Restrictions on NGO activities in Council of Europe member States
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 27 January 2021 (6th Sitting) (see Doc. 15205, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Ms Alexandra Louis). Text
adopted by the Assembly on 27 January 2021 (6th Sitting).See
also Recommendation 2194
(2021).
2. The Assembly recalls that non-governmental organisations (NGOs)
are a key component of an open and democratic civil society and
make an essential contribution to the development and realisation
of democracy, the rule of law and human rights. To ensure the proper
functioning of civil society, the Council of Europe’s member States
are required in particular to ensure respect for the rights to freedom
of expression, assembly and association enshrined in Articles 10
and 11 of the European Convention on Human Rights (ETS No. 5, the Convention);
these rights are inextricably linked and may only be limited on
grounds specified in the Convention.
3. The Assembly also recalls that the Council of Europe has extensive
experience in preparing guidelines on legislation relating to NGOs,
notably in Recommendation CM/Rec(2007)14 of the Committee of Ministers to
member States on the legal status of non-governmental organisations
in Europe, and the “Joint guidelines on freedom of association”
of the European Commission for Democracy through Law (Venice Commission) and
the Office for Democratic Institutions and Human Rights of the Organization
for Security and Co-operation in Europe (OSCE/ODIHR) of 17 December
2014. It welcomes the adoption by the Committee of Ministers of Recommendation
CM/Rec(2018)11 on the need to strengthen the protection and promotion
of civil society space in Europe, and of its declaration related
to this subject adopted in Helsinki on 17 May 2019.
4. More than two years after its
Resolution 2226 (2018), the Assembly
is concerned to note that the civil society space continues to shrink
in several Council of Europe member States, particularly in the
case of NGOs working in the field of human rights. The restrictive
legislation and regulations previously criticised by various Council
of Europe bodies, including the Venice Commission, the Expert Council
on NGO Law of the Conference of International Non-Governmental Organisations
and the Assembly itself, are still being applied, particularly in
Azerbaijan, the Russian Federation and Turkey. Moreover, certain
NGOs are the subject of smear campaigns and their activists are
subject to threats and reprisals.
5. The Assembly is concerned that, in certain member States,
legislation imposing excessive reporting and public disclosure obligations
on NGOs receiving funding from abroad, aimed at stigmatising these organisations,
has not been repealed, despite the criticism expressed by various
Council of Europe bodies. It is particularly concerned that some
other member States have produced draft laws that appear to be based
on the aforementioned legislation. The Assembly reiterates, in this
context, that the right to seek, secure and use financial and material
resources is essential to the existence and operation of any association
and an inherent part of the right to freedom of association, as
emphasised in the Venice Commission’s report (Study No. 895/2017,
CDL-AD(2019)002) of March 2019 on the funding of associations. When
they impose obligations on NGOs for the purpose of combating terrorism
or money laundering or preventing foreign political influence, States
must draw a distinction between “reporting obligations” and “public
disclosure obligations” and ensure that any requirements regarding
information and transparency are proportionate to the size of the
association and the scope of its activities.
6. Referring to its
Resolution
2356 (2020) on the rights and obligations of NGOs assisting
refugees and migrants in Europe, the Assembly condemns the various
attacks on NGOs assisting refugees and migrants, and on their donors.
It reiterates its concern about new regulations which make it more
difficult for these NGOs to operate and which criminalise certain
of their members’ activities.
7. Referring to its
Resolution
2338 (2020) on the impact of the Covid-19 pandemic on
human rights and the rule of law, the Assembly is concerned about
the impact of restrictive measures adopted by Council of Europe member
States during this period and highlights the deleterious effect
of these measures on the functioning of civil society. It emphasises
that even though, in accordance with the Convention, public health
may constitute a legitimate purpose justifying restrictions on the
rights to respect for private life (Article 8), freedom of expression
(Article 10) and freedom of assembly and association (Article 11),
any restrictions on the aforementioned rights must be “prescribed
by law”, “necessary in a democratic society” and proportionate to the
legitimate aim pursued.
8. The Assembly supports the work of the Committee on Equality
and Non-Discrimination in preparing the report “Preserving national
minorities in Europe” and urges support for NGOs working in the
field of national minorities protection.
9. Notwithstanding the above-mentioned negative developments,
the Assembly is pleased to note that certain member States have
amended their legislation concerning NGOs in line with the recommendations
of various Council of Europe bodies. Moreover, the majority of member
States have established an environment that is conducive to civil
society activities and the authorities have taken steps to ensure
that NGOs are financed in an equitable fashion and can participate
more fully in the legislative process and public debate.
10. The Assembly therefore urges all the member States to:
10.1 comply with international legal
standards with regard to the rights to freedom of assembly, association
and expression;
10.2 fully implement Recommendations CM/Rec(2007)14 and CM/Rec(2018)11;
10.3 fully and rapidly implement the judgments of the European
Court of Human Rights concerning violations of NGOs’ right to freedom
of association;
10.4 repeal and/or amend legislation that interferes with NGOs’
ability to work freely and independently and ensure that such legislation
conforms to international human rights instruments, in particular
Articles 8, 10 and 11 of the Convention;
10.5 refrain from enacting new legislation entailing unnecessary
and disproportionate restrictions on NGO activities; in this context,
the Covid-19 pandemic should not be used to justify the imposing
of such restrictions;
10.6 where appropriate, make use of the expertise of the Council
of Europe, and in particular of the Venice Commission and of the
Conference of International Non-Governmental Organisations and its Expert
Council on NGO Law;
10.7 ensure that NGOs can seek, secure and use financial and
material resources of both domestic and foreign origin, without
suffering discrimination or encountering unjustified obstacles,
in line with the recommendations included in the Venice Commission’s
report on the funding of associations;
10.8 ensure that NGOs enjoy effective legal protection, and
in particular, in the event of a dispute with the authorities, that
judicial scrutiny conforms to the safeguards inherent in the right
to a fair trial (Article 6 of the Convention);
10.9 ensure that NGOs are fully involved in consultations on
new legislation concerning them as well as on other important subjects
and in relevant public debates;
10.10 ensure that civil society continues to benefit from its
own space, particularly by refraining from all forms of harassment,
whether judicial, administrative or fiscal, negative public statements,
smear campaigns aimed at NGOs and acts of intimidation against civil
society activists.
