It is well established in international law that the right to freedom of association equally protects registered and non-registered associations (Does an association need to be registered to be protected? See Association Section 1.1). The Special Rapporteur on the rights to freedom of peaceful assembly and of association has on numerous occasions emphasized that the right to freedom of association applies to informal associations and does not require that a group be registered.
Depending on the national legal context, registration and/or legal personality may be required to fulfill certain functions or access to certain benefits, which associations may wish to have access to.
Registration and obtaining legal personality may be – but are not necessarily – the same process in different legal systems. However, the standards and principles applied in international law for both processes are very similar; therefore the arguments below are valid for both.
If associations wish to obtain legal personality, they should be allowed to do so. Acquisition of legal personality may be important for associations in order to obtain additional rights, such as public benefits, to solicit resources and to employ people. Legal personality also enables associations to fulfill certain needs, such as holding bank accounts, signing contracts or owning or renting property.
The Special Rapporteur on the rights to freedom of peaceful assembly and of association has confirmed that this entitlement to legal personality is a core element of the right to freedom of association, and has called on States to ensure and facilitate the ability of associations to acquire it.
The ECtHR has consistently held the position that associations should be able to obtain legal personality if they wish:
(t)he most important aspect of the right to freedom of association is that citizens should be able to create a legal entity in order to act collectively in a field of mutual interest. Without this, that right would have no practical meaning.
The Inter-American Commission subscribes to the same logic as do the Draft Guidelines of the African Commission, which expresses this even more strongly, asserting that:
(t)he acquisition of legal personality shall be viewed as a right and not a privilege.
Given the critical role legal personality may play in enabling associations to pursue their objectives and activities effectively, States refusing to register associations – or which impose arbitrary or onerous requirements – may be found to interfere with the right to freedom of association. As the ECtHR has held:
This implies that, as the recognition of the association as a legal entity is an inherent part of the freedom of association, the refusal of registration is also fully covered by the scope of Article 22 of the ICCPR and Article 11 of the ECHR.
Generally, States rely upon two types of regimes with regard to the registration/legal personality of an association: (i) notification and (ii) prior authorization.
Notification regimes offer a higher level of protection of the freedom of association and are considered best practice by international legal experts, including the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association. Under a notification regime, the legal personality of an association does not depend upon the approval of the State; associations automatically acquire legal personality by notifying authorities of their creation.
States that impose a prior authorization regime only recognize or grant legal personality to associations that have filed a request and obtained the approval of the State. Where States require authorization, they must take great care to avoid arbitrary requirements or lengthy delays in approvals. The Special Rapporteur has thus called on States to follow best practices to allow for the procedure to be simple, non-onerous and expeditious.[10] UN Human Rights Council, First Thematic Report of the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 57.
The IACHR has noted that States have the obligation to ensure that related laws and regulations are clear and unambiguous and that bodies responsible for registration do not exercise broad discretion in interpreting provisions in ways that might limit freedom of expression. The ECtHR accepts that some formal process may be applied, but follows the same logic. In practice, the ECtHR always assesses whether procedural requirements, as well as delays and overly wide discretionary powers, violate the right to freedom of associations.[12] See Koretskyy v. Ukraine, ECtHR, Judgment of 3 April 2008, paras. 48; 53-55.
Generally, international standards demonstrate a clear preference for notification rather than authorization. The AComHPR Draft Guidelines assert that:
Registration shall be governed by a notification rather than an authorization regime, meaning that procedures shall be simple, clear, transparent, non-discretionary and non-burdensome.
The Special Rapporteur has emphasized that prior to receiving a decision on legal personality, associations should be presumed to be operating legally. The joint guidelines of the OSCE/ODIHR and Venice Commission on freedom of association equally reflect this presumption of lawfulness:
There should be a presumption in favour of the formation of associations, as well as in favour of the lawfulness of their establishment, objectives, charter, aims, goals and activities. This means that, until proven otherwise, the state should presume that a given association has been established in a lawful and adequate manner, and that its activities are lawful. Any action against an association and/or its members may only be taken where the articles of its founding instrument (including charters, statutes and by-laws) are unambiguously unlawful, or where specific illegal activities have been undertaken.
This presumption should exist even where legislation stipulates that certain requirements, such as registration formalities, be fulfilled in order to establish an association. It is important to recall, however, that an unregistered association can also benefit from the protection conferred by Article 22 of the ICCPR and Article 11 of the ECHR, as well as by other international and regional instruments that reaffirm this freedom.
Associations have the right to register and create a legal entity in pursuit of their objectives. Where the State denies an association’s registration or legal personality, it must meet the three-prong test for restricting the right to freedom of association (see Association Section 6).
A ruling of the European Court provided that the authorities’ failure to reply to a registration request within the statutory time limit amounts to a de facto refusal to register. Generally, it indicated that a significant delay in the registration procedure attributable to the authorities amounts to an interference with the right to freedom of association.
Courts have found the impact on the association – particularly whether or not the association would still be able to engage in its activities – to be a key determinant in deciding whether States had pursued a legitimate aim. Other cases have distinguished between the mere suspicion of illegality versus concrete actions that are contrary to the law. In a number of cases, courts have failed to find a violation of the right to freedom of association where the association could have easily complied with registration requirements and/or could continue their activities despite the State’s refusal to register.
