CONFERENCE OF INGOS OF THE COUNCIL OF EUROPE
EXPERT COUNCIL ON NGO LAW
The future role and operations of the Expert Council on NGO Law
Report by Cyril Ritchie, President of the Expert Council on NGO Law
Note: This Report is presented to the Conference Plenary in January 2012, following consideration of a preliminary version by the Standing Committee in October 2011.
1. This is a report requested by the Conference of INGOs of the Council of Europe in its Plenary Decision of 27 January 2011. The Plenary mandated the President of the Expert Council to provide continuity in the action of the Expert Council, and prepare proposals on its future role and operations.
THE ORIGINS AND HISTORY OF THE EXPERT COUNCIL
2. For more than 25 years two Directorates General and one Steering Committee of the Council of Europe have worked - sometimes sporadically, sometimes intensively - on matters directly relating to the legal status of NGOs in Europe. Already in 1986 the Council of Europe adopted (ETS 124) the Convention on the recognition of the legal personality of international NGOs. (The author of this Report was an official witness at the Convention’s signing ceremony in April 1986.)
3. The (then) Directorate General of Legal Affairs (DGLA) conducted many expert analyses and missions relating to old and new NGO legislation in the countries that became members of the Council of Europe after 1989. (The author of this Report participated in several of them.) For many succeeding years, the DGLA convened the series of meetings that led through several increasingly formal documents (Guidelines, Fundamental Principles, draft Charter) to the 2007 Committee of Ministers Recommendation - CM/Rec(2007)14 - on the legal status of NGOs in Europe. The European Committee on Legal Cooperation (CDCJ) was responsible for drafting the Recommendation, and the Conference of INGOs was totally involved in the process (Three members of the future Expert Council, including the Author, participated in the CDCJ deliberations.)
4. Over time the (then) Directorate General of Political Affairs became an active participant in these ongoing discussions. Its NGO Unit serviced the Conference of INGOs’ (then) Grouping on Civil Society and Democracy in Europe which under successive titles (The Author chaired this Grouping for eight years.) served as the sounding board and policy anchor for the Conference’s engagement in the Council of Europe substantive processes on NGO legislation.
5. In parallel with the steps leading to the final adoption in October 2007 of CM/Rec(2007)14, the Conference of INGOs was debating the creation of its own organ to pursue and deepen work on NGO legislation. It was above all NGOs in the “new” (post-1989) member countries that took the initiative to call for an Expert Council on NGO Law - firstly at the Regional NGO Congress in Warsaw in 2006, reinforced by the Regional NGO Congress in Kyiv in 2007. After detailed preparatory discussions, the Conference of INGOs was ready at its January 2008 Plenary Session to make the remarkable innovation of creating this Expert Council as an organ of the Conference, with the Plenary directly appointing the President of the Expert Council . The Conference Bureau then appointed the remaining four members, all for a term of three years until January 2011.
THE EXPERT COUNCIL’S SUBSTANTIVE THREE YEARS
6. The essence of the Expert Council’s mandate was - and is - “to contribute to the creation of an enabling environment for NGOs throughout Europe by examining NGO law and its implementation, and promoting its compatibility with Council of Europe standards and European good practice”. It was recognized from the beginning that the words “and its implementation” had great significance. While many countries have reasonably satisfactory legislation concerning NGOs, the implementation mechanisms and procedures employed by national or local officials may reveal lacunae both in training and in comprehension of the diversity and worth of NGO activities and of their contributions to society.
7. For its first three years the Expert Council focused mainly on Thematic Reports, each incorporating several illustrative country case studies:
2008: CONDITIONS FOR THE ESTABLISHMENT OF NGOs (a subject alluded to in 34 of the Articles of CM/Rec(2007)14). Case studies: Azerbaijan, Belarus, France, Italy, Russia, Slovakia.
2009: INTERNAL GOVERNANCE OF NGOs (alluded to in 15 Articles of CM/Rec(2007)14. Case studies: Armenia, Ireland, Luxemburg; Moldova, “the former Yugoslav Republic of Macedonia”.
2010: SANCTIONS AND LIABILITY IN RESPECT OF NGOs (alluded to in 14 Articles of CM/Rec(2007)14). Case studies: Belgium, Serbia, Turkey, Ukraine. The three Thematic studies analyse the situation of NGO legislation and its implementation in some 35 countries. Belarus, a non-member of the CoE, is included since the Conference of INGOs and the Expert Council contribute year-round to the CoE’s programmes that work towards the day when Belarus will meet European standards to the extent that it can qualify to become a CoE member state.
8. For 2011 the Expert Council began planning for a Thematic Report on FUNDING AND TAXATION IN RESPECT OF NGOs, but regrettably had to abandon this when the present review of its future role was initiated.
However, in early 2011 a serious situation in Azerbaijan concerning NGO legislation and its implementation came to the attention of the Expert Council, in consequence of which it undertook an in-depth analysis. This led to the presentation of a formal Opinion and recommendations to the Conference of INGOs in October 2011. This matter is being pursued with the Azerbaijani authorities and civil society. This 2011 experience could certainly be a model for one future level of Expert Council operations.
SOME NOTEWORTHY ELEMENTS AND LESSONS LEARNT
9. Within countries, NGO legislation and its implementation, as well as the broader concept of creating an enabling environment for NGOs, are by no means solely matters for Ministries of Justice or Ministries of the Interior. These issues and the scope of NGO involvement in the betterment of society - explicitly recognized and valued in CM/Rec(2007)14 - are relevant to a wide range of national authorities and institutions, including of course - and very importantly - Parliaments. They are naturally also highly relevant to regional and local authorities.
