Condensed entry: Everyone has the right to form or join an association. Restrictions on freedom of association must be prescribed by law and be necessary in a democratic society 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. Members of the armed forces and the police may be prevented from joining or forming associations if provided for in law. Restrictions on the freedom of association may be legitimate in the context of associations whose leaders incite violence or in other ways undermine democracy. Compulsory membership of associations, with the exception for professional associations established to maintain legal or necessary standards of performance, violates the right to association
Comprehensive entry: According to article 22(1) of the ICCPR ‘[e]veryone shall have the right to freedom of association with others’.[1] It has been noted that ‘[f]reedom of association is the right of the individual to join with others in a voluntary and lasting way for the common achievement of a legal goal. Associations are characterized by their permanence and stability …’.[2] (See also *form or join trade unions*) Article 22(2) of the ICCPR provides: No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. Examples of interference with the freedom of association which may constitute a violation if the requirements for limitations of the right is not met include unduly delayed registration[3], denial of registration,[4] *forced dissolution or banning*,[5] deportation,[6] prosecution[7] and state control over the governing body of an association.[8]The state should not provide support for efforts by private individuals and bodies to undermine the ability of associations to pursue their objectives through means that are consistent with universal and regional human rights standards.[9] Registration requirements requiring the presentation of the association’s purpose, principal place of business, organs and other details necessary to ensure the lawful operation of the association may be acceptable if it has to acquire legal personality but there should be no barrier to establishing less formal entities.[10] The ECtHR has held that a Hungarian law providing that ‘members of the armed forces, the police and security services were prohibited from joining any political party and from engaging in any political activity’ did not violate the freedom of association because of the need to preserve their neutrality in a period of transition.[11] This is in line with the provision in ICCPR article 22(2) that ‘[t]his article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right’. The similar provision in article 11(2) of the ECHR adds members of the ‘administration of the state’ to those whose membership of associations can be restricted by law without such law having to be for any of the legitimate reasons set out in the article. However, the need for particular restrictions must be demonstrated and their scope should not be disproportionate.[12] In addition the law imposing restrictions must be sufficiently clear. Thus, the ECtHR has held that the dismissal of an Italian judge because of membership in the freemasons violated the ECHR as the law was not sufficiently clear for the judge to realize that his membership of the organization was incompatible with his profession.[13] Freedom of association does not protect the use of means or the pursuit of objectives involving incitement to violence or attempts to undermine democracy. In Refah Partisi (The Welfare Party) and Others v Turkey the ECtHR held that ‘a political party whose leaders incite recourse to violence, or propose a policy which does not comply with one or more of the rules of democracy or is aimed at the destruction of democracy and infringement of the rights and freedoms afforded under democracy cannot lay claim to the protection of the Convention against penalties imposed for those reasons’.[14] (See *incitement to violence, hatred or discrimination*). In MA v Italy the HRC held that a prohibition on reorganizing a dissolved fascist party was justifiable in terms of article 22(2) of the ICCPR.[15] The right to association includes the right not to associate and to dissociate so that compulsion to belong to an association is normally unacceptable.[16] However, in most instances compulsory membership of professional associations is not objectionable.[17] Nonetheless a requirement for journalists to join journalist associations as a precondition for the practice of journalism has been found to violate their right to freedom of expression.[18] Allegations of persons belonging to or working with associations being subject to discrimination or penalised, persecuted or harassed in any way on account of this should be subject to independent and effective investigation leading, where appropriate, to administrative measures and/or criminal proceedings against those responsible.[19]
[1] See also art 15 CRC, art 11 ECHR, art 16 ACHR, art 19 ACHPR and the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.
[2] Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, advisory opinion OC-5/85 (IACtHR 1985), Separate Opinion of Judge Rafael Nieto-Navia, para 6.
[3]Ramazanova and Others v Azerbaijan application 44363/02 (ECtHR 2007).
[4] Sidiropoulos et al v Greece application 26695/95 (ECtHR 1998) para 31.
