Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The Fourth Section of the European Court of Human Rights unanimously held that the proscription and dissolution of the International Association for Humanitarian Aid (IAHA) by the German authorities did not violate its right to freedom of association under Article 11 of the European Convention on Human Rights. The case revolved around IAHA’s extensive financial support for “social societies,” particularly the Islamic Society linked to Hamas, prompting the German Ministry of the Interior to order its dissolution. The German authorities argued that IAHA’s financial support for certain “social societies,” linked to Hamas, violated the concept of international understanding and posed a threat to public safety. IAHA challenged the proscription, contending that it was disproportionate and infringed on its freedom of association. The Court found the the proscription was justified, given IAHA’s knowing support for terrorism and attempts to conceal such activities. The ECtHR emphasized the wider margin of appreciation for states in cases involving terrorism and found no violation of Article 11 of the European Convention on Human Rights.
International Association for Humanitarian Aid (IAHA), the Applicant, was a non-profit Association founded in 1997 to provide appropriate humanitarian aid worldwide in cases of natural disasters, wars, and other catastrophes. The Board of Trustees members of the Applicant Association were also members of Millî Görüş e.V, the largest Islamic organization in Germany. [para. 5]
The Applicant Association, until 2010, collected donations in Germany and directed them to six organizations in predominantly Muslim countries. Among these organizations were two “social societies” conducting charitable projects for the Palestinian population in Gaza and the West Bank. One of these societies, the “Islamic Society,” founded in 1979, focused on projects benefiting orphaned children of “martyrs” who had died or been wounded in combat against Israel. [para. 7-9]
In 2010, I.J., the former chairman of the Jabaliya office of the Islamic Society, became the mayor of Jabaliya representing Hamas. In the same year, the Applicant Association ceased its financial support for the Islamic Society and began supporting the “Salam Society for Relief and Development”, also based in Gaza. Salam, established by a former board member of the Islamic Society, supported similar projects and employed individuals who had previously worked for the Islamic Society. Notably, from 2006 to 2010, a significant portion of the Applicant Association’s financial donations went to the Islamic Society. [para. 10-12]
In June 2010, the German Federal Ministry of the Interior took decisive action against the Applicant Association, declaring it in violation of the concept of international understanding and ordering its dissolution under the Law on Associations. This decision was prompted by the Association’s extensive and prolonged financial support for “social societies,” notably the Islamic Society, which the Ministry deemed to be associated with the terrorist organization Hamas. The Ministry contended that by indirectly contributing to the violence perpetrated by Hamas against Israel, the Applicant Association was acting “against the concept of international understanding between peoples (Völkerverständigung)” [para. 13-14]
The Ministry’s decision was based on its assessment that Hamas, as evidenced by its original Charter and actions, actively denied the right of the State of Israel to exist, advocated for its destruction, and engaged in terrorist activities. According to the Ministry, the political, military, and social branches of Hamas were considered equal and interconnected elements of a unified organization. The Ministry further contended that the members of the Applicant Association’s board of trustees, all influential figures in Germany’s largest Islamic organization, were aware of these circumstances, identified with Hamas, and were familiar with the structures of political Islamism, as demonstrated in a previous Court judgment on Social Societies. The Ministry asserted that the proscription and dissolution of the Association, along with the confiscation of its assets, were proportionate measures given the Association’s explicit objective of collecting and channeling donations to organizations linked to Hamas. [para. 15-17]
In November 2010, the Applicant Association contested the proscription order issued by the German Federal Ministry of the Interior before the Federal Administrative Court, denying support to Hamas and claiming a violation of its freedom of Association. The Federal Administrative Court proposed a friendly settlement in May 2011, suggesting the Association could continue activities outside Palestinian areas for about three years, provided it ceased Palestinian support activities. The Applicant agreed, but the Ministry did not, and no settlement was reached. [para. 18]
On April 18, 2012, the Court issued a decision dismissing the Applicant’s request, stating that the “Applicant Association’s support of the Islamic Society meant that its activities were directed against the principle of international understanding” [para. 19]. The Court referred to its earlier finding from the 2004 judgment that IS had been declared as a part of Hamas infrastructure. [para. 20] The military branch of Hamas benefited from the donations made by the Applicant, even though the donations were intended for social societies. Additionally, transferring donations from IS to Salam did not sever ties between the Applicant and Hamas, as important figures from IS also worked with Salam. Thus, indirect support for Hamas continued. [para. 21-23]
The Court noted that the leading members of the Applicant were aware of the ties of IS and Salam with Hamas and were aware of the Court’s 2004 decision characterizing IS as an integral part of Hamas. The Applicant donated about 50% of its overall donations to IS and Salam. [para. 24] The Federal Administrative Court noted in that context that there was nothing to suggest that “an Association should be permitted merely because it also pursued funding activities that were not prohibited in respect of other organizations in other parts of the world, as this would invite Associations that supported terrorist activities to circumvent proscription by simply diversifying their activities” [para. 25]. Finally, the Court ruled that the Ministry bore no duty to hear the Applicant before issuing a sanction “so as not to offer it the opportunity to dispose of assets or remove evidence” [para. 26].
