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Acquisition of Legal Personality and Registration

Introduction


       Importance of legal personality

The essence of freedom of association is the pursuit of the common objectives of a group of persons (natural or legal). The ability to pursue defined objectives will also be the rationale for establishing a non-membership-based non-governmental organisation. In some instances it may be possible to rely solely on the individual legal capacities of those who wish to found an organisation in order to pursue its objectives. However, in practice the pursuit of those objectives is usually something more readily undertaken through endowing the organisation concerned with a legal personality that is distinct from that of both their founders and - in the case of membership-based organisations - those persons who later belong to them. See Gorzelik and Others v. Poland [GC], 17 February 2004, at para. 88.

It is essential, therefore, that the option of acquiring legal personality always be available to those who wish to establish a non-governmental organisation unless it can clearly be demonstrated by the state concerned that the lack of such personality will not impede the pursuit of its objectives (see Zvozskov et al. v. Belarus, 17 October 2006, at para. 7.4 for a finding that this had not been demonstrated). The absence of any such impediment is of significance not only for non-governmental organisations for which legal personality is never sought but also for those whose application for recognition is waiting to be processed (see, e.g., Ramazanova and Others v. Azerbaijan, 1 February 2007, at para. 59). See also Entities to which International Guarantees Apply.

Acquiring legal personality or being registered is, however, something that a state may also require of non-governmental organisations where their founders - or their highest governing bodies after their establishment as more informal organisations - wish them to enjoy various forms of public support or be accorded a particular status (such as being recognised as a charity or public benefit organisation). See Paragraph 60 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe.

      Admissibility of approval process for acquiring legal personality

In some countries the acquisition of legal personality can be the automatic consequence of adopting the charter or statute of the non-governmental organisation concerned and thus not be subject to any further formality. See Article 60 of the Swiss Civil Code.

However, it is in principle also compatible with universal and regional human rights standards for a state to insist that an entity go through some form of approval process before it is registered or such legal personality can be acquired. See, e.g., Cârmuirea Spirituală a Musulmanilor din Republica Moldova v. Moldova (dec.), 14 June 2005 and Paragraph 28 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe.


      Nature of the approval process

The formulation of any law governing the requirements to be fulfilled in order to acquire legal personality or to be registered must be sufficiently “foreseeable” for the persons seeking this status for their non-governmental organisation to appreciate what it involves (see, e.g., Ramazanova and Others v. Azerbaijan, 1 February 2007, at para. 60). In particular, where positive approval for registration or the acquisition of legal personality is required, the relevant law should not grant an excessively wide margin of discretion to the authorities in deciding whether a particular non-governmental organisation may be registered or granted legal personality, such as through the use of imprecise terms and the lack of specific criteria on which decision-making is to be based. See, e.g., Koretskyy and Others v. Ukraine, 3 April 2008, at paras. 48-49.

The process and requirements involved in registration or acquiring legal personality - such as the nature of the documentation to be submitted and the deadlines to be observed - should also be easy for intending founders to understand and fulfil. See Paragraph 29 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe.

      Fees

The level of any fees charged should reflect both the desirability of encouraging the formation of such organisations and the fact that their character is essentially non-profit-making. However, while it is not contrary to universal and regional human rights standards for a fee to be charged in order that non-governmental organisations become registered or acquire legal personality, any attempt to make the process of registration or acquiring legal personality self-financing or income-generating is likely to be incompatible with universal and regional human rights standards since this would undoubtedly have the effect of discouraging applications for registration or the grant of legal personality from being made. See Paragraph 33 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe.

      Basis for imposing conditions on or refusing approval

Any process of approval for registration or the grant of legal personality should not generally be used to impose constraints on the ability of non-governmental organisations to draw up their own rules, to administer their own affairs or to make links with other bodies as these are essential elements of universal and regional human rights standards. See, e.g., Koretskyy and Others v. Ukraine, 3 April 2008, at paras. 45-55. Any interference with the freedom of non-governmental organisations in these fields would be admissible only if it was capable of being justified as necessary in a democratic society for a legitimate aim, such as the imposition of requirements that are necessary to preclude unjustified discrimination or to protect the legitimate interests of the members of a non-governmental organisation. See Paragraphs 1, 6, 22, 23 and 47 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe.

