Suspension and the involuntary dissolution of an association are among the severest restrictions on freedom of association. Such measure must always comply with the requirements of Article 22(2) of the Covenant. Given the severity of these measures, they may only be used when there is a clear and imminent threat to for example national security of public in accordance with the interpretations of international human rights law. It must be strictly proportional to the legitimate aim pursued and used only when softer measures would be insufficient.[2] UN Human Rights Council, First Thematic Report of the 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 75.
The Human Rights Committee applies a strict proportionality assessment for dissolutions. Article 56 of the Draft African Guidelines mirrors this high standard for assessing the proportionality of the measure, and has emphasized that it should be a measure of last resort only:
Suspension or dissolution of an association by the government may only be applied where there is a clear and imminent danger resulting in a flagrant violation of national law, in compliance with international human rights law and as a matter of last resort.
12.1 Proportionality: severity of the measure and last resort measure
The Human Rights Committee has highlighted the particularly “severe consequences” of an organization’s dissolution and has taken this severity into account when assessing the proportionality of the restrictive measure:
Taking into account the severe consequences of the dissolution of “Viasna” for the exercise of the author’s and his co-authors’ right to freedom of association, as well as the unlawfulness of the operation of unregistered associations in Belarus, the Committee concludes that the dissolution of the association is disproportionate.
The Study Report on Freedom of Association & Assembly by the African Commission affirmed that dissolution may only be applied if there is a clear and imminent danger. Similarly, the OSCE/ODIHR and Venice Commission Joint Guidelines clarify that it should always be a measure of last resort:
A restriction shall always be narrowly construed and applied and shall never completely extinguish the right nor encroach on its essence. In particular, any prohibition or dissolution of an association shall always be a measure of last resort, such as when an association has engaged in conduct that creates an imminent threat of violence or other grave violation of the law, and shall never be used to address minor infractions.
Also, the ECtHR has underscored the extreme and severe nature of an involuntary dissolution when finding this form of interference to be disproportionate.
12.2 Only by a judicial body
Given the severity of the interference, the Inter-American Commission has held that dissolution of an association may only result from a determination by a court, as opposed to an administrative body. The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association fully endorses this position:
Suspension or involuntarily dissolution of associations should be sanctioned by an impartial and independent court in case of a clear and imminent danger resulting in a flagrant violation of domestic laws, in compliance with international human rights law.
Article 56 of the Draft African Guidelines takes the same approach:
Suspension may only be taken following court order, and dissolution only following a full judicial procedure and the exhaustion of all available appeal mechanisms. Such judgments shall be made publicly available and shall be determined on the basis of clear legal criteria in accordance with international human rights law.
The European Court confirmed that once dissolved – or refused registration – the association maintains its right to bring a claim before the ECtHR. In the case United Communist Party and Others v Turkey, the ECtHR held that “[t]he right guaranteed by Article 11 would be largely theoretical and illusory if it were limited to the founding of an association, since the national authorities could immediately disband the association without having to comply with the Convention.”[11] United Communist Party of Turkey and others v. Turkey, ECtHR, Judgment of 20 January 1998, para. 33.
The ILO’s Committee on Freedom of Association follows the same logic and holds that because of the extreme nature of the measure, suspension or involuntary dissolution must always be subject to judicial review and the association’s rights to defense must be fully guaranteed.
12.3 Failing to comply with administrative obligations
Failing to comply with administrative obligations enshrined in national law is not a sufficient ground for dissolution. The UN Rapporteur specifically clarified that should an association fail to meet its reporting obligations, such a violation should not lead to involuntary dissolution, closure of association or prosecution of its members. Instead, the association should be given an opportunity to rectify the situation.
The Human Rights Committee has examined several cases where the State improperly dissolved or suspended an association. In a string of cases arising in Belarus, it has found violations of the right to freedom of association where the State arbitrarily used its laws on association to dissolve or suspend organizations.
In Korneenko et al v. Belarus [ click for full case explanation ]
In focus:
Korneenko et al v. Belarus
In the case of Korneenko et al v. Belarus, the Human Rights Committee reasoned that:
“In the present case, the court order dissolving ‘Civil Initiatives’ is based on two types of perceived violations of the State party’s domestic law: (1) improper use of equipment, received through foreign grants, for the production of propaganda materials and the conduct of propaganda activities; and (2) deficiencies in the association’s documentation. These two groups of legal requirements constitute de facto restrictions and must be assessed in the light of the consequences which arise for the author and ‘Civil Initiatives’.
On the first point, the Committee notes that the author and the State party disagree on whether ‘Civil Initiatives’ indeed used its equipment for the stated purposes. It considers that even if ‘Civil Initiatives’ used such equipment, the State party has not advanced any argument as to why it would be necessary, for purposes of Article 22, paragraph 2, to prohibit its use ‘for the preparation of gatherings, meetings, street processions, demonstrations, pickets, strikes, production and the dissemination of propaganda materials, as well as the organization of seminars and other forms of propaganda activities’.
