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Euro-Mediterranean Region (including Greece):
Report on freedom of association
March 14, 2008
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Greek Helsinki Monitor - Press Release
Greek Helsinki Monitor (GHM) brings to the attention of the wider public the report �Freedom of Association in the Euro-Mediterranean Region� published in December 2007 by the Euro-Mediterranean Human Rights Network (EMHRN). GHM is an EMHRN member and GHM�s Spokesperson Panayote Dimitras is a member of the EMHRN�s �Freedom of Association Working Group� and of the Group�s Second Steering Committee which held its first meeting today to prepare the second report to be published later in 2008.
The first report has a general overview section, national chapters on Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, Palestine, Syria, Tunisia, Turkey, as well as a chapter on Europe.
Information on the Group and the Report from the related EMHRN web page is presented below, followed by the chapter on Europe that includes information on Greece.
Freedom of Association: An Indicator of Democratic Development
http://www.euromedrights.net/pages/439/page/language/1
Freedom of association is a core civil and political right (closely linked to freedom of expression and assembly) protected by all international instruments related to Human Rights. Freedom of association is a prerequisite for the sound development of political parties, trade unions, NGOs (including human rights NGOs) and more generally for a vibrant civil society. As such it is an important indicator of democratic development.
Freedom of Association in the Euro-Mediterranean Region
In December 2007, the Euro-Mediterranean Human Rights Network issued the first report on freedom of association. This work includes a complete inventory, country by country, of the exercise of freedom of association in the Euro-Mediterranean region.
� Read the general introduction
� Read the overview
� Read the general recommendations
� Read the national reports
 Algeria
 Libya
 Egypt
 Morocco
 Europe
 Palestine
 Israel
 Syria
 Jordan
 Tunisia
 Lebanon
 Turquey
Freedom of Association Working Group
The Network has identified freedom of association as one of its key working areas for the future and decided at its last General Assembly to establish a working group dealing with this specific issue.
Read more...
This page has been created with the support of the European commission (The opinions expressed by the authors do not represent the official point of views of financial donors)
Freedom of Association in EUROPE
Summary Report
http://www.euromedrights.net/pages/441/page/language/1
NOTE: For footnotes and detailed annexes see the full version available at http://www.euromedrights.net/usr/00000019/00000077/00000078/00001868.pdf
Introduction
1. Freedom of association is an individual freedom protected by all the major international and European human rights instruments (see annex 1) and by all the national Constitutions of the member states of the European Union.[1]
2. Restrictions on freedom of association, as protected under Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, have been interpreted narrowly by the European Court of Human Rights (�the ECtHR�) to the effect that: �only convincing and compelling reasons can justify restrictions on freedom of association [...] States have only a limited margin of appreciation.�[2]
3. Furthermore, the importance of freedom of association within Europe is reflected in the fact that it is the sole region which has agreed an international Convention guaranteeing the right of any association, which has its headquarters in the ratifying state to automatically enjoy the same legal capacity to act in another member State. The Convention of the Council of Europe on the Recognition of the Legal Personality of International Non-Governmental Associations (CETS No 124 of 24 April 1986) has been ratified by eleven states[3] as of 1 September 2007.[4]
4. Supported by these guarantees, European citizens are very active third sector participants: among the 27 member States of the European Union the number of registered associations is estimated to be more than 3 million,[5] representing on average 6 associations per 1,000 people (note that this fails to take into account that registration is usually not necessary in common law countries such as the UK and Ireland).[6] Of these States some have particularly high numbers of associations: e.g. France has close to 800,000 registered associations encompassing 10 to 12 million volunteers;[7] the United Kingdom has almost 500,000 voluntary organisations with 600,000 employees representing 2,2 % of the total workforce.[8] It is estimated that 90% of Danish citizens are members of at least one association, and that 73% are members of several.[9] Voluntary working time in Sweden is estimated at 480 million hours per year, the equivalent of 300,000 full time jobs and worth 8 million Euros;[10] whereas Hungary hires more than 90,000 employees.[11] German associations are particularly active in the health and social sectors: they manage 40% of hospitals, 85% of youth clubs and 55% of old people�s homes.[12]
5. However, despite its strong protection in law by European institutions and EU Member States and its widespread exercise by millions of citizens there are a number of disturbing trends that are undermining its enjoyment. In particular, the so-called �war on terror� has resulted in the proscription of a number of associations combined with restrictions on operations. This, together with other discriminatory measures has had a disproportionate impact on minorities.
