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Statement by the President of the Conference of INGOs and the President of the Expert Council on NGO Law

Hungary - non-governmental organisations labelled as foreign agents
In our capacity as President of the Conference of INGOs of the Council of Europe and President of the Expert Council on NGO Law we are concerned about the statements made by certain Hungarian politicians and information reported by the media, labelling some non-governmental organisations (NGOs) as foreign agents...
headline Strasbourg 7 March 2017
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In our capacity as President of the Conference of INGOs of the Council of Europe and President of the Expert Council on NGO Law we are concerned about the statements made by certain Hungarian politicians and information reported by the media, labelling some non-governmental organisations (NGOs) as foreign agents based on the source of funding, stating that they need to be swept away and questioning the legitimacy of NGOs, including how they exercise their right to raise issues in international fora. We are also concerned about the statements and news that foresee legislative changes around foreign funding of NGOs. 

As the Expert Council has stated before “As with individual citizens, NGOs and associations have the fundamental right to peacefully disagree with governmental policies, and to peacefully express their opinions, without being muzzled by the authorities - the very authorities who should be accountable to their citizens for protecting and promoting citizens' liberties. Indeed, the question arises: what might be next?”[1]  The Parliamentary Assembly[2] called on Member States to ensure an enabling environment for NGOs, in particular by refraining from any harassment and smear campaigns.  The implementation of the Recommendation CM/Rec (2007)14 on the Legal status of non-governmental organisation in Europe commits all member states of the Council of Europe.

We regret that the Hungarian government uses accusatory rhetoric which stigmatizes the NGOs. As we have seen in other countries, such rhetoric has a negative effect on NGOs’ ability to operate and raise funds, and address people’s needs[3]. Importantly, it prevents individuals from enjoying their rights. Negative rhetoric and restrictive laws also have impact on investments. Philanthropic individuals or organizations are investing their resources both to governments and NGO to support development in countries across borders. The consequence of the negative rhetoric or burdensome regulation has shown reduction of such investments in human, social, cultural, education and economic development.

Considering all of the above, we urge the politicians to refrain from using accusatory and labelling rhetoric.

Further, we understand that the government aims to adopt additional measures concerning the transparency of foreign funding of NGOs and asset declarations by executive directors. There seems to be a big uncertainty as to what such regulation will be about as there has not yet been an opportunity to discuss the necessity of such legislation nor its content with the NGOs and the public. The lack of such debate is not in line with the right to participation guaranteed in Article 25 of the International Covenant on Civil and Political Rights nor standards regarding participation, as outlined in the Code of Good Practice for Civil Participation in the Decision-Making Process, elaborated by the Conference of INGOs and supported by the Committee of Ministers, Parliamentary Assembly and the Congress and Local and Regional Authorities of the Council of Europe.

Considering the ongoing government rhetoric and speculations around the content of the legislative initiative, we feel compelled to put forward key principles that should be respected to ensure that the fundamental rights to freedom of association, expression, privacy and the right to participation are not infringed.

Activities of NGOs:  The rights to freedom of association and expression encompasses the right of NGOs to be free to undertake research, education and advocacy on issues of public debate, regardless of whether the position taken is in accord with government policy or requires a change in the law.[4] Activities of NGOs around public policy, public debate and decision-making should not be mistaken as party political activities. NGOs that engage in advocacy, watchdog or monitoring exercise a right to participation in public affairs, not party political activities.[5]  When NGOs draw attention to matters of public interest, they are exercising a public watchdog role of similar importance to that of the press and make an important contribution to the discussion of public affairs.[6] The aim to ensure transparency of foreign funding of NGO cannot justify limitations to activities of NGOs operating in the field of human rights, democracy and the rule of law.[7]

Access to funding: The ability to seek, receive and use funding is inherent to the right to freedom of association and essential to the existence and effective operations of any organisation.[8] Labelling NGOs or mandating separate registration for NGOs that receive foreign funding will likely single out and therefore stigmatize NGOs that receive such funding and has been seen as hampering their work, including ability to access and raise resources also domestically.

