NGOs under European Convention on Human Rights / Tymofeyeva

NON-GOVERNMENTAL ORGANISATIONS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS Exceptional Legal Standing

ALLA TYMOFEYEVA

Prague 2015

Scientific reviewers: prof. JUDr. Mahulena Hofmannová, CSc. JUDr. Eva Hubálková, Ph.D. Proofreading: Carollann Braum, J.D., LL.M.

This study titled ‘Non-governmental organisations under the European Convention on Hu man Rights: Exceptional Legal Standing’ is a result of the Post-Doc Grant at the Charles University in Prague (2012–2014) within the framework of the project ‘New Trends of Re sponsibility and Dispute Resolution in International Law (influence of non-governmental subjects).’

Bibliografische Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.dnb.de abrufbar. Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche National bibliografie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de.

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Printed in Czech Republic ISBN 978-3-9816855-9-6

I dedicate this book to my mother.

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ACKNOWLEDGEMENTS

I would like to express my sincere gratitude to Charles University in Prague. Without the financial and institutional support of the Rectorate and the Faculty of Law, in particular, in the frames of the project ‘New trends of responsibility and dispute resolution in international law (influence of non-governmental subjects)’, this book would never have been written. My post-doctorate studies at the Faculty of Law of the Charles University in Prague provided me with an amazing opportunity to be in contact with the best researchers in the area of Public International Law in the Czech Republic. My sincere gratefulness goes to my supervisor, prof. JUDr. Pavel Šturma, DrSc. I am very grateful to my colleagues at the Department of International Law of the Law Faculty, first of all, to doc. PhDr. Stanislava Hýbnerová, CSc., who providedme not only with professional advices, but also with a great amount of emotional support. I am also thankful to doc. JUDr. PhDr. Veronika Bílková, E.MA., Ph.D., doc. JUDr. Vladimír Balaš, CSc., doc. JUDr. Jan Ondřej, CSc., DSc., JUDr. Věra Honusková, Ph.D., JUDr. Martin Faix, Ph.D. and all the others for their valuable advices and good atmosphere in the course of my work. I would like to direct my deepest thanks to the reviewers, prof. JUDr. Mahulena Hofmannová, CSc. and JUDr. Eva Hubálková, Ph.D., for taking the time to read and comment on my paper. Many thanks go to lawyers of the European Court of Human Rights, especially to Olga Dmytrenko, Oleksandr Ovchynnykov, TimKolk, Nikita Kolomiets and Ekaterina Malareva. Visits to the libraries of the European Court of Human Rights in Strasbourg and the Squire Law Library in Cambridge helped me to collect many essential sources. I would like to thank the staff of these libraries for their readiness to help and precious assistance. In addition, I am very thankful to Professor David Feldman for his questions and ideas that made me think about the book from a different perspective. Special thanks go tomy family and friends for a great deal of practical, demonstrative assistance and understanding. Without you this book would never appear as it is.

Prague, 1 August 2015 Alla Tymofeyeva

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CONTENTS

ACKNOWLEDGEMENTS

4 5

CONTENTS

LIST OF ABBREVIATIONS INTRODUCTORY REMARKS

10 13

CHAPTER I THE NOTION ‘NON-GOVERNMENTAL ORGANISATION ’ 1.1 GENERAL DEFINITION OF ‘NGO’ IN INTERNATIONAL LAW 17 1.1.1 Doctrine of international law 17 1.1.2 Universal human rights documents 20 1.1.3 Regional human rights documents 26 1.1.3.1 American, African and Asian human rights documents 27 American human rights mechanisms 27 African human rights mechanisms 28 Asian human rights mechanisms 30 1.1.3.2 European human rights documents 30 Council of Europe treaties 31 The other European human rights mechanisms 36 1.2 SPECIAL DEFINITION OF ‘NGO’ IN THE CONVENTION 39 1.2.1 The term ‘non-governmental organisation’ in Article 34 of the Convention 39 1.2.1.1 General considerations 39 Independence from the state 39 Distinction between different categories of the applicants 42 1.2.1.2 Victim status 47 Direct victim 47 Indirect victim 49 Potential victim 51 1.2.1.3 Formal existence 54 NGO in liquidation and the rights of shareholders 56 1.2.1.4 Special forms in which NGOs under Article 34 may exist 58 Profit-making organisation 59 Political parties 64 1.2.2 Roles of NGOs under the Convention 69 1.2.2.1 Role of an applicant 70 Rights of an applicant 71 Duties of an applicant 74

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1.2.2.2 Role of a third party

75 75 79 79 79 81 82 83 86 86 88 89 91 91 91 94 94 94 95 96 87

Authorisation to take part in the proceedings

Duties of a third party

1.2.2.3 Role of a representative

Authorisation to represent

Representation by an NGO or by a practicing lawyer

De facto representative Duties of a representative

1.2.2.4 Role of an information provider

Clarification of the subject matter

Providing information in the course of the proceedings before the Court Providing information in the course of the execution of judgments

Duties of a provider of information

1.3 DEFINITION OF ‘NGO’ FOR THE PURPOSES OF THIS BOOK

1.3.1 General remarks

1.3.2 Direct reference to the phrase ‘NGO’ in the Convention

1.3.3 Implied participation of NGOs

Article 36 of the Convention Rule 36 of the Rules of Court

Article 46 of the Convention and Rule 9 of the Rules of the Committee of Ministers 1.3.4 Various understandings and the term ‘Article 34 NGO’

