Freedom of association and right to freedom of association in Europe and Croatia
European standards, achievements and problems in the realisation of the right to freedom of association
Freedom of association and right to freedom of association with others are fundamental social principles of the member States of the Council of Europe. Freedom of associations enables individuals to form and join associations to express, promote, exercise and protect their common interests. In the same time, it ensures more active citizens' participation in governing their communities. Associations of citizens can be regarded as one of the foundations of democracy.
What is implied by the term "association"?
Persons can form and join associations with the goal to realise certain intentions. Associations are not only formed to achieve common interests but also to maintain a certain level of stability and some form of institutional structure. Associations carry out non-profit activities (those whose ultimate goal is the benefit of community and not the profit. If the profit is made, it should be used for further development of associations and not for the gain of their members).
The right to freedom of association has been recognised in all the member States of the Council of Europe, either through special legislation, or through judicial practice. However, it should be stresses that there are significant differences in legal provisions dealing with this issue. In some countries the founding and work of NGOs is defined by strict legal provisions. These provisions can have a restrictive impact on activities. It should be emphasised that an association should be in position to carry out any activity which can be carried out by an individual person. In some countries NGOs have a full legal entity, whereas in other countries this has been limited. Somewhere the legal framework for NGO activities has been strictly determined. There are countries where foreign citizens can not exercise the right to freedom of association, in other countries they can exercise this right only partially. On the other hand, there are countries where foreign citizens are equal with the citizens of that country in the realisation of this right.
Once persons decide to form an association, which are the obligations of the state? The most important obligation of the state is to protect the property of association, because the deprivation of the right to property would pose a serious threat to the very existence of association. The state authorities should not punish individuals for their membership in an associations. The only exception may be made in cases where the membership is incompatible with job persons are performing at their workplace.
Although sometimes a well-founded interest of the state dictates the need to prescribe the forms of the existence and work of associations in order to protect the rights of others, it cannot justify a restrictive control of the state authorities over the work of associations. Restriction on the freedom of associations to carry out their activities must be well-founded in law and clearly explained.
It can, by no means, be justified to ask associations to submit a list of members because all persons have the right to privacy. Furthermore, such a public disclosure of one's affiliation to a certain association might be intimidating for people. In the same time it represents the limitation of the right to freedom of association.
In order to reduce the possibility of violating or restricting the right and freedom of association, as well as other rights and freedoms they are related to, the European standards on respect for freedom of association have been created. Among them, we single out the right to submit a private complaint pursuant to the European Convention on Human Rights. Associations (not only their members) whose rights under Article 11 and other relevant articles of the Convention have been denied, have right and possibility to bring their case before the European Court in Strasbourg. This legal procedure is available in cases when an adequate protection can not be obtained in their own countries.
Standards, achievements and problems in the realisation of the right to freedom of association in the Republic of Croatia
In Croatia the freedom of association is guaranteed by the Constitution of the Republic of Croatia and the European Convention on Human Rights (Croatia joined the Convention in September 1996 and ratified it in September 1997). According to official data of the Central Bureau of Statistics from 1997, 21 945 associations were active on the territory of Croatia. After the Law on Association entered into force in June 1997, all associations of citizens and social organisations had to be registered in conformity with the new law (currently no official data on the number of associations is available). The problems facing NGOs were emphasised once again at recently held conferences on "Associations in Croatia - legal and social aspects" and "Contribution of local NGOs in promotion and application of the European standards of human rights". In the same time, however, NGO achievements in the development of civil society and democracy were acknowledged and discussed.
The problems in regard to the Law on Associations are mainly related to legal position and legal framework within which NGOs operate. According to several local experts, the goal and purpose of the Law are incompatible with the constitutional provision on freedom of association. Furthermore, when the Law has to be applied, the authorities in charge act arbitrarily which is especially evident in the procedure of issuing the approval for the activities associations can perform. Therefore, amendments to the Law on Associations are called for.
The larger number of NGOs in Croatia is active in the field of culture, art, sport, education, whereas a smaller number is active in the field of the protection and promotion of human rights. The greatest number of these organisations was founded in early nineties, encouraged by proclaimed democratic changes in Croatia. Their activities include providing a direct help to persons whose rights are threatened; observing and analysing the current legislation; starting legislative initiatives to change the existing laws or to enact new ones; monitoring the enforcement and adherence to internationally accepted standards for the protection of human rights Republic of Croatia has accepted as the member of the UN and the Council of Europe; and encouraging people and citizens to form associations and build links for the protection and realisation of their rights. For their activities most NGOs received international recognition, but still in the eye of Croatian public they were often presented as "traitorous", "foreign mercenaries", those who "do harm to the reputation of Croatia in the world", etc. Restrictive measures provided for by the new Law on Association might make the work of these NGOs much more difficult. The relationship and possible co-operation with the state authorities and institutions often depend on the problem with which human rights NGOs refer to responsible authorities. Some progress has been made anyway. From the initial total lack of recognition and total silence about the very existence of non-governmental organisation for human rights, all the way to recently established, sometimes even correct, relationships with various state authorities and institutions, these NGOs have passed difficult and perilous path of development.
The process of building of civil society in Croatia was accompanied with war destruction and immense suffering of civilians. It made a huge impact on the work of NGOs for human rights which over these past years had to deal with the protection of fundamental human rights such as right to life, dignity and property. The role that should have been assumed by the state was often imposed on them: the protection of the right of people and citizens when human right activists had to save human lives and try to protect people's property. Sometimes they opposed to state authorities (the police and soldiers who threatened the rights of persons by unlawful and uncivilised conduct) by practising non-violence and civil disobedience. While performing their activities, often they had to deal with the lack of understanding shown by state and local authorities and institutions. Their lack of knowledge about the role and possible contributions of NGOs for human rights probably made their much harder.
Although the Republic of Croatia assumed commitment to adhere to the Copenhagen and Moscow Document and the Paris Chart, many people were not familiar with their content nor did they know that these international documents are stated in the Fundamental provisions of the Constitutional Law on Human Rights as the part of the constitutional and juridical system of the Republic of Croatia. And as such the Constitution of the Republic of Croatia include the commitment to adhere to democratic norms of the UN.
Considering that international community recognise and foster the role of NGOs in the development of democracy and the rule of law, the same is also expected from Croatia. Croatian state must create conditions for unhindered work of NGOs and respect them as partners in activities which are in the interest of the whole society. Thanks to public campaigns that were launched and to publicly expressed demands of NGOs for human rights, some progress has been achieved in certain areas. For example, a good co-operation has been established with the Ombudsman's Office and some ministries. Women's organisations and women's human rights organisations have been invited to take part in the work of the Government's Commission for Equality (although only in consultative capacity). Last year the Government's Co-ordination for Internal Politics and Human Rights invited members of the Co-ordination of Organisations for Human rights in Croatia to send their reports on the conditions of human rights in Croatia. They were also invited to send their opinions on compatibility of Croatian legislation with the European legislation. These are just some examples to show that the need for co-operation exists and should be further improved.
However, there are still problems which hinder or limit the space for the activities of NGOs for human rights, such as the access to the state as well as some privatised media, the issue of state funding of NGOs and tax exemptions, co-operation with the state institutions responsible for education on human rights and others.