Democracy and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
INTRODUCTION
When the Council of Europe was established ' Maintenance and further realisation of human rights and fundamental freedoms ' was listed amongst its basic objectives. To achieve this a Convention for the Protection of Human Rights and fundamental Freedoms was drawn up and signed in Rome on 4 November 1950. This followed the UN's Universal Declaration of Human Rights which however did not set out a means whereby respect for human rights could be enforced. The convention on the other hand set up machinery for enforcement and required signatory states not only to accept certain duties of observance but also to recognise the fact that individuals have rights under international law.
The convention was never intended to supplant national measures for the protection of human rights, but to provide an additional guarantee at the international level, and in fact for proceedings to be brought under the convention, national remedies have to be exhausted. This international guarantee in many ways safeguards the maintenance of the democratic system within the signatory states. Thus the convention contains articles which emphasise certain democratic principles such as the right to a fair hearing (Article 6), freedom of thought, conscience and religion (Article 9) and freedom of expression (Article 10) amongst others.
Article 11, Freedom of assembly and association and the right to form trade unions, is perhaps the one Article which undemocratic governments hate most. Although the Article only mentions explicitly trade unions, the freedoms of assembly and of association empower (within certain parameters) the existence of plurality of social forces which is one of the basic precepts of real democracy.
Article 11 states as follows:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interest.
2. No restrictions shall be placed on the exercise of these rights other than such as prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.
This essay shall examine Article 11 in an attempt to show that it can be considered as fundamental in protecting the very foundations of a democratic society. In doing this one must keep in mind that many of the rights to be found within the Convention are closely related and even inter-linked especially in the light of Article 17 which is intended to safeguard against the abusing of such rights. For the sake of brevity, knowledge of the basic machinery of the Court of Human rights and the Convention on the part of the reader is assumed.
WHAT DOES ARTICLE 11 DO?
Both the freedom of association and the freedom of peaceful assembly enable the individual to take action for the furtherance of his/her personal interests in concert with other individuals. By making use of the rights under Article 11, one can not only protect an area of private existence from state interference, but also reach out into the social life of one's community. In particular, freedom of association and assembly can be considered to be fundamental for a democratic society, where co-operation and interaction between different societal groups is necessary so as to allow the different viewpoints held by citizens to be formulated and expressed. Thus it supersedes in this regard the right of freedom of expression which essentially is the freedom of separate individuals to make their views known. Article 11 allows various individuals to speak in one common group voice, increasing the likelihood that it will be heard. However it is important to note that, first and foremost, it is individuals who are the holders of the right of freedom of association. Any human right under the Convention constitutes at least a human right of individual human beings.
WHAT DOES THE RIGHT OF PEACEFUL ASSEMBLY ENTAIL?
The term assembly in itself implies a more informal grouping than does the term association. The commission has described the role of peaceful assembly, and set forth the common sense view that the existence of prior authorisation procedure for public assemblies did not, per se, infringe Article 11;
"The right of peaceful assembly stated in this Article is a fundamental right in a democratic society and......one of the foundations of such a society.....As such this right covers both private meetings and meetings in public thoroughfares. Where the latter are concerned, their subjection to an authorisation procedure does not normally encroach upon the essence of the right. Such a procedure is in keeping with the requirements of Article 11.1, only if in order that the authorities may be in a position to ensure the peaceful nature of a meeting, and accordingly does not as such constitute interference with the exercise of the right"
The Commission makes clear that the right of freedom of peaceful assembly is protected, to those who intend to organise a peaceful demonstration. The possibility that there could be violent counter-demonstrations or opposing extremists that engage in violent action, does not take away this right per se. However if there existed strong evidence of a threat to public safety and order, the government would be acting within its margin of appreciation in banning all public demonstrations, especially if government bans are of short duration and limited geographical area.
WHAT CONSTITUTES AN ASSOCIATION?
Not every group of persons, established by mutual consent, is an association within the meaning of Article 11. The prerequisites of an association include that two or more persons must act in concert with a view to pursuing specific common objectives, and that a minimum of organisation and stability is an implicit requirement to be derived from the term 'association'. An association presupposes a deliberate effort to set up an organisational structure. However an association does not need to be officially recognised or registered. Its lack or otherwise of legal personality under domestic law does not effect its status with regard to Article 11 as the concept of association is exclusively determined by the convention.