CHAPTER II RIGHTS OF ARTICLE 34 NGOS UNDER THE CONVENTION PART I. 2.1 INTRODUCTORY REMARKS ON THE LIST OF RIGHTS 99 2.2 RIGHT TO A FAIR TRIAL (ARTICLE 6) 103 2.2.1 General observations 103 2.2.2 Access to court 104 2.2.3 The right to an independent and impartial tribunal 108 2.2.4 Equality of arms 111 2.2.5 Length of the proceedings 112 2.2.6 Non-enforcement 115 2.3 NO PUNISHMENT WITHOUT LAW (ARTICLE 7) 119 2.3.1 General observations 119

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2.3.2 Judgments of the Court 2.3.3 Decisions of the Court

122 125

2.4 RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE (ARTICLE 8)

127 127 129 131 135 136 138 140 140 144 145 147 150 156 156 163 167 169 171 171 173 178 179 182 184

2.4.1 General overview

2.4.2 Respect for ‘home’ and correspondence

2.4.2.1 Search and seizure of data

2.4.2.2 Gathering of information through secret surveillance

2.4.2.3 Common submissions

2.4.3 Summarisation

2.5 FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION (ARTICLE 9)

2.5.1 The scope of Article 9

2.5.2 Management of religious organisations

2.5.3 Payment of taxes

2.5.4 Conduction of spiritual activities

2.6. FREEDOM OF EXPRESSION (ARTICLE 10)

2.6.1 General overview

150 2.6.1.1 Three components of the right to freedom of expression 151 Freedom to hold opinions 151 Freedom to impart information and ideas 152 Freedom to receive information 153 2.6.1.2 Requirements for legitimate interference 154

2.6.2 The most frequent reasons invoked

2.6.2.1 Sanctions for defamation

2.6.2.2 Protection of journalistic sources

2.6.2.3 Licensing of companies

2.6.3 Other reasons of alleged violations

2.7 FREEDOM OF ASSEMBLY AND ASSOCIATION (ARTICLE 11)

2.7.1 General observations

2.7.2 Submissions of trade unions 2.7.3 Submissions of political parties

2.7.3.1 Dissolution of a political party

2.7.3.2 Ban on the activities and refusal to register a political party

2.7.4 Submissions of the other Article 34 NGOs under Article 11

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2.8 RIGHT TO AN EFFECTIVE REMEDY (ARTICLE 13)

188 188 190 193 194 195 196 199 199 200 202 205 207 208 211 211 213 215 215 218 219 222

2.8.1 General observations

2.8.2 Article 13 in conjunction with Article 6 § 1 of the Convention 2.8.3 Article 13 in conjunction with Article 9 of the Convention 2.8.4 Article 13 in conjunction with Article 10 of the Convention 2.8.5 Article 13 in conjunction with Article 11 of the Convention 2.8.6 Article 13 and the rights in the Protocols to the Convention 2.9.2 Article 14 in conjunction with Article 6 § 1 of the Convention 2.9.3 Article 14 in conjunction with Article 9 of the Convention 2.9.4 Article 14 in conjunction with Article 10 of the Convention 2.9.5 Article 14 in conjunction with Article 11 of the Convention 2.9.6 Article 14 and the rights in the Protocols to the Convention 2.9 RIGHT NOT TO BE DISCRIMINATED (ARTICLE 14) 2.9.1 General overview

PART II. 2.10 ARTICLE 34 NGOS’ RIGHTS IN THE PROTOCOLS TO THE CONVENTION

2.10.1 Opening

2.10.2 List of rights in the Protocols

2.11 RIGHT TO PEACEFUL ENJOYMENT OF POSSESSIONS (ARTICLE 1 OF PROTOCOL NO. 1)

2.11.1 General observations

2.11.2 Independence and impartiality of judiciary

2.11.3 Non-enforcement of judgments

2.11.4 Breach of the principle of legal certainty 2.11.5 Other issues under Article 1 of Protocol No. 1 225 2.12 RIGHT TO FREE ELECTIONS (ARTICLE 3 OF PROTOCOL NO. 1) 227 2.12.1 General observations 227 2.12.2 New conditions for elections and disqualification of parties 230 2.12.3 Information on elections 234 2.13 SOME REMARKS RELATING TO PROTOCOL NO. 7 AND ARTICLE 34 NGOS 236 2.14 RIGHT OF APPEAL IN CRIMINAL MATTERS (ARTICLE 2 OF PROTOCOL NO. 7) 241 2.15 RIGHT TO COMPENSATION FOR WRONGFUL CONVICTION (ARTICLE 3 OF PROTOCOL NO. 7) 244

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2.16 RIGHT NOT TO BE TRIED OR PUNISHED TWICE (ARTICLE 4 OF PROTOCOL NO. 7) 2.17 GENERAL PROHIBITION OF DISCRIMINATION (ARTICLE 1 OF PROTOCOL NO. 12) CHAPTER III JUST SATISFACTION UNDER ARTICLE 41 OF THE CONVENTION 3.1 OVERVIEW OF THE INTERNATIONAL COMPENSATION MECHANISMS 3.1.1 Right to reparation and types of compensation mechanisms 3.1.2 Mechanisms based on international treaties between states 3.1.3 Instruments adopted by intergovernmental organisations 3.1.4 Agreements between the states and non-state actors 3.2 COMPENSATION MECHANISM UNDER THE CONVENTION 3.2.1 Main principles of just satisfaction under Article 41 3.2.2 Procedural requirements for awarding of just satisfaction

246

251

255 255 257 260 262 264 264 269 273 273 276 277 279 280 280 282 282 284 284 291 293 295 299 299 309 314 330

