
68. In order to guarantee objectivity, the fundamental principles lay down the principle that NGOs should have their accounts audited by a person independent of its management, although this person could still be a member of the NGO in question. As tends to happen with small commercial companies, small NGOs may be exempted from the obligation of having their accounts audited by an independent person.
Supervision
69. Whereas the previous section concerned oversight of an NGO’s accounts and performance, in relation to the objectives defined in its statutes, this section deals with supervision of compliance with the civil, criminal and administrative law in force.
70. The best means of ensuring ethical, responsible conduct by NGOs is to promote self-regulation in this sector at national and international levels. Responsible NGOs are increasingly conscious of the fact that the sector’s success depends to a large extent on public opinion concerning their efficiency and ethics. Furthermore, in some countries codes of conduct are often drawn up to enable groups of NGOs in a given sector to ensure that the sector’s needs and challenges are met and widely understood.
71. States nevertheless have a legitimate interest in regulating NGOs so as to guarantee respect for the rights of third parties, and this may include action to safeguard the reputation and economic interests of other NGOs in particular. State intervention may also be needed to protect members against abuse of an NGO’s dominant position, particularly against exclusion in breach of the organisation’s rules, imposition of certain unfavourable conditions, or even adoption of wholly unreasonable or arbitrary rules. However, in most instances, the appropriate form of protection would be the possibility for members to bring the matter before the courts; there should generally be no need for a public body to take action on the members’ behalf.
72. In supervising the activities of NGOs, the administrative authorities should apply the same assumption as holds good for individuals, namely that, failing proof to the contrary, their activities are lawful. The powers of the administrative authorities and the police, notably as regards search and seizure, and the penalties that may be imposed, must be consistent with the principle of proportionality and be subject to judicial supervision.
73. The fundamental principles specify that dissolution of an NGO – the ultimate penalty – should be used only a last resort. Such cases should be extremely rare, and it must be shown that there is a very sound basis for taking a measure of this kind. Although the measure may appear warranted, to be valid it must, in turn, also be subject to effective judicial review
Liability
74. The principles established under this head are themselves a consequence of an NGO’s legal personality. The NGO has separate existence from its members and founders, and it alone is liable for debts and obligations entered into on its behalf, save in case of misconduct or neglect of duties by a member of staff or management. In the latter cases, the NGO or others affected should be able to take legal action against the person responsible in order to obtain compensation for the damage caused.
Relations with governmental bodies
75. Competent and responsible NGO input to the process of public policy formulation enhances the applicability of legislation and the seriousness of governmental decision-making.
76. Although NGOs and state authorities sometimes have an ambiguous attitude towards dialogue, it is in the interest of them both to establish mechanisms for dialogue and consultation, as they pursue a common objective of finding solutions to society’s problems and satisfying its members’ needs. Their participation is distinct from, and does not replace, the role of political parties. Consultation may take place at a national, local or sectoral level and may be particularly useful in the drafting of legislation.

 

B) Specific

(1) Children

      Convention on the Rights of the Child, Article 15

1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.
2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

(2) Cultural, economic, scientific and social interests

      International Covenant on Economic, Social and Cultural Rights, Article 15

1. The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

      European Social Charter, Article 5

With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.

      European Social Charter (Revised), Article 5

With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.

(3) Disappeared persons

      International Convention for the Protection of All Persons from Enforced Disappearance, Article 24

7. Each State Party shall guarantee the right to form and participate freely in organizations and associations concerned with attempting to establish the circumstances of enforced disappearances and the fate of disappeared persons, and to assist victims of enforced disappearance.

(4) Environmental

      Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), Articles 2, 3, 4, 6, 7, 8 and 9

Article 2
DEFINITIONS
For the purposes of this Convention, (...)
4. “The public” means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups;
5. “The public concerned” means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.  (...)
Article 3
GENERAL PROVISIONS
(...) 4. Each Party shall provide for appropriate recognition of and support to associations, organizations or groups promoting environmental protection and ensure that its national legal system is consistent with this obligation. (...)
5. The provisions of this Convention shall not affect the right of a Party to maintain or introduce measures providing for broader access to information, more extensive public participation in decision-making and wider access to justice in environmental matters than required by this Convention. (...)
8. Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement.This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings.
9. Within the scope of the relevant provisions of this Convention, the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.
Article 4
ACCESS TO ENVIRONMENTAL INFORMATION
1. Each Party shall ensure that, subject to the following paragraphs of this article, public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation, including, where requested and subject to subparagraph (b) below, copies of the actual documentation containing or comprising such information:
(a) Without an interest having to be stated;
(b) In the form requested unless:
(i) It is reasonable for the public authority to make it available in another form, in which case reasons shall be given for making it available in that form; or
(ii) The information is already publicly available in another form.
2. The environmental information referred to in paragraph 1 above shall be made available as soon as possible and at the latest within one month after the request has been submitted, unless the volume and the complexity of the information justify an extension of this period up to two months after the request. The applicant shall be informed of any extension and of the reasons justifying it.
3. A request for environmental information may be refused if:
(a) The public authority to which the request is addressed does not hold the environmental information requested;
(b) The request is manifestly unreasonable or formulated in too general a manner; or
(c) The request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.
4. A request for environmental information may be refused if the disclosure would adversely affect:
(a) The confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law;
(b) International relations, national defence or public security;
(c) The course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;
(d) The confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest. Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed;
(e) Intellectual property rights;
(f) The confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for in national law;
(g) The interests of a third party which has supplied the information requested without that party being under or capable of being put under a legal obligation to do so, and where that party does not consent to the release of the material; or
(h) The environment to which the information relates, such as the breeding sites of rare species.
The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.
5. Where a public authority does not hold the environmental information requested, this public authority shall, as promptly as possible, inform the applicant of the public authority to which it believes it is possible to apply for the information requested or transfer the request to that authority and inform the applicant accordingly.
6. Each Party shall ensure that, if information exempted from disclosure under paragraphs 3 (c) and 4 above can be separated out without prejudice to the confidentiality of the information exempted, public authorities make available the remainder of the environmental information that has been requested.
7. A refusal of a request shall be in writing if the request was in writing or the applicant so requests. A refusal shall state the reasons for the refusal and give information on access to the review procedure provided for in accordance with article 9. The refusal shall be made as soon as possible and at the latest within one month, unless the complexity of the information justifies an extension of this period up to two months after the request. The applicant shall be informed of any extension and of the reasons justifying it.
8. Each Party may allow its public authorities to make a charge for supplying information, but such charge shall not exceed a reasonable amount. Public authorities intending to make such a charge for supplying information shall make available to applicants a schedule of charges which may be levied, indicating the circumstances in which they may be levied or waived and when the supply of information is conditional on the advance payment of such a charge. (...)
Article 6
PUBLIC PARTICIPATION IN DECISIONS ON SPECIFIC ACTIVITIES
1. Each Party:
(a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I;
(b) Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions; and
(c) May decide, on a case-by-case basis if so provided under national law, not to apply the provisions of this article to proposed activities serving national defence purposes, if that Party deems that such application would have an adverse effect on these purposes.
2. The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of:
(a) The proposed activity and the application on which a decision will be taken;
(b) The nature of possible decisions or the draft decision;
(c) The public authority responsible for making the decision;
(d) The envisaged procedure, including, as and when this information can be provided:
(i) The commencement of the procedure;
(ii) The opportunities for the public to participate;
(iii) The time and venue of any envisaged public hearing;
(iv) An indication of the public authority from which relevant information can be obtained and where the relevant information has been deposited for examination by the public;
(v) An indication of the relevant public authority or any other official body to which comments or questions can be submitted and of the time schedule for transmittal of comments or questions; and
(vi) An indication of what environmental information relevant to the proposed activity is available; and
(e) The fact that the activity is subject to a national or transboundary environmental impact assessment procedure.
3. The public participation procedures shall include reasonable time-frames
for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making.
4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.
5. Each Party should, where appropriate, encourage prospective applicants to identify the public concerned, to enter into discussions, and to provide information regarding the objectives of their application before applying for a permit.
6. Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law, free of charge and as soon as it becomes available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure, without prejudice to the right of Parties to refuse to disclose certain information in accordance with article 4, paragraphs 3 and 4. The relevant information shall include at least, and without prejudice to the provisions of article 4:
(a) A description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions;
(b) A description of the significant effects of the proposed activity on the environment;
(c) A description of the measures envisaged to prevent and/or reduce the effects, including emissions;
(d) A non-technical summary of the above;
(e) An outline of the main alternatives studied by the applicant; and
(f) In accordance with national legislation, the main reports and advice issued to the public authority at the time when the public concerned shall be informed in accordance with paragraph 2 above.
7. Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.
8. Each Party shall ensure that in the decision due account is taken of the outcome of the public participation.
9. Each Party shall ensure that, when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures. Each Party shall make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based.
10. Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate.
11. Each Party shall, within the framework of its national law, apply, to the extent feasible and appropriate, provisions of this article to decisions on whether to permit the deliberate release of genetically modified organisms into the environment.
Article 7
PUBLIC PARTICIPATION CONCERNING PLANS, PROGRAMMES AND POLICIES RELATING TO THE ENVIRONMENT

Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public. Within this framework, article 6, paragraphs 3, 4 and 8, shall be applied. The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment.
Article 8
PUBLIC PARTICIPATION DURING THE PREPARATION OF EXECUTIVE  REGULATIONS AND/OR GENERALLY APPLICABLE LEGALLY BINDING NORMATIVE INSTRUMENTS
Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment. To this end, the following steps should be taken:
(a) Time-frames sufficient for effective participation should be fixed;
(b) Draft rules should be published or otherwise made publicly available; and
(c) The public should be given the opportunity to comment, directly or through representative consultative bodies.
The result of the public participation shall be taken into account as far as possible
Article 9
ACCESS TO JUSTICE
1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law. In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law. Final decisions under this paragraph 1 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this paragraph.
2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned
(a) Having a sufficient interest
or, alternatively,
(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention. What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above. The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. 4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.
5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.

      Amendment to the Convention (adopted at the second meeting of the Parties held in Almaty, Kazakhstan, on 25-27 May 2005)

Article 6, paragraph 11
For the existing text, substitute
11. Without prejudice to article 3, paragraph 5, the provisions of this article shall not apply to decisions on whether to permit the deliberate release into the environment and placing on the market of genetically modified organisms.
Article 6 bis
After article 6, insert a new article reading
Article 6 bis
PUBLIC PARTICIPATION IN DECISIONS ON THE DELIBERATE RELEASE INTO THE ENVIRONMENT AND PLACING ON THE MARKET OF GENETICALLY MODIFIED ORGANISMS
1. In accordance with the modalities laid down in annex I bis, each Party shall provide for early and effective information and public participation prior to making decisions on whether to permit the deliberate release into the environment and placing on the market of genetically modified organisms.
2. The requirements made by Parties in accordance with the provisions of paragraph 1 of this article should be complementary and mutually supportive to the provisions of their national biosafety framework, consistent with the objectives of the Cartagena Protocol on Biosafety.
Annex I bis
After annex I, insert a new annex reading
Annex I bis
MODALITIES REFERRED TO IN ARTICLE 6 BIS
1. Each Party shall lay down, in its regulatory framework, arrangements for effective information and public participation for decisions subject to the provisions of article 6 bis, which shall include a reasonable time frame, in order to give the public an adequate opportunity to express an opinion on such proposed decisions.
2. In its regulatory framework, a Party may, if appropriate, provide for exceptions to the public participation procedure laid down in this annex:
(a) In the case of the deliberate release of a genetically modified organism (GMO) into the environment for any purpose other than its placing on the market, if:
(i) Such a release under comparable bio-geographical conditions has already been approved within the regulatory framework of the Party concerned; and
(ii) Sufficient experience has previously been gained with the release of the GMO in question in comparable ecosystems;
(b) In the case of the placing of a GMO on the market, if:
(i) It was already approved within the regulatory framework of the Party concerned; or
(ii) It is intended for research or for culture collections.
3. Without prejudice to the applicable legislation on confidentiality in accordance with the provisions of article 4, each Party shall make available to the public in an adequate, timely and effective manner a summary of the notification introduced to obtain an authorization for the deliberate release into the environment or the placing on the market of a GMO on its territory, as well as the assessment report where available and in accordance with its national biosafety framework.
4. Parties shall in no case consider the following information as confidential:
(a) A general description of the genetically modified organism or organisms concerned, the name and address of the applicant for the authorization of the deliberate release, the intended uses and, if appropriate, the location of the release;
(b) The methods and plans for monitoring the genetically modified organism or organisms concerned and for emergency response;
(c) The environmental risk assessment.
5. Each Party shall ensure transparency of decision-making procedures and provide access to the relevant procedural information to the public. This information could include for example:
(i) The nature of possible decisions;
(ii) The public authority responsible for making the decision;
(iii) Public participation arrangements laid down pursuant to paragraph 1;
(iv) An indication of the public authority from which relevant information can be obtained;
(v) An indication of the public authority to which comments can be submitted and of the time schedule for the transmittal of comments.
6. The provisions made pursuant to paragraph 1 shall allow the public to submit any comments, information, analyses or opinions that it considers relevant to the proposed deliberate release, including placing on the market, in any appropriate manner.
7. Each Party shall endeavour to ensure that, when decisions are taken on whether to permit the deliberate release of GMOs into the environment, including placing on the market, due account is taken of the outcome of the public participation procedure organized pursuant to paragraph 1.
8. Parties shall provide that when a decision subject to the provisions of this annex has been taken by a public authority, the text of the decision is made publicly available along with the reasons and considerations upon which it is based.

      Report on Conclusions and Recommendations of the Meeting on the Protection of the Environment of the Conference on Security and Co-operation in Europe, Sofia 1989

The participating States reaffirm their respect for the right of individuals, groups and organizations concerned with environmental issues to express freely their views, to associate with others, to peacefully assemble, as well as to obtain, publish and distribute information on these issues, without legal and administrative impediments inconsistent with the CSCE provisions. These individuals, groups and organizations have the right to participate in public debates on environmental issues, as well as to establish and maintain direct and independent contacts at national and international level.

