Sub-area 1.1. Freedom of association

Establishment of and Participation in CSOs

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

Freedom of association continues to be legally guaranteed in all countries of the region. Kosovo was the only country to introduce amendments to the Law on Freedom of Association in Non-Governmental Organizations in 2019. The law was drafted with the inclusion and enormous efforts of CSOs to ensure alignment with the best international standards and practices. Its legal provisions guarantee the right to associate without obtaining prior permission in three legal forms: associations, foundations and institutes. Freedom of association applies both to individuals and legal entities that wish to establish associations, foundations or institutes. Protection against any form of discrimination is guaranteed as specified by the Law on Protection from Discrimination. Registration of organizations is not mandatory. However, the legal framework does not group grassroots under a separate category. The amendments to the law have shortened the registration procedure from 60 to 30 days. Registration is free of charge and registration rules are considered easy to follow. An online platform for CSO registration is also available, simplifying the registration process even further.

The legal framework in North Macedonia permits natural and legal persons to exercise the right to freedom of association offline or online, without discrimination on any account, including being a foreigner. Registration is not mandatory and registration rules are clearly established and allow for easy and timely registration. The Central Registry of the Republic of North Macedonia (CRNM) is the only institution where CSOS could register and registration is available within 5 days of the day of submission of the registration request in hardcopy. Online submission is still not available for CSOs.

Similarly, the Law on Non-Governmental Organizations in Montenegro stipulates that a non-governmental association is formed by no less than three people, of whom at least one is a citizen or resident of Montenegro or by a legal entity. However, explicit prohibition in Montenegro prevents political parties or state bodies from establishing NGOs. CSOs register at the Ministry of Public Administration and the procedure is free of charge. Nevertheless, practice has shown that in some cases the registration process can be quite lengthy, with some organizations reporting it lasted for several months rather than 30 days.

Likewise, no restrictions exist to the freedom of association in Bosnia and Herzegovina, Serbia and Albania. In Albania, registration is not mandatory and the process continues to be centralized at the Tirana District Court. In practice, however, registration at the Tirana District Court has proved lengthy. A single electronic register containing the sector’s comprehensive records has not been made available yet, despite being outlined by the Law on the Registration of Non-profit Organizations.

In Bosnia and Herzegovina, the Ministry of Justice has established an Integrated e-Register of all registered associations and foundations. In Serbia, the legislation is fully aligned with international standards and everyone is free to establish associations, foundations and other types of non-profit, non-governmental entities, without mandatory registration. If founders choose to register the organizations, the rules are clear and allow for easy, timely and inexpensive registration and appeal processes. In practice, however, information provided by the Business Registers Agency based on FoI requests, indicate that in the past 12 months, 283 registration applications have been denied due to procedural reasons.

In all of the countries, organizations are allowed to form networks, coalitions and other types of unions.

 

State Interference

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

The legal framework of the countries in the region affords protection against unwarranted interference of the state in the internal matters of CSOs, protecting CSOs’ autonomy. However, potential threats to CSOs’ integrity still exist.

Even though the legal framework in North Macedonia provides guarantees against state interference in the internal matters of associations, foundations and other types of non-profit entities, and to a certain extent, interference by other third parties, certain issues remain unresolved. Namely, the contested provisions of the Criminal Code have not been modified and representatives of CSOs are still being qualified as “officials” alongside public authorities, and by the same token, facing the same liability requirements. Furthermore, a new 2019 draft of the Law on Lobbying contains provisions with unclear definitions of lobbyists and lobbying activities. Ultimately, this might threaten the principle of public participation which provides CSOs with the opportunity to express opinions freely, start initiatives and participate in policy making.

Albania adopted a new Law on Accounting and Financial Statements that imposes new reporting requirements on CSOs. The law does not take into account the non-profit nature of CSOs and the adoption of the anti-money laundering and counter-terrorism legal package and its bylaws (introducing a high number of risk indicators for measuring CSO activities), which might affect operation and independence of the sector.

In Kosovo, the amendments to the Law on Freedom of Association in Non-Governmental Organizations have also introduced specific provisions on protection of CSOs from interference by third parties, which the preceding legal framework lacked. However, concerns have been raised regarding the provisions on preventing money laundering and combating terrorist financing as they identify CSOs as reporting entities and subject them to burdensome requirements, such as having a certified staff for anti-money laundry legislation and monitoring CSO beneficiaries. Due to this legislation, some CSOs have reported issues with accessing banking services, which is considered a major threat to the operation of CSOs. Serbia has not yet enforced specific provisions aimed at protecting CSOs form interference by third parties. Media’s smear campaigns on CSOs and growing pressures on social networks also present an issue. Nevertheless, survey results showed that less than five CSOs experienced interference by the state in their operations in 2019.

In Montenegro, assessment shows that the government oversteps its legal limitations, interfering in the work of CSOs. This is usually done through excessive audits, inspections, evaluations, withholding funding for programs and projects and using media smear campaigns against organizations that speak out in order to create political interference.

The survey conducted in each of the countries showed that several organizations reported interference by the state in their work, either by means of unannounced state visits, or by imposing discriminatory administrative measures. Several CSOs also reported difficulties accessing banking services. A few of the cases were related to reported threats by government representatives; harassment and limitations of the activities of online groups. A case of a major financial oversight by a state institution was also recorded.