3.2.3 Components of just satisfaction award

3.2.3.1 Pecuniary damage

3.2.3.2 Non-pecuniary damage 3.2.3.3 Costs and expenses

3.2.3.4 Default interest

3.2.4 Some other aspects of payment of just satisfaction

3.2.4.1 Currency

3.2.4.2 Place of payment

3.2.4.3 Legal person in liquidation

3.3 MILLIONS AND BILLIONS

3.3.1 The highest amounts of just satisfaction awarded to Article 34 NGOs

3.3.2 Analysis of the awards

3.3.3 Why Article 34 NGOs receive more than individuals

CONCLUSIONS

BIBLIOGRAPHY AND SOURCES Articles, books, chapters and reports Treaties and other international documents

Judgments and decisions

INDEX

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LIST OF ABBREVIATIONS

African Court

African Court on Human and Peoples’ Rights

AI

Amnesty International

Article 34 NGO

NGO within the Meaning of Article 34 of the Convention Association of Southeast Asian Nations Compensation Commission for Darfur Central Electoral Commission Committee on Economic, Social and Cultural Rights Court of First Instance of the European Communities Commonwealth of Independent States

ASEAN

CCD CEC

CESCR

CFI

CIS

Charter

European Social Charter Centre for Legal Resources

CLR CoE

Council of Europe

Commission

European Commission on Human Rights Committee of Ministers of the Council of Europe CoE Criminal Law Convention on Corruption CoE Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism Convention on the Protection of Human Rights and Fundamental Freedoms European Court of Human Rights Commission for Real Property Claims of Displaced Persons and Refugees Conference on Security and Cooperation in Europe Human Rights Council

Committee of Ministers Convention No. 173 Convention No. 198

Convention

Council Court CRPC

CSCE

DARS Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001 Department for the Execution Department for the Execution of Judgments of the Court ECOSOC Economic and Social Council of the United Nations

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ECSR

European Committee of Social Rights

EDF

European Disability Forum

EECC

Eritrea-Ethiopia Claims Commission European Human Rights Advocacy Centre European Network of (ex-) Users and Survivors of Psychiatry

EHRAC ENUSP

ERRC ETUC

European Roma Rights Centre

European Trade Union Confederation

EU Charter

Charter of Fundamental Rights of the European Union

EU

European Union

GFLCP HPCC HRW HVAP

German Forced Labour Compensation Programme Housing and Property Claims Commission

Human Rights Watch

Holocaust Victims Assets Programme/Swiss Banks

ICC

International Criminal Court

ICHEIC

International Commission on Holocaust Era Insurance Claims

IDA IGO

International Disability Alliance Inter-Governmental Organisation

INGO

International Non-Governmental Organisation International Centre for the Legal Protection of Human Rights International Organization for Migration

Interights

IOM

IUSCT

Iran-United States Claims Tribunal Non-Governmental Organisation Organization of American States

NGO

OAS

OAU Charter

Charter of the Organization of African Unity

OAU

Organization of African Unity

ODIHR

Office for Democratic Institutions and Human Rights

OIE

International Organisation of Employers European Ombudsman of the EU

Ombudsman

OSCE

Organization for Security and Cooperation in Europe

OSJI

Open Society Justice Initiative

PIF

Pacific Island Forum

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RJI

Russian Justice Initiative

Rules of the Committee

Rules of the Council of Europe Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements South Asian Association for Regional Cooperation Human Rights Committee of the United Nations United Nations Compensation Commission United Nations Interim Administration Mission in Kosovo Charter of the United Nations of 1945

of Ministers

SAARC

UN Charter

UN Committee

UNCC UNMIK

WNUSP

World Network of Users and Survivors of Psychiatry

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INTRODUCTORY REMARKS Non-governmental organisations 1 (hereinafter also referred to as ‘NGO’) occupy increasingly important positions in international law. Together with international inter-governmental organisations, they work on the implementation of a large number of tasks in a worldwide sphere. 2 Information provided by NGOs becomes vital for the functioning of the Economic and Social Council and other bodies of the United Nations, 3 for the Organization of American States, 4 the Council of Europe (hereinafter also referred to as the ‘CoE’) 5 and for other organisations. 6 One of their most important capacities is an ability to stand before international courts and commissions on human rights protection. NGOs are able to contribute to proceedings within the European and the Inter-American human rights mechanisms as well as in the African system on protection of fundamental human rights. 7 In the present study, the author will primarily concentrate on the status of non governmental organisations derived from the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter also referred to as the ‘Convention’), 8 in the proceedings before the European Court of Human Rights (hereinafter also referred to as the ‘Court’) as well as in some older cases before the European Commission on Human Rights (hereinafter also referred to as the ‘Commission’). In its Article 34, the Convention enables any non-governmental organisation to submit complaints to the Court. An analysis of the Convention and the case-law of the Court confirms that the phrase ‘non-governmental organisation’ has a special meaning in the framework of this Council of Europe treaty, which is different from the definition of an ‘NGO’ in the other international instruments and in the theory of international law. 1 Words “organisation” and “organization” are synonyms in this text. The author uses different spelling dependent of how it is spelled in a particular international treaty or the other sourse. Moreover, diffeent spelling are sometimes in the different publications of the same international treaty. For example, older versions of the European Convention on Human Rights contained the expression “nongovernmental organsation”. The modern version uses a hyphen in this phrase, namely “non governmental organsation”. In this text, therefore, the author utilises this new spelleing. 2 REBASTI, E., VIERUCCI, L. A. Legal Status for NGOs in Contemporary International Law? URL: accessed 22 July 2015. 3 Consultative relationship between the United Nations and non-governmental organisations E/RES/1996/31 adopted on 25 July 1996. 4 Strategies for Increasing and Strengthening Participation by Civil Society Organizations in OAS Activities. CP/RES. 840 (1361/03) adopted on 26 March 2003. 5 Resolution (93) 38 On Relations between the Council of Europe and International Non-Governmental Organisations (adopted by the Committee of Ministers on 18 October 1993, at the 500th meeting of the Ministers’ Deputies). 6 See REBASTI, cited above, and EU Progress program on cooperation of the European Comission with NGOs. 7 MAYER, L. H. NGO standing and influence in regional Human Rights Courts and Commissions , Brooklyn Journal of International Law, Vol. 36, 2011. 8 The European Convention on Human Rights of 4 November 1950 is available from http://www.echr. coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf.