The ECtHR has held that States may not refuse to register or acknowledge an association on the basis that it was founded by “foreigners” or is a branch of an international association.
Impact on the association
In a number of leading cases, the impact of the refusal on the association has been a key feature in deciding whether or not there was a violation.
In Romanovsky v. Belarus, the UN Human Rights Committee found that the impact of the refusal to register was severe as it meant, under Belarus law, that all operations of the association were unlawful. The case concerned a group of retirees who, following an assembly, decided to form and register an organization. The Ministry of Justice denied their application asserting that the assembly was not held legitimately and that all decisions taken during it were therefore void. The Human Rights Committee found the State Party had not provided any arguments as to why the refusal to register was necessary or proportionate, noting the severe impact:
The Committee notes the author’s submission that registration of the association was refused on the basis of a number of reasons given by the State party, which must be assessed in the light of the consequences arising for the author and his association. The Committee also notes that, even though the reasons stated are prescribed by the relevant law, as it follows from the material before it, the State party has not attempted to advance any arguments as to why they are necessary in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others, nor why the refusal to register the association was a proportionate response in the circumstances. The Committee further notes that, in the decisions of the domestic authorities that were made available, no explanation was given by the authorities, particularly the Supreme Court, as to why it was necessary to restrict the author’s right to freedom of association, further to article 22(2) of the Covenant.
The Committee notes that the refusal to register the association led directly to the operation of the association in the territory of the State party being unlawful and directly precluded the author from enjoying his right to freedom of association.
In Presidential Party of Mordovia v. Russia, the ECtHR similarly found a violation of Article 11 due to the impact on the applicant. In this case, a regional political party attempted to renew its registration in accordance with a new law. The application was refused on disputed grounds. Approximately three years later the Russian Supreme Court ruled that the party could be re-registered; however, the law had changed again, rendering the party unable to participate in regional elections. Because of this impact and the irreparable damage, the ECtHR found a violation of Article 11:
since [the applicant] was unable to function for a substantial period of time and could not participate in regional elections. Furthermore, the damage appears irreparable given that, under current legislation, the party cannot be reconstituted in its original concept.
In Movement for Democratic Kingdom v Bulgaria, the EComHR held that the refusal to register the association was not a violation of the right to freedom of association given that the association could still engage in political activity. The impact of the restriction was therefore not disproportionate:
The Commission recalls its case law according to which a refusal of the authorities to register an association does not necessarily involve an interference with its rights under Article 11 (Art. 11) of the Convention where the association is nevertheless free to continue its activities … The Commission notes that an unregistered association, such as the applicant in the present case, is authorised by law to engage in “political activity”, but cannot participate in elections.
Suspicion of intentions insufficient
A mere suspicion that the real intents or activities of an association may be illegal is insufficient to justify not registering or granting legal personality to an association.
In the landmark case Sidiropoulos v. Greece, the ECtHR found that Greek courts’ refusal to register applicants’ association on the basis of suspicions as to the true intentions of the association’s founders was disproportionate. The purpose of the association was legitimate and clear, namely to preserve and develop traditions and folk culture of the Florina region. The ECtHR added that if activities would raise any legality questions, they should be dealt with at that point and not by preemptive denial of registration:
once founded, the association might, under cover of the aims mentioned in its memorandum of association, have engaged in activities incompatible with those aims. … [However] [i]f the possibility had become a reality, the authorities would not have been powerless; under Article 105 of the Civil Code, the Court of First Instance could order that the association should be dissolved if it subsequently pursued an aim different from the one laid down in its memorandum of association or if its functioning proved.
More recently, in Association of Victims of Romanian Judges and Others V. Romania [ click for full case explanation ]
In focus:
Association of Victims of Romanian Judges and Others V. Romania
The case involved individuals who aimed to form an association to promote the interests of those who felt themselves to be victims of the justice system in Romania; the association aimed to use legal means for publicizing alleged injustices, irregularities or illegalities, including by lawfully protesting.
The national courts of Romania ruled that the refusal to register was legitimate as the aim of the association was in conflict with the Romanian Constitution (a.o. the principles of a State governed by the rule of law).
The Court ruled that:
“Only convincing and compelling reasons can justify restrictions on freedom of association. All such restrictions are subject to rigorous supervision … Consequently, in determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision, embracing both the law and the decisions applying it, including those given by independent courts …
The Court considers that the domestic courts’ statements were based on mere suspicions regarding the true intentions of the association’s founders and the activities it might have engaged in once it had begun to function …
Furthermore, the Court notes that the domestic law provides for the possibility of dissolving an association should it be demonstrated that it has goals which are contrary to public order or that it acts contrary to the provisions of its Articles …
Taking into account all the above, the Court considers that the reasons invoked by the authorities for refusing registration of the applicant association were not determined by any ‘pressing social need’, nor were they convincing and compelling. Moreover, such a radical measure as the refusal of registration, taken even before the association started operating, appears disproportionate to the aim pursued.
the ECtHR similarly found that mere suspicions of illegality of aims or activities cannot be a ground for refusing registration. The Court found that the refusal to register the Association of Victims of Romanian Judges was based on the mere suspicions that the true intentions of the founders of the association aimed at undermining the authority of the judiciary in the country. The ECtHR concluded that the right to freedom of association was violated as the refusal was not based upon an actual illegality of the aims of the association.