Impact of �war on terror�
6. Since 11 September 2001 (and even before this date), the global fight against terrorism has resulted in frequent wide ranging restrictions on many human rights across numerous countries, including in Europe. Whilst such restrictions have most conspicuously impacted on individual liberty and privacy (e.g. extending detention without charge or trial for terrorist suspects; psychological profiling, interception of communications),[13] there has also been breaches of freedom of association and related rights to free expression and assembly.
7. Arguing that associations - whether officially created or not - can be used by individuals to organise and carry out terrorist acts, some States have blacklisted individuals and organisations suspected of supporting and/or carrying out terrorist acts, frozen of funds, and thus activities, or required them to publicly disclose their sources of funding. However, as will be seen below, the process by which such decisions are reached are often flawed lacking transparency and due process.
Restricting minority rights
8. In addition, the last few years have also witnessed an increase in the restrictions placed on minority associations, whether these are national, religious or sexual. Whilst the motives behind some restrictions are security driven, others (e.g. the prevention of gay rights marches in some Eastern European countries) have their roots in longstanding discriminatory attitudes and behaviour.
9. This study adopts the same format as those undertaken on the Southern and Eastern Mediterranean countries: the first section focuses on the formation and incorporation of associations, the second examines their suspension and dissolution, the third addresses their organisation and operation whilst the final one looks at funding and taxation. It is not an exhaustive survey but combines an analysis of particularly egregious legal restrictions that have been put in place with significant case studies of the impact felt by civil society.[14]
Formation and incorporation
10. Generally, laws governing the formation and incorporation of European associations are based on a �principe declaratif� (�notification system�). Contrary to most of the South Mediterranean countries, where a group needs prior authorisation from authorities to form an association, this principle means in EU countries no such authorisation is required. Instead, the registration system is based on simple information/notification of the existence of such an association. As soon as authorities are informed, an association acquire a legal personality, which is distinct from that of its members and most likely to impact on the rights of third parties.
11. However, citing threats to national sovereignty and/or territorial integrity by minority movements, some States have refused to register some groups. Such cases occur particularly frequently, although not exclusively, in Southern Europe. In Greece, the group �House of the Macedonian Civilization (Stegi Makedonikou Politismou) was refused incorporation on the grounds that its members opposed the Greek identity of the country�s province of Macedonia, thereby threatening Greece�s territorial integrity.[15] A refusal on similar grounds occurred in Bulgaria, where the registration of group � OMO Ilinden PIRIN � was denied for the reason that �its statutes and programmes run contrary to the nation�s unity� in that they were aimed at defending the Macedonian minority within the province.[16]
12. These restrictions have occurred despite the fact that international human rights case law requires that only �relevant and sufficient�[17] criteria should be used to justify registration refusal. Specifically, �campaigning in favour of a change in the legal and constitutional order is not in itself incompatible with the principles of democracy� and the ��opening� of a border [...] does not seem to jeopardize a country�s integrity or national security.�[18]Refusing registration on the grounds that a group�s name includes words from a minority language in its title has also been considered to increase the risk of a potential breach of the right to freedom of association.[19] In contrast, the refusal to register an association whose only aim is to provide its members with the benefits attached to the qualification of national minority is legitimate.[20]
13. Refusal also has to be placed on concrete evidence rather than supposition which, as noted by the European Court of Human Rights, can only be known by the State after an association has started functioning.[21]
14. When a refusal to register results in a violation of article 11 of the ECHR, the state must take all necessary measures to restore legality, including �if the case arises, individual measures to put an end to the violation and erase its consequences with the aim to guarantee as much as possible restitutio in integrum (full compensation).�[22] This was the conclusion of the Committee of Ministers when monitoring the execution of the judgment in the refusal of the Bulgarian authorities to register the group � OMO Ilinden PIRIN. � However, despite repeated requests (the most recent being 7 February 2007) the Bulgarian government has continued to refuse to implement the judgment of the European Court and either to register the association and/or provide appropriate compensation.[23] On 23 August, the Sofia City Court rejected once again an application from the group; the case is now before the Supreme Court of Cassation.