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The research of the literature dealing with the notion ‘non-governmental organisation’ within the Convention has shown that there is not yet a detailed monograph that would cover the issue in question. Certain comments on the subject matter can be found in the manuals on the Convention by Karen Reid, 9 Philip Leach, 10 Harris and O’Boyle, 11 Jiři Kmec, 12 as well as many others. 13 Partially, the status of NGOs under the Convention was covered in the monograph of Anna-Karin Lindblom 14 and scientific articles concerning the human rights of legal persons. 15 Some basic ideas on the functioning of international law derived from UN documents 16 and various international treaties. 17 None of them, however, is of an exhaustive nature. Therefore, the case-law of the Court, taken from the course of more than fifty years of its practice, serves as the main source of information for this manuscript. The current study titled ‘Non-Governmental Organisations under the European Convention on Human Rights: Exceptional Legal Standing’ presents among the first studies in the theory of international law research to examine the different aspects of NGOs’ standing under the Convention as the whole. The given here analysis covers all the provisions in the Convention and the Protocols to it, which are applicable to non-governmental organisations within the meaning of Article 34 of this treaty. This book consists of three chapters. The First Chapter defines the main term of this study: ‘non-governmental organisation’. This term has a number of meanings, not only in the instruments of various international organisations and in legal theory, but also in different treaties within the Council of Europe and even in diverse parts of the Convention itself. The main idea of this Chapter is to explain how the term ‘non-governmental organisation’ is understood in the Convention in comparison to 9 REID, K. A practitioner’s guide to the European Convention on Human Rights . 4 th ed. London: Thomson/Sweet & Maxwell, 2012. 10 LEACH, P. Taking a Case to the European Court of Human Rights. Oxford: OUP Oxford, 2011. 11 HARRIS, D.J., O’BOYLE, M., BATES, E.P., BUCKLEY, C.M. Law of the European Convention on Human Rights . 2 nd ed., Oxford; New York: Oxford University Press, 2009 and the 3 rd edition of 2014. 12 KMEC, J., KOSAŘ, D., KRATOCHVÍL, J., BOBEK, M. Evropská úmluva o lidských právech. Komentář. 1. vydání. Praha: C. H. Beck, 2012. 13 For example, GOMIEN, D. Short guide to the European Convention on Human Rights (3rd edition). Council of Europe Publishing, 2005; VAN DIJK, P. Theory and practice of the European Convention on Human Rights. 4th ed., Antwerpen; Oxford: Intersentia, 2006 and GRABENWARTER, C. European Convention on Human Rights : commentary . München: C.H. Beck ; Oxford : Hart ; Baden-Baden : Nomos; Basel : Helbing Lichtenhahn, 2014. 14 LINDBLOM, A.K. Non-Governmental Organizations in International Law . Cambridge: Cambridge University Press, 2005; TOMUSCHAT, C. Human Rights Between Idealism and Realism , Second Edition. Oxford: Oxford University Press, 2008. 15 See, for instance, FURA-SANDSTRÖM, E. Business and human rights: who cares? In Liber amicorum Luzius Wildhaber : human rights, Strasbourg views = Droits de l’homme, regards de Strasbourg / eds. Lucius Caflisch … [et al.]. – Kehl; Strasbourg ; Arlington, Va. : N.P. Engel, 2007 and EMBERLAND, M. The Corporate Veil in the Case Law of the European Court of Human Rights. Za6RV 63 (2003), 945-969. 16 Resolution on the Criteria for Granting and Enjoying Observer Status to Non-Governmental Organizations Working in the field of Human and Peoples’ Rights, Bujumbura, ACHPR /Res.33 (XXV)99, 5 May 1999. 17 See, European convention on the recognition of the legal personality of international non-governmental organisations, Strasbourg, 24 April 1986.

