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Accountability and Supervision

Introduction


      Basic principles

Non-governmental organisations, like everyone else, are subject to the law and civil liability and/or administrative and criminal sanctions may be incurred where they fail to respect its requirements. See Paragraph 7 of the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

In the case of non-governmental organisations that do not have legal personality any liability and sanctions for acts and omissions on their behalf will, according to the particular circumstances and national law, be incurred not by the organisations but by either those who belong to them or those who acted or failed to act on their behalf. See Fraktion Sozialistischer Gewerkschafter im ÖGB Vorarlberg and 128 of its individual members (Köpruner, Falschlunger and Others) v. Austria (dec.), no. 12387/86, 13 April 1989 and Steel and Morris v. United Kingdom (dec.), no. 68416/01, 22 October 2002.

On the other hand any liability and sanctions for acts and omissions on behalf of non-governmental organisations with legal personality should be incurred by the organisations themselves and not by those who belong to them where they are membership-based. See Paragraph 26 of the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Liability of officers, directors and staff

Nevertheless the officers, directors and staff of non-governmental organisations with legal personality can incur liability and sanctions for their own professional misconduct or neglect of duties and breaches of the law. See Paragraph 75 of the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe, Çetinkaya v Turkey, no 75569/01, 27 June 2006 and Piro─člu and Karakaya v. Turkey, nos. 36370/02 and 37581/02, 18 March 2008.

      Liability of members

Administrative and criminal sanctions can, however, be imposed on persons belonging to, or assisting, a non-governmental organisation that has, in full compliance with universal and regional human rights standards, been proscribed as unlawful. See Özcan and Others v. Turkey (dec.), no. 56006/00, 13 June 2002 and Karademirci and Others v. Turkey, nos. 37096/97 and 37101/97, 25 January 2005.

      Basis of liability

The liability and sanctions for acts and omissions on behalf of non-governmental organisations will in most instances be ones provided under laws that are generally applicable but some will arise from legally requirements specifically applicable to non-governmental organisations. See Paragraph 7 of the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Need to observe principle of proportionality

In the case of a breach of a legal requirement specifically applicable to non-governmental organisations, the most appropriate response should normally be a requirement for them to rectify their affairs. In some instances the imposition of a penalty on them and/or any individuals directly responsible for the breach concerned may be justified but the suspension of a non-governmental organisation's activities will not be warranted unless the breach of the legal requirement gives rise to a serious threat to political pluralism or fundamental democratic principles. Furthermore all penalties that are imposed should respect the principle of proportionality. See Paragraph 72 of the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe, Christian Democratic People's Party v. Moldova, no. 28793/02, 14 February 2006 and Tür Köy Sen v. Turkey (dec.), no. 45504/04, 13 October 2009.

The termination of a non-governmental organisation through its enforced dissolution should - apart from bankruptcy and prolonged inactivity - always be a proportionate response to an exceptional breach of the law specifically applicable to non-governmental organisations which is supported by compelling evidence. See Paragraph 74 of the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.



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