15. Finally, it should be noted that, although European States do not generally restrict the ability of foreigners to form and participate in associations [24] � in conformity with article 3 of the Convention of the Council of Europe on the Participation of Foreigners in Public Life at Local Level of 5 February 1992, ECTS No. 144[25] � the practice of Spain continues to cause concern. According to article 8 of the �organic law on the rights and freedoms of foreigners in Spain and their social integration� of 22 December 2000, the right to freedom of association is limited to those foreigners who have been granted a resident�s permit or leave to remain.[26] However, the law does grant the right to free judicial assistance to defend their rights to the sole legal foreigners.[27] This restriction has been expressly criticised by the Council of Europe�s Commissioner for Human Rights in 2005.[28]
Dissolution and suspension
16. Clearly, an association can be dissolved for internal reasons following a decision of its members. At the same time, external dissolution can be enforced if an association�s activities are viewed as contravening relevant regulatory laws. However, such dissolution procedures are rare in Europe with national authorities only tending to intervene when the association acts in total contradiction of fundamental rights; for example, the pursuit of a racist goal.[29] Even in such cases, the justification is not always clear with some decisions apparently being more motivated by nationalist concerns than the protection of minority rights : e.g., the Greek Court of Cassation dissolved the association Turkish Union of Xanthi on the basis that �its aim is illegal and contrary to Greek public order, since it is in contradiction with the international treaties signed in Lausanne (which only recognize the presence of a religious Muslim minority in the area of Western Thrace, and not a national Turkish minority). The reference to the Turkish identity does not reflect some remote Turkish origin but a current quality as members of a Turkish minority that would exist in Greece and would pursue the promotion within the Greek state of state interests of a foreign state and specifically Turkey. The association with its actions (�) gravely endangers Greek public order and national security (�) and raises a non-existent minority problem of �Turks.�[30]
17. Even though outrights dissolution might be rare, by freezing the assets of associations suspected of terrorism, recent counter terrorism laws have effectively suspended the activities of associations since it is clear that, without funds, an association cannot function properly.
Impact of �war on terror�: international and regional measures
18. Even before 11 September 2001, the United Nations Security Council, in the light of the takeover of Afghanistan by the Taliban, had adopted resolution 1267 (1999) requiring all states to �freeze funds and other financial resources [�] owned or controlled [�] by the Taliban [�] as designated by the Committee established by paragraph 6.��[31]Subsequently,on March 8th 2001, this Committee, known as the �Sanctions Committee�,[32] and composed of all Security Council members, drew up a (�black�) list of persons and entities suspected of terrorism whose financial assets shall be frozen accordingly.
19. Since 11 September 2001 attacks, the United Nations has adopted several measures to prevent terrorist groups from abusing freedom of association on the basis that terrorism, as well as posing a threat to global security, also undermines human rights, the rule of law and pluralist democracies. In particular, the Security Council has adopted Resolution 1373 (2001), which sets out the general framework for the global fight against terrorism, ordered States to freeze the funds of individuals and groups suspected of terrorism and tasked the Sanctions Committee with supervising the updating of the list of persons and entities suspected of terrorism whose financial assets shall be frozen (In fact, since September 11th, Sanctions Committee, established by resolution 1267 (amended different times) is the Committee in charge of updating the list of persons and entities suspected of terrorism whose financial assets shall be frozen).
