ECHR: CASE LAW PERTAINING TO
FREEDOM OF ASSOCIATON
Dragan Golubovic
Nessebar, 03.06.2010.
EUROPEAN CONVENTION FOR THE PROTECTION OF
HUMAN RIGHTS AND BASIC FREEDOMS / ECHR
THE FIRST COMPREHENSIVE INTERNATIONAL TREATY IN
THE FIELD OF HUMAN RIGHTS.
THE RIGHTS SET OUT IN THE CONVENTION AND THE
PROTOCOLS LARGELY DERIVE FROM THE UN UNIVERSAL
DECLARATION OF HUMAN RIGHTS (1948).
THE FIRST TO ESTABLISH A COMPLAINT PROCEDURE AND
AN INTERNATIONAL COURT FOR THE RESOLUTION OF
HUMAN RIGHTS DISPUTES (EUROPEAN COURT OF HUMAN
RIGHTS).
THE COURT IS THE LEADING INTERNATIONAL BODY IN
SHAPING HUMAN RIGHTS CASE LAW.
Country Signatories
 All
countries of Europe, West NIS
and Caucasus (excluding Belarus).
 Primary obligation towards
freedom of association: negative –
not to interfere with freedom of
association.
THE FREEDOM OF ASSOCIATION –
SCOPE OF INTERFERENCE
ARTICLE 11 ECHR:
“(1) Everyone has the right to freedom of peaceful
assembly and the freedom of association with others,
including the right to form and to join trade unions
for the protection of his interest.”
(2) No restrictions shall be placed on the exercise of
these rights other than such as are prescribed by law
and are 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
the rights and freedoms of others.”
ARTICLE 11 ECHR: CASE LAW
ANY INTERFERENCE TO FREEDOM OF
ASSOCIATION MUST BE:
 PRESCRIBED BY LAW.
 SERVE LEGITIMATE AIM.
 BE NECESSARY IN A DEMOCRATIC
SOCIETY.
FREEDOM OF ASSOCIATION: ARTICLE
11 ECHR: CASE LAW
WHAT IS “PRESCRIBED BY LAW”?
 THE INTEREFERENCE MUST HAVE BASIS IN
LAW.
 THE LAW HAS TO BE BOTH ACCESSIBLE
AND FORESEEABLE.
 FORSEEABILITY TEST: THE LAW HAS TO BE
OF A CERTAIN QUALITY; HAS TO BE
WRITTEN IN A CLEAR AND UNAMBIGOUS
LANGUAGE (Maestry v. Italy)
FREEDOM OF ASSOCIATION: ARTICLE
11 ECHR: CASE LAW
WHAT IS “LEGITIMATE AIM”?
 THE INTERFERENCE MUST BE WITHIN THE AMBIT OF
ARTICLE 11, PARA 2 (in the interests of national
security or public safety, for the prevention of disorder
or crime, for the protection of the rights and freedoms
of others).
 THE LIST OF LEGITIMATE INTERFERENCE IN PARA 2
IS EXHAUSTIVE, NOT ILLUSTRATIVE.
FREEDOM OF ASSOCIATION: ARTICLE
11 ECHR: CASE LAW
WHAT IS “NECESSARY IN A DEMOCRATIC
SOCIETY?”
 THE STATE HAS TO PROVE THAT THE INTEFERENCE
WITH FREEDOM OF ASSOCIATION WAS THE MINIMUM
NEEDED TO SECURE LEGITIMATE AIM
(PROPORTIONALITY TEST).
 IN MOST CASES, THE APPLICATION OF
PROPORTIONALITY TEST HAS ULTIMATELY
DETERMINED WHETHER THERE WAS VIOLATION OF
FREEDOM OF ASSOCIATION.
FREEDOM OF ASSOCIATION: SCOPE
The right to voluntarily establish an association to
pursue any legitimate (public or mutual benefit) goals
without due interference from the state.
 The right (not an obligation!) to form a legally
recognized association; and that such an association,
once formed, enjoys the full protection in the exercise
of the freedom of association that an individual has.
 The right to decide who will be a member of an
association.
 The right not to join an association (negative freedom
of association).
THE RIGHTS OF CSOs UNDER ECHR
Once formed CSOs enjoy the following rights as protected by
ECHR and five additional Protocols:
 Right to make opinions known and to join public
debate / Freedom of speech (Article 10) / particularly
strong connection between Article 10 and 11 ECHR.
 Right to privacy (Article 8): The terms “private life”
and “home” have been extended to cover business
(private) premises, to protect individuals against
arbitrary interference by the public authorities.
 Right to use and dispose of property without undue
restrictions/Article Protocol 1 of ECHR, Art. 1 (nondistribution constrain).

EXAMPLES OF VIOLATION OF ECHR
IN DOMESTIC LAWS
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Mandatory Registration for CSOs.
Broad grounds for denial of registration and/or
termination.
Limitation on permissible purposes.
Excessive government authority to intervene in
internal affairs of CSOs (name, membership).
Excessive government authority to supervise
CSOs.
Restrictions on use of property.
Restrictions on advocacy activities.
Contact information:
Apaczai Csere Janos u.17, 1st floor,
Budapest 1052,Hungary
phone: + 361 318 6923
fax: + 361 266 1479
www.icnl.org/ecnl
Email: dragan@ecnl.org.hu