However, legal personality or registration can be refused where those applying for it fail to comply with a legal requirement that is compatible with universal and regional human rights standards. Nonetheless the circumstances in which a refusal of legal personality or registration will be recognised by those norms as amounting to reasons that are relevant and sufficient are very limited (see, e.g., Malakhovsky and Pikul v. Belarus, 26 July 2005, at para. 7.6) and will always be subject to the foreseeability requirement noted in paragraph 6 above. Thus, other than in those situations in which the objectives and activities of a non-governmental organisation are properly found to be contrary to the constitution or the law (see Objectives and Activities), they are only likely to include such a refusal in cases where the proposed name of the non-governmental organisation belonged to that of another organisation, could be confused with it or was in some other way damaging to it  (see, e.g., Apeh Uldozotteinek Szovetsege, Ivanyi, Roth and Szerdahelyi v. Hungary (dec.), 31 August 1999) or could in some way be genuinely regarded as misleading to the public (see, e.g., Gorzelik and Others v. Poland [GC], 17 February 2004), at paras. 97-105) or where there has been a failure submit all the clearly prescribed documents that are required (see, e.g., Cârmuirea Spirituală a Musulmanilor din Republica Moldova v. Moldova (dec.), 14 June 2005).

      Need for opportunity to correct application

An application for registration or legal personality in which alleged irregularities appear should not be rejected without first informing the applicant(s) of them or giving them an opportunity to correct them (if this is appropriate). This opportunity should not, however, be used as a device to subject registration or a grant of legal personality to undue delay and there may, therefore, have to be a limit on the number of times documents can be returned for rectification (see, e.g., Ramazanova and Others v. Azerbaijan, no. 44363/02, 1 February 2007, at paras. 56-68).

      Need for prompt decisions

No specific deadline for dealing with an application for legal personality is prescribed by universal and regional human rights standards but any significant delay in determining such an application will be contrary to these guarantees. See Paragraph 37 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe and Ramazanova and Others v. Azerbaijan, 1 February 2007, at para. 56-68. In some cases it may be appropriate for the grant of legal personality to be presumed where a deadline for determination has not been met (see, e.g., Article 31 of the Serbian Law on Associations 2009).

      Nature of decision-maker

The body responsible for determining applications for registration or the grant of legal personality should act independently and impartially in its decision making (see, e.g., Személy és Vagyonőrök Független Szakszervezeti Szövetsége and Csánics v. Hungary (dec.), 13 February 2007). Moreover such a body should have sufficient, appropriately qualified staff for the performance of its functions (see Paragraph 36 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe).

      Need for reasoned decisions

All decisions should be communicated to the applicant(s) and any refusal should include written reasons. See Paragraph 38 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe. All reasons for a refusal must be lawful and must be substantiated, which precludes mere reference to a particular legal provision (see, e.g., Moscow Branch of the Salvation Army v. Russia, 5 October 2006, at paras. 81-95).

      Need for possibility of challenging refusal

In addition, given the potential significance of refusals of registration or the grant of legal personality for the non-governmental organisations concerned and those forming them, the possibility of appealing to an independent and impartial court against such refusals must be something that can be speedily pursued. See Paragraph 38 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe and Apeh Uldozotteinek Szovetsege, Ivanyi, Roth and Szerdahelyi v. Hungary (dec.), 31 August 1999.

      Limits on requiring renewal of legal personality

A requirement that existing non-governmental organisations must seek a renewal of their status as a legal entity following a very significant change in the law governing them would not in itself be contrary to universal and regional human rights standards. Nevertheless in such a case the relevant authorities must always act in good faith when dealing with any application for renewal (see, e.g., Moscow Branch of the Salvation Army v. Russia, 5 October 2006). However, a change to the charter of statutes of a non-governmental organisation should not give rise to any requirement that it establish itself as a new entity and thus obtain fresh registration or grant of legal personality. See Paragraph 43 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe.

Moreover non-governmental organisations should not be required to renew their legal personality merely on a periodic basis. See Paragraph 41 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe.

      No need for approval to establish branches

The ability of non-governmental organisations to establish branches - whether within the country in which they are established or abroad - where these do not have a distinct legal capacity from the organisations concerned should be seen as an inherent aspect of the internal organisational capacity secured by universal and regional human rights standards and thus not requiring any official authorisation. See Paragraph 42 of the Council of Europe's Recommendation CM/Rec(2007) 14 on the legal status of NGOs in Europe. For the ability of the branch of a non-governmental organisation to operate in a country in which the organisation concerned has been registered or granted legal personality, See Foreign Non-Governmental Organisations.



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