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the other instruments. The analysis of this international treaty allows us to define four main roles or capacities, in which NGOs may take part in the proceedings before the Court: applicant (Article 34 of the Convention), 18 third party (Article 36 of the Convention), 19 representative (Rule 36 of the Rules of Court), 20 and information provider (Article 46 of the Convention). 21 Each of these roles are described in the book separately with reference to both their rights and the duties in the course of the trial. The author makes a comparison of the features of the NGOs in each of these capacities. Special attention is paid to the expression ‘non-governmental organisation’ in the text of Article 34 of the Convention and its interpretation in the case-law of the Court. On the basis of the study of the judgments and decisions of this Court, it becomes clear, for instance, that political parties and business entities are characterised by the Court as non-governmental organisations. At the end of the Chapter, the author provides a definition of an NGO within the meaning of Article 34 of the Convention for the purposes of the current research, giving it the title, ‘Article 34 NGO’. 22 The proposed title is derived from the comparison of the use of this term in Article 34, the other provisions of the Convention and the diverse sources of international law. Moreover, this definition is of importance as the following Chapters of the book are primarily devoted to NGOs in the capacity of an applicant. The Second Chapter is the most extensive and examines all the possible rights and freedoms envisaged in the Convention that are applicable to non-governmental organisations as confirmed by the Court’s case-law. It is divided into two main parts: the rights envisaged in the Convention itself and the rights set forth in the Protocols to it. Although the author is aware of the fact that the material rights established in the Protocols to the Convention are an integral part of the Convention’s rights, she nevertheless created these two groups in order to make the book more coherent and comprehensible. The first section of this chapter provides a general overview of these human rights and then each of the following sections describes a theory and the Court’s case-law in respect of NGOs within the meaning of Article 34 of 18 Savez crkava “Riječ života” and Others v. Croatia , no. 7798/08, 9 December 2010; Centro Europa 7 S.R.L. and di Stefano v. Italy [GC], no. 38433/09, ECHR 2012; Russian Conservative Party of Entrepreneurs and Others v. Russia , nos. 55066/00 and 55638/00, 11 January 2007 and Radio France and Others v. France , no. 53984/00, ECHR 2004-II. 19 PETA Deutschland v. Germany , no. 43481/09, § 5, 8 November 2012; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 8, ECHR 2012 (extracts); M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011 and Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 8, 9 July 2013. 20 D. H. and Others v. the Czech Republic [GC], no. 57325/00, ECHR 2007-IV; Bureš v. the Czech Republic , no. 37679/08, § 5, 18 October 2012; I.G. and Others v. Slovakia , no. 15966/04, § 5, 13 November 2012 and Oleksandr Volkov v. Ukraine, no. 21722/11, § 2, ECHR 2013. 21 Abdulkhakov v. Russia , no. 14743/11, 2 October 2012; I.K. v. Austria , no. 2964/12, 28 March 2013; Savriddin Dzhurayev v. Russia , no. 71386/10, 25 April 2013 and El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, ECHR 2012. 22 In giving this title, the author was inspired by an NGO “Article 19”. This organisation specifies: “We take our name from Article 19 of the UDHR”. See URL: accessed 1 August 2015.

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the Convention. The second part starts with Section 2.10, where the author gives a brief overview of the rights in the Protocols to the Convention. The reader is then provided with the theory and practice concerning Article 34 NGOs on the subject. Just satisfaction under Article 41 of the Convention regarding Article 34 NGOs is the subject matter of the final andThird Chapter of the book. It consists of three main parts. The first is focused on the outline of international compensation mechanisms all over the world. The three main types of such mechanisms, namely those based on an international treaty, on the decision of an inter-governmental organisation and those covered by special agreements between states and non-states actors, are described in separate sections. In the second part of this Chapter, the conditions for awarding compensation are explained. Further, the author portrays pecuniary damage, non-pecuniary damage, and costs and expenses, together with the default interest, as the main elements of just satisfaction awards. The research also gives details on specific nuances of providing a person with compensation, such as place of payment and the currency used. The last part of this final chapter is based on the author’s research concerning the highest amounts of the just satisfaction awarded to Article 34 NGOs ever in the history of the CoE human rights system. These were millions and even billions of euros, which is reflected in the title of this part of the book. At this point, the author would like to wish you a pleasent time wih this book. All comments, proposals and questions are very welcomed. Please, send them to tymofeya@prf.cuni.cz.

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CHAPTER I THE NOTION ‘NON-GOVERNMENTAL ORGANISATION’

NGOs are usually understood to be ‘third sector’, not-for-profit organizations … David Lewis 23

1.1 General definition of ‘NGO’ in international law 1.1.1 Doctrine of international law

The theory of international law has elaborated a number of approaches to understanding the concept of ‘non-governmental organisation’ and there is no generally recognised definition of ‘NGO’. 24 In this first section of the current chapter, the author would like to give a basic overview of the perspectives from which the theorists look at the term within the doctrine of international law.The short analysis given here does not aim to cover all the different approaches to the concept of ‘NGO’, but only to set forth its common elements. Accordingly, it would be possible to make a comparison of the meaning of the term ‘non-governmental organisation’ in the doctrine, in international treaties and, at the end, in the key treaty for this study, namely the European Convention on Human Rights. Famous human rights theorist, Christian Tomuschat , defines an NGO as an association under the domestic law of a given country, 25 which is a quite vague definition. It does not allow us to derivate the specific features of an NGO, except for mentioning two things. First, an NGOmust be established in accordance with the law, which would probably require formal existence of the legal entity, but not necessarily. Second, the applicable law is the national law, a contrario , not international law. The author of a ground study on the legal status of NGOs in international law, Anna-Karin Lindblom , conducted an extensive analysis of a meaning of the term ‘NGO’ in various international documents and came to conclusions that an ‘NGO’ is an organisation with the following features: 1) is ‘non-governmental’, that it is established by private initiative and free from any governmental influence, including non-performance of public functions; 2) is not-for-profit, meaning that if any profits are earned by the organisation, they are not distributed to its members, but used for the realization of its objectives; 23 LEWIS, D. Non-Governmental Organizations, Management and Development. Third Edition, David Lewis, 2014, p. 3. 24 LINDBLOM, 2005, cited above; TOMUSCHAT, C. Human Rights Between Idealism and Realism , Second Edition. Oxford: OxfordUniversityPress, 2008;WILLETTS, P. What is aNon-Governmental Organization? Output from the Research Project on Civil Society Networks in Global Governance. URL: accessed 20 July 2015. 25 TOMUSCHAT, 2008, cited above, p. 282.

