Last Updated on October 10, 2023 by LawEuro
Legal summary
October 2023
Internationale Humanitäre Hilfsorganisation e. V. v. Germany – 11214/19
Judgment 10.10.2023 [Section IV]
Article 11
Article 11-1
Freedom of association
Proscription of applicant association, entailing its dissolution and asset confiscation, due to considerable financial donations to charitable societies linked to the terrorist organisation Hamas: no violation
Facts – In June 2010 the German Federal Ministry of the Interior (“the Ministry”) issued a decision by which it declared the applicant association, a non-profit organisation, to be acting against the concept of international understanding between peoples (Völkerverständigung) and proscribed it, which had the effect of causing its dissolution, and ordered the confiscation of its assets. This decision was based on the applicant association’s long-term and substantial financial support of charitable organisations known as “social societies”, which carried out social projects for the benefit of the Palestinian population – in particular, the Islamic Society in Gaza – and which were part of the terrorist organisation Hamas. The applicant unsuccessfully challenged the proscription.
Law – Article 11:
(a) Whether there was an interference – The applicant association’s proscription, entailing its dissolution and the confiscation of its assets had amounted to an interference with its exercise of its right to freedom of association.
(b) Whether the interference was justified –
(i) Whether the interference was prescribed by law – The proscription had had a basis in domestic law, namely section 3(1) of the Law on Associations read in conjunction with Article 9 § 2 of the German Basic Law. In an earlier judgment, the Federal Administrative Court, by reference to the same domestic provisions and with similar reasoning, had confirmed the proscription of another association which had given financial support to the very same Islamic Society. Given the clear and precise findings of the respondent State’s highest administrative court in that judgment, which had concerned an obviously comparable situation, the only possible conclusion to be drawn was 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 the domestic provisions. Therefore, those provisions had enabled the applicant association to foresee its proscription and the interference complained of had been “prescribed by law”.
(ii) Pursuit of a legitimate aim – Whereas the present case differed from previous cases in so far as it concerned the fight against international terrorism in general, independently of a tangible threat to the Contracting State, the fight against international terrorism might nonetheless serve the cause of preventing disorder, and States must be able to take measures so that their territory was not used to facilitate terrorism and the bringing of violence into conflicts abroad. Article 11 § 2 was formulated broadly without limiting States to take measures only for the protection of the rights and freedoms of individuals within their jurisdiction. The protection of the concept of international understanding as interpreted and applied in the present case therefore constituted the legitimate aim of protecting the rights and freedoms of others, which included the right to live by individuals living abroad. Given the detailed explanation of the proscription order, there was also no indication that the Federal Ministry of the Interior had intended to pursue any other aim.
(iii) Necessity of the interference – The proscription of the applicant association had necessarily entailed its dissolution and had thus been the most intrusive measure possible. On the other hand, its proscription had been with the aim of fighting international terrorism. In that connection the fight against the direct and indirect financing of international terrorism was the declared objective of a number of international and supranational legal instruments. Furthermore, the concept of international understanding was not only a prerequisite of the international legal order but also figured among the core values of the Convention, including the principles of peaceful settlement of international conflicts and the sanctity of human life. Associations which engaged in activities contrary to the Convention’s values could not benefit from the protection of Article 11 interpreted in the light of Article 17, which prohibited the use of the Convention in order to destroy or excessively limit the rights guaranteed by it. While the applicant association had not engaged in violent conduct itself, the aims pursued by the prohibition of indirect support for terrorism as being contrary to the concept of international understanding were necessarily very weighty and States enjoyed a wider margin of appreciation in that regard.