[5]//Jawara v The Gambia// communications 147/95 & 149/96 (ACHPR 2000) para 68; //Interights and Others v Mauritania// communication 242/2001 (ACHPR 2004) para 81; Socialist Party and Others application 21237/93 (ECtHR (GC) 1998); Refah Partisi (The Welfare Party) and Others v Turkey applications 41340/98, 41342/98, 41343/98 & 41344/98 (ECtHR (GC) 2003).
[6] Amnesty International v Zambia communication 212/98 (ACHPR 1999)
[7] International Pen and Others (on behalf of Saro-Wiwa) v Nigeria, Communications 137/94, 139/94, 154/96 and 161/97 (ACHPR 1998) paras 108, 110.
[8] Civil Liberties Organisation in Respect of the Nigerian Bar Association v Nigeria communication 101/93(ACHPR 1995) paras 14-16.
[9]Ouranio Toxo and Others v Greece application 74989/01 (ECtHR 2005) and 97 members of the Gldani Congregation of Jehovah's Witnesses and 4 Others v. Georgia application 71156/01 (ECtHR 2007).
[10]Zvozskov et al v Belarus 1039/2001 (2006); Stankov and United Macedonian Organisation ‘Ilinden’ v Bulgaria applications 29221/95 and 29225/95 (ECtHR 1998).
[11] Rekvényi v Hungary application 25390/94 (ECtHR (GC) 1999) paras 8, 58-60.
[12]Ahmed and Others v United Kingdom, no. 22954/93, 2 September 1998.
[13]Maestri v Italy application 39748/98 (ECtHR (GC) 2004) para 41.
[14]Refah Partisi (The Welfare Party) and Others v Turkey applications 41340/98, 41342/98, 41343/98 & 41344/98 (ECtHR 2001) para 47.
[15]MA v Italy communication 117/1981 (HRC 1984) para 13.3.
[16]Chassagnou and Others v France [GC] applications 25088/94, 28331/95 and 28443/95, 29 April 1999.
[17]Le Compte, Van Leuven and De Meyere v. Belgium applications 6878/75 and 7238/75 (ECtHR 1981).
[18] Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, advisory opinion OC-5/85 (IACtHR 1985).
[19] Süheyla Aydın v. Turkey application 25660/94 (ECtHR 2005).
Everyone has the right to form or join an association. Restrictions on freedom of association must be prescribed by law and be necessary in a democratic society 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.
Members of the armed forces and the police may be prevented from joining or forming associations if provided for in law. Restrictions on the freedom of association may be legitimate in the context of associations whose leaders incite violence or in other ways undermine democracy. Compulsory membership of associations, with the exception for professional associations established to maintain legal or necessary standards of performance, violates the right to association
Comprehensive entry:
According to article 22(1) of the ICCPR ‘[e]veryone shall have the right to freedom of association with others’.[1] It has been noted that ‘[f]reedom of association is the right of the individual to join with others in a voluntary and lasting way for the common achievement of a legal goal. Associations are characterized by their permanence and stability …’.[2] (See also *form or join trade unions*)
Article 22(2) of the ICCPR provides:
No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
Examples of interference with the freedom of association which may constitute a violation if the requirements for limitations of the right is not met include unduly delayed registration[3], denial of registration,[4] *forced dissolution or banning*,[5] deportation,[6] prosecution[7] and state control over the governing body of an association.[8]The state should not provide support for efforts by private individuals and bodies to undermine the ability of associations to pursue their objectives through means that are consistent with universal and regional human rights standards.[9]
Registration requirements requiring the presentation of the association’s purpose, principal place of business, organs and other details necessary to ensure the lawful operation of the association may be acceptable if it has to acquire legal personality but there should be no barrier to establishing less formal entities.[10]