Associations can therefore be of various types and thereby need some qualification:
TRADE UNIONS : These are explicitly mentioned in Article 11. However this prominence does not necessarily mean that they have a higher legal value than any other freedom of association. This kind of discrimination would be inconsistent with Article 14. It rather shows that at the time of the drafting of the Convention, Trade Unions were in particular need of protection.
EMPLOYERS ASSOCIATIONS: Although they can be called the antitheses of trade unions they are more appropriately counter-balances to the power that the latter have built up over the years. Whatever they are, there is no doubt that they also qualify for protection under Article 11.
POLITICAL PARTIES: These are also associations in the sense contemplated by Article 11 and there can be no real reason to exclude them. Viewing Article 11 as a legal guarantee intended to secure the democratic process, one must conclude that political parties belong to the core elements enjoying protection. The case of the German Communist Party raised this point despite the fact that it confirmed a ban imposed by the German Government. In its decision of 12 July 1957 the Commission implicitly affirmed the applicability of Article 11 to political parties, as it did when it ruled that a political party did not automatically enjoy a right of participation in elections in the decision of 18 May 1976, X, Y and Z v. FRG.
RELIGIOUS DENOMINATIONS: Religious communities too can, in as far as their legal position stands, qualify for the benefits of Article 11. Whenever public authorities impede the establishment of the organisational structure of a church or other religious denominations, or hinder a person from joining such institutions, Article 11 is the relevant provision. Besides this religious activity per se enjoys protection under Article 9.
MINORITIES: Associations are organisations established by an act of free will of their founders. If a person belongs to a specific group of people by virtue of culture, language or ethnic origin, this relationship is primarily based on criteria which does not arise from a deliberate free choice. Thus Ethnic or linguistic minorities, as they may exist in some states which are signatories of the convention, do not constitute an association. Furthermore minorities are protected from discrimination through Article 14.
CORPORATE BODIES UNDER PUBLIC LAW: Tomuschat states that according to the established case-law of the Commission and the Court, public law institutions endowed with governmental authority cannot be considered as associations within the meaning of Article 11. This applies to territorially based bodies, such as communes, regions or even the state as such, on one hand, as well as to bodies with membership ratione personae, like the Ordre des Médecins in Belgium or the Kammern in which liberal profession are organised in Germany, on the other. It thus becomes clear that different rules must apply to associations voluntarily established by individuals and to bodies set up by the state that are entrusted with the performance of public functions. However there can be instances where a state organises its citizens in a variety of corporate bodies under public law with the purpose of curtailing their basic freedoms. In these cases recourse to Article 11 should be not barred off hand. In Le Compte, Van Leuven and De meyere the Court stressed that the setting up of public law bodies with compulsory membership must not prevent the members of such bodies from forming together or joining professional associations.
CITIZENS AND NON-CITIZENS : Freedom of association is a right of everyone according to the text of Article 11, and not just of citizens or nationals. However Article 16 allows restriction of the political activity of aliens, a clause which also applies to Article 11. Therefore equality is not an absolute right but can be set aside if the state deems it necessary for the protection of its interests.
THE PROTECTION OF ACTIVITIES
Implicit in Article 11 is the right to form an association. Although this right is mentioned only with regard to trade unions, it is also applicable to freedom of association as otherwise associations cannot be formed which one can join, thus making this freedom meaningless. Similar is the granting of freedom to join existing associations. Associations which nobody could join could not possibly fulfil their purposes. This is especially so for mass organisations such as political parties or trade unions, which tend to remain active in the political life of their nations over long periods of time.
For the above rights to have further meaning, freedom of association must include the right to choose an adequate name, to define the legal status of the association, to set up adequate organs and to convene and hold meetings of such organs. In other words, an association has to have the right to its own internal operation.
There arises a certain contention, however, in regards to Article 11. This is due to the phrase "for the protection of his interest" which transfers a collective freedom beyond the area of purely organisational issues. Should associations have more and more far-reaching rights than the individual. Under a human rights treaty, it is hardly believable that collective action should enjoy an advantage over action conducted by individuals separately. Due to this Article 11, should be viewed as a guarantee to associate, while group activity must look elsewhere for protection.
