98. International case law has affirmed the unlawfulness of exploiting gaps in the law
to silence human rights defenders. In the case of one human rights defender sentenced to administrative detention for holding an unauthorized assembly, in spite
of the fact that the domestic law required no such authorization, the ECtHR held
that there had been a violation of freedom of assembly, among others, given the
existence of a legislative gap concerning this right.139
99. The UN Special Rapporteur on the situation of human rights defenders has noted
with concern “a disturbing trend towards the criminalization of activities carried
out by unregistered groups.”140 Moreover, in this context, groups whose attempts
to register are repeatedly rejected become easy targets for criminal prosecution
when they continue to operate. In the participating States that require prior authorization for NGO funding received from abroad, human rights defenders may face
criminal penalties if they fail to comply with the authorization requirement. This
practice has been condemned by the UN Human Rights Committee, which has
pointed out that non-governmental organizations should be able “to discharge
their functions without impediments which are inconsistent with the provisions
of article 22 [freedom of association] of the Covenant, such as prior authorization,
funding controls and administrative dissolution.”141 Similarly the UN Committee
on the Rights of the Child has expressed concern at the criminalization of members
of NGOs operating without being registered.142
100. Similarly, laws designed to prevent and prosecute terrorism and “religious extrem-
ism” have often been invoked to criminalize activities by human rights defenders. The above-mentioned restrictions on NGO funding have been abused in order
to silence human rights groups under the guise of combating terrorism financing
and money laundering.143 Concerning national security legislation, the UN Special
Rapporteur on the rights to freedom of peaceful assembly and of association has
reiterated the concern about the use of “an amorphous concept of national security
to justify limitations on the enjoyment of human rights”, a concept that “is broadly
defined and is thus vulnerable to manipulation by the State as a means of justifying
actions that target vulnerable groups such as human rights defenders, journalists
or activists.”144
139 See European Court of Human Rights, Vyerentsov v. Ukraine, Application no. 20372/110, Judgement of
11 April 2013.
140 Report of the Special Rapporteur on the situation of human rights defenders, A/HRC/25/55, para. 68.
141 “Concluding Observations of the UN Human Rights Committee on Egypt”, UN Doc. CCPR/CO/76/EGY,
28 November 2002, para. 21.
142 Concluding Observations of the UN Committee on the Rights of the Child on Belarus”, CRC/C/BLR/CO/34, 8 April 2011, paras. 23-24.
143 See for example, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of
association, UN Doc. A/HRC/20/27, May 21, 2012, para. 94; and Report of the Special Rapporteur on the situation of human rights defenders, UN Doc. A/64/226, August 4, 2009, para. 94.
144 See Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association A/
HRC/23/40, para. 60.
56
Guidelines on the Protection of Human Rights Defenders
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