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Management And Internal Organisation

Introduction

      Basic principles

Non-governmental organisations should generally be self-governing. Any restrictions on their capacity to govern themselves will only be admissible if they have a legal basis, serve a legitimate purpose and are not disproportionate in their effect. See Paragraphs 1 and 6 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Content of statute

The only matters concerning internal governance that the charter or statute of a non-governmental organisation should generally be required to be specifiy are its highest governing body, the frequency of meetings of that body, the procedure by which such meetings are to be convened, the way in which the highest governing body is to approve financial and other reports and the procedure for changing the charter or statute and dissolving the organisation or merging it with another non-governmental organisation. See Paragraph 19 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      The highest governing body

The highest governing body of a membership-based non-governmental organisation should be comprised of all of its members. See Paragraph 20 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.
Except as a consequence of auditing and reporting requirements and any funding conditions, the frequency of meetings of any body of a non-governmental organisation other than its highest governing body should be determined just by those establishing and running the organisation concerned. See Paragraph 47 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Restrictions on capacity to be involved in management

Certain persons may be disqualified from appointment to the highest governing body of a non-governmental organisation that is not membership-based, as well from appointment as an officer of any non-governmental organisations, either following their conviction for an offence that has demonstrated that they are unfit for the responsibilities involved or on account of their being incapacitated to perform those responsibilities. Any such disqualification must be proportionate in scope and duration. See Paragraph 48 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.
Non-nationals should not be prevented on account of that status from becoming involved in the management of non-governmental organisations (see Paragraph 49 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe). Furthermore any restrictions on persons in the public sector serving on the highest governing body of a non-government organisation that is not membership-based or becoming a member of any executive body of any non-government organisation should be consistent with the admissible restrictions on them being a member of a membership-based non-governmental organisation (see Membership).

      Freedom to choose management

Public authorities should not interfere with a non-governmental organisation's choice of its management or representatives except where the persons concerned are disqualified from so acting. Those responsible for decision-making in a non-governmental organisation can, however, be required by public authorities to be clearly identified. See Hasan and Chaush v. Bulgaria [GC], 26 October 2000, Supreme Holy Council of the Muslim Community v. Bulgaria, 16 December 2004 and Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, 22 January 2009.

      Application of general employment law

Non-governmental organisations should observe the generally applicable employment laws but should not otherwise be precluded from employing someone who is not a national of the country in which it is established. See Paragraph 49 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Freedom to choose internal management structure

Non-governmental organisations should be free to determine their internal management structure and, in particular, the highest governing body of a membership-based non-governmental organisation should be free to delegate the task of management to a subsidiary body. See Paragraphs 46 and 47 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

Non-governmental organisations should not need any authorisation from a public authority in order to change their internal management structure or rules or to establish branches which do not have distinct legal personality. See Paragraphs 42, 47 and 48 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe and Koretskyy and Others v. Ukraine, 3 April 2008.

      Freedom to determine voting requirements

The question of whether certain decisions relating to a non-governmental organisation - including ones to amend the statute or to dissolve the organisation - need to be taken by a special majority should be a matter left to be determined by the charter or statute of the organisation concerned. See Paragraph 19 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Duty to protect management

Those managing a non-governmental organisation should be protected by public authorities against interference with their freedom to run the organisation and take necessary decisions in this regard, and in particular they should be protected against harassment, intimidation and the use of violence. See Paragraph 6 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe and Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], 8 December 1999.

      Primacy of the statute

However, the primacy of the statute of non-governmental organisations - as well as of the law governing their formation - necessarily precludes the taking of decisions to act for purposes outside either their objectives or their powers. See Paragraph 47 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Need to consider interests of stakeholders

The decision-making freedom enjoyed by non-governmental organisations should not lead those managing them to ignore the wide range of persons with a legitimate interest in the way in which such organisations conduct themselves.

      Need to protect rights of members

Moreover the freedom of membership-based non-governmental organisations to decide on the admission and exclusion of members is subject the prohibition in universal and regional human rights standards on unjustified discrimination and arbitrary exclusion. See Paragraphs 22 and 23 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

The members of a non-governmental organisation should be able to insist on its decision-making process being properly observed and should also be protected from any abuse of the dominant position of a particular group of members, such as by the adoption of rules that are wholly unreasonable or arbitrary. See Paragraphs 23 and 47 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Need for record-keeping

Non-governmental organisations can be required by law to keep a proper record of the proceedings of all the meetings of their decision-making bodies in order to protect the interests of members and donors. See Paragraphs 62 and 68 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Right to challenge interference with decision-making

Any challenge by public authorities to the decision-making of non-governmental organisation for regulatory purposes should
itself be subject to challenge by the organisation concerned in an independent and impartial court. See Paragraphs 10 and 71 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Right to control attendance at meetings

Non-governmental organisations should generally be  free to determine who attends their meetings and in particular to exclude representatives of public authorities - whose presence could be an indirect form of pressure - from meetings that are not open to the public. See Paragraph 6 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Limits on external assumption of management control

External intervention in the running of non-governmental organisations should be extremely rare. Such an intervention would only be justified in order to bring an end to a serious breach of legal requirements where either the organisation concerned has failed to take advantage of an opportunity to bring itself into line with those requirements or there is a need to prevent an imminent breach of them because of the serious consequences that would follow. See Paragraphs 2, 6 and 70 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe and Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], 8 December 1999.



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