(5) Foreign Non-Governmental Organisations

      European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations

Preamble
The member States of the Council of Europe, signatories hereto, Considering that the aim of the Council of Europe is to achieve a greater unity between its members, in particular for the purpose of safeguarding and realising ideals and principles which are their common heritage;
Recognising that international non-governmental organisations carry out work of value to the international community, particularly in the scientific, cultural, charitable, philanthropic, health and education fields, and that they contribute to the achievement of the aims and principles of the United Nations Charter and the Statute of the Council of Europe;
Desiring to establish in their mutual relations rules laying down the conditions for recognition of the legal personality of these organisations in order to facilitate their activities at European level,
Have agreed as follows:
Article 1
This Convention shall apply to associations, foundations and other private institutions (hereinafter referred to as "NGOs") which satisfy the following conditions:
a. have a non-profit-making aim of international utility;
b. have been established by an instrument governed by the internal law of a Party;
c. carry on their activities with effect in at least two States; and
d. have their statutory office in the territory of a Party and the central management and control in  the territory of that Party or of another Party.
Article 2
1. The legal personality and capacity, as acquired by an NGO in the Party in which it has its  statutory office, shall be recognised as of right in the other Parties.
2. When they are required by essential public interest, restrictions, limitations or special  procedures governing the exercise of the rights arising out of the legal capacity and provided  for  by the legislation of the Party where recognition takes place, shall be applicable to NGOs  established in another Party.
Article 3
1. The proof of acquisition of legal personality and capacity shall be furnished by presenting the  NGO's memorandum and articles of association or other basic constitutional instruments.  Such instruments shall be accompanied by documents establishing administrative authorisation,  registration or any other form of publicity in the Party which granted the legal personality and  capacity. In a Party which has no publicity procedure, the instrument establishing the NGO shall  be duly certified by a competent authority. At the time of signature or of the deposit of the  instrument of ratification, acceptance, approval or accession, the State concerned shall inform the  Secretary General of the Council of Europe of the identity of this authority.
2. In order to facilitate the application of paragraph 1, a Party may provide an optional system of  publicity which shall dispense NGOs from furnishing the proof provided for in the preceding  paragraph for each transaction that they carry out.
Article 4
In each Party the application of this Convention may only be excluded if the NGO invoking this Convention, by its object, its purpose or the activity which it actually exercises:
a. contravenes national security, public safety, or is detrimental to the prevention of disorder or  crime, the protection of health or morals, or the protection of the rights and freedoms of others; or
b. jeopardises relations with another State or the maintenance of international peace and security.
Article 5
1. This Convention shall be open for signature by the member States of the Council of Europe which  may express their consent to be bound by:
a. signature without reservation as to ratification, acceptance or approval, or
b. signature subject to ratification, acceptance or approval, followed by ratification, acceptance  or approval.
2. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of  the Council of Europe.
Article 6
1. This Convention shall enter into force on the first day of the month following the expiration of a  period of three months after the date on which three member States of the Council of Europe have  expressed their consent to be bound by the Convention in accordance with the provisions of  Article 5.
2. In respect of any member State which subsequently expresses its consent to be bound by it, the  Convention shall enter into force on the first day of the month following the expiration of a period  of three months after the date of the deposit of the instrument of ratification, acceptance or  approval.
Article 7
1. After the entry into force of this Convention, the Committee of Ministers of the Council of Europe  may invite any State not a member of the Council to accede to this Convention, by a decision  taken by the majority provided for in Article 20.d of the Statute of the Council of Europe and by  the unanimous vote of the representatives of the Contracting States entitled to sit on the  Committee.
2. In respect of any acceding State, the Convention shall enter into force on the first day of the month  following the expiration of a period of three months after the date of deposit of the instrument of  accession with the Secretary General of the Council of Europe.
Article 8
1. Any State may at the time of signature or when depositing its instrument of ratification,  acceptance, approval or accession, specify the territory or territories to which this Convention may  apply.
2. Any State may at any later date, by a declaration addressed to the Secretary General of the Council  of Europe, extend the application of this Convention to any other territory specified in the  declaration. In respect of such territory the Convention shall enter into force on the first day of the  month following the expiration of a period of three months after the date of receipt of such  declaration by the Secretary General.
3. Any declaration made under the two preceding paragraphs may, in respect of any territory  specified in such declaration, be withdrawn by a notification addressed to the Secretary General.  The withdrawal shall become effective on the first day of the month following the expiration of a  period of three months after the date of receipt of such notification by the Secretary General.
Article 9
No reservation may be made to this Convention.
Article 10
1. Any Party may at any time denounce this Convention by means of a notification addressed to the  Secretary General of the Council of Europe.
2. Such denunciation shall become effective on the first day of the month following the expiration of  a period of three months after the date of receipt of the notification by the Secretary General.
Article 11
The Secretary General of the Council of Europe shall notify the member States of the Council and any State which has acceded to this Convention, of:
a. any signature;
b. the deposit of any instrument of ratification, acceptance, approval or accession;
c. any date of entry into force of this Convention in accordance with Articles 6, 7 and 8;
d. any other act, notification or communication relating to this Convention.
In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.
Done at Strasbourg, this 24th day of April 1986, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe and to any State invited to accede to this Convention.

      
      Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms (1995) 

 

The Participant States of the Commonwealth of Independent States, hereinafter referred to as the Contracting Parties, 
Having regard to the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as to the international obligations concerning human rights entered into within the framework of the OSCE (CSCE);

Considering that the above-mentioned instruments are aimed at securing the universal and effective recognition and observance of the rights enshrined therein; 

Having regard to the Declaration of the Heads of Participating States of the Commonwealth of Independent States on international obligations in the field of human rights and fundamental freedoms; 

Considering that the observance of international standards in the field of human rights by all Member States of the Commonwealth of Independent States, and the development and fostering of respect for human rights and fundamental freedoms for all, irrespective of race, sex, language, political beliefs, religion and social origin, contribute to the deepening of democratic reforms, economic and social growth and the strengthening of law and order; 

Striving for the effective fulfilment of their obligations to protect human rights and fundamental freedoms, in the spirit of the concerting of the efforts of the Contracting Parties for the purpose of asserting the ideals of freedom and the rule of law, preventing violations of human rights and fundamental freedoms, upholding the traditions of tolerance and friendship between peoples, and reinforcing civil peace and accord; 

Assuming that such efforts will foster universal respect for and observance of human rights and fundamental freedoms in accordance with the basic instruments of international law in the field of human rights; 

Have agreed as follows: 

Article 1 

The Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms set out in the present Convention. 

Article 2 

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally. Until abolished, the death penalty may be applied only in pursuance of a judicial sentence for particularly grave offences. 

2. As a rule, women may not be sentenced to the death penalty. The death penalty may not be imposed on women who are pregnant at the time of sentencing, nor may it be executed in the case of women who are pregnant when the sentence is to be carried out. 

3. The death penalty may not be imposed on persons for crimes committed by them before they attained the age of eighteen years. 

4. Deprivation of life shall not be regarded as inflicted in contravention of the provisions of this Article when it results from the use of force solely in such cases of extreme necessity and necessary defence as are provided for in national legislation. 

Article 3 

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No one shall be subjected to medical or scientific experiments without his free consent. 

Article 4 

1. No one shall be held in slavery or servitude. 

2. No one shall be constrained to perform forced or compulsory labour. 

3. The term ‘forced or compulsory labour’ as used in the present Article shall not include: 

(a) any work required to be done in the ordinary course of detention imposed in accordance with the provisions of Article 5 of this Convention or during conditional release from such detention; 

(b) any service of a military character or, in the case of Contracting Parties recognising the right of conscientious objection on political or religious/ethical grounds, service exacted instead of compulsory military service; 

(c) any service exacted in the case of an emergency or calamity threatening the life or well-being of the community; 

(d) any work or service which forms part of normal civic obligations; 

(e) the fulfilment by parents of their duty to create the necessary conditions for their children, and by children who have reached the age of majority of their duty to support parents unable to work and requiring assistance. 

Article 5 

1. Everyone shall have the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure established by national legislation: 

(a) the lawful detention of a person after conviction by a competent court; 

(b) the lawful arrest or detention of a person; 

(c) the lawful detention of a minor for the purpose of referring his case for investigation, sentencing or trial. 

2. Everyone who is arrested shall be informed, at the time of his arrest, in a language which he understands, of the reasons for his arrest. 

3. Everyone who is deprived of his liberty by arrest or detention, in accordance with national legislation, shall be entitled to have the lawfulness of his arrest or detention examined by a court. 

4. Everyone who is deprived of his liberty shall be entitled to humane treatment and to respect for his dignity as a human being. Persons who have been subjected to unlawful arrest or detention shall be entitled, in accordance with national legislation, to compensation for the damage caused. 

Article 6 

1. All persons shall be equal before the judicial system. In the determination of any charge against him, everyone shall be entitled to a fair and public hearing within a reasonable time by an independent and impartial court. The decisions of the court or the sentence shall be pronounced publicly, but all or part of the trial may take place in camera for reasons of public order or state secrecy or where the interests of juveniles or the protection of the private life of the parties so require. 

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 

3. Everyone charged with a criminal offence shall have the following minimum rights: 

(a) to be informed promptly and in detail, in a language which he understands, of the nature and cause of the accusation against him; 

(b) to have adequate time and facilities for the preparation of his defence; 

(c) to defend himself in person or through legal assistance of his own choosing or to have legal assistance assigned to him whenever the interests of justice so require, as well as to be provided with legal assistance free of charge in cases specified in national legislation; 

(d) to make applications to the court concerning the examination of witnesses, the carrying out of investigations, the obtaining of documents, the commissioning of expert appraisals and other procedural acts; 

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court; 

(f) not to be forced to testify against himself or plead guilty. 

Article 7 

1. No one shall be held liable for an act which did not constitute an offence under national legislation or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the offence was committed. If, after an offence is committed, a law establishes a lesser punishment for it or eliminates liability for it, the new law shall be applicable. 

2. No one shall be convicted or punished a second time for an offence for which he has already been convicted or punished in accordance with national legislation. Every convicted person shall 

be entitled, in accordance with the law, to have the judgment of the court reviewed by a higher judicial body as well as apply for a pardon or request a lighter sentence. 

Article 8 

No one shall be deprived of his liberty merely on the ground of his inability to fulfil a contractual obligation of any kind. 

Article 9 

1. Everyone shall have the right to respect for his private and family life, his home and his correspondence. 

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, public order, public health and morals or for the protection of the rights and freedoms of others. 

Article 10 

1. Everyone shall have the right to freedom of thought, conscience and faith. This right shall include freedom to choose one’s religion or belief and freedom, either alone or in community with others, to engage in religious worship, attend and perform religious and ritual ceremonies and act in accordance with them. 

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of national security, public safety, public order, public health or morals or for the protection of the rights and freedoms of others. 