Aggrieved by the Federal Administrative Court, the Applicant Association filed a Constitutional Complaint before the Federal Constitutional Court, alleging that the proscription was disproportionate and violated its freedom of Association under Article 9 of the Basic Law. The Federal Constitutional Court, in a judgment on July 13, 2018, determined that both the proscription and the relevant law were compatible with the Association’s freedom of Association. The Court justified the interference, citing the Association’s funding activities as contrary to the concept of international understanding. It emphasized that the constitutional principle of proportionality applied, stating that proscription should only be imposed when less restrictive measures would be insufficient to achieve the authorities’ aims. The Court highlighted that restrictions on specific activities or other less restrictive measures would not have been sufficiently effective in this case, considering the intentional channeling of substantial funds to a terrorist organization (Hamas) and the attempt to disguise support through a substitute organization (Salam) while fundamentally identifying with the illegal objectives of Hamas. [para. 17-19]
The Federal Constitutional Court underscored that proscription should be reserved for cases where Associations actively promote violence or serious breaches of international law, and where supporting third parties significantly compromises international relations, with the Association being aware of and at least condoning such actions. The Court clarified that proscription should not be used to prevent humanitarian aid in crisis areas merely because it might indirectly promote terrorism. While acknowledging that the Federal Administrative Court’s findings were not entirely specific and lacked elaboration on the use of less restrictive measures, the Federal Constitutional Court concluded that the proscription was proportionate in this specific circumstance where the Association had knowingly channeled funds to a terrorist organization and attempted to conceal its support. [para. 30-31]
After exhausting all domestic remedies, the Applicant Association filed an Application before the ECtHR, claiming that its freedom of Association under Article 11 of the ECHR had been violated.
Justice Gabriele Kucsko-Stadlmayer, Justice Tim Eicke, Justice Faris Vehabović, Justice Armen Harutyunyan, Justice Anja Seibert-Fohr, Justice Ana Maria Guerra Martins, and Justice Sebastian Răduleţu delivered a unanimous decision. The primary issue before the Court was to determine whether the Applicant Association’s proscription and the seizure of its assets had violated its right to freedom of Association under Article 11 of the European Convention of Human Rights.
The Applicant Association contended that the interference with its rights under Article 11 of the Convention was neither prescribed by law nor proportionate to the pursued aims. It argued that the Law on Associations did not foresee proscription in cases of support activities as provided by the Association. The Applicant challenged the broad interpretation of “support” for a terrorist organization by the national courts, asserting that the term was applied too expansively in attributing financial aid to Hamas through the “social societies.” Additionally, the Association maintained that its objectives and activities were not proactively aggressive or directed against the concept of international understanding. [para 52-54
Furthermore, the Applicant Association pointed to the proposed settlement by the Federal Administrative Court, suggesting less intrusive measures than outright proscription. It argued that it was not allowed to remedy its alleged shortcomings and was not informed about the authorities’ views on its activities. The Applicant asserted that the Federal Administrative Court failed to conduct an independent assessment of the proportionality of the proscription, as noted in Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, (2009). Based on these grounds, the Applicant Association concluded that its proscription was disproportionate and not necessary in a democratic society under Article 11 of the Convention. [para. 55-57]
