Freedom of Association as Touchstone of Healthy Democracy: Perspectives from the ECHR

Maria Cahill

University College Cork

The European Convention on Human Rights affirms, in Article 11.1, that everyone has the right “to freedom of peaceful assembly and to freedom of association”, specifically recognising the right to form and to join trade unions. The right is qualified in Article 11.2, which provides (using language that is broadly similar to that found in the neighbouring provisions) that the exercise of the right may be justifiably restricted if the restrictions are “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”.

As an international court interpreting Article 11, the European Court of Human Rights (ECtHR) must be cognisant of the fact that national laws define associations at national level, providing a particular framework within which a group may be entitled to formally register as an association, with specific consequent obligations and entitlements. Necessarily, then, those national laws may preclude certain groups or certain types of groups from becoming registered or even deny certain privileges to certain types of registered associations, so the ECtHR reserves to itself the authority to make an independent determination as to whether or not an organisation is an association for the purposes of Article 11 and in making such an assessment, the Court stresses the need for voluntariness: it must be clear that the group is not an agent or outgrowth of the state. Article 11 has been interpreted by the Court to include three distinct aspects: a positive right to form or to join an association, a negative right to leave or not to be forced to join an association, as well as the right of the association itself to organisational autonomy. Some of the relevant caselaw outlining these distinctions is discussed briefly below, before the discussion considers the principal rationales given by the Court for vindicating freedom of association. 

The Right to Form

The right to form an association inheres before the association itself exists: the Court has affirmed that “citizens should be able to form a legal entity in order to act collectively in a field of mutual interest”. Member States can be in violation of this aspect of the right either by over-regulating and over-bureaucratising associations (mandating a certain legal status, inappropriately refusing legal status, undue administrative delays) or by failing to properly positively support the effective enjoyment of this right. 

The Right not to be Forced to Join

Although it is not expressly recognised by the text of Article 11, the Court has affirmed that the provision “must be viewed as encompassing a negative right of association,” which is grounded in personal autonomy and expressed as a right “not to be forced to join an association”.

The Right of Organisational Autonomy

For the Court, the right to freedom of association is not exhausted by the initial moment of forming or joining an association, but rather that “the protection afforded by Article 11 lasts for an association’s entire life…”. In this aspect, freedom of association implies a right to organisational autonomy, protecting the association’s authority to govern its own affairs, e.g., to establish a purpose and ethos, to draw up internal regulations and agree decision-making rules, specifically to determine membership policy and to formulate internal appointment and disciplinary processes. This right of organisational autonomy can be litigated in two principal ways: it can come into tension with the state, when the state’s regulations interfere with the freedom of the association to govern its own affairs, but it can also come into tension with an individual who wants to become or remain a member or officeholder in the association, in contravention of the internal rules. In relation to the latter, the Court has articulated a relatively strident line:

“Article 11 cannot be interpreted as imposing an obligation on associations or organisations to admit whosoever wishes to join. Where associations are formed by people, who, espousing particular values or ideals, intend to pursue common goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership.” [emphasis added]

The right to organisational autonomy is not absolute, of course, but the Court has recently affirmed in the example of member expulsion that “the scope of judicial review may be restricted, even to a significant extent” in deference to the right of the association to govern its own affairs. 

Rationales of the ECtHR for Vindicating Freedom of Association

Although the ECtHR has offered various rationales for the protection of freedom of association, including the protection of the individual against arbitrary state power, the advancement of social justice and harmony, the preservation of minority identity and the vindication of freedom of expression and freedom of religion, the Court particularly stresses the need to protect freedom of association for the sake of a vibrant pluralistic democracy. The leading case on this is Gorzelik v. Poland, which included the following passage, affirmed and cited several times in subsequent caselaw:

“While in the context of Article 11 the Court has often referred to the essential role played by political parties in ensuring pluralism and democracy, associations formed for other purposes, including those protecting cultural or spiritual heritage, pursuing various socio-economic aims, proclaiming or teaching religion, seeking an ethnic identity or asserting a minority consciousness, are also important to the proper functioning of democracy. … 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.” [emphasis added]

Thus, the vision of the Court is that all kinds of associations contribute to the flourishing of democracy and are valuable for the ways in which they nurture a pluralism built on genuine respect for “diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts”. This idea is not new: Tocqueville argued that vibrant associational life is intrinsically necessary for sustainable democracy when democracy presumes majoritarianism: “the science of association is the mother science; the progress of all the others depends on the progress of that one”. And the ECtHR itself has affirmed this link consistently for more than 25 years:

“The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned”. [emphasis added]

In other words, the Court understands that the right to freedom of association offers the Court a window into the health of the democracy of our nations.

Maria Cahill is Professor of Law at University College Cork and Principal Investigator of the Societās project “Exploring the Value of Freedom of Association”, funded by an Irish Research Council Laureate grant (www.associationalfreedom.org).

Suggested citation: Maria Cahill, ‘Freedom of Association as Touchstone of Healthy Democracy: Perspectives from the ECHR’ IACL-AIDC Blog (8 October 2024) Freedom of Association as Touchstone of Healthy Democracy: Perspectives from the ECHR — IACL-IADC Blog (blog-iacl-aidc.org)