20. Whilst the need to tackle the funding and support of terrorism cannot be denied, the process by which individuals and organisations are placed on the blacklist�,[33] leaving aside the normal errors that will arise,[34] suffers from three major weaknesses. Firstly, the sanctions of freezing assets, which are criminal in nature, are determined by political rather than judicial bodies; secondly, the sanctions are adopted without those who are subjected to them being heard, or even notified; thirdly, they cannot be subject to judicial challenge since the Security Council did not provide any right of appeal against such decisions, and, in any event, its resolutions cannot be challenged in a court of law.[35] Removal form the list is only possible if all the members of the Sanctions Committee agree to it and, even then, the individual subjected to sanctions is neither heard nor informed of the evidence which led to his/her being put on the list.[36] In a recent Report of Dick Marty, MP at the Council of Europe, Symeon Karagiannis has commented this situation: �To demonstrate a lack of guilt without knowing what you have been held guilty for must not be easy� [NDTR unofficial translation].[37] Unsurprisingly, in the light of these failings, the process has been the subject of strong criticism, including by the United Nations Special Rapporteur on Terrorism and Human Rights.[38]
21. However, despite these failings and criticism, the European Union, together with its members, in accordance with article 103 of the United Nations Charter[39] and article 307 of the Treaty establishing the European Community,[40] is obliged to implement decisions of the Security Council. Hence in order to implement resolution 1373 (2001), the European Union established, through two[41] legal instruments, its own procedures for freezing the funds of associations suspected of terrorism: The Council Common Position 2001/931/CFSP of 27 December 2001 on �the application of specific measures to combat terrorism� and the Council Regulation (EC) No 2580/2001 of 27 December 2001 on �specific restrictive measures directed against certain persons and entities with a view to combating terrorism.�[42] It could be noted that the European Parliament, which was not consulted on the process, criticized the procedure used by the Council in its Resolution �on the Council�s decision of 27 December 2001 on measures to counter terrorism� of 7 February 2002.[43]
22. One problem with these arrangements is that these two European instruments create two different �blacklists� of associations. Firstly, the Common Position 2001/931/CFSP establishes in its annex a list of persons, groups and entities involved in terrorist activities and whose funds must be frozen. This list is updated every six months.[44] In addition, the Council�s Decision 2001/927/CE which implement article 2 paragraph 3 of the Regulation (EC) No 2580/2001 establishes another list (�The Council, [...] shall establish, review and amend the list of persons, groups and entities� whose funds must be frozen). Since 2001, this list is updated twice a year.[45] Unsurprisingly, as is outlined below (see: paragraph 24), the names on these two lists differ.
23. The problems are further exacerbated by the fact that, according to article 46 of the Treaty on European Union, no judicial appeal is possible against Common Positions taken in the framework of the CFSP. However, actions for annulment can be brought against those Regulations of �direct and individual� concern to individuals and community Decisions before the Court of Justice of European Communities (�the ECJ�), under article 230 of the Treaty establishing the European Community.[46] It was on this basis that the case of People�s Mujahedin of Iran was taken before the ECJ(see paragraph 26 below).