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3) does not use or promote violence or have clear connections with criminality; and 4) has a formal existence, meaning that it normally does, but not necessarily, enjoy legal personality under national law with a statute and a representative structure. 26 This description is very grounded and precise. To sum up, it is possible to conclude that according to Ms Anna-Karin Lindblom the term ‘NGO’ signifies a non-profit making, independent-from-the-government organisation with a legal existence, which conducts no any criminal activity. Another theorist, Lloyd H. Mayer , has conducted special research regarding the involvement of NGOs into the proceedings before international human rights bodies. For these purposes, he clarified that the ‘NGO’ is a unit with the three following characteristics: 1) formally established, 2) organizationally independent from the government, and 3) non-profit. 27 This explanation is very similar to the one provided by A. K. Lindblom. It comprises three of the four features she presented. Menno T. Kamminga gives a negative definition of the term ‘non-governmental organisations’ by explaining what they are not: “First and foremost, NGOs are private structures in the sense that they are not established or controlled by States. This distinguishes NGOs from inter-governmental organizations (IGOs). Secondly, NGOs do not seek to overthrow governments by force. This distinguishes them from liberation movements and armed opposition groups. Thirdly, while NGOs may seek to change government policies they do not aim to acquire state power themselves. This distinguishes NGOs from political parties. Fourthly, while NGOs may be engaged in fund-raising and merchandizing activities, they do not seek financial profit for their own sake. This distinguishes NGOs from companies. Fifthly, while some NGOs may occasionally engage in civil disobedience, they are generally law-abiding. This distinguishes NGOs from criminal organizations”. 28 With reference to the Encyclopaedia of Public International Law, he also writes that the concept of NGOs may encompass multinational corporations and even national liberation movements. 29 By stating that NGOs do not look for pecuniary revenue, M. T. Kamminga denies the understanding of non-governmental organisation as a business entity as it is doubtful that multinational corporations would function without following an aim to receive profit. Similarly, it is hard to imagine any national liberation movements that do not pursue an aim to change the government. Examples in history show the use of force for these movements was an indispensable

LINDBLOM, 2005, cited above, p. 52.

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27 LLOYD, H. M. NGO standing and influence in regional Human Rights Courts and Commissions, Brooklyn Journal of International Law, Vol. 36, 2011, p. 911. 28 KAMMINGA, M. The Evolving Status of NGOs under International Law: a Threat to the Inter-State System? in ALSTON, P. Non-State Actors and Human Rights . Academy of European Law European University Institute in collaboration with the Center for Human Rights and Global Justice, New York University School of Law, Oxford: Oxford University Press, 2005, p. 96. 29 Ibid. , p. 95.

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part of overtaking the political power in a state. 30 Even in recent days, when it is believed that the lessons of the first and second world wars left a unforgettable mark in the memories of the European governments, the Euromaidan protests in Ukraine resulted in a number of victims both from the side of the protesters 31 and from the side of governmental forces. 32 Consequently, it is impossible to combine both of the factors, namely the statement that the term ‘NGO’ may include national liberation movements and the statement that do not look for overthrowing of governments by force. In his research titled ‘What is a Non-Governmental Organization?’, professor Peter Willetts , from the City University, London writes: “There is no generally accepted definition of anNGO and the term carries different connotations in different circumstances. Nevertheless, there are some fundamental features. Clearly, an NGO must be independent from the direct control of any government. In addition, there are three other generally accepted characteristics that exclude particular types of bodies from consideration. An NGO will not be constituted as a political party; it will be non-profit-making and it will be not be a criminal group, in particular it will be non-violent. These characteristics apply in general usage, because they match the conditions for recognition by the United Nations. The boundaries can sometimes be blurred: some NGOs may in practice be closely identified with a political party; many NGOs generate income from commercial activities, notably consultancy contracts or sales of publications; and a small number of NGOs may be associated with violent political protests. Nevertheless, an NGO is never constituted as a government bureaucracy, a party, a company, a criminal organization or a guerrilla group.” 33 As we see, this definition is very similar to the one given by Menno T. Kamminga. Again, business companies and political parties are excluded. The truth is that an exact definition may depend on a particular situation. NGOs play different roles in their activities before different national and international institutions, at times they even have different roles before the same institution. However, as we will see later in this book, it is impossible to agree that an NGO is never a political party or a company. Based on the definitions given above by the prominent legal theorists, it is possible to summarise the main features of the term ‘NGO’ in the doctrine of international law. They are as follows: 1) independence from state authorities; 2) non-profit-making activities; 3) absence of activities leading to the seizure of state power; 4) formal existence; 5) obedience to state authorities. 34 30 The use of force in the French revolution led to abolition of the French monarchy (see, THOMPSON, J.M. The French Revolution . Oxford: Oxford University Press, 1945, 614 pages). The October revolution of 1917 was also a seizure of state power and resulted in the creation of Soviet Russia (see, SERGE, Victor. Year One of the Russian Revolution . London: Writers & Readers Publishing, 1992, 456 pages). 31 Information about the victims of clashes in the center of Kyiv . Ministry of Healthcare of Ukraine web page. Archived from the original on 17 April 2014. URL:< http://www.moz.gov.ua/ua/portal/ pre_20140416_c.html.> accessed 20 July 2015. 32 Captured Interior Troops soldiers released, their condition satisfactory – Interior Ministry. Interfax Ukraine. Ukrainian New Agency, 21 February 2014. URL: accessed 20 July 2015. 33 WILLETTS, cited above. 34 The author would like to highlight again that this is only a basic study and it may not be interpreted

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Every rule has exceptions to it. This is true also for the doctrine of international law, which is not a monolith and includes different understandings of the same term. For instance, at the international law level, A.K. Lidblom notes in her monograph that, although most international instruments exclude political parties from the definition of ‘NGO’, the European Convention on Human Rights is an exception to this rule. 35 This international treaty also deviates from the requirement that an NGO has to be not-for-profit. Furthermore, the European Court of Human Rights does not always require the legal existence of an applicant NGO. Consequently, the concept of ‘NGO’ under the doctrine of international law varies in meaning among some international treaties. For this reason, let us conduct a brief study on how the term ‘NGO’ is understood in international treaties all over the world, from the universal to the regional level. This will enable us to determine whether to 1) confirm the theory that NGOs in the European Convention have an exceptional legal standing or 2) come to the opposite conclusion, namely, that business companies, political parties and different unions of people without a formal registration under national law are also considered to be ‘non-governmental organisations’ in general. 1.1.2 Universal human rights documents Let us have a look on how the term NGO is explained in international treaties and documents on the world wide level. The most important United Nations (hereinafter also referred to as the ‘UN’) document, which is essential for the functioning of the whole global society, the so-called “Constitution of international law”, 36 is the Charter of the United Nations (hereinafter also referred to as the ‘UN Charter’). 37 In its Article 71, the UN Charter envisages that the Economic and Social Council (hereinafter also referred to as the ‘ECOSOC’) 38 may make suitable arrangements for consultation with non-governmental organisations that are concerned with matters within its competence. The UN Charter requires that these arrangements should take place only after discussion of the issue with the concerned member states of the United Nations. From the text of this provision itself, it is difficult to give any specific definition of ‘NGO’. We can find more details in the Resolution of the ECOSOC No. 1996/31 titled ‘ Consultative relationship between theUnitedNations and non-governmental organizations’ . 39 In accordance with paragraph 12 of this Resolution, an NGO, for the purpose of the arrangements in question, signifies any such organisation that is not established by a governmental entity or intergovernmental agreement, including as the absolute truth as far as the doctrine of international law is of unexplorable extent. The study in question does not follow an aim to conduct a ground research on the notion ‘NGO’ in the theory of international law, but only to show that there is a number of understandings of this term, which are different from the one provided by the European Court of Human Rights. 35 LINDBLOM, 2005, cited above, p. 48. 36 DIGGELMANN, O. and TILMANN, A. Is There Something Like a Constitution of International Law? a Critical Analysis of the Debate on World Constitutionalism. ZaöRV 68 (2008), 623-650, p. 636. 37 Charter of the United Nations, United Nations Treaty Series , volume 859, p. VIII. 38 See accesed 20 July 2015. 39 Resolution of the ECOSOC No. 1996/31 of 25 July 1996. Official Records of the Economic and Social Council , 1996, Supplement No. 1.

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organisations that accept members designated by governmental authorities, provided that such membership does not interfere with the free expression of the views of the organisation. 40 Resolution No. 1996/31 does not set forth any particular rules concerning the business activities of the NGOs or their involvement in the political life of the country. It only mentions that such NGOs must avoid politically motivated acts 41 againstmember states of theUnitedNations incompatiblewith the purposes and principles of the Charter of the United Nations. In addition, they have to demonstrate that their programme of work is of direct relevance to the aims and purposes of the United Nations. 42 Article 1 of the UN Charter envisages that the main purposes of the UN are “to maintain international peace and security, … to develop friendly relations among nations based on respect for the principle of equal rights, … to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms”. 43 The analysis of these aims shows that the goals of obtaining profit and exercising state power through its representatives are not included in this provision. This means that a negative definition of ‘NGO’ under the Charter of the United Nations would be similar to the one we find in the doctrine of international law, namely that political parties, liberation movements and armed opposition groups, as well as business corporations are excluded from the meaning of ‘NGO’ under Article 71 of the UN Charter. NGOs that are accredited with ECOSOC can participate in a number of events, including, but not limited to, its regular sessions. At these sessions, which usually take place once a year, NGOs may: 1) attend official meetings; 2) submit written statements prior to sessions; 3) make oral statements; 4) meet official government delegations and other NGO representatives; 4) organize and attend parallel events that take place during the session; 5) participate in debates, interactive dialogues, panel discussions and informal meetings. 44 Different UN bodies have different modalities for NGO participation, but common to all of them is that only NGOs accredited to ECOSOC are allowed to participate in their sessions. 45 ECOSOC is not the only Charter-based UN body competent to deal with NGOs. A number of other UN institutions also cooperate to some extent with non governmental institutions. The UN Human Rights Council (hereinafter also referred to as the ‘Council’) is an inter-governmental body within the United Nations system responsible for strengthening the promotion and protection of human rights. 46 The Council was created by the United Nations General Assembly on 15 March 2006 by 40 NGO Guide to Consultative status. United Nations publication: New York, 2011, p. 11. 41 Paragraph 57 of the Resolution No. 1996/31. 42 Paragraph 8 of the Resolution No. 1996/31. 43 Charter of the United Nations, United Nations Treaty Series , volume 859, p. VIII. 44 NGO Guide to Consultative status. New York: United Nations publication, 2011, p. 7. 45 Ibid ., p. 11. 46 About the UN Human Rights Council. URL: accesed 20 July 2015.

