The right to association and its restrictions by the state according to the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950

The right to association enables people to express and defend their common interests collectively. Respect for law and observance of it by all branches of public power as well as a consistent fulfillment of corresponding laws by all strata of the society are necessary for the establishment and further development of genuine democracy and its institutions. According to legal doctrine the right of everyone to association with others can be referred to the group of negative rights. This implies the duty of any state neither to violate nor to impede the legal realization of the above rights by any person. But this duty cannot be interpreted as an absolute one. It coexists with the following positive duties of the state: firstly, to ensure the effective realization of individual rights and freedoms; secondly, to guarantee such conditions under which the realization of rights and freedoms by one person will not violate their application by others. It is necessary to note that excessive abstractness of the above wordings and criteria of legal restrictions inspired their subjective, arbitrary interpretation and application in practice of the member states of the European Council and, thus, generated many complaints to the European Court of Human Rights (hereafter Court). Having used the method of interpretation, the Court formulated basic requirements to the validity of restrictions: they should be provided for in law. The term "law" gave rise to considerable disputes and an ambiguous state practice. The analysis of the Court decisions enables us to conclude that it considered law in a very general sense i.e. any regulatory act of a state body including a judicial precedent is a law. Another requirement to the validity of restriction of the right to association is the legality of purpose. It suggests that a state can realize its restrictive measures only for the purposes mentioned in the European Convention: in the interests of national security and public order, to prevent riots and crimes, for health care and protection of freedom of other people (Article 11, Item 2). One more requirement is the assessment of necessity in a democratic society. The term "necessity" should correspond to a number of conditions. Firstly, any state interference into the exercise of the right should be stipulated by the insistent social necessity. Secondly, the framework and mode of restriction should be proportional to a legitimate purpose. Thus, taking into account the practice of states in application of lawful restrictions to the right to association and the Court decisions on the complaints against state interference in the exercise of conventional rights and freedoms, we can conclude that abstractness and vagueness of the wording of such restrictions promoted the development and recognition of a discretionary power of the state.

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