10. The Expert Council’s work and public presentations have gained appreciation for the Conference of INGOs - and for the competences, actions and potential of NGOs in general - with a large number of other CoE organs: Committee of Ministers, Parliamentary Assembly, Congress of Local and Regional Authorities, Commissioner for Human Rights, Venice Commission, and of course the CDCJ which maintains the subject on its agenda. It is heartening to know that the CDCJ member who chaired the drafting of CM/Rec(2007)14 - and who in 2012 is the Chair of CDCJ itself - has specifically complimented the Expert Council on its positive work, stating “The Expert Council does what the CDCJ cannot do “.
11. Moreover, the CDCJ has produced an extremely informative Report on NGOs in the case law of the European Court of Human Rights, which on examination proves to be completely in line with the hundreds of footnotes on the Court’s case law that appear in the Expert Council’s annual Thematic Reports. It should be noted that the Expert Council’s 2010 Report contained for the first time a section (35 paragraphs) on “Developments in standards and case law”. That too could be another significant strand of future Expert Council operations.
12. In October 2009 the European Court indeed made reference for the first time to CM/Rec(2007)14 (v.37083/03) , and in that same case the Court underlined the importance of the role of civil society. It stated, inter alia, that “It is only natural that where a civil society functions in a healthy manner, the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may integrate with each other and pursue common objectives collectively.” This Court statement augurs well for the future: it surely provides encouragement for the prolongation of the Expert Council’s work to create an enabling environment for the healthy functioning of civil society, for participation, for associations, for integration and for collective action.
13. A further lesson to be drawn arises directly from the Conference of INGOs Plenary consideration of each annual Thematic Report. The Plenary has on each occasion been warmly positive and supportive and has endorsed - and made its own - the respective “Conclusions and Recommendations”. However, because of limited budgetary allocations, neither the Conference as such, nor the Expert Council as the frontline actor, has been able to concentrate on monitoring and implementation of these Conclusions and Recommendations. This fact was evident to the Expert Council in its own internal evaluation and is directly important to the overall evaluation (next section) conducted in late 2010 in accordance with the Mandate of January 2008.
THE 2010 EXTERNAL EVALUATION OF THE EXPERT COUNCIL
14. The Mandate foresaw a review by the Conference of the Expert Council in its third year “with a view to determining whether the creation of a permanent structure is necessary”. The President of the Conference of INGOs invited the Directorate of Internal Oversight (DIO) of the CoE to conduct an evaluation, with a view to providing the Conference with relevant information to contribute to the Conference’s decision on the future of the Expert Council. The DIO evaluation focused on many aspects of “Efficiency” and “Effectiveness” of the Expert Council’s work, and its achievements and deficiencies in relation to the mandate given in January 2008. The evaluation underscored the focus the Expert Council had given to monitoring the implementation of CM/Rec(2007)14, which has enhanced the visibility and awareness of the Recommendation and of relevant cases of the European Court of Human Rights. That the Expert Council involved expenditures of only approximately Euro 24,000 annually, plus Secretariat staff time, was identified as directly related to a number of the difficulties in achieving in-depth and lasting results. Similarly there were insufficient resources for the Expert Council to undertake to monitor and provide advice when draft legislation was under consideration in any European country. This deficiency also applied to the concept of making the Expert Council’s services more widely available to authorities and civil society throughout Europe. The DIO evaluation also pointed to other weaknesses: the data-collection technique did not fully lead to robust information ; there was too-limited cooperation with external organizations active in the field of NGO legislative frameworks; the overly academic nature of the annual reports. The DIO evaluators also noted the limited dissemination of the annual reports, and the absence of operational feedback and analysis from governmental authorities or NGOs nationally.
15. In the weeks preceding the Conference Plenary of January 2011 (the Plenary which was to determine the future of the Expert Council) the explicit resolve and readiness of the Expert Council to undertake an expanded role, learning from and building on all the evaluation input, was gradually eroded in the light of ongoing advice from the Secretariat that budgetary restrictions imposed on the Conference and its programmes would be persistent and severe. While there was manifestly a favourable political climate within the Conference membership, the Plenary Resolution finally adopted provided solely for the present review (see paragraph 1 above). The Conference Plenary did however “confirm that work on NGO law remains a Conference priority”. The remainder of this Report outlines how that laudable - and essential - aspiration may be fulfilled.
THE WAY FORWARD
16. The mandate of the Expert Council (see paragraph 6 above) is as valid today as in 2007-2008, indeed more so. The Expert Council’s work, some aspects of which have been illustrated in preceding paragraphs, has gone some way to meeting the challenge of the mandate, while recognizing that there are evident improvements to be made. The competence and dedication of the experts who have written the various chapters and studies each year is plain for all to see. A mine of relevant information has been explored on the legal and regulatory framework in European countries, as well as on their administrative and judicial practices which affect the status and operation of NGOs. And it is worth repeating how valuable is - and could become - the analysis initiated on developments in European standards and case law.
17. The broader Council of Europe context is also highly relevant. The Expert Council is an operational and political arm of the Conference that brings advantage to the Conference in its position as part of the CoE Quadrilogue. The Expert Council contributes directly to the achievement and strengthening of the CoE core values: namely to the affirmation of the rule of law; to the entrenchment of democracy; to the defence and propagation of human rights.
18. As it has been intensely engaged in its own reform process, the Conference has inter alia identified elements that implicitly are a backdrop to the future role of the Expert Council (extracts from the Conference’s position paper): civil society’s sense of democratic and social responsibility; more flexibility and rapidity in action; strengthen monitoring mechanisms; vigilance, initiative and intervention as to problems arising in society; monitoring of conventions/recommendations, but also of current events in European countries; creation of synergies among all the forces of civil society. All of these are relevant to a reinvigorated Expert Council.