In assessing the proportionality of the impugned measure, the Court did not restrict its examination to the written word of the applicant association’s statutes according to which its declared objective had been to “provide appropriate humanitarian aid worldwide in case of natural disasters, wars and other catastrophes”, but looked into their actual application in practice and the activities the applicant association had actually engaged in. In that connection, it noted the applicant association’s undisputed funding of the Islamic Society, and later of Salam, another “social society” also based in Gaza. The Ministry and the national courts had found convincing evidence that those two self-proclaimed “social societies” had not constituted separate entities but had been truly part of Hamas and had duly assessed that the overall organisation of Hamas, including its so-called “social societies”, was to be considered a terrorist organisation. The Court saw no reason to depart from that assessment, given that the entirety of Hamas had been expressly included by the European Union in the sanctions lists of “persons, groups and entities involved in terrorist acts” since 2003, as confirmed by a judgment of the European Court of Justice. Furthermore, the national courts had made convincing findings that, even though the applicant association had not engaged in acts of actual violence, its leading members had known about and had approved the “social societies’” link to Hamas. They had also referred to the considerable extent of the applicant association’s funding of those societies, the close links between the organisations in question and the fact that the applicant association, being apprehensive of potential restrictions on its activities, had tried to obscure its relationship with Hamas by replacing the Islamic Society as beneficiary of its financial support with Salam. From this they had concluded that the applicant association would try to circumvent restrictions again in future, and that it had fundamentally identified itself with Hamas.
The domestic law provided for the proscription of an association only as a last resort. The Federal Constitutional Court had unequivocally pointed to proscription of an association as the most serious interference, which could only be imposed where less restrictive means would not be effective to achieve the aims pursued by the authorities. It had conducted a comprehensive and transparent balancing exercise and engaged in an extensive assessment of potentially less restrictive available measures than outright proscription and had decided none had been appropriate. Furthermore, while the wording of the relevant domestic provisions did not expressly include any alternative sanction to proscription, taking into account the overall context of domestic law, the constitutional principle of proportionality inherent in the rule of law applied to those provisions by way of interpretation.
The national courts had found that the Islamic Society (and later Salam) had been only one out of six associations to which the applicant association had given financial support. Nevertheless, the amount concerned, which had risen to about 50% of the applicant association’s overall funding activities and had represented an overall sum of about EUR 2,500,000 from 2006 to 2010, had been considerable. Those contributions underlined the fact that financing Hamas had been the applicant association’s major interest, which was also emphasised by the finding that the applicant association had tried in the past to circumvent potential restrictions in order to continue supporting Hamas by using Salam as a substitute organisation. The Court therefore saw no reason to depart from the Federal Constitutional Court’s conclusion that, although the applicant association had also financed other projects, a restriction of its activities would not have been effective. Where, according to the national courts’ findings, an association had fundamentally identified itself with the aims of a terrorist organisation which it had supported indirectly and where a real risk of future circumvention had been established on the basis of similar conduct in the past, the outright proscription of the applicant association did not appear disproportionate.
In addition, although proscribing or dissolving an association might require giving it a prior hearing or warning notice or some other opportunity to be heard and to remedy shortcomings, that did not apply when a hearing would render any subsequent measure to protect the rights and freedoms of others void, ineffective or unenforceable. Bearing in mind the domestic courts’ finding of the applicant association’s past attempt at circumvention of potential restrictions, a prior hearing would have made it possible and likely that evidence would be destroyed and assets would have been transferred to a substitute organisation, thereby rendering any proscription ineffective. Moreover, the Federal Administrative Court’s proposal for a friendly settlement (under which the applicant association would have been given the opportunity to continue its activities outside the Palestinian areas for a three-year provisional period as long as it could show that it had stopped its Palestinian support activities) had been made at an early stage of the proceedings and had served the purpose of procedural economy; that proposal could not thus be understood to indicate that the Federal Administrative Court had considered that a reduction of the applicant association’s activities would have been sufficiently effective. Therefore, the terms of the settlement could not be considered an indication of the disproportionality of the applicant association’s proscription.
It had been duly established that the applicant association, while continuing to present its activities under the guise of humanitarian aid, had knowingly supported international terrorism, directly or indirectly. That conduct was incompatible with core Convention values. Furthermore, neither in the national proceedings nor in its application to the Court had the applicant association dissociated itself from Hamas’s violent aims and actions.
In sum, given the wider margin of appreciation in the specific circumstances, the comprehensive balancing exercise conducted by the national courts and the weighty interests at stake, the authorities had adduced relevant and sufficient reasons and had not overstepped their margin of appreciation. Therefore, the interference with the applicant association’s freedom of association had been proportionate to the legitimate aims pursued and had thus been “necessary in a democratic society”.
Conclusion: no violation (unanimously).
(See also Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, 37083/03, 8 October 2009, Legal Summary; Hizb Ut-Tahrir and Others v. Germany (dec.), 31098/08, 12 June 2012, Legal Summary)
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