24. The impossibility of contesting such a list becomes all the more disturbing given that it has been adopted by a political body without any of the evidence being subject to independent and impartial judicial scrutiny: �The list in the Annex [of Common Position 2001/931/CFSP] shall be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious and credible evidence or clues, or condemnation for such deeds. Persons, groups and entities identified by the Security Council of the United Nations as being related to terrorism and against whom it has ordered sanctions may be included in the list.�[47]
25. Moreover, such lists adopted through a Common Position discriminate against European associations suspected of terrorism since only non-European associations appear to be entitled to contest the possible consequences of being included, although not the inclusion itself. Indeed, the Common Position 2001/931/CFSP precise, in its index, blacklisted European associations come under article 4[48] of this Common Position. However, in the cases Segi and Gestoras Pro-Aminstia[49]- two European associations - the European Court of Human Rights held inadmissible their claims since �the applicants are subject only to Article 4 Common Position 2001/931/CFSP.[However, article 4]does not add any new powers which could be exercised against the applicants[...]Consequently, the Court considers that the situation complained of does not give the applicant associations the status of victims of a violation of the Convention within the meaning of Article 34 of the ECHR.� In other words, no action is possible for them before the ECtHR.In 2004, the two associations then turned to the ECJ, but on 7 June 2004, the latter declared it was not competent to decide on their case because the matter concerns police and judicial cooperation, which falls outside community issues.[50] The result is that European associations appear to be deprived of their right to an effective remedy.[51]
26. The two European �blacklists� are drafted within a body called �the clearing house� before being adopted by the European Foreign Ministers. The whole procedure and, in particular the obscure �clearing house� body, has been criticised for its secrecy and lack of transparency.[52] The �clearing house� is composed of national intelligence services and does not appear on the organisational chart of the EU Council. Moreover, when the �clearing house� establishes a new list of names, it is forwarded to the ambassadors of the Member States of the European Union who adopt it as A-point (Agenda item without discussion), i.e. automatically, without any further discussion.[53]
27. On 13 December 2006, this lack of transparency and violation of the defendants� rights was condemned for the first time by the ECJ in the case �People�s Mujahedin of Iran� (T-228/02) when it held that �the decision ordering the freezing of the OMPI�s funds [by EU] does not contain a sufficient statement of reasons and that it was adopted in the course of a procedure during which the right of the party concerned to a fair hearing was not observed, and that it is not in a position to review the lawfulness of that decision. Accordingly that decision must be annulledin so far as it concerns the OMPI.� However, in complete violation of the legal decision of December 2006, the �People�s Mujahedin of Iran� appeared on the two new �black lists� (both the Common Position and the Decision) adopted on 28 June 2007 (see annex 2); the European Union claimed that it had this time fully respected its duty to inform by sending a letter of notification to each person and entities blacklisted.[54] On 11 July 2007, the confidential and inequitable nature of the procedure was again condemned in two further cases: Jose Maria Sison /Council of the European Union[55] and Stichting Al-Aqsa / Council of the European Union.[56]Further cases are pending (see annex 3).
Impact of �war on terror�: National measures
28. There are also concerns that some national authorities are adopting an overbroad approach to the designation of certain associations as supporting terrorism. On 7 June 2007 the Belgian Court of Cassation rejected the appeal of the association � Groupe Islamique Combattant Marocain against its naming as a terrorist organisation by the government, although it had never committed, attempted to commit or even threatened to commit a terrorist act, on the basis that it was sufficient for the organisation to �aspire� at perpetrating such acts : �Violation of articles 139 [definition of a terrorist group] and 140 [participation in terrorist activities or group] of the Penal Code is established despite the fact that the vocation of the group has not been materialised by any activity in preparation of a terrorist act� [NDTR Unofficial translation].[57] Such an analysis has been condemned by one commentator as amounting to �assumed criminality�,[58] thereby contradicting fundamental criminal law principles relating to the presumption of innocence.
29. Such an assessment could equally be applied to recent British legislation. The Terrorism Act 2006 includes in the �blacklist� of terrorist individuals and entities, persons who not just commit, participate in, prepare or instigate a terrorist act but who incite it. However, it is not necessary to prove incitement to show that an individual or organisation is consciously encouraging terrorism.[59] Instead, according to the Act, persons are responsible for the manner in which their statements can be received, whatever their intention might be![60] On the positive side, the United-Kingdom does have a special mechanism for associations to appeal against their inclusion on the �blacklist�.[61]
30. In some cases the inclusion of a particular association on a �blacklist� is simply incoherent and contrary to the rule of law.[62] On 8 July 2004, the French Court of Cassation[63] refused to extradite Amaya Recarte, spokesperson for the association Segi (an association appearing on the European �blacklist� as it is considered the youth wing of Batasuna) to the Spanish judicial authorities, as was required by a European arrest warrant. This led Amnesty International to conclude that: �It would seem therefore that, while France must have agreed to the inclusion of Segi on the list (as such a decision requires unanimity), in practice France does not consider their activities to amount to terrorist offences that require prosecution. This discrepancy calls into question not only the consistency of states� practices but also the legitimacy of the lists themselves��[64]
31. Thus, the obligation to ensure that any measures � whether criminal or civil � taken against an association suspected of terrorism have a strong basis in law is particularly significant in relation to some organisations, e.g. those working on behalf of the rights of others [65]or opposition movements[66] since suspicions are automatically raised that they are being penalised because of their activities.