Ability to comply with the requirement
Where applicants could have taken reasonable steps to amend their applications, the ECtHR – and before that the European Commission – has found that the registration process was not overly burdensome and therefore it did not find a violation of the right to freedom of association when the State failed to register the organization.
The case of the Movement for Democratic Kingdom v Bulgaria concerned a political party whose request for registration was denied as its initial application did not conform to the requirements for registration and the applicant did not comply with the instructions of the courts to rectify the irregularities. The Bulgarian courts held that amendments had to be adopted by a general assembly, which the applicants had not convened.
The EComHR held that the refusal to register the association was not in violation of Article 11 given that (i) the association could still engage in political activity and (ii) the association could have met the requirement to convene a general assembly:
Furthermore, the Commission notes that the applicant party was free at any time to rectify the procedural omissions by convening a general assembly for the approval of the amended statute. Such a formal requirement was neither arbitrary, nor an onerous obstacle.
Moreover, the possibility for the applicant party to submit a fresh petition for registration, once it has complied with the pertinent requirements under the law, has remained open.
Therefore, the Commission does not find that the Bulgarian courts, when refusing the applicant party’s petition for registration in the particular circumstances of the case, have interfered with its rights under Article 11 (Art. 11) of the Convention.
In Gorzelik and Others v Poland, [ click for full case explanation ]In focus:
Gorzelik and Others v Poland
In the
Gorzelik and Others v Poland, the ECtHR did not find a violation of article 11. The Court accepted the State’s argumentation that it had to act at the moment of registration and in doing so it did not act upon mere suspicion.
94. The principal reason for the interference thereby caused with the applicants’ enjoyment of their freedom of association was to pre-empt their anticipated attempt to claim special privileges under the 1993 Elections Act, in particular an exemption from the threshold of 5% of the votes normally required to obtain seats in Parliament and certain advantages in respect of the registration of electoral lists. … The applicants, for their part, asserted that the impugned restriction was premature and that the authorities had based their decisions on unfounded suspicions as to their true intentions and on speculation about their future actions. They stressed that running for elections was not one of the aims stated in their memorandum of association …
102. The Court will accordingly proceed on the understanding [… that] the risk that the association and its members might claim electoral privileges was inherent in any decision that allowed them to form the association without first amending paragraph 30 of the memorandum of association.
103. That being so, the appropriate time for countering the risk of the perceived mischief, and thereby ensuring that the rights of other persons or entities participating in parliamentary elections would not actually be infringed, was at the moment of registration of the association and not later. […] In reality, imposing as a condition for registration of the association that the reference to an “organisation of a national minority” be removed from paragraph 30 of the memorandum of association was no more than the legitimate exercise by the Polish courts of their power to control the lawfulness of this instrument, including the power to refuse any ambiguous or misleading clause liable to lead to an abuse of the law …
105. However, the degree of interference under paragraph 2 of Article 11 cannot be considered in the abstract and must be assessed in the particular context of the case. […] It by no means amounted to a denial of the distinctive ethnic and cultural identity of Silesians or to a disregard for the association’s primary aim, which was to “awaken and strengthen the national consciousness of Silesians.”
the ECtHR concluded that in this particular case, Polish national legislation provided that the adequate moment to intervene indeed was at registration and that the State did not act upon mere suspicion. The case involved the Polish authorities’ refusal to register an association with the name “Organisation of the Silesian national minority” with the primary aim to strengthen national consciousness of Silesians. According to Polish law, an association recognized as a national minority – as mentioned in the association’s denomination and constituting documents – automatically may trigger privileges with regard to elections. Therefore the risk of using the registration to acquire special status under the electoral laws of the country would automatically rise with the registration. In this specific circumstance, the ECtHR found that there had been no violation of Article 11. The moment to act for the State was at the point of registration. In addition, the applicants could have amended the organization’s statutes to remove concerns about electoral ambitions, and in doing so, could have still continued to conduct its cultural and other activities.
Where the State denies registration, it must provide clear reasoning and ensure access to judicial review:
Any decision rejecting the submission or application must be clearly motivated and duly communicated in writing to the applicant. Associations whose submissions or applications have been rejected should have the opportunity to challenge the decision before an independent and impartial court. In this regard, the Special Rapporteur refers to a decision of the Freedom of Association Committee of the International Labour Organization (ILO), in which it ruled that “the absence of recourse to a judicial authority against any refusal by the Ministry to grant an authorization to establish a trade union violates the principles of freedom of association.”
Judicial review is also vital in ensuring that refusal of registration is not used to limit freedom of association:
States should guarantee the right of an association to appeal against any refusal of registration. Effective and prompt recourse against any rejection of application and independent judicial review regarding the decisions of the registration authority is necessary to ensure that the laws governing the registration process are not used as obstacles to the right to freedom of association.