Article 11 

1. Everyone shall have the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas by any legal means without interference by a public authority and regardless of frontiers. 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions and restrictions as are prescribed by law and are necessary in a democratic society, in the interests of national security, public safety or public order or for the protection of the rights and freedoms of others. 

Article 12 

1. Everyone shall have the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of 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, public order, public health or morals or for the protection of the rights and freedoms of others. This Article shall not preclude the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or by members of the law-enforcement or administrative organs of the State. 

Article 13 

1. Men and women of marriageable age shall have the right to marry and to found a family, according to the national legislation governing the exercise of that right. 

2. No marriage shall be entered into without the free and full consent of the intending spouses. 

3. For the purpose of creating the necessary conditions for the full development of the family, which is the fundamental unit of society, the Contracting Parties shall contribute to the economic, legal and social protection of family life by such means as social and family allowances, tax relief, the provision of accommodation for families, grants for newly-married couples and other appropriate measures. 

Article 14 

1. Everyone shall have the right to work and to protection from unemployment, as well as to equal remuneration for equal work, including work-related benefits, to identical conditions in respect of work of equal value and to equal treatment in the assessment of the quality of his work. 

2. For the purpose of ensuring that working women may effectively exercise their rights, the Contracting Parties shall: 

(a) grant leave with pay, adequate social security benefits, or allowances from public funds for women taking leave before and after childbirth within the period of time prescribed by national legislation; 

(b) regard as unlawful any notice of dismissal served by an employer on a woman during her absence on maternity leave or at such time that the period of notice would expire during her absence; 

(c) ensure that mothers who nurse their children have sufficient free time for that purpose; 

(d) regulate the employment of women for work on night shifts in industry; 

(e) regulate the employment of women for underground mining activities as well as for other types of work that are unsuitable for women because of their dangerousness, harmfulness to health or arduousness. 

Article 15 

For the purpose of ensuring that the right to health protection may be effectively exercised, the Contracting Parties shall, either directly or in conjunction with public or private bodies, take the appropriate measures, aimed inter alia at: 

(a) eliminating the causes of health deterioration as far as possible; 

(b) providing advisory services and an instructional scheme for the fortification of health and the encouragement of personal responsibility in health matters; 

(c) creating sanitary and hygienic conditions calculated to prevent, as far as possible, outbreaks of epidemic, endemic and other diseases. 

Article 16 

1. Everyone shall have the right to social security, including social insurance, according to his age, in cases of illness, invalidity, loss of bread-winner and upbringing of children as well as in other cases provided for in national legislation. 

2. For the purpose of ensuring that the right to social and medical assistance may be effectively exercised, the Contracting Parties shall ensure that any person lacking sufficient means and unable to obtain such means through his own efforts or from other sources, particularly in the form of benefits under a social security system, receives the necessary assistance and in the case of illness, such care as is required by his condition. 

3. For the purpose of ensuring that the right of mothers and children to social and economic protection may be effectively exercised, the Contracting Parties shall take all appropriate and necessary measures to that end, including the establishment and maintenance of suitable institutions or services. 

Article 17 

Every minor child shall have the right to such special protective measures as his particular situation requires on the part of the family, society and the State. 

Article 18 

For the purpose of ensuring that persons who are physically or mentally unfit for work may effectively exercise their right to occupational rehabilitation, vocational training and social reintegration facilities, the Contracting Parties shall: 

(a) take appropriate measures to provide educational establishments, including, where necessary, public or private specialised institutions; 

(b) take appropriate measures for the occupational rehabilitation of persons unfit for work, including the setting up of specialised occupational rehabilitation services and establishments with special working conditions, as well as measures to encourage employers to engage disabled persons. 

Article 19 

Everyone whose rights and freedoms are violated shall be entitled to be effectively restored to his rights and freedoms in accordance with national legislation. 

Article 20 
1. All shall be equal before the law and shall be entitled, without any discrimination, to equal protection of the law. 

2. The enjoyment of the rights and freedoms set forth in this Convention shall be guaranteed without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property or official capacity, place of birth or other status. 

Article 21 

Persons belonging to national minorities shall not be denied the right, either individually or collectively, to express, preserve and develop, without hindrance, their ethnic, linguistic, cultural or religious identity. 

Article 22 

1. Everyone who is lawfully within the territory of any Contracting Party shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 

2. Everyone shall be free to leave any country, including his own. 

3. No restrictions shall be placed on the exercise of the rights set out in paragraphs 1 and 2 of this Article other than such as are prescribed by the law in the interests of national security or public safety, public order, public health or morals or for the protection of the rights and freedoms of others. 

4. The rights set forth in paragraph 1 of this Article may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest. 

Article 23 

Everyone, regardless of where he may be, shall have the right to recognition of his legal capacity. 

Article 24 

1. Everyone shall have the right to citizenship. 

2. No one shall be arbitrarily deprived of his citizenship or of the right to change it. 

Article 25 

1. No one shall he expelled, under an individual procedure or as a result of a collective measure, from the territory of the State of which he is a citizen. 

2. No one shall be deprived of the right to enter the territory of the State of which he is a citizen. 

3. Aliens who are lawfully in the territory of any Contracting Party may be expelled only in application of a lawful decision, and they shall have the opportunity of appealing against their expulsion. 

4. Collective expulsion of aliens shall be prohibited. 

Article 26 

1. Every natural and legal person shall have the right to own property. No one shall be deprived of his property except in the public interest, under a judicial procedure and in accordance with the conditions laid down in national legislation and the generally recognised principles of international law. 

2. However, the foregoing provisions shall in no way affect the right of the Contracting Parties to adopt such laws as they deem necessary to control the use of items withdrawn from general circulation in the national or public interest. 

Article 27 

1. No person shall be denied the right to education. In the exercise of any functions which the Contracting Parties assume in relation to education and to teaching, they shall respect the right of parents to ensure for their children such education and teaching as corresponds with their own convictions and national traditions. 

2. Elementary and fundamental education of a general kind shall be compulsory and free of charge. 

3. Each Contracting Party shall set a minimum age up to which secondary education shall be compulsory and which may not be lower than the minimum age for employment established by law in accordance with internationally recognised standards. 

Article 28 

For the purpose of ensuring that the right to vocational training may be effectively exercised, the Contracting Parties shall: 

1. provide or encourage, as far as necessary, technical or vocational training for all, including disabled persons, in agreement with trade union organisations, as well as offer the opportunity to receive higher education exclusively on the basis of personal abilities; 

2. establish or help to establish, as far as necessary: 

(a) an appropriate, widely available training system for workers; 

(b) special centres for such vocational retraining of workers as is called for by technical progress or by new trends in the occupational field; 

3. foster the full exercise of such advantages as are available under the relevant measures, including those aimed at: 

(a) reducing or abolishing dues and extra charges; 

(b) providing material help where appropriate; 

(c) incorporating into the normal working day, at the request of employers, the time spent on the further training of workers during work; 

(d) guaranteeing, with appropriate supervision and in agreement with trade union organisations, the effectiveness of apprenticeships and other training measures for young workers, as well as the proper protection of young workers’ interests as a whole. 

Article 29 

In accordance with national legislation, everyone shall have the right and opportunity and in the State of which he is a citizen: 

(a) to take part in the management and conduct of public affairs, either directly or through freely chosen representatives; 

(b) to vote and to be elected at elections held on the basis of universal and equal suffrage by secret ballot, that guarantees the free expression of the will of voters; 

(c) to have access, on general conditions of equality, to the public service of his country. 

Article 30 

Nothing in Articles 11, 21 and 20 shall be regarded as preventing the Contracting Parties from imposing restrictions on the political activity of alien citizens and stateless persons. 

Article 31 

Nothing in this present Convention may be interpreted as implying for any Contracting Party, group or individual any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth in the Convention. 

Article 32 

The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed. 

Article 33 

Nothing in this Convention may be interpreted as limiting or detracting from any of the human rights and fundamental freedoms recognised and guaranteed under the legislation of the Contracting Party concerned or under a fundamental international instrument in the human rights field to which it has acceded. 

Article 34 

Monitoring of the execution of this Convention shall be effected by the Human Rights Commission of the Commonwealth of Independent States (HRC CIS), whose Regulations form a separate section of the Convention. 

Article 35 

1. In time of war or other emergency situation threatening the higher interests of any Contracting Party, that Party may take measures derogating from its obligations under this Convention to the extent strictly required by the gravity of the situation, provided that such measures are not inconsistent with other obligations under international law and do not entail discrimination on the grounds set out in Article 20 of the Convention. 