The ECtHR has held that a Hungarian law providing that ‘members of the armed forces, the police and security services were prohibited from joining any political party and from engaging in any political activity’ did not violate the freedom of association because of the need to preserve their neutrality in a period of transition.[11] This is in line with the provision in ICCPR article 22(2) that ‘[t]his article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right’. The similar provision in article 11(2) of the ECHR adds members of the ‘administration of the state’ to those whose membership of associations can be restricted by law without such law having to be for any of the legitimate reasons set out in the article. However, the need for particular restrictions must be demonstrated and their scope should not be disproportionate.[12] In addition the law imposing restrictions must be sufficiently clear. Thus, the ECtHR has held that the dismissal of an Italian judge because of membership in the freemasons violated the ECHR as the law was not sufficiently clear for the judge to realize that his membership of the organization was incompatible with his profession.[13]
Freedom of association does not protect the use of means or the pursuit of objectives involving incitement to violence or attempts to undermine democracy. In Refah Partisi (The Welfare Party) and Others v Turkey the ECtHR held that ‘a political party whose leaders incite recourse to violence, or propose a policy which does not comply with one or more of the rules of democracy or is aimed at the destruction of democracy and infringement of the rights and freedoms afforded under democracy cannot lay claim to the protection of the Convention against penalties imposed for those reasons’.[14] (See *incitement to violence, hatred or discrimination*). In MA v Italy the HRC held that a prohibition on reorganizing a dissolved fascist party was justifiable in terms of article 22(2) of the ICCPR.[15]
The right to association includes the right not to associate and to dissociate so that compulsion to belong to an association is normally unacceptable.[16] However, in most instances compulsory membership of professional associations is not objectionable.[17] Nonetheless a requirement for journalists to join journalist associations as a precondition for the practice of journalism has been found to violate their right to freedom of expression.[18]
Allegations of persons belonging to or working with associations being subject to discrimination or penalised, persecuted or harassed in any way on account of this should be subject to independent and effective investigation leading, where appropriate, to administrative measures and/or criminal proceedings against those responsible.[19]
[1] See also art 15 CRC, art 11 ECHR, art 16 ACHR, art 19 ACHPR and the Council of Europe’s Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.
[2] Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, advisory opinion OC-5/85 (IACtHR 1985), Separate Opinion of Judge Rafael Nieto-Navia, para 6.
[3]Ramazanova and Others v Azerbaijan application 44363/02 (ECtHR 2007).
[4] Sidiropoulos et al v Greece application 26695/95 (ECtHR 1998) para 31.
[5]//Jawara v The Gambia// communications 147/95 & 149/96 (ACHPR 2000) para 68; //Interights and Others v Mauritania// communication 242/2001 (ACHPR 2004) para 81; Socialist Party and Others application 21237/93 (ECtHR (GC) 1998); Refah Partisi (The Welfare Party) and Others v Turkey applications 41340/98, 41342/98, 41343/98 & 41344/98 (ECtHR (GC) 2003).
[6] Amnesty International v Zambia communication 212/98 (ACHPR 1999)
[7] International Pen and Others (on behalf of Saro-Wiwa) v Nigeria, Communications 137/94, 139/94, 154/96 and 161/97 (ACHPR 1998) paras 108, 110.
[8] Civil Liberties Organisation in Respect of the Nigerian Bar Association v Nigeria communication 101/93(ACHPR 1995) paras 14-16.
[9] Ouranio Toxo and Others v Greece application 74989/01 (ECtHR 2005) and 97 members of the Gldani Congregation of Jehovah's Witnesses and 4 Others v. Georgia application 71156/01 (ECtHR 2007).
[10] Zvozskov et al v Belarus 1039/2001 (2006); Stankov and United Macedonian Organisation ‘Ilinden’ v Bulgaria applications 29221/95 and 29225/95 (ECtHR 1998).
[11] Rekvényi v Hungary application 25390/94 (ECtHR (GC) 1999) paras 8, 58-60.
[12]Ahmed and Others v United Kingdom, no. 22954/93, 2 September 1998.
[13]Maestri v Italy application 39748/98 (ECtHR (GC) 2004) para 41.
[14]Refah Partisi (The Welfare Party) and Others v Turkey applications 41340/98, 41342/98, 41343/98 & 41344/98 (ECtHR 2001) para 47.
[15]MA v Italy communication 117/1981 (HRC 1984) para 13.3.
[16] Chassagnou and Others v France [GC] applications 25088/94, 28331/95 and 28443/95, 29 April 1999.
[17] Le Compte, Van Leuven and De Meyere v. Belgium applications 6878/75 and 7238/75 (ECtHR 1981).
[18] Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, advisory opinion OC-5/85 (IACtHR 1985).
[19] Süheyla Aydın v. Turkey application 25660/94 (ECtHR 2005).