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Capacities to be Enjoyed by Non-Governmental Organizations

Introduction

      Basic requirements

The following capacities are essential for the basic operation of most non-governmental organizations: the ability to conclude contracts related to the pursuit of their objectives, to make payments for the goods and services thereby obtained, to own property, and to take legal action in order to protect their rights and interests.

Those who choose to found a non-governmental organization without legal personality will rely upon their own legal capacities for the pursuit of its objectives. However, those non-governmental organizations that have legal personality should themselves have the same capacities as are generally enjoyed by other legal persons. See Paragraphs 7, 10, 51, 52 and 55 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe. See also The Holy Monasteries v. Greece, 9 December 1994 and Sidiropoulos v. Greece, 10 July 1998.

      No need to have a particular legal form

The form of legal personality that a non-governmental organization obtains, e.g., association, company, foundation, or trust, is not particularly significant, but those available should not undermine the organization’s ability to pursue its objectives.

      Need for legal personality to be distinct from that of founders, members and officers

The legal personality of a non-governmental organization should be distinct from that of its founders, members, and officers. Thus, they should not be personally liable for its debts or other obligations. See Paragraph 26 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Need for freedom to determine sphere of operation

All non-governmental organizations should be free to decide the sphere of their operations within or beyond the country in which they were established. They should also be able to pursue their objectives through membership of associations, federations, and confederations of non-governmental organizations, whether national or international. See Paragraphs 4 and 15 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe and Koretskyy and Others v. Ukraine, 3 April 2008.

      Entitlement to benefit of human rights in general

All non-governmental organizations should have the benefit of those human rights and freedoms that are not exclusively applicable to natural persons, including the right to freedom of assembly and of expression. See Paragraph 5 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe, Articles 9 and 12 of the United Nations General Assembly's Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms and Stankov and United Macedonian Organisation ‘Ilinden’ v. Bulgaria, (dec.), 29 June 1998.

They should also be able to assist in protecting the human rights and freedoms of others, including through communication with universal and regional human rights bodies. See Articles 1, 5 9 of the United Nations General Assembly's Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms and Paragraph 11 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Copenhagen, 29 June 1990. See also Koretskyy and Others v. Ukraine, 3 April 2008 and Aguilera Jiménez v. Spain, 8 December 2009.

Non-governmental organizations can complain to the European Court for Human Rights about violations of their rights (see Stankov and United Macedonian Organisation ‘Ilinden’ v. Bulgaria, (dec.), 29 June 1998). Although they cannot complain to the United Nations Human Rights Committee (see S M v. Barbados (dec.), 31 March 1994), any members who are natural persons can do so.

      Need to be able to seek and disseminate information

All non-governmental organisations should be free to seek and disseminate information related to their objectives. See Articles 4 and 9 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) (UN), Paragraph 43 of the Document of the OSCE Moscow Meeting, 1991, Paragraph 9 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Copenhagen, 29 June 1990 and Articles 5 and 6 of the United Nations General Assembly's Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.

      Need to be able to promote change in law and policy

Non-governmental organizations should also be able to undertake research, educational activities, and advocacy on issues of public debate, including with a view to promoting changes in law and policy. See Paragraph 12 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe, Articles 6, 7 and 8 of the United Nations General Assembly's Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms and Koretskyy and Others v. Ukraine, 3 April 2008. In addition, non-governmental organizations should be entitled to support a particular candidate or party in an election or a referendum provided that they are transparent in declaring their motivation. See Paragraph 13 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe.

      Need to be able to seek funding

In addition, non-governmental organizations should be able to solicit and receive funding not only within the country where they are established but also from other countries. Non-governmental organizations should also be able to engage in trading and other economic activities to support the pursuit of their objectives. See Paragraphs 14 and 50 of the Council of Europe's Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe and Article 13 of the United Nations General Assembly's Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.

      Need to have means to pursue objectives

Although non-governmental organizations are not entitled to particular means of pursuing their objectives, all non-governmental organizations must have at least some means to do so apart from the capacities derived from legal personality. They should not, therefore, be subject to restrictions that mean that they can do no more than exist. See The Holy Monasteries v. Greece, 9 December 1994, Wilson, National Union of Journalists and Others v. United Kingdom, 2 July 2002, Demir and Baykara v. Turkey [GC], 12 November 2008 and Kimlya, Sultanov and Church of Scientology of Nizhnekamsk v. Russia, 1 October 2009.

      Need for protection against functioning being undermined

The state should not, directly or indirectly, support efforts by private individuals and bodies to undermine the ability of non-governmental organizations to pursue their objectives through means that are consistent with universal and regional human rights standards. See Wilson, National Union of Journalists and Others v. United Kingdom, 2 July 2002.

      Prohibition on discrimination as regards capacities

Any differences in the capacities conferred on different categories of non-governmental organisation should have a rational and objective justification. See Canea Catholic Church v. Greece, 16 December 1997 and Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, 31 July 2008.

      Capacities not guaranteed

Universal and regional human rights standards do not guarantee that non-governmental organisations will be able to achieve the objectives that they are entitled to pursue (see Association X v. Sweden (dec.), 6 July 1977). Nor do those standards give them any right to be treated as a political party (see X, Y and Z v. Federal Republic of Germany (dec.), 18 May 1976). Furthermore non-governmental organisations need not automatically be given the right to challenge administrative decisions that are connected to their objectives (such as the protection of the environment) but do not directly concern their existence or operation (see Federation Nationale des Familles de France v. France (dec.), 14 February 2006).



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