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Resolution 60/251 47 when it replaced the former United Nations Commission on Human Rights. Even though the Council is not a subsidiary of ECOSOC, only NGOs with consultative status under Resolution No. 1996/31 may participate in its sessions as observers. 48 As observers, NGOs are able, among other things, to: 1) attend the proceedings of the Council 2) observe all the proceedings except for the deliberations under the Complaints Procedure; 3) submit written statements; 4) make oral interventions; 5) participate in the Universal Periodic Review (UPR) which involves a review of the human rights records of all 192 United Nations member states once every four years; 6) participate in debates, interactive dialogues, panel discussions and informal meetings and 7) organize ‘parallel events’ on issues relevant to the work of the Council. 49 Apart from the observer’s status, NGOs “claiming to be victims of human rights violations or having direct, reliable knowledge of such violations” may submit a complaint to the Council. 50 It is unclear, whether the NGOs in the capacity of observers must comply with the different requirements than those acting in the capacity of a victim. Nevertheless, since the guides to the Council’s complain procedure does not specify that only accredited NGOs may lodge a complaint, it is possible to conclude that any NGO has such a possibility. The question is whether business entities and political parties may claim to be victims of human rights violations before the Council. Practice shows that the submissions usually come from non-profit, non-political organisations. 51 Given the special requirements for NGOs under the ECOSOC Resolution, specifically, the requirement to follow the aims of the United Nations, it is questionable whether each and every business company or political party will be able to comply with this prerequisite. The two most prominent UN level treaties in the area of human rights are the international covenants of 1966. The first covenant, the UN International Covenant on Civil and Political Rights , 52 was completed by the provisions of the Optional Protocol, which recognizes the competence of the UN Human Rights Committee (hereinafter also referred to as the ‘UN Committee’) to receive and consider communications from individuals. 53 The mechanism for communications from individuals envisages the possibility to deal with the requests only from natural persons. Neither the UN International Covenant on Civil and Political Rights, nor its 47 Resolution No. 60/251 on Human Rights Council adopted by the General Assembly on 15 March 2006. 48 ECOSOC Resolution 1996/31. Consultative Relationship between the United Nations and non governmental organizations. 49 NGO Guide to Consultative status. New York: United Nations publication, 2011, p. 18. 50 Human Rights Council’s Complaint Procedure. URL: accesed 20 July 2015. 51 See the list of the Council’s resolutions on http://www.ohchr.org/EN/HRBodies/SP/Pages/Themes. aspx. Fore example, Promotion and protection of all human rights, civil political, economic, social and cultural rights, including the right to development. Resolution of the Council No. 15/21. A/HRC/ RES/15/21 and Elimination of all forms of intolerance and of discrimination based on religion or Berlin Resolution of the Council No. 6/37. 52 International Covenant on Civil and Political Rights. United Nations, Treaty Series, vol. 999, p. 171 and vol. 1057, p. 407. 53 Optional Protocol to the International Covenant on Civil and Political Rights. United Nations, Treaty Series , vol. 999, p. 171.

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additional protocol, contains any mentioning of the word ‘NGO’. They do not provide an NGO with the possibility to lodge a complaint with the UN Committee. Therefore, we can conclude that this universal human rights body, contrary to the Council, has no jurisdiction to deal with the complaints submitted by NGOs seeking to protect their own human rights. Nevertheless, nothing prevents the UN Committee from using NGO reports as a source of information in its decision-making process. This, however, does not help us to clarify the meaning of ‘non-governmental organisation’ under this international treaty. The second covenant, the UN International Covenant on Economic, Social and Cultural Rights, 54 also does not contain any reference to the expression ‘NGO’ in its text. The monitoring body established for the purposes of this covenant is the Committee on Economic, Social and Cultural Rights (hereinafter also referred to as the ‘CESCR’). 55 CESCR is a body of 18 independent experts who are elected to carry out the monitoring functions assigned to ECOSOC in Part IV of the International Covenant on Economic, Social and Cultural Rights. The foundation for its activity is ECOSOC Resolution 1985/17 of 28 May 1985. 56 Upon receipt of reliable information on serious, grave or systematic violations by a State party to the international treaty, CESCR may, on its own initiative, begin inquiries. The treaty does not specify who must be the provider of the information on grave or systematic violations, but practice and the theory of law confirm that NGOs play an substantive role in this field. 57 Similar to the situation with the first covenant, there is not sufficient information to be able to define the possible concept of the term ‘NGO’ for the purposes of the International Covenant on Economic, Social and Cultural Rights. Among the core international human rights instruments are the International Convention on the Elimination of All Forms of Racial Discrimination, 58 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 59 the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 60 the International 54 International Covenant on Economic, Social and Cultural Rights. United Nations, Treaty Series , vol. 993, p. 3. 55 See URL: accesed 20 July 2015. 56 Economic and Social Council resolution no. 1985/17 of 28 May 1985. 57 HUAWEN, L. The Obligations of States under the International Covenant on Economic, Social and Cultural Rights : The Chinese Case. Oslo: Norwegian Centre for Human Rights, University of Oslo, 2004, Research Notes 04/2004, p. 12. The author of this paper discusses the situation with NGOs involvement in China and concludes that “…the status and roles of Chinese non-governmental organizations are very limited. In some fields such as the right to education, the author believes that there is not yet enough interest in or financial support for change. Ratifying the International Covenant on Economic, Social and Cultural Rights and understanding the Obligations involved is just the beginning of the process of realizing these rights.” Ibid , p. 46. 58 International Convention on the Elimination of All Forms of Racial Discrimination. United Nations, Treaty Series , vol. 660, p. 195. 59 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. United Nations, Treaty Series , vol. 1465, p. 85. 60 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. United Nations, Treaty Series , vol. 2220, p. 3. Doc. A/RES/45/158.

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