2. No derogation from Article 2 of this Convention, except in respect of deaths resulting from lawful military action, or from Articles 3, 4 (paragraph 1) and 7 shall be made under paragraph 1 of the present Article. 

3. Any Contracting Party availing itself of this right of derogation shall keep the depositary of this Convention informed of the measures it has taken and of the reasons therefor. It shall also inform the depositary when such measures have ceased to operate and the provisions of the Convention are again being fully executed. 

Article 36 

1. Any Contracting Party may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention concerning the fact that any law then in force in its territory is not in conformity with that provision. Reservations of a general character shall not be permitted under this Article. 

2. Any reservation made under this Article shall contain a brief statement of the law concerned. 

Article 37 

1. Any Contracting Party may denounce this Convention after six months’ notice contained in a notification addressed to the depositary, who shall inform the other Contracting Parties. 

2. Such denunciation shall not have the effect of releasing the Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date on which the denunciation became effective. 

Article 38 

1. This Convention, including the Regulations of the Human Rights Commission of the Commonwealth of Independent States, shall enter into force from the date of deposit of the third notification confirming that a Contracting Party has implemented the internal procedures necessary for its entry into force. 

2. For the other Contracting Parties, this Convention shall enter into force from the date of receipt by the depositary of a notification confirming that they have implemented the internal procedures referred to in paragraph 1 of the present Article. 

Article 39 

After this Convention has entered into force, it shall be open to accession by other States sharing its aims and principles, by means of a notification delivered to the depositary confirming that they have implemented the internal procedures referred to in Article 38, paragraph 1, of the Convention. The date of receipt by the depositary of such notification shall be the date of entry into force of the Convention for the State concerned. 

Done in Minsk on 26 May 1995 in Russian in a single authentic copy, to be kept in the Executive Secretariat of the Commonwealth of Independent States, which shall transmit certified copies thereof to each of the States signatories to the Convention.

 

(6) Human Rights Defenders

      Final Act of the Conference on Security and Co-operation in Europe, Helsinki, 1 August 1975

The participating States recognize the universal significance of human rights and fundamentalfreedoms. (...) They confirm the right of the individual to know and act upon his rights and duties in this field. (...) They confirm that (...) organizations and persons have a relevant and positive role to play in contributing toward the achievement of these aims of their cooperation.

      Concluding Document of Vienna — The Third Follow-up Meeting, Vienna, 15 January 1989, Paras. 12, 13 and 26

(12) [The participating States] express their determination to guarantee the effective exercise of human rights and fundamental freedoms (...)
(13) In this context they will (...)
 (13.5) - respect the right of their citizens to contribute actively, individually or in association with others, to the promotion and protection of human rights and fundamental freedoms;
 (13.8) - ensure that no individual exercising, expressing the intention to exercise or seeking to exercise these rights and freedoms or any member of his family, will as a consequence be discriminated against in any manner;
 (26) (...) To that end they will respect the right of persons to observe and promote the implementation of CSCE provisions and to associate with others for this purpose. They will facilitate direct contacts and communication among these persons, organizations and institutions within and between participating States and remove, where they exist, legal and administrative impediments inconsistent with the CSCE provisions. They will also take effective measures to facilitate access to information on the implementation of CSCE provisions and to facilitate the free expression of views on these matters.

      Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Copenhagen, 29 June 1990, Paras 10 and 12

(10) In reaffirming their commitment to ensure effectively the rights of the individual to know and act upon human rights and fundamental freedoms, and to contribute actively, individually or in association with others, to their promotion and protection, the participating States express their commitment to
(10.1) - respect the right of everyone, individually or in association with others, to seek, receive and impart freely views and information on human rights and fundamental freedoms, including the rights to disseminate and publish such views and information;
(10.2) - respect the rights of everyone, individually or in association with others, to study and discuss the observance of human rights and fundamental freedoms and to develop and discuss ideas for improved protection of human rights and better means for ensuring compliance with international human rights standards;
(10.3) - ensure that individuals are permitted to exercise the right to association, including the right to form, join and participate effectively in non-governmental organizations which seek the promotion and protection of human rights and fundamental freedoms, including trade unions and human rights monitoring groups;
(10.4) - allow members of such groups and organizations to have unhindered access to and communication with similar bodies within and outside their countries and with international organizations, to engage in exchanges, contacts and co-operation with such groups and organizations and to solicit, receive and utilize for the purpose of promoting and protecting human rights and fundamental freedoms voluntary financial contributions from national and international sources as provided for by law.
(12) The participating States, wishing to ensure greater transparency in the implementation of the commitments undertaken in the Vienna Concluding Document under the heading of the human dimension of the CSCE, decide to accept as a confidence building measure the presence of observers sent by participating States and representatives of non-governmental organizations and other interested persons at proceedings before courts as provided for in national legislation and international law; it is understood that proceedings may only be held in camera in the circumstances prescribed by law and consistent with obligations under international law and international commitments.

      Charter of Paris for a New Europe/Supplementary Document to give effect to certain provisions contained in the Charter of Paris for a New Europe, Paris, 21 November 1990

We recall the major role that non-governmental organizations, religious and other groups and individuals have played in the achievement of the objectives of the CSCE and will further facilitate their activities for the implementation of the CSCE commitments by the participating States. These organizations, groups and individuals must be involved in an appropriate way in the activities and new structures of the CSCE in order to fulfil their important tasks.

     Concluding Document of Helsinki — The Fourth Follow-up Meeting, Helsinki, 10 July 1992, Para. 7

7. We reaffirm the validity of the guiding principles and common values of the Helsinki Final Act and the Charter of Paris, embodying responsibilities of States towards each other and of governments towards their people. These are the collective conscience of our community (…) We underline the democratic rights of citizens to demand from their governments respect for these values and standards.

      Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (General Assembly resolution 53/144)

The General Assembly,
Reaffirming the importance of the observance of the purposes and principles of the Charter of the United Nations for the promotion and protection of all human rights and fundamental freedoms for all persons in all countries of the world,
Taking note of Commission on Human Rights resolution 1998/7 of 3 April 1998, See Official Records of the Economic and Social Council, 1998, Supplement No. 3 (E/1998/23), chap. II, sect. A. in which the Commission approved the text of the draft declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms,
Taking note also of Economic and Social Council resolution 1998/33 of 30 July 1998, in which the Council recommended the draft declaration to the General Assembly for adoption,
Conscious of the importance of the adoption of the draft declaration in the context of the fiftieth anniversary of the Universal Declaration of Human Rights, Resolution 217 A (III).
1. Adopts the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, annexed to the present resolution;
2. Invites Governments, agencies and organizations of the United Nations system and intergovernmental and non-governmental organizations to intensify their efforts to disseminate the Declaration and to promote universal respect and understanding thereof, and requests the Secretary-General to include the text of the Declaration in the next edition of Human Rights: A Compilation of International Instruments.
85th plenary meeting
9 December 1998

ANNEX:Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms

The General Assembly,

Reaffirming the importance of the observance of the purposes and principles of the Charter of the United Nations for the promotion and protection of all human rights and fundamental freedoms for all persons in all countries of the world,
Reaffirming also the importance of the Universal Declaration of Human Rights2 and the International Covenants on Human Rights Resolution 2200 A (XXI), annex. as basic elements of international efforts to promote universal respect for and observance of human rights and fundamental freedoms and the importance of other human rights instruments adopted within the United Nations system, as well as those at the regional level,
Stressing that all members of the international community shall fulfil, jointly and separately, their solemn obligation to promote and encourage respect for human rights and fundamental freedoms for all without distinction of any kind, including distinctions based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and reaffirming the particular importance of achieving international cooperation to fulfil this obligation according to the Charter,
Acknowledging the important role of international cooperation for, and the valuable work of individuals, groups and associations in contributing to, the effective elimination of all violations of human rights and fundamental freedoms of peoples and individuals, including in relation to mass, flagrant or systematic violations such as those resulting from apartheid, all forms of racial discrimination, colonialism, foreign domination or occupation, aggression or threats to national sovereignty, national unity or territorial integrity and from the refusal to recognize the right of peoples to self-determination and the right of every people to exercise full sovereignty over its wealth and natural resources,
Recognizing the relationship between international peace and security and the enjoyment of human rights and fundamental freedoms, and mindful that the absence of international peace and security does not excuse non-compliance,
Reiterating that all human rights and fundamental freedoms are universal, indivisible, interdependent and interrelated and should be promoted and implemented in a fair and equitable manner, without prejudice to the implementation of each of those rights and freedoms,
Stressing that the prime responsibility and duty to promote and protect human rights and fundamental freedoms lie with the State,
Recognizing the right and the responsibility of individuals, groups and associations to promote respect for and foster knowledge of human rights and fundamental freedoms at the national and international levels,