32. In light of these different (but by no means exhaustive) examples, there is a clear issue of the lack of proportionality between the measures taken and the actual or perceived threat frequently combined with an absence of due process and transparency. Both the �assumed criminality� principle and the criminalisation of opposition movements are legitimate causes for concern and show how easily the rule of law in Europe can be subverted.
Organisation and operation
33. According to article 11(2) of the ECHR, the exercise of freedom of association is not absolute but can be subjected to limitations, provided that they are �prescribed by law and [...] necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others�. This qualifying provision has been interpreted narrowly by the European Court of Human Rights when it held that� States have only a limited margin of appreciation� in applying article 11(2).[67]
Impact of �war on terror�
34. Despite this strict approach, and the fact that a number of international instruments relating to counter-terrorism guarantee freedom of association,[68] many states have used the �war on terror� to introduce a number of restrictions on freedom of association which has impacted significantly on the ability of several civil society organisations to operate effectively.
35. In the UK, the Prevention of Terrorism Act 2005 empowers the Home Secretary to issue control orders against any individual suspected of taking part in activities linked with terrorism, when necessary for public safety. These measures which can effectively amount to house arrest, infringe not only a person�s liberty and freedom of movement but also communication and association.[69] Such restrictions are all the more concerning given that participation in terrorist activities, as defined under the Act, need not be based on concrete actions by the individual themselves, but can also include the provision of assistance to individuals who are only suspected of committing acts or intending to do so.[70] Such a definition is overly broad, vague and subjective.
36. The law acknowledges that some of the restrictions are potentially incompatible with article 5 of the ECHR as regards the right to personal liberty and security thereby requiring a possible derogation. Consequently, the law provides for two types of control orders � derogatory measures and non-derogatory measures � each with a different procedure. On 1 August 2006, the English and Welsh Court of Appeal confirmed the decision of the High Court which had declared void and null many of the non-derogatory measures[71]. Although no breach of freedom of association was found, since this was not raised by the victims, it is doubtful whether the control order restrictions would meet the test of the European Court on Human Rights when it held that courts, in assessing any limitations on article 11 in respect of the fight against terrorism, �must, with due regard to the circumstances of each case and a State�s margin of appreciation, ascertain whether a fair balance has been struck between the individual�s fundamental right to freedom of expression and a democratic society�s legitimate right to protect itself against the activities of terrorist organisations�[72] requiring a �test of necessity� to be undertaken to ascertain whether the limitations meet answered a pressing need in a democratic society.