The Court in judgement of 6 February 1976, Schmidt and Dahlström, has decided that Article 11 does not imply the right to Strike in the case of trade unions (on the other hand it does not imply that they don't have the right either). The state does not have a duty to consult and to conclude collective agreements either. The only right which is a clear outcome of Article 11 is the right to be heard. This is not however an unimportant right. As far as political parties are concerned, their natural function is to articulate public opinions, to assemble like-minded people and to participate in elections. If a political party cannot perform this function it loses its particular raison d'etre. Thus an interpretation of Article 11 has to take the particular position of political parties in consideration.
IS THERE A RIGHT TO NOT ASSOCIATE?
Article 11 does not mention the right to not be forced to join an association unlike Article 20(2) of the Universal Declaration of human Rights. However it should follow logically that if a person has the right to form or join an association, this also means that he or she has the right to decide on his or her membership in any association, be it in the affirmative or in the negative. Thus to be included in an association against one's will constitutes an interference with personal autonomy.
The above is a compelling argument, however under the British closed-shop system, an employer can agree with the relevant trade union to employ only members of said trade union. This is allowed on the basis of contractual freedom on both sides. In Young, James and Webster, the court, in its judgement of 13 August 1981, found against the British government and in favour of those workers who had already been employed for long periods of time by British Rail before the closed shop agreement was made. It is clear that had they been employed after the Closed shop agreement was in effect, they would have been aware of the condition and thus chose to be employed (and so join the Union) out of their own free will. If this is ethically correct or not is debatable but in view of Article 11 it is legally correct, if the issue to join an association is reduced to a free contractual agreement. Of course with the stark vision of unemployment forcing the individual's decision, it is doubtful how really free the contractual agreement is.
STATE OBLIGATIONS
Article 11 clearly means that the state is duty bound, subject to the limitations allowed under paragraph 2, to neither impede the exercise of the right of freedom of assembly and association nor in any manner to interfere with this right. Thus the most blatant state disregard to Article 11 would be to prohibit certain categories of associations as was done in some authoritarian countries. It would also be contrary to Article 11 to make the establishment of associations necessarily dependent on governmental approval. Just because an association is going to be established, cannot irrespective of that association's real aims and activities, automatically be considered a potential danger to the public interest. To subject the forming of an association to a requirement of prior authorisation would run counter to Article 11, without being open to justification under the limitations of paragraph 2. Thus in the case of, for example, a racist or separatist association, the state cannot prohibit the forming of said association through requiring it to, before hand, gain authorisation. However the state can then ban it on the grounds of ordre public as granted in Article 22 of the International Covenant on Civil and Political Rights. However, public authorities may prescribe that associations, in particular those which aim to obtain legal personality, must be inscribed into a public register.
Just as the state is obligated not to interfere with the right of the freedoms of Article 11, it is also required to ensure within certain limits, the effective enjoyment of that right due to what one may term positive obligations.
Firstly states must provide adequate legal frameworks for the exercise of freedom of association. However, more than the general proposition that national law must be framed in such a way as to permit the effective exercise of freedom of association cannot be derived from Article 11. In the case of trade unions, the Commission in its decision of 13 may 1985 in Cheall v. UK, held that for the right to join a trade union to be effective the state must protect the individual against any abuse of a dominant position by trade unions.
The positive obligations of the state do not include, however, a duty to provide financial assistance to individuals seeking to establish an association, or to associations for the better pursuance of their interests. As freedom of association gathers within it the freedom of the individual and also that of society vis-à-vis the state, for associations to receive financial aid from the state would be paradoxical as then state funded associations, are beholden to some extant to the state which they can be adverse to in certain matters.
THE LIMITATION CLAUSE OF ARTICLE 11(2)
Article 11 states that restrictions on the exercise of the rights have to be prescribed by law, necessary in a democratic society, in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others. Most of these limitations are self explanatory, however some do need qualification.
Prescribed by law: The meaning of law is not confined to legislative acts adopted by a national parliament. In the Sunday Times case, the Court held that 'law' encompasses not only statute, but also unwritten law, in particular the rules and principles evolved as common law.