Declares:

Article 1
Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.
Article 2
1. Each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice.
2. Each State shall adopt such legislative, administrative and other steps as may be necessary to ensure that the rights and freedoms referred to in the present Declaration are effectively guaranteed.
Article 3
Domestic law consistent with the Charter of the United Nations and other international obligations of the State in the field of human rights and fundamental freedoms is the juridical framework within which human rights and fundamental freedoms should be implemented and enjoyed and within which all activities referred to in the present Declaration for the promotion, protection and effective realization of those rights and freedoms should be conducted.
Article 4
Nothing in the present Declaration shall be construed as impairing or contradicting the purposes and principles of the Charter of the United Nations or as restricting or derogating from the provisions of the Universal Declaration of Human Rights,2 the International Covenants on Human Rights3 and other international instruments and commitments applicable in this field.
Article 5
For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:
(a) To meet or assemble peacefully;
(b) To form, join and participate in non-governmental organizations, associations or groups;
(c) To communicate with non-governmental or intergovernmental organizations.
Article 6
Everyone has the right, individually and in association with others:
(a) To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems;
(b) As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms;
(c) To study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters.
Article 7
Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance.
Article 8
1. Everyone has the right, individually and in association with others, to have effective access, on a non-discriminatory basis, to participation in the government of his or her country and in the conduct of public affairs.
2. This includes, inter alia, the right, individually and in association with others, to submit to governmental bodies and agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and to draw attention to any aspect of their work that may hinder or impede the promotion, protection and realization of human rights and fundamental freedoms.
Article 9
1. In the exercise of human rights and fundamental freedoms, including the promotion and protection of human rights as referred to in the present Declaration, everyone has the right, individually and in association with others, to benefit from an effective remedy and to be protected in the event of the violation of those rights.
2. To this end, everyone whose rights or freedoms are allegedly violated has the right, either in person or through legally authorized representation, to complain to and have that complaint promptly reviewed in a public hearing before an independent, impartial and competent judicial or other authority established by law and to obtain from such an authority a decision, in accordance with law, providing redress, including any compensation due, where there has been a violation of that person's rights or freedoms, as well as enforcement of the eventual decision and award, all without undue delay.
3. To the same end, everyone has the right, individually and in association with others, inter alia:
(a) To complain about the policies and actions of individual officials and governmental bodies with regard to violations of human rights and fundamental freedoms, by petition or other appropriate means, to competent domestic judicial, administrative or legislative authorities or any other competent authority provided for by the legal system of the State, which should render their decision on the complaint without undue delay;
(b) To attend public hearings, proceedings and trials so as to form an opinion on their compliance with national law and applicable international obligations and commitments;
(c) To offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms.
4. To the same end, and in accordance with applicable international instruments and procedures, everyone has the right, individually and in association with others, to unhindered access to and communication with international bodies with general or special competence to receive and consider communications on matters of human rights and fundamental freedoms.
5. The State shall conduct a prompt and impartial investigation or ensure that an inquiry takes place whenever there is reasonable ground to believe that a violation of human rights and fundamental freedoms has occurred in any territory under its jurisdiction.
Article 10
No one shall participate, by act or by failure to act where required, in violating human rights and fundamental freedoms and no one shall be subjected to punishment or adverse action of any kind for refusing to do so.
Article 11
Everyone has the right, individually and in association with others, to the lawful exercise of his or her occupation or profession. Everyone who, as a result of his or her profession, can affect the human dignity, human rights and fundamental freedoms of others should respect those rights and freedoms and comply with relevant national and international standards of occupational and professional conduct or ethics.
Article 12
1. Everyone has the right, individually and in association with others, to participate in peaceful activities against violations of human rights and fundamental freedoms.
2. The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.
3. In this connection, everyone is entitled, individually and in association with others, to be protected effectively under national law in reacting against or opposing, through peaceful means, activities and acts, including those by omission, attributable to States that result in violations of human rights and fundamental freedoms, as well as acts of violence perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental freedoms.
Article 13
Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means, in accordance with article 3 of the present Declaration.
Article 14
1. The State has the responsibility to take legislative, judicial, administrative or other appropriate measures to promote the understanding by all persons under its jurisdiction of their civil, political, economic, social and cultural rights.
2. Such measures shall include, inter alia:
(a) The publication and widespread availability of national laws and regulations and of applicable basic international human rights instruments;
(b) Full and equal access to international documents in the field of human rights, including the periodic reports by the State to the bodies established by the international human rights treaties to which it is a party, as well as the summary records of discussions and the official reports of these bodies.
3. The State shall ensure and support, where appropriate, the creation and development of further independent national institutions for the promotion and protection of human rights and fundamental freedoms in all territory under its jurisdiction, whether they be ombudsmen, human rights commissions or any other form of national institution.
Article 15
The State has the responsibility to promote and facilitate the teaching of human rights and fundamental freedoms at all levels of education and to ensure that all those responsible for training lawyers, law enforcement officers, the personnel of the armed forces and public officials include appropriate elements of human rights teaching in their training programme.
Article 16
Individuals, non-governmental organizations and relevant institutions have an important role to play in contributing to making the public more aware of questions relating to all human rights and fundamental freedoms through activities such as education, training and research in these areas to strengthen further, inter alia, understanding, tolerance, peace and friendly relations among nations and among all racial and religious groups, bearing in mind the various backgrounds of the societies and communities in which they carry out their activities.
Article 17
In the exercise of the rights and freedoms referred to in the present Declaration, everyone, acting individually and in association with others, shall be subject only to such limitations as are in accordance with applicable international obligations and are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
Article 18
1. Everyone has duties towards and within the community, in which alone the free and full development of his or her personality is possible.
2. Individuals, groups, institutions and non-governmental organizations have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes.
3. Individuals, groups, institutions and non-governmental organizations also have an important role and a responsibility in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized.
Article 19
Nothing in the present Declaration shall be interpreted as implying for any individual, group or organ of society or any State the right to engage in any activity or to perform any act aimed at the destruction of the rights and freedoms referred to in the present Declaration.
Article 20
Nothing in the present Declaration shall be interpreted as permitting States to support and promote activities of individuals, groups of individuals, institutions or non-governmental organizations contrary to the provisions of the Charter of the United Nations.

      Declaration of the Committee of Ministers on Council of Europe action to improve the protection of human rights defenders and promote their activities (Adopted by the Committee of Ministers on 6 February 2008 at the 1017th meeting of the Ministers’ Deputies)

The Committee of Ministers of the Council of Europe,

Noting the commitment made by Heads of State and Government meeting at their Third Summit in Warsaw 2005 that the Council of Europe “shall – through its various mechanisms and institutions – play a dynamic role in protecting the right of individuals and promoting the invaluable engagement of non-governmental organisations, to actively defend human rights”;
Recalling the United Nations Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognised human rights and fundamental freedoms of 9 December 1998, and reiterating the importance of the declaration for individuals, groups and associations to promote and strive for the protection and realisation of human rights and fundamental freedoms at the national and international level;
Taking account of the European Union Guidelines on Human Rights Defenders of 2004 and the first review of their implementation in 2006, which contain suggestions for practical measures by EU member states and other states willing to implement them, to support and protect human rights defenders;
Deploring that human rights defenders, including journalists, are all too often victims of violations of their rights, threats and attacks, despite efforts at both national and international levels, and considering that human rights defenders merit special attention, as such violations may indicate the general situation of human rights in the state concerned or a deterioration thereof;
Paying tribute to their invaluable contribution in promoting and protecting human rights and fundamental freedoms;
Mindful that restrictions placed on the exercise of the freedom of expression, assembly and association, which affect the work of human rights defenders in Europe, must not extend beyond those authorised by paragraphs 2 of Articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention on Human Rights” or “ECHR”);
Taking account of the report of the Steering Committee for Human Rights (CDDH) on Council of Europe action to improve the protection of human rights defenders and promote their activities;1
Recalling Recommendation CM/Rec(2007)14 on the legal status of non-governmental organisations in Europe which stipulates that NGOs should enjoy the right to freedom of expression and all other universally and regionally guaranteed rights and freedoms applicable to them;
Acknowledging that whereas the prime responsibility and duty to promote and protect human rights defenders lie with the state, the Council of Europe shall also contribute to creating an enabling environment for human rights defenders and protect them and their work in defending human rights;
Welcoming the activities that the Council of Europe Commissioner for Human Rights has already undertaken in support of human rights defenders, in particular during his country visits, and mindful that protection of human rights defenders as well as the development of an enabling environment for their activities fall within the scope of his mandate, as defined in Committee of Ministers’ Resolution (99) 50 of 7 May 1999,