Financial reporting and accounting rules for CSOs have slightly improved in some countries, but keep on being burdensome in others.

In North Macedonia and Serbia, regulations on financial reporting and accounting take into account the specific characteristics of CSOs to a certain extent. In 2019, the Law on Accounting for Non-Profit Organizations in North Macedonia was not modified even though improvements were envisaged in a strategy document. In Serbia, the Law on Accounting recognizes, to some degree, the specific nature of non-profit entities by employing a separate accountancy framework, which is positive. However, the law lays down a few elements that do not apply to non-profit entities and their operations, which places an additional burden to organizations with respect to the recording of financial data.

In Albania, the Directive on the National Accounting Standard for Non Profit Organizations stipulates simplified reporting requirements for organizations with annual revenue below 5 million ALL (approx. 37,000 EUR). Organizations with value of total assets or income higher than 30 million ALL (approx. 235,000 EUR), on the other hand, are obliged to prepare a performance report and publish it on their official websites, along with the annual financial statements, under the new Law on Accounting and Financial Statements from 2018. The template of the report is still being discussed and is expected to be issued by the National Accounting Council in 2020.

In Kosovo and Montenegro, the legislation on financial reporting and accounting does not take into account the specific nature of CSOs. CSOs are subject to audit, inspections, evaluations, and similar types of control and monitoring that apply to other legal entities, such as companies and corporations, and are considered excessive and burdensome. In Montenegro, the need for creating a new financial reporting regulation is recognized in the Strategy for Improving Enabling Environment for CSO Operation in Montenegro 2018-2020. Nevertheless, no progress was observed in 2019.

Finally, it is worth mentioning that the legislative framework in most of the countries in the region has also been modified to comply with the recommendations given in the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) and the Financial Action Task Force (FATF). Some of these amendments prescribe that CSOs ensure more detailed financial reporting to state agencies. In general, although aimed at increasing transparency, these reporting requirements could place additional burden on CSOs. This is an important issue and its development and effect on the work of CSOs should be closely observed in the years to come.

In Kosovo, the legislation on prevention of money laundering and combating terrorist financing is still not in line with the Financial Action Task Force (FATF) Recommendations and EU Directive 2015/849. The law currently regards all CSOs as reporting entities and subjects them to burdensome requirements. Such requirements lay down that each CSO should employ certified staff for anti-money laundering legislation and keep track of all CSO beneficiaries. In line with FATF recommendations, in 2018, a risk assessment of the civil society sector was conducted, which presented a long list of concerns. If adopted, it would result in additional CSO monitoring and inspection by municipalities and other institutions.

 

Securing Financial Resources

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

Access to various sources of funding continues to be limited in the region. CSOs are allowed to secure income from grants, donations, membership fees, international funding, as well as income from economic activities.

All the countries in the region rely on foreign donors as their primary source of funding. However, funding by private domestic donors is scarce in all of the countries and remains a non-viable source of CSO funding.

From a legal perspective, the legal framework in each of the countries generally permits CSO engagement in economic activities. However, specific rules in some of the countries lay out that CSOs cannot exceed the 4.000 EUR threshold on income from economic activities (Montenegro), income from economic activities cannot exceed 20% of the total annual income of CSOs (Serbia, Montenegro, Albania) and economic activities cannot be the primary activity of CSOs (Albania).

Sub-area 1.2. Related-freedoms

Freedom of Peaceful Assembly

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

Freedom of assembly, expression and information are guaranteed by law in the majority of countries; however, severe and increased number of violations is still being identified in practice.

Even though the right to peaceful assembly continues to be legally guaranteed, laws in almost all of the countries contain various restrictions or ambiguities, particularly in relation to spontaneous and counter assemblies, as well as to whether the freedom of assembly extends to foreigners.

In 2019, no changes have been made to the legal framework governing the exercise of the right of freedom of assembly in any of the countries. Nevertheless, a few proposals for amendments and draft laws relating to public assemblies were put forward in North Macedonia, Bosnia and Herzegovina, and Kosovo. All of these proposals, however, only exacerbated the previous legal situation and provided no solution to some of the lingering issues that were not addressed in previous laws.

In North Macedonia, the Law on Public Assemblies (LPA) contains various shortcomings which were not overcome in 2019: the obligations and responsibilities of the rally organizer are not clearly defined and they are liable to high fines in the event of damage, foreigners need to obtain permission to be able to attend gatherings and face severe penalties for non-compliance with the provisions. Furthermore, in 2019, the identified shortcomings in the Law on Police were also not removed: keeping video recordings for 45 days and recording audio and video without giving prior notice. By the end of 2019, an extensively amended and restrictive version of the LPA was prepared and shared for public consultation. Relevant CSOs were not consulted in the preparation of these measures and after a serious backlash by the public and CSOs on social media, the Government quickly withdrew the law.

In Bosnia and Herzegovina, following the emergence of mass social movements in 2018 and their associated activities, a new highly restrictive Draft Law on Public Gatherings in the Republika Srpska (RS) was introduced, which included provisions with bans on organizing gatherings or participation in gatherings, heavy sentences of up to 2 years of imprisonment for both organizers and participants, and bans on photographing police under any circumstance. This implied a very firm and dangerous intention of the RS Government to restrict freedom of assembly. However, the draft law was withdrawn following pressure by CSