It does not imply, however, that every public breach on the legal order or summons to do so, should be prevented. Freedom of expression may be restricted also on behalf of the rights of others such as the good reputation of someone else. Restrictions are also allowed when prohibiting the use of private walls for publication of opinions.
Attempts to again reintroduce a totalitarian regime are clearly restricted. This is on behalf of the rights and freedoms of others. This applies for associations that seek to achieve their goals violently as well as in peaceful ways. In case a government wants to forbid an action, it must be necessary in a democratic society. In this respect the proportionality test is relevant.
Important criteria are the length of the measure and the area involved. A general prohibition is only seldom allowed. A general prohibition is allowed only under specific circumstances, in the sense that the danger of public disorder cannot be prevented by more moderate measures.
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A more general prohibition was allowed in the case of Christians against racism and fascism, 63 where experience showed that heavy violent actions were to be expected, and that massive police-action was not sufficient to prevent damage. Apart from the fact that the restrictions must be "provided by law," there is a second condition determining whether or not a restriction is accepted: restrictions are only allowed if they are necessary in a democratic society.
This is the key notion in the second section of the mentioned articles. First of all the ECommHR has decided in several cases that a democratic society is characterized by pluralism, tolerance and open mindedness. Politicians know that, given their public tasks, they are subject to more scrutiny. This implies that they should exercise tolerance. On matters of public debate, the freedom expression should be overprotected rather than underprotected.
There is a "preferred position of the freedom of speech.
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Second, the condition that a restriction is only accepted when it is necessary in a democratic society, does not require that the restriction is indispensable. On the other hand, it is not enough that the restriction is reasonable. When a restriction is not proportional in relation to the purpose it serves, for instance if it is too general in character, it is considered not to be necessary in a democratic society. A less radical method should be chosen. Thus, any restriction in general terms, forbidding the initiation or support of political activities in general terms, are prone to fail the necessary in a democratic society test.
Restrictions regarding electoral activities are admissible in the interest of honest, correct and orderly conducted affairs. In this perspective it is questionable whether or not the status as a political party can only be acquired by associations, thus excluding foundations and other organizational forms as is the case in several countries.
One could argue that this restriction is either too general and thus not necessary in a democratic society or that it is discriminating and thus in violation with article 14 of the ECHR see paragraph 4.
If a legal system offers a legal form to obtain legal personality, it should not seek to deprive this legal form from the fundamental rights provided by the ECHR. The founders and other natural persons involved should be free to chose this legal form if they feel it is the best available vehicle to exercise their fundamental human rights. Article 14 ECHR forbids discrimination. The member state then has the choice to either drop the restriction completely, or widen its portent to every person, regardless of race, gender etc.
For instance, when there is a threat of violent counter demonstrations. The question is whether in such a situation a demonstration can be forbidden. The answer is that the threat of violent counter demonstrations or the possibility that extremists with violent intentions who are not members of the organizing association, will join the demonstration, cannot, as such, take away the right of peaceful assembly.
This implies that the government takes positive action. Article 11 sometimes implies that room for assembly should be provided for, in order to ensure effective enjoyment of the right provided. In order to enjoy freedom of assembly, the government may have to act in order to protect the peaceful assembly rather than forbidding the demonstration. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate. Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a pure negative conception would not be compatible with the object and purpose of Article Like Article 8, Article 11 sometimes require positive measures to be taken, even in the sphere of relations between individuals, if need be.
In this paragraph we discuss some provisions found in the existing and newly drafted laws in a few CEE-countries with an occasional reference to some Western-European countries, that are suspected of violating fundamental rights under the ECHR. Therefore, reference to a particular provision should not be read as to imply automatically that the relevant law is an infringement of the ECHR on this point.
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The regime laid down in each of the mentioned draft laws varies significantly, from fairly benevolent in the case of the Bulgarian law, to outright confronting in the cases of Slovakia and Croatia. Freedom of association recognizes the right of individuals—and legal persons—to organize themselves on a voluntary basis for the realization of a specific purpose.