On the other hand, the Government contended that the interference with the Applicant Association’s freedom of association was prescribed by domestic law, asserting that the proscription following the finding of indirect financing of terrorism was foreseeable. They highlighted the awareness of the association’s senior members regarding the connections of its beneficiary societies with Hamas, as established in the Federal Administrative Court’s judgment of December 3, 2004. The Government contended that the Applicant Association demonstrated its unconstitutional nature by creating Salam as a substitute organization to evade restrictions. [para. 58]
Furthermore, the Government claimed that the activities leading to the proscription were in clear breach of the concept of international understanding, aiming to protect public safety, order, and the rights and freedoms of others by preventing the financing of a terrorist organization. They contended that proscription was necessary due to a pressing social need and an obligation under the European Union and international law to address indirect financial support for terrorism. Finally, the Government asserted that the interference was necessary for a democratic society, emphasizing that the substantial support provided by the applicant association to Hamas’ “social societies” significantly compromised the concept of international understanding, reaching about 50% of its funding activities and totaling approximately EUR 2,500,000 between 2006 and 2010. [para. 59-61]
The ECtHR observed that both parties acknowledge that that the Applicant Association’s proscription, entailing its dissolution and the confiscation of its assets amounted to an interference with its exercise of its right to freedom of association. The Court noted that the crucial question for the Court was to determine whether the interference was and was justified and deemed “necessary in a democratic society.” [para. 62-64]
On the first test i.e., whether the interference was prescribed by law, the Court noted that the expression “prescribed by law” requires that the impugned measure should have a basis in domestic law. [N.F. v. Italy, (2001)] The Court noted that the proscription of the Applicant Association had a basis in domestic law, namely, Section 3(1) of the Law on Associations read with Article 9 § 2 of the Basic Law. [para. 66-68] Moreover, the Court noted that the Federal Administrative Court relied on its previous decision from 2004 where an organization, Al Aqsa, was dissolved for assisting the Islamic Society in Gaza, the very same society that the Applicant had supported. The Court noted that since that case is comparable to the Applicant’s, it was foreseeable to comprehend that “an association’s financial support for the Islamic Society could constitute activities ‘directed against the concept of international understanding’, rendering it liable to be proscribed under section 3(1) of the Law on Associations read in conjunction with Article 9 § 2 of the Basic Law” [para. 70]. Therefore, the application of domestic provisions i.e., Section 3(1) of the Law on Associations read with Article 9 § 2 of the Basic Law was foreseeable. Thus, the interference was prescribed by the law.
On the following test, i.e., whether such interference pursued a legitimate aim, the Court noted that any interference with the right to freedom of association must pursue at least one of the legitimate aims set out in paragraph 2 of Article 11. These include national security or public safety, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others. The Court emphasized that exceptions to freedom of association should be narrowly interpreted. In this case, the Ministry justified the proscription of the association by asserting its activities were against international understanding, supporting charitable societies linked to the terrorist organization Hamas. The Court referred to Herri Batasuna and Batasuna v. Spain, (2009) and Refah Partisi (the Welfare Party) and Others v. Turkey, (2001) and recognized the legitimacy of the fight against terrorism. The Court noted that, while this case differed in focusing on international terrorism without a direct threat to the state, the Court acknowledged that preventing disorder justifies measures to prevent terrorism and violence abroad. The protection of international understanding was deemed a legitimate aim under Article 11 § 2, encompassing the rights and freedoms of individuals living abroad, as seen in cases like Hizb Ut-Tahrir v. Germany, (2012) and Kasymakhunov and Saybatalov v. Russia, (2013). The Court found no indication that the Ministry intended to pursue any other aim, reinforcing the legitimacy of the proscription order (compare Zehra Foundation and Others v. Turkey).
