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Formation

Introduction

     General capacity

Everyone, whether a natural or a legal person and whether a national or non-national (including anyone who is stateless), should normally be entitled, alone or in association with others, to establish a non-governmental organization.

In the case of membership-based non-governmental organizations, this capacity derives from the right of everyone to freedom of association (see, e.g., Gorzelik v. Poland [GC], 17 February 2004, at para. 88), whereas for those non-governmental organizations that are non-membership-based, this capacity is underpinned by undertakings such as Article 5 of the United Nations General Assembly's 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) and Paragraph 2 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe to allow them to be established.

     Scope of restrictions on capacity

The evolving capacities of children must always be taken into account whenever any restrictions on them forming non-governmental organizations – such as the need for explicit parental approval and limits on any financial undertakings - are adopted. Such restrictions should thus generally decrease as children grow older, and they should never be disproportionate. See Articles 5 and 15 of the Convention on the Rights of the Child (UN).

Public officials (including members of the police and the armed forces) should be free to form non-governmental organizations except where this would conflict with their responsibilities and the need for political neutrality. Any restrictions imposed on them should be clearly linked to the specific character of their posts. Such restrictions are most likely to be justifiable where a post involves either direct engagement with members of the public (or sections thereof) or a significant role in the formation of public policy. However, the case for any restrictions must always be demonstrated, and even then their scope should never be disproportionate. See, e.g., Ahmed and Others v. United Kingdom, 2 September 1998, at para. 70.

Restrictions on the ability - as a matter of law or practice - of non-nationals to form non-governmental organizations are only likely to be acceptable where the objectives of the organization to be established are directly political without amounting to a political party (such as a body campaigning on major issues of national policy or aspects of the international relations of the state concerned). Such restrictions might be less justified where the non-national is from a country with which the state is closely linked (two member states of the European Union, for example). In any event, the scope of any restrictions should never be disproportionate. See, e.g., Paragraph 16 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe.

Any restrictions on forming non-governmental organizations imposed on a person convicted of an offence must be clearly linked to the nature of the offence concerned. Thus, offences involving fraud might preclude involvement in forming an organization that would handle significant funds as part of its activities, and offences that are anti-democratic in nature could justify some restriction on forming an organization whose objectives are essentially political. Nonetheless, the scope and duration of any such restrictions should not be disproportionate. See, e.g., Ždanoka v. Latvia, 16 March 2004, at paras. 132-136 and 141.

     Numbers required

The agreement of two individuals should generally be sufficient to establish a non-governmental organization that is membership-based and does not have legal personality or is not registered. A greater number might be justifiable as a condition for the establishment of a non-governmental organization acquiring legal personality or being registered (although this is often not the case) or having a particular status (such as a charitable or public-benefit organization). However, in no circumstances should the number of founders required be such as to discourage attempts to establish non-governmental organizations. See Paragraph 17 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe.

One person should be able to establish a non-membership-based non-governmental organization. It should also be generally possible to establish such an organization through a gift or a bequest (such as where the donor is seeking to create an organization to pursue charitable or public-benefit objectives). See, e.g., Paragraph 16 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe.

     Preliminary requirements

The establishment of a non-governmental organization that is intended to have legal personality or to be registered (see Acquisition of Legal Personality and Registration) can be made subject to the adoption of a charter or statute that will generally prescribe its name, objectives, powers, and highest governing body (together with the frequency of this body's meetings, the procedure for convening it, and the procedure whereby it approves financial and other reports, as well as the procedure for changing its charter or statute and dissolving the organization or merging it with another one). See, e.g., Movement for Democratic Kingdom v. Bulgaria (dec.), 29 November 1995 and Paragraph 18 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe.

However, any additional matters prescribed by national law for the charter or statute of a non-governmental organization with legal personality or registration should not unduly limit either the ability to establish such an organization or its flexibility to manage itself and to pursue admissible objectives. See, e.g., Koretskyy and Others v. Ukraine, 3 April 2008, at paras. 45-55.

     No territorial restrictions

It should generally be possible to take part in the establishment of a non-governmental organization outside one's country of residence (see, e.g., Cyprus v. Turkey [GC], 10 May 2001, at paras. 364-371), although a requirement by the state in which it is established that some of its founders be nationals or residents where it has legal personality would probably be admissible. Also see Foreign Associations and NGOs.

The founders of a non-governmental organization should be free to determine the territorial scope of its proposed activities, i.e., whether local, regional, national, or international. See, e.g., Paragraph 4 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe.



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