On the second point, the Committee notes that the parties disagree over the interpretation of domestic law and the State party’s failure to advance arguments as to which of the three deficiencies in the association’s documentation triggers the application of the restrictions spelled out in Article 22, paragraph 2, of the Covenant. Even if ‘Civil Initiatives’’ documentation did not fully comply with the requirements of domestic law, the reaction of the State party’s authorities in dissolving the association was disproportionate.”
, the applicants’ NGO had been dissolved for failing to comply with national law regarding the use of foreign funds, equipment purchased with foreign funds and for apparent flaws in its official documents. The Human Rights Committee found the State Party had violated the applicants’ rights to freedom of association because it failed to show (1) that the restrictions on the use of foreign funds were necessary to any legitimate State interest, or (2) that the dissolution of an organization was proportionate to any technical failings in its attempts to comply with Belarussian law [click for full case explanation].
In Belyatsky v Belarus, the Human Rights Committee found that Belarus violated the applicants’ rights to freedom association where it dissolved an NGO, Viasna, for its monitoring of Belarus’ 2001 national elections. Viasna raised questions about the legitimacy of the elections. It was dissolved by court order soon after for violating the laws on elections by sending monitors to election committee meetings and polling stations, and for violating the law governing public associations by paying third party observers in addition to relying on “members” of the association. The Human Rights Committee held that Belarus had again failed to show that the dissolution of the organization was in pursuit of a legitimate aim or was necessary or proportionate to any such State interest. Instead, the HRC took the opportunity to remind the State Party that “the existence and operation of associations, including those which peacefully promote ideas not necessarily favorably received by the government or the majority of the population, is a cornerstone of a democratic society”[16] Aleksander Belyatsky et al. v. Belarus, Human Rights Committee, UN Doc. CCPR/C/90/D/1296/2004, Views of 7 August 2007, para. 7.3.
[ click for full case explanation ]
In focus:
Belyatsky v Belarus
In the case of
Belyatsky v. Belarus, the Human Rights Committee observed that:
The mere existence of reasonable and objective justifications for limiting the right to freedom of association is not sufficient. The State party must further demonstrate that the prohibition of an association is necessary to avert a real and not only hypothetical danger to national security or democratic order, and that less intrusive measures would be insufficient to achieve the same purpose.
In the present case, the court order which dissolved “Viasna” is based on perceived violations of the State party’s electoral laws carried out during the association’s monitoring of the 2001 Presidential elections. This de facto restriction on the freedom of association must be assessed in the light of the consequences which arise for the author, the co-authors and the association.
The Committee notes that the author and the State party disagree over the interpretation of article 57, paragraph 2, of the Civil Procedure Code, and its compatibility with the lex specialis governing the legal regime applicable to public associations in Belarus. It considers that even if “Viasna’s” perceived violations of electoral laws were to fall in the category of the ‘repeated commission of gross breaches of the law’, the State party has not advanced a plausible argument as to whether the grounds on which “Viasna” was dissolved were compatible with any of the criteria listed in Article 22, paragraph 2, of the Covenant. As stated by the [Belarus] Supreme Court, the violations of electoral laws consisted of “Viasna’s” non-compliance with the established procedure of sending its observers to the meetings of the electoral commission and to the polling stations; and offering to pay third persons, not being members of “Viasna”, for their services as observers.
In Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, a case in which the State had dissolved an association on the basis of not respecting rules on holding a meeting of the general assembly, the ECtHR took the same approach. The Court did not find a pressing social need for dissolution and concluded that:
the order to dissolve the association on the ground of the alleged breaches of the domestic legal requirements on internal management of NGOs was not justified by compelling reasons and was disproportionate to the legitimate aim pursued
The Venice Commission’s opinion on Belarus similarly clarified that penalizing actions connected with the organization or management of an association on the sole ground that the association has not been registered does not meet the three-prong test for restricting the right to freedom of association.
12.4 Mere allegations of criminal conduct
In Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, the State also advanced criminal allegations to dissolve the association. These allegations were however not substantiated by evidence, nor by any criminal charges against the leadership of the association. The ECtHR found that unproven allegations of unlawful activities were not a legitimate basis for dissolution of the association.
12.5 Destructing democracy and inciting violence
Measures of suspension or dissolution may be proportionate in extreme cases, such as when an association incites violence or advocates for the destruction of democracy.
The protection of associational objectives which promote ideas not favorable to the government is guaranteed under international law (see Association Section 8). The ECtHR has emphasized on several occasions that an association, including a political party, is not excluded from the protection afforded by the Convention simply because its activities are regarded by the national authorities as undermining the constitutional structures of the State. In Refah Partisi v. Turkey, the ECtHR clarified however, that a political party inciting to violence or aiming at destroying the democratic order cannot claim protection under the Convention:[22] See Refah Partisi (the Welfare Party) v. Turkey, ECtHR, Judgment of 13 February 2003, para. 98-100.