On the following test, i.e., whether the interference was necessary, the Court outlined relevant principles emphasizing that exceptions to the rule of freedom of association are to be strictly construed, requiring convincing and compelling reasons to justify restrictions. Interference must correspond to a “pressing social need,” and the Court is tasked with reviewing decisions under Article 11, ensuring proportionality to the legitimate aim pursued. While national authorities have a margin of appreciation, their decisions are subject to the Court’s scrutiny. [Gorzelik v. Poland, (2004) and Magyar Keresztény Mennonita Egyház v. Hungary, (2014)] [para. 78-82]
In applying these principles to the present case, the Court considered the width of the State’s margin of appreciation, noting that the proscription of the association entailed its dissolution, the most intrusive measure possible. However, the Court recognized the proscription aimed at fighting international terrorism, aligning with the objectives of international legal instruments. The Court emphasized that the concept of international understanding is a core value of the Convention, and associations contrary to its principles cannot benefit from Article 11 protection. Notably, the Court referred to cases such as Hizb Ut-Tahrir v. Germany, (2012), where associations promoting violence and war crimes were deemed incompatible with the Convention. While the applicant association did not engage in violent conduct, the Court acknowledged the weightiness of aims related to the prohibition of indirect support for terrorism in the context of international understanding. The Court underscored that states enjoy a wider margin of appreciation when dealing with such weighty concerns, reinforcing the necessity of interference in preventing activities contrary to core Convention values. [para. 87-88]
In its examination of the proportionality of the proscription of the applicant association, the Court considered the Ministry and national courts’ justifications for proscribing the association. These grounds included allegations that the association engaged in the indirect financing of terrorism under the guise of providing humanitarian aid and that its activities were directed against the concept of international understanding. Despite the association’s assertion that its objectives were not proactively aggressive, the Court reiterated its practice of looking beyond the written word of an association’s statutes to evaluate their practical application. [para. 89-91]
The Court acknowledged the stated objective in the association’s statute, which emphasized providing humanitarian aid worldwide in cases of natural disasters, wars, and other catastrophes. However, the Court emphasized its commitment to assessing the application of these objectives in practice. The Court referred to Tourkiki Enosi Xanthis and Others v. Greece, (2008) to underscore its approach. The Court took note of the association’s undisputed funding of the Islamic Society and later Salam. The Ministry and national courts provided evidence suggesting that these entities were not separate from Hamas, and the overall organization of Hamas was considered a terrorist organization. The Court accepted the national courts’ assessment, citing the inclusion of Hamas in the European Union’s sanctions lists since 2003. [para. 90-92]
The Court noted that the national courts made compelling findings that, even though the association hadn’t committed acts of violence, its leading members were aware of and endorsed the link to Hamas. The Court noted that the Applicant donated to the IS (later Salam) EUR 2,500,000 from 2006 to 2010, an amount of about 50% of the Applicant’s entire financial help. So, even though the IS (later Salam) was one out of six beneficiary organizations, the amount that was donated to Hamas was considerable. The Court accepted the findings of Domestic Courts that the attempt to circumvent the ban on helping Hamas by replacing the IS with Salam was relevant for concluding that the dissolution was a reasonable measure. The Court affirmed the national courts’ conclusion that less restrictive measures would be ineffective. The Court also highlighted the association’s past attempts to obscure its relationship with Hamas, reinforcing the belief that it would circumvent restrictions in the future. [para. 93-94]
The Court paid attention to several findings of Domestic Courts which had been elaborated:
Moreover, the Court noted the Federal Constitutional Court’s extensive assessment of less restrictive measures, emphasizing that proscription was a last resort. Despite the association’s argument of disproportionality, the Court found the balancing exercise comprehensive and transparent. [Association Rhino v. Switzerland, (2011) and Adana TAYAD v. Turkey, (2020)] The Court considered the substantial funding directed toward Hamas and the risk of future circumvention, concluding that the outright proscription was not disproportionate. [para. 95-97]
Addressing the Applicant Association’s claim about a prior hearing, the Court noted that in this case, such a hearing could render any subsequent measure ineffective, given the association’s history of circumvention. The Court also dismissed the idea that a suggested friendly settlement indicated disproportionality, as it was made early in the proceedings and aimed at the procedural economy. [Affaire Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, (2009) and Yefimov and Youth Human Rights Group v. Russia, (2021).] In assessing the necessity and proportionality, the Court underscored the specific circumstances where the association knowingly supported international terrorism under the guise of humanitarian aid, which was incompatible with core Convention values. The association did not dissociate itself from Hamas’s violent aims and actions, further justifying the proscription. [para. 99-102]
In conclusion, the Court, considering the wider margin of appreciation in the specific circumstances of the case, affirmed that the national authorities, through a comprehensive balancing exercise, provided relevant and sufficient reasons. The Court concluded that the interference with the applicant association’s freedom of association, resulting from its proscription, was proportionate to the legitimate aims pursued, meeting the criteria of being “necessary in a democratic society.” Therefore, the Court found no violation of Article 11 of the Convention. [para. 103-104]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling, centered on the freedom of association under Article 11 of the European Convention on Human Rights, does not have a direct bearing on freedom of expression. The case primarily addresses the proscription of an association accused of indirectly financing terrorism through its humanitarian aid activities. The Court’s decision emphasizes the balancing act between the association’s rights and the legitimate aim of preventing support for terrorist organizations. While the judgment delves into the specific circumstances of the case, assessing the proportionality of the proscription, it does not expand or contradict the realm of freedom of expression. Instead, it underscores the importance of preventing activities that run counter to core Convention values, such as supporting terrorism, without directly influencing the broader landscape of freedom of expression.
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