Necessary in a democratic society: The problem in this limitation lies in trying to determine what can be interpreted as necessary in a democratic society. The word necessary does not automatically mean indispensable and is not as flexible as 'admissible', 'reasonable' or 'desirable'. Thus to deem an action as being necessary one has also to identify the characteristics of a truly democratic society, which should include pluralism and tolerance. So for the restriction to be necessary the granting of the freedom of assembly and association must impinge on these characteristics. However the freedom of association, like the freedom of expression, is a cornerstone of the prevailing status of freedom in a democratic society. The limitation can therefore only come into effect where the right to form an association would bring into being a proven threat to the democratic society which is obliged to give it the right in the first place.
Article 11 in the light of Article 17 : This provision which aims at preventing any abuse of the convention, specifically contemplates activities of groups attempting to destroy the rights and freedoms set forth in the Convention. It stands to reason that a single person alone is not capable of toppling a democratically elected government. Political groups, especially political parties, by their nature assume a decisive role in shaping the constitutional order of a given society. They are therefore the main targets of Article 17. That is why the Commission approved the ban on the German Communist Party which was at the time dominated by East Germany and so a synonym for repression and by whom it was heavily subsidised. In 1979, in the case Glimmerveen and Hagenbeek v. Netherlands, the Commission relied on Article 17 to deny the protection of the Convention to applicants who were members of an association which claimed the expulsion from the Netherlands of persons originating from Surinam. This was done by viewing the facts from Article 10, but Article 17 has as its general purpose to prevent totalitarian groups from exploiting in their own interests the principle enunciated in the convention (Appls. Nos. 8348/78 and 8406/78), so it can be applied also to Article 11.
CONCLUSIONS
As has been noted throughout this essay, Article 11 is one of the major safeguards to democracy that can be found in the Convention. In saying this one must keep in mind that no society can in fact be considered as truly democratic unless it promotes the protection of all fundamental human rights. One could say that of all the Articles contained in the Convention it is Article 1 that is the most important as it commits the States party to the Convention by saying that " The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention".
Democratic society implies that there has to be plurality in both ideas and social forces. These enable the alternation of power, within a truly democratic society, according to the wishes of the citizens. For this plurality to be achieved social forces have to be created by the coming together of like-minded individuals, in their turn forming groups, associations, political parties and even trade unions for the protection of the individual's interests. The freedom of expression allows the individual's opinion to be heard, even though it is not necessarily listened to. The freedom of peaceful assembly and freedom of association allows the collective voice, albeit also not being guaranteed a listening, to get its point across in a more audible manner.
Article 11 provides an international safeguard to this plurality, whilst also giving the individual the human right to not be interfered with, in his choice of associating, by the state. Article 11 does not cover only those associations which are social forces. It also protects the rights of groupings such as a stamp collecting hobby society. To be really a tool to enhance and safeguard democracy and in the process not infringe on other rights, Article 11, has limitations to protect against it being used subversively by groupings which would attempt to abuse of the very democracy which it is meant to safeguard. By also allowing restrictions on members of the armed forces, of the police or of the administration of the state (albeit that this is a contentious issue), it ensures the governability of the state. In an utopian world there would be no need for such safeguards, all and everyone's rights would be looked after without the need to have recourse to the Convention and the interpretations of the Court. However, until that moment is reached, we must rely on the protection provided by the Convention and other similar human rights mechanisms.
BIBLIOGRAPHY
Bainbridge, Timothy and Teasdale, Anthony 1995 The Penguin Companion to European Union, Penguin Books Ltd., Middlesex.
Gomien, Donna 1991 Short Guide to the European Convention on Human Rights, Council of Europe, Publishing and Documentation Service, Strasbourg.
Janis, Mark W. And Kay, Richard S. 1990 European Human Rights Law, The University of Connecticut Law School Foundation Press, Connecticut.
Steiner, Josephine 1992 Textbook on EEC Law, Blackstone Press Ltd., London.
Tomuschat, Christian 1993 Freedom of Association, in The European System for the Protection of Human Rights, St. John MacDonald, R., Matscher F. and Petzold H. (Eds.), Martinus Nijhoff Publishers, The Netherlands.