It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention’s protection against penalties imposed on those grounds
More recently, in Vona v Hungary, the ECtHR extended the application of the reasoning in Refah Partisi v. Turkey, and held that States can take preventive measures to protect democracy, including vis-à-vis associations that are not political parties. It did not find a violation of Article 11 in a case whereby the Hungarian Guard Association was dissolved. The association had also founded a related Hungarian Guard Movement. Among its activities were holding military-like parading with military-style uniforms and rallies in Roma communities under the theme of “Gypsy criminality,” which included participants wearing armbands similar to those of the Arrow Cross, a nationalist socialist party during World War II. In addressing the dissolution of the association, the ECtHR gave weight to concrete steps taken by the movement and reasoned:
The State is also entitled to take preventive measures to protect democracy vis-à-vis such non-party entities if a sufficiently imminent prejudice to the rights of others threatens to undermine the fundamental values on the basis of which a democratic society exists and functions. […] the State is entitled to act preventively if it is established that such a movement has started to take concrete steps in public life to implement a policy incompatible with the standards of the Convention and democracy.
It is important to note that the specific facts of this case – especially the paramilitary nature of some of the activities, the history of the country and the intimidating effects on a vulnerable ethnic group – seem to have played an important role in the conclusion by the ECtHR. The Court accepted in this case that the threat posed could only be effectively eliminated by removing the movement’s organizational backing.
In Eusko Abertizale Ekintza – Accion Nacionalista Vasca v Spain, the European Court accepted the legitimacy of the dissolution of the party taking into account the linkages, albeit not formal, but practical, including financial, between the party and Euskadi Ta Askatasuna (ETA), declared a terrorist organization in Spain.
In a remarkable case, Les Authentiks and Supras Auteuil 91 v. France, the ECtHR found that the dissolution of a football supporters’ club in France did not amount to a violation of the right to freedom of association. Even though, in this case, the local courts had not established any negligence on the part of the applicant associations for very violent acts (resulting in deaths), they established that their involvement in the events had led to public disorder by certain supporters acting as members of the association. Again, it is important to consider the case in its specific context of a long period of very violent outbreaks in football stadiums for which a number of other government measures had not yielded effects. In this particular situation, the ECtHR accepted the legitimacy of the “pressing social need” to impose drastic restrictions on groups of supporters, thereby infringing the very essence of freedom of association, in order to prevent and eliminate the risk of public disorder. When considering the necessity of the measure, the Court also took the nature of the organization into account, namely the promotion of a football club. The Court found such association to be less vital to a democratic society.[28] Les Authentiks and Supras Auteuil 91 v. France, ECtHR, Judgment of 27 October 2016, para. 84.
Even in cases where State authorities take the measure of dissolution because they find the association is inciting violence, a strict proportionality test must be applied.
The AComHPR confirmed this clearly in the case Interights and Others v Mauritania, where the Union des Forces Démocratiques-Ere nouvelle (UFD/EN, Union of Democratic Forces-New Era), a Mauritanian political party, had been dissolved by the Prime Minister of the Republic of Mauritania. According to the State, the measure was imposed “following a series of actions and undertakings committed by the leaders of this political organisation, and which were damaging to the good image and interests of the country; incited Mauritanians to violence and intolerance; and led to demonstrations which compromised public order, peace and security.” However, the Commission found that the dissolution was not proportional to the nature of the offences committed because the State had a range of other options to consider, and therefore found a violation of the right to freedom of association (Article 10(1) of the African Charter):
81. In this particular case it is obvious that the dissolution of the UFD/EN had the main objective of preventing the party leaders from continuing to be responsible for actions for declarations or for the adoption of positions which, according to the Mauritanian government, caused public disorder and seriously threatened the credit, social cohesion and public order in the country.
82. Nonetheless, and without wanting to pre-empt the judgment of the Mauritanian authorities, it appears to the African Commission that the said authorities had a whole gamut of sanctions which they could have used without having to resort to the dissolution of this party. It would appear in fact that if the respondent state wished to end the verbal ‘drifting’ of the UFD/EN party and to avoid the repetition by this same party of its behaviour prohibited by the law, the respondent state could have used a large number of measures enabling it, since the first escapade of this political party, to contain this ‘grave threat to public order’.
12.6 De facto dissolution
It may be argued that a number of measures amount to a de facto dissolution.
The Special Rapporteur has argued in an amicus brief that hasty approvals by government authorities of a new composition of an association’s board – while knowing that it was contested by the governing board and against a background of earlier threats by authorities not to renew the association’s registration – had the effect of an involuntary dissolution of the association.
Similarly it can be argued that the impact of withdrawing the legal personality of an association may be so severe that it amounts to a de facto dissolution. Without legal personality, associations often cannot transact or engage resources (human and financial) in the name of the association, which are key to carrying out the purposes for which they are formed (see Association Section 7).