Restricting minority rights
37. Associations for the defence of minorities, in particular national ones, have also been subject to disproportionate limitations, including on some occasions harassment, by state authorities.[73] In the case Ouranio Toxo vs Greece, physical violence as well as destruction of the headquarters � the mayor of Florina has reportedly participated to those actions � of an association whose declared aims included the defense of the Macedonian minority living in Greece, the European Court of Human Rights found a violation of freedom of association stating that �mention of the consciousness of belonging to a minority and the preservation and development of a minority's culture cannot be said to constitute a threat to �democratic society�, even though it may provoke tensions. The emergence of tensions is one of the unavoidable consequences of pluralism, that is to say the free discussion of all political ideas�[74]
38. The ECtHR has also ruled that minorities� right to exercise freedom of expression (an �essential foundation of a democratic society��[75]according to the Court), corollary of freedom of association, must also be subject to strictly defined limitations whether legal[76] or practical.[77]
39. Besides, freedom of assembly � other corollary of freedom of association � may be subjected to restrictions. In a case Stankov and the United Macedonian Organisation Ilinden, in relation to the prohibition by authorities of the holding of commemorative meetings organised by the applicant association at the same time and place as official ceremonies,[78] the ECtHR held that: �the fact that a group of persons calls for autonomy or even requests secession of part of the country�s territory � thus demanding fundamental constitutional and territorial changes � cannot automatically justify a prohibition of its assemblies [...] In a democratic society based on the rule of law, political ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of assembly as well as by other lawful means.�
40. Furthermore, sexual minorities have been particularly subjected to breaches of their right to freedom of assembly in a number of Eastern European countries. For example, the ECtHR, in finding a violation of article 11 ECHR by Poland following the banning of two �Equality Marches� by homosexual rights associations in June 2005 in Warsaw and in November 2005 in Poznan on the grounds that these parades posed a threat to public security stated that �a genuine and effective respect for freedom of association and assembly [...] is of particular importance for persons holding unpopular views or belonging to minorities.�[79] Despite this positive ruling and other criticism by authoritative human rights bodies gay rights marches have continued to be subject to harassment and intimidation.[80]
Funding and taxation
41. In Europe � as in other regions � the strictest controls and monitoring of associations� activities relate to their financial operations. Whilst this is to be expected and is necessary it should not be used to unfairly penalise some associations solely on the basis of their aims and activities as opposed to their financial probity.
Controls at the international level
42. As outlined above (see section 2), European States have adopted measures to freeze the funds and financial assets of individuals, groups and entities involved in terrorist activities. However, in addition, on the grounds that terrorists and terrorist organisations use associations to collect and distribute funds, secure logistical support, encourage the recruitment of terrorists or support their activities, the Financial Action Task Force (which is a intergovernmental body, of which several European States are members[81] and independent of the OECD) has developed tools to promote national and international policies aiming at combating money laundering and terrorist financing. One of FATF�s many recommendations to date is of particular relevance: Special Recommendation VIII on non-profit organisations (NPOs), adopted in 1990, revised in 1996 and 2003.[82] Among others comments, the Interpretative Note to the Special Recommendation (30 May 2007) states that � NPOs should be licensed or registered. This information should be available to competent authorities�. This article should not be use as a pretext to substitute the �principe declaratif� (�notification system�) with a �prior authorization� approach. FATF has a mutual evaluation Programme to assess how member states are meeting their commitments.[83]
43. In addition to FATF, the European Union has also developed tools to bar access to terrorists from an association�s financial resources. An example is the European Commission�s Communication �The Prevention and Fight against Terrorist Financing through enhanced national level coordination and greater transparency of the non-profit sector� adopted on 29 November 2005, which includes in its annex �a Framework for a Code of Conduct for NPOs to enhance Transparency and Accountability in the Non-profit Sector to Prevent Terrorist Financing and other Types of Criminal Abuse.�[84] It also invites member States to carry out oversight of the non-profit sector and suggests that �[t]he oversight role could either be dedicated to a single public body or entrusted to existing authorities or to self-regulatory bodies�. How the proposed codes of conduct will be drafted and implemented (the European Commission foresees a meeting of experts for first quarter 2008) to ensure protection for freedom of association is particularly significant.[85]
44. Whilst controls and monitoring of associations� activities related to their financial operations is perfectly understandable and justified in terms of civil society good governance such oversight should be transparent, fair and objective and not be used to disproportionately penalise associations for political reasons. Moreover, the whole debate on the financing of terrorism through associations is only relevant to a very small percentage of the three million associations currently active in the European Union.