1. Condemns all attacks on and violations of the rights of human rights defenders in Council of Europe member states or elsewhere, whether carried out by state agents or non-state actors;
2. Calls on member states to:
i) create an environment conducive to the work of human rights defenders, enabling individuals, groups and associations to freely carry out activities, on a legal basis, consistent with international standards, to promote and strive for the protection of human rights and fundamental freedoms without any restrictions other than those authorised by the European Convention on Human Rights;
ii) take effective measures to protect, promote and respect human rights defenders and ensure respect for their activities;
iii) strengthen their judicial systems and ensure the existence of effective remedies for those whose rights and freedoms are violated;
iv) take effective measures to prevent attacks on or harassment of human rights defenders, ensure independent and effective investigation of such acts and to hold those responsible accountable through administrative measures and/or criminal proceedings;
v) consider giving or, where appropriate, strengthening competence and capacity to independent commissions, ombudspersons, or national human rights institutions to receive, consider and make recommendations for the resolution of complaints by human rights defenders about violations of their rights;
vi) ensure that their legislation, in particular on freedom of association, peaceful assembly and expression, is in conformity with internationally recognised human rights standards and, where appropriate, seek advice from the Council of Europe in this respect;
vii) ensure the effective access of human rights defenders to the European Court of Human Rights, the European Committee of Social Rights and other human rights protection mechanisms in accordance with applicable procedures;
viii) co-operate with the Council of Europe human rights mechanisms and in particular with the European Court of Human Rights in accordance with the ECHR, as well as with the Commissioner for Human Rights by facilitating his/her visits, providing adequate responses and entering into dialogue with him/her about the situation of human rights defenders when so requested;
ix) consider signing and ratifying the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations (ETS No. 124);
x) consider signing and ratifying the 1995 Additional Protocol to the European Social Charter and to consider recognising the right of national NGOs fulfilling the criteria mentioned therein to lodge collective complaints before the European Committee of Social Rights;
xi) provide measures for swift assistance and protection to human rights defenders in danger in third countries, such as, where appropriate, attendance at and observation of trials and/or, if feasible, the issuing of emergency visas;
3. Calls on all Council of Europe bodies and institutions, to pay special attention to issues concerning human rights defenders in their respective work. This shall include providing information and documentation, including on relevant case law and other European standards, as well as encouraging co-operation and awareness-raising activities with civil society organisations and encouraging human rights defenders’ participation in Council of Europe activities;
4. Invites the Commissioner for Human Rights to strengthen the role and capacity of his Office in order to provide strong and effective protection for human rights defenders by:
i) continuing to act upon information received from human rights defenders and other relevant sources, including ombudsmen or national human rights institutions;
ii) continuing to meet with a broad range of defenders during his country visits and to report publicly on the situation of human rights defenders;
iii) intervening, in the manner the Commissioner deems appropriate, with the competent authorities, in order to assist them in looking for solutions, in accordance with their obligations, to the problems which human rights defenders may face, especially in serious situations where there is a need for urgent action;
iv) working in close co-operation with other intergovernmental organisations and institutions, in particular the OSCE/ODHIR focal point for human rights defenders, the European Union, the United Nations Secretary General’s Special Representative on Human Rights Defenders and other existing mechanisms;
5. Agrees to keep under review the question of further Council of Europe action in this field.

(7) Indigenous and Tribal Peoples

      Indigenous and Tribal Peoples Convention (ILO Convention No. 169), Article 6

1. In applying the provisions of this Convention, governments shall:
(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;
(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;
(c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.

(8) Judges

      UN Basic Principles on the Independence of the Judiciary (Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985)

8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.
9. Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.

      Recommendation No. R (94 ) 12 of the Committee of Ministers to Member States On Independence, Efficiency and Role of Judges (Adopted by the Committee of Ministers on 13 October 1994 at the 516th meeting of the Ministers' Deputies)

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.

      European Charter on the Statute for Judges (Adopted by the participants at a multilateral meeting organised by the Council of Europe between 8-10 July 1998)

1.7. Professional organizations set up by judges, and to which all judges may freely adhere, contribute notably to the defence of those rights which are conferred on them by their statute, in particular in relation to authorities and bodies which are involved in decisions regarding them.
1.8. Judges are associated through their representatives and their professional organizations in decisions relating to the administration of the courts and as to the determination of their means, and their allocation at a national and local level. They are consulted in the same manner over plans to modify their statute, and over the determination of the terms of their  remuneration and of their social welfare.

[1.7 The Charter recognises the role of professional associations formed by judges, to which all judges are freely entitled to adhere, which precludes any form of legal discrimination vis-à-vis the right to join them. It also points out that such associations contribute in particular to the defence of judges’ statutory rights before such authorities and bodies as may be involved in decisions affecting them. Judges may therefore not be prohibited from forming or adhering to professional associations. Although the Charter does not assign these associations exclusive responsibility for defending judges’ statutory rights, it does indicate that their contribution to such defence before the authorities and bodies involved in decisions affecting judges must be recognised and respected. This applies, inter alia, to the independent authority referred to in paragraph 1.3.
1.8 The Charter provides that judges should be associated through their representatives, particularly those that are members of the authority referred to in paragraph 1.3, and through their professional associations, with any decisions taken on the administration of the courts, the determination of the courts’ budgetary resources and the implementation of such decisions at the local and national levels. Without advocating any specific legal form or degree of constraint, this provision lays down that judges should be associated in the determination of the overall judicial budget and the resources earmarked for individual courts, which implies establishing consultation or representation procedures at the national and local levels. This also applies more broadly to the administration of justice and of the courts. The Charter does not stipulate that judges should be responsible for such administration, but it does require them not to be left out of administrative decisions. Consultation of judges by their representatives or professional associations on any proposed change in their statute or any change proposed as to the basis on which they are remunerated, or as to their social welfare, including their retirement pension, should ensure that judges are not left out of the decision-making process in these fields. Nevertheless, the Charter does not authorise encroachment on the decision-making powers vested in the national bodies responsible for such matters under the Constitution.

(9) Lawyers

      Basic Principles on the Role of Lawyers (Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990), Articles 23, 24 and 25

Freedom of expression and association
23. Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.
Professional associations of lawyers
24. Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.
25. Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.

(10) Migrant Workers

      International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Articles 26, 36 and 40

Article 26
1. States Parties recognize the right of migrant workers and members of their families:
(a) To take part in meetings and activities of trade unions and of any other associations established in accordance with law, with a view to protecting their economic, social, cultural and other interests, subject only to the rules of the organization concerned;
(b) To join freely any trade union and any such association as aforesaid, subject only to the rules of the organization concerned;
(c) To seek the aid and assistance of any trade union and of any such association as aforesaid.
2. No restrictions may be placed on the exercise of these rights other than those that are prescribed by law and which are necessary in a democratic society in the interests of national security, public order (ordre public) or the protection of the rights and freedoms of others.
Article 36
Migrant workers and members of their families who are documented or in a regular situation in the State of employment shall enjoy the rights set forth in the present part of the Convention [articles 36-56] in addition to those set forth in part III [articles 8-35].
Article 40
1. Migrant workers and members of their families shall have the right to form associations and trade unions in the State of employment for the promotion and protection of their economic, social, cultural and other interests.
2. No restrictions may be placed on the exercise of this right other than those that are prescribed by law and are necessary in a democratic society in the interests of national security, public order (ordre public) or the protection of the rights and freedoms of others.
(11) National Minorities

      Framework Convention for the Protection of National Minorities, Articles 3, 7, 8, 15, 17 and 18

Article 3
1 Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.
2 Persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present framework Convention individually as well as in community with others.
Article 7
The Parties shall ensure respect for the right of every person belonging to a national minority to freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion.
Article 8
The Parties undertake to recognise that every person belonging to a national minority has the right to manifest his or her religion or belief and to establish religious institutions, organisations and associations.
Article 15
The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.
Article 17
1. The Parties undertake not to interfere with the right of persons belonging to national minorities to  establish and maintain free and peaceful contacts across frontiers with persons lawfully staying in  other States, in particular those with whom they share an ethnic, cultural, linguistic or religious  identity, or a common cultural heritage.
2. The Parties undertake not to interfere with the right of persons belonging to national minorities to  participate in the activities of non-governmental organisations, both at the national and  international levels.
Article 18
1. The Parties shall endeavour to conclude, where necessary, bilateral and multilateral agreements  with other States, in particular neighbouring States, in order to ensure the protection of persons  belonging to the national minorities concerned.
2. Where relevant, the Parties shall take measures to encourage transfrontier co-operation.

      Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Copenhagen, 29 June 1990, Paras. 30, 32 and 33

(30) (...) [The participating States] also recognize the important role of non-governmental organizations, including political parties, trade unions, human rights organizations and religious groups, in the promotion of tolerance, cultural diversity and the resolution of questions relating to national minorities.
(32) To belong to a national minority is a matter of a person’s individual choice and no disadvantage may arise from the exercise of such choice.
Persons belonging to national minorities have the right freely to express, preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will. In particular, they have the right (...)
(32.2) - to establish and maintain their own educational, cultural and religious institutions, organizations or associations, which can seek voluntary financial and other contributions as well as public assistance, in conformity with national legislation;
(32.6) - to establish and maintain organizations or associations within their country and to participate in international non-governmental organizations.
(33) The participating States will protect the ethnic, cultural, linguistic and religious identity of national minorities on their territory and create conditions for the promotion of that identity. They will take the necessary measures to that effect after due consultations, including contacts with organizations or associations of such minorities, in accordance with the decision-making procedures of each State.
Any such measures will be in conformity with the principles of equality and non-discrimination with respect to the other citizens of the participating State concerned.

      Report of the CSCE Meeting of Experts on National Minorities, Geneva, 19 July 1991

IV. Aware of the diversity and varying constitutional systems among them, which make no single approach necessarily generally applicable, the participating States note with interest that positive results have been obtained by some of them in an appropriate democratic manner by, inter alia: (...)
• provision of financial and technical assistance to persons belonging to national minorities who so wish to exercise their right to establish and maintain their own educational, cultural and religious institutions, organizations and associations; (...)
The participating States are of the view that these or other approaches (...) could be helpful in improving the situation of national minorities on their territories.
V. The participating States respect the right of persons belonging to national minorities to exercise and enjoy their rights alone or in community with others, to establish and maintain organizations and associations within their country, and to participate in international non-governmental organizations.
The participating States reaffirm, and will not hinder the exercise of, the right of persons belonging to national minorities to establish and maintain their own educational, cultural and religious institutions, organizations and associations.
In this regard, they recognize the major and vital role that individuals, nongovernmental organizations, and religious and other groups play in fostering crosscultural understanding and improving relations at all levels of society, as well as across international frontiers.
They believe that the first-hand observations and experience of such organizations, groups, and individuals can be of great value in promoting the implementation of CSCE commitments relating to persons belonging to national minorities. They therefore will encourage and not hinder the work of such organizations, groups and individuals and welcome their contributions in this area.

(12) Non-citizens

      European Convention on Human Rights, Article 16

Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.

      Convention on the Participation of Foreigners in Public Life at Local Level

Chapter A – Freedoms of expression, assembly and association
Article 3
Each Party undertakes, subject to the provisions of Article 9, to guarantee to foreign residents, on the same terms as to its own nationals: (...)
b. the right to freedom of peaceful assembly and to freedom of association with others, including  the right to form and to join trade unions for the protection of their interests. In particular, the  right to freedom of association shall imply the right of foreign residents to form local a associations of their own for purposes of mutual assistance, maintenance and expression of  their cultural identity or defence of their interests in relation to matters falling within the  province of the local authority, as well as the right to join any association.
Article 4
Each Party shall endeavour to ensure that reasonable efforts are made to involve foreign residents in public inquiries, planning procedures and other processes of consultation on local matters.

      ICCPR General comment No. 23: The rights of minorities (Art. 27) (Fiftieth session, 1994)

5.2. Article 27 confers rights on persons belonging to minorities which "exist" in a State party. Given the nature and scope of the rights envisaged under that article, it is not relevant to determine the degree of permanence that the term "exist" connotes. Those rights simply are that individuals belonging to  those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practice their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights. As any other individual in the territory of the State party, they would, also for this purpose, have the general rights, for example, to freedom of association, of assembly, and of expression. The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.

(13) Persons with Disabilities

      Convention on the Rights of Persons with Disabilities, Article 29

States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake:
a) To ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:
i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;
ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;
iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;
b) To promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:
i. Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;
ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.

(14) Refugees and Displaced Persons

      Convention relating to the Status of Refugees, Article 15

As regards non-political and non-profit-making associations and trade unions the Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country, in the same circumstances.

      Concluding Document of Helsinki — The Fourth Follow-up Meeting, Helsinki, 10 July 1992

The participating States
(44) Recognize the importance of the United Nations High Commissioner for Refugees and the International Committee of the Red Cross, as well as of non-governmental organizations involved in relief work, for the protection of and assistance to refugees and displaced persons;

(15) Religions and beliefs

      Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 6 (b) and (f)

In accordance with [A]rticle 1 of the present Declaration, and subject to the provisions of [A]rticle 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms: (…)
(b) To establish and maintain appropriate charitable or humanitarian institutions;...
(f) To solicit and receive voluntary financial and other contributions from individuals and institutions.

(16) Stateless Persons

     Convention relating to the Status of Stateless Persons, Article 15

As regards non-political and non-profit-making associations and trade unions the Contracting States shall accord to stateless persons lawfully staying in their territory treatment as favourable as possible, and in any event, not less favourable than that accorded to aliens generally in the same circumstances.

(17) Women

     Convention on the Elimination of All Forms of Discrimination against Women, Articles 7 and 14(2)

Article 7
States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (...)
(c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.
Article 14
2. States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right: (...)
(e) To organize self-help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self-employment...
(f) To participate in all community activities;

      CEDAW General Recommendation No. 23: Women in Public Life (Chapter I) (Sixteenth session, 1997)

5. Article 7 obliges States parties to take all appropriate measures to eliminate discrimination against women in political and public life and to ensure that they enjoy equality with men in political and public life. The obligation specified in article 7 extends to all areas of public and political life and is not limited to those areas specified in subparagraphs (a), (b) and (c). The political and public life of a country is a broad concept. It refers to the exercise of political power, in particular the exercise of legislative, judicial, executive and administrative powers. The term covers all aspects of public administration and the formulation and implementation of policy at the international, national, regional and local levels. The concept also includes many aspects of civil society, including public boards and local councils and the activities of organizations such as political parties, trade unions, professional or industry associations, women's organizations, community-based organizations and other organizations concerned with public and political life. (...)
Article 7(c) (The right to participate in non-governmental and public and political organizations)
32. An examination of the reports of States parties demonstrates that, on the few occasions when information concerning political parties is provided, women are underrepresented or concentrated in less influential roles than men. As political parties are an important vehicle in decision-making roles, Governments should encourage political parties to examine the extent to which women are full and equal participants in their activities and, where this is not the case, should identify the reasons for this. Political parties should be encouraged to adopt effective measures, including the provision of information, financial and other resources, to overcome obstacles to women's full participation and representation and ensure that women have an equal opportunity in practice to serve as party officials and to be nominated as candidates for election.
33. Measures that have been adopted by some political parties include setting aside for women a certain minimum number or percentage of positions on their executive bodies, ensuring that there is a balance between the number of male and female candidates nominated for election, and ensuring that women are not consistently assigned to less favourable constituencies or to the least advantageous positions on a party list. States parties should ensure that such temporary special measures are specifically permitted under anti-discrimination legislation or other constitutional guarantees of equality.
34. Other organizations such as trade unions and political parties have an obligation to demonstrate their commitment to the principle of gender equality in their constitutions, in the application of those rules and in the composition of their memberships with gender-balanced representation on their executive boards so that these bodies may benefit from the full and equal participation of all sectors of society and from contributions made by both sexes. These organizations also provide a valuable training ground for women in political skills, participation and leadership, as do non-governmental organizations (NGOs).
47. Under article 7, paragraph (c), such measures include those designed to: (...)
(b) Encourage non-governmental organizations and public and political associations to adopt strategies that encourage women's representation and participation in their work.



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