Anti-discrimination and equal treatment: Governments cannot discriminate on any ground including political or other opinion.[9]  All NGOs should be treated equally regardless of the type of activities they engage in or source of funding they receive. The Venice Commission recalled that in its case law the European Court for Human Rights was reluctant to accept the “foreign origin of an NCO as a legitimate reason for a differentiated treatment; the same reluctance would a fortiori be in place in case of mere foreign funding.” [10]

“Sectoral equity”: NGOs with legal personality should have equal treatment as other legal entities[11]. Governments must refrain from adopting measures that disproportionately target or burden NGOs such as imposing onerous vetting rules, procedures or other CSO-specific requirements not applied to the corporate sector[12]. The Special Rapporteur on the fundamental rights to the freedom of assembly and of association calls upon States to ensure that equal treatment between NGOs and businesses in laws and practices regulating, inter alia, reporting, access to resources, including foreign resources.  He emphasized that there is no basis in international human rights law for imposing more burdensome reporting requirements upon NGOs than upon businesses or other entities and that justifications such as protecting State sovereignty are not legitimate bases under the international human rights instruments.[13]

The right to privacy is guaranteed to NGOs and their members. This means that oversight and supervision must be proportionate to the legitimate aims NGOs pursue, should not be invasive, nor should they be more exacting than those applicable to private businesses. It should always be carried out based on the presumption of lawfulness of the NGO and of their activities. Moreover, such oversight should not interfere with the internal management of NGOs.[14] All reporting should be subject to a duty to respect the rights of donors, beneficiaries and staff, as well as the right to protect legitimate business confidentiality.[15]

Sanctions and fines: Sanctions and fines must always be consistent with the principle of proportionality, that is, they must be least disruptive, destructive and intrusive means to achieve the desired objective. For example, if an association is in breach of a legal requirement to submit financial statements, the first response should be to request rectification of the omission.[16] Any penalties should never be higher or harsher than penalties for similar offences committed by other entities, such as businesses.[17]

These are just few standards which we want to outline to help with the discussion around the law. We recognize that there are other rights and standards on which the Expert Council can reflect, as soon as the draft law is made public.  To this end, we want to emphasize that governments should ensure effective consultation and participation of NGOs at all stages of the drafting of primary and secondary legislation which affects their status, financing or spheres of operation.  Such consultation should not be just on the draft text but also on the need for the legislation and its objectives and with consideration of already existing laws that may be satisfying that objective.

We truly hope that the Hungarian authorities have planned for an extensive public consultations on such an important issue that concerns NGOs, but more broadly, which concerns the Hungarian society.  We remain open for engagement with everybody in this process.

                   

[1] Expert Council on NGO Law,  Opinion on Federal Law of 23 May 2015 #129-Fz “On Introduction of Amendments to Certain Legislative Acts of the Russian Federation” (Law On “Undesirable” Organisations), November 2015.

[2] Resolution 2096 (2016)1 How can inappropriate restrictions on NGO activities in Europe be prevented?

[3] The Venice Commission took particular note of this negative effect when it found in case of Russia that an NGO labelled as a “foreign agent” would most probably encounter an atmosphere of mistrust, fear and hostility making it difficult for it to operate and function properly. Venice Commission Opinion on Law on Foreign Agents of The Russian Federation

[4] Para.12 Recommendation CM/Rec(2007)14 of the Committee of Ministers to member states on the legal status of non-governmental organizations in Europe (hereinafter: Recommendation CM/Rec(2007)14

[5] Expert Council on NGO Law Regulating Political Activities of Non-Governmental Organisations

[6] Magyar Helsinki Bizottság v. Hungary, European Court of Human Rights, Judgment of 8 November 2016.

[7] Venice Commission Opinion on Russian Law on Undesirable Activities of NGOs . Adopted by the Venice Commission at its 107th Plenary Session (Venice, 10-11 June 2016)

[8] Community of Democracies, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association Protecting civic space and the right to access resources.

[9] Article 14 and Protocol 12 to the European Convention of Human Rights

[10] Venice Commission Opinion on Law on Foreign Agents of The Russian Federation.

[11] Para 7 Recommendation CM/Rec(2007)14 and Protocol 12 Explanatory report.

[12] General Principle 3: Civil society and the corporate sectors should be governed by an equitable set of rules and regulations (sectoral equity).

[13] UN Special Rapporteur on the rights to freedom of peaceful assembly and of association. Factsheet: Comparing treatment of business & associations (General Assembly Report – Oct. 2015).  

[14] Article 228 of OSCE/ODIHR-Venice Commission Joint Guidelines on Freedom of Association, January 1, 2015

[15] Article 64 of Council of Europe Recommendations on the Legal Status of Non-Governmental Organizations in Europe

[16] Article 237 of OSCE/ODIHR-Venice Commission Joint Guidelines on Freedom of Association, January 1, 2015

[17] Article 237 of OSCE/ODIHR-Venice Commission Joint Guidelines on Freedom of Association, January 1, 2015