Restrictions are allowed only under specific conditions and on specific grounds, as was described above para. Freedom of association does not imply the right to obtain legal personality.
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However, the law cannot restrict the freedom of association, merely because the association has not yet been granted legal personality, e. Occasionally, a provision that seems to be in direct conflict with the freedom of association can be found. For example the Croatian Law Relating to Associations, seems particularly suspect where it prohibits an informal association from performing activities prior to registration, required for obtaining legal personality. In our opinion, it can hardly be sustained that in a democratic society, it is necessary to require legal personality as a prerequisite for the freedom of association to be exercised.
Distrust in non-governmental voluntary organizations, which, by the way, is not exclusively found in CEE-countries, surfaces particularly in the provisions that regulate the influence of the government in the establishment, operation and supervision of voluntary organizations. In itself, government involvement in order to prevent, trace and punish criminal, fraudulent and otherwise unacceptable practices is justifiable. However, the competencies of the government should not be overextended and particularly, should not allow for harassment of voluntary organizations and other forms of unduly chilling the effective enjoyment of the fundamental freedoms.
Provisions that are particularly suspect in this context are those that declare that the operations of associations are open to public inspection and that the public can only exceptionally be excluded from the meetings of bodies of the association in cases provided by the constitution of the association. However, it also infringes deeply upon the freedom of association, which includes the freedom to decide who will be a member and thus, ultimately, who has a right to attend the association's meetings and activities.
The obligation to allow the public, including the media and the government, to attend meetings, puts a strain on the freedom of association and, particularly for organizations that are active in fields where they might oppose the government or industry or that are otherwise active on behalf of minority-rights or unpopular cause, run a serious risk of being hampered in their right to effectively enjoy the freedom of association. Again, there seems no objective justification for these infringements, as demanded by a democratic society. Purposes of transparency can be sufficiently served by other, less intrusive methods, such as the publication of annual accounts and reports.
The provisions in the present law do not seem to be sufficiently narrowly tailored to serve their objective. Another type of provisions that is open to objection, is the one that authorizes governmental bodies to visit and audit an organization at any time to find out whether or not it acts in accordance with the law or the requirements for its legal status.
However, these powers should be incorporated in a legal framework that respects the fundamental freedoms of its subjects. Stipulations of the nature mentioned in this example allow unlimited and undefined government discretion to investigate a particular organization. This creates the opportunity to harass organizations that have purposes that are not popular with the supervizing body, or the government in general. There are no objections against an inspection of annual reports and the like. However, for more intrusive forms of investigation, guarantees against arbitrary interference or intimidation should be provided for in the law.
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An interesting question is to what extent a voluntary organization can invoke the right to privacy, as protected under Article 8 of the ECHR. The ECoHR has declared that the expansion of the words "private life" and "home" as mentioned in Article 8 ECHR, to professional or business activities or premises is "consonant with the essential object and purpose of Article 8, namely to protect the individual against arbitrary interference by the public authorities. Applicability of this provision supports our opinion that government should have no arbitrary authority to visit meetings of bodies of an organization 91 or to investigate an organization in an intrusive way, such as entering its office or the homes of its board member as was discussed in paragraph 5.
Similarly, objections can arise against obligations to supply government authorities with possibly confidential data, such as names and addresses of donors of the organization, 92 or a list of members. The former obligation may effectively inhibit making contributions to such "suspect" organizations for fear of getting into trouble.
The latter chills the willingness to become a member of such an organization for exactly the same reason. Requirements of this nature therefore are objectionable in relation to the freedom of expression, the freedom of association, and also infringe on the right of privacy of the donors, and respectively, the members. As illustrated above, the freedom of speech as such also applies to voluntary organizations, with or without legal personality. This implies that an organization cannot be unduly refrained from expressing its views and opinions.
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