suppressing the activities of critical defenders through deregistration.124 In some
participating States, the reasons provided for refusing to register an NGO must
include certain information, e.g., the written response from the responsible agency
must refer to the corresponding legal regulations on which the refusal is based.125
Another technique to ensure clarity is to prescribe that the contents of the written
response must include an introduction, ruling, explanation and right to appeal.126 This
can clarify the situation defenders find themselves in, and make it more difficult for
public authorities to base their decisions on spurious grounds or political
considerations.
Making it possible to appeal registration-related decisions in court
If registration is refused or discontinued, there should be recourse to effective legal
remedies in the form of access to administrative review bodies and ultimately an
independent court to test the compatibility of this decision with the law.127 An
independent judiciary can be a shield for human rights defenders against politically
motivated or arbitrary decision-making by public authorities. In their responses to the
questionnaire, OSCE participating States generally indicated that registration-related
decisions could be appealed to a court. For example, in Portugal, “ all decisions by
Portuguese Public Entities which refuse requests presented by private persons … may
be appealed in Court” .128 In Latvia, in cases where registration has been denied, the
124
In its Communication No. 1296/2004 of 7 August 2007, the United Nations Human Rights
Committee commented on the case of Belyatsky et al. v. Belarus: “ The mere existence of reasonable
and objective justifications for limiting the right to freedom of association is not sufficient. The State
party must further demonstrate that the prohibition of an association is necessary to avert a real and not
only hypothetical danger to national security or democratic order, and that less intrusive measures
would be insufficient to achieve the same purpose.” See Moscow Branch of the Salvation Army v.
Russia, European Court of Human Rights, Application No. 72881/01, 5 October 2006, para. 76: “ The
Court reiterates that the list of exceptions to freedom of religion and assembly, as contained in Articles
9 and 11 of the Convention, is exhaustive. The exceptions to the rule of freedom of association are to
be construed strictly and only convincing and compelling reasons can justify restrictions on that
freedom. In determining whether a necessity within the meaning of paragraph 2 of these Convention
provisions exists, the States have only a limited margin of appreciation…” Also see Gorzelik and
Others v. Poland, European Court of Human Rights, Application No. 44158/98, 17 February 2004,
paras. 94 and 95: “ The State’ s power to protect its institutions and citizens from associations that might
jeopardise them must be used sparingly, as exceptions to the rule of freedom of association are to be
construed strictly and only convincing and compelling reasons can justify restrictions on that freedom.
Any interference must correspond to a ‘pressing social need’ ; thus, the notion ‘necessary’ does not
have the flexibility of such expressions as ‘useful’ or ‘desirable’ .” See Council of Europe, op. cit., note
16, Principles 31-32: “ 31. Legal personality should only be refused where there has been a failure to
submit all the clearly prescribed documents required, if a name has been used that is patently
misleading or is not adequately distinguishable from that of an existing natural or legal person in the
country concerned, or if there is an objective in the statutes which is clearly incompatible with the law.
32. Any evaluation of the acceptability of the objectives of an NGO when it seeks legal personality
should be well informed and respectful of the notion of political pluralism and must not be driven by
prejudices.”
125
Information provided by Armenia’ s human rights defender; Slovenia’ s response to ODIHR’ s
questionnaire, 1 July 2008.
126
Contribution from the OSCE Mission to Bosnia and Herzegovina to this report, 28 May 2008.
127
Moscow, 1991, paras. 18.2-18.4: “ (18.2) Everyone will have an effective means of redress against
administrative decisions, so as to guarantee respect for fundamental rights and ensure legal integrity.
(18.3) To the same end, there will be effective means of redress against administrative regulations for
individuals affected thereby. (18.4) The participating States will endeavour to provide for judicial
review of such regulations and decisions.”
128
Portugal’ s response to ODIHR’ s questionnaire, 25 May 2008, citing Art. 124 of the Portuguese
Code of Administrative Procedure.
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