Controls at the national level
45. Associations wishing to send funds abroad are subjected to increased surveillance. In France, donations or legacies made to a foreign entity or State by associations, foundations or congregations require an order of authorisation from the Interior Minister upon recommendation from the Foreign Minister.[86] In Denmark, the association Al-Aqsa was recently accused of providing funds to Hamas, the Palestinian organisation on the European �blacklist� of terrorist entities. The association constantly denied those allegations, claiming that the money transferred to the Islamic charitable Society and the World Assembly of Muslim youth was for humanitarian purposes. On 26 March 2007, a court found in favour of the association. However, the case is currently on appeal. On September 19th, the firm �Fighters and Lovers� which sends the income from selling T-shirts to the associations FARC and FPLP - two associations on the European blacklists - was charged under article 114 B of Danish Criminal code, with offences potentially punishable with up to 6 years imprisonment[87] The case has yet to be heard but, it should be noted that the Danish Law on counter-terrorism includes an explanatory report which obliges the judiciary to take into account the need to respect human rights when making its decisions.[88]
46. The accounts of associations closely linked to religious groups have been subjected to particularly close scrutiny in France. Article 19 of the law of 1905 on the separation of Church and State specify that, in order to benefit from donations or legacies, cultural associations must have as exclusive aim the exercise of a religious cult.[89] In 2005, the Centre francais pour le Culte Musulman created, following advice from the authorities, a foundation �with a capital supplied in a balanced and diverse manner by members of the congregation as well as national enterprises and foreign countries which support the French model and whose deposits are transferred to the Deposit and Consignment Office (Caisse des Depots et Consignations)� [NDTR unofficial translation] [90] Yet, despite this, the foundation has been subjected to close control by the authorities, as reflected in article 16 of the foundation�s statutes providing that �the proceedings of the executive board mentioned in article 13 [on the resources of the foundation] and 14 [on the amendments to the statutes of the association] of the present statutes are only valid after approval by the government.�
47. Whatever measures that are put in place to hold associations accountable they must neither be discriminatory nor unnecessarily undermine the public perception of their credibility and ultimately their legitimacy.
Conclusion
Despite the relatively high level of protection and enjoyment of freedom of association in Europe, this short survey demonstrates that it is susceptible to increasing pressures from recent political and demographic trends requiring extra vigilance from governments, the courts and civil society.
It is absolutely essential for States to refrain from using the fight against terrorism as an excuse to criminalise opposition movements. If Europe really wants to defeat terrorism, it must do so by respecting of the Rule of Law and Human Rights, otherwise it will merely create a breeding ground for new radical movements.
Similarly, it is fundamental for States to fully respect the enjoyment of the freedom of association of groups which defend minority rights. Indeed, there is no democratic society without �pluralism, tolerance and broadmindedness� (Handyside v. United Kingdom 1976 1 EHRR 737).
Recommendations
To: United Nations and European Union
- The inclusion of a terrorist entity on a �blacklist� of organisations suspected of terrorism must be able to be subjected to independent and impartial judicial scrutiny including the normal appeal process.
- �Legislation and regulations, including legislation and regulations adopted in connection with the fight against terrorism [should be] implemented [�] in a manner that does not discriminate against persons or groups of persons, notably on grounds of actual or supposed �race�, colour, language, religion, nationality, national or ethnic origin; [�] particular attention [must be paid] to guarantee in a non discriminatory way the freedoms of association, expression, religion and movement� (ECRI Recommendation) [91].
- In accordance with the recommendations of Martin Scheinin, the Human Rights Committee should adopt a general comment on the rights to freedom of association and peaceful assembly in the framework of the fight against terrorism (A/61/267, p. 22).
To: National authorities
- �In principle, the State should not need to resort to derogation measures with respects to the right to freedom of assembly and association� (Martin Scheinin) [92].
- Counter-terrorism measures related to associations should be precise in order to fully respect the rule of law principle and fundamental human rights.
- In the case of a finding of a violation of article 11 of the ECHR, the respondent State should implement the decision comprehensively and without delay, including, if required, permitting the registration of the association if this has been unjustly denied.
GREEK HELSINKI MONITOR (GHM)
Address: P.O. Box 60820, GR-15304 Glyka Nera
Telephone: (+30) 2103472259 Fax: (+30) 2106018760
e-mail: office@greekhelsinki.gr;
website: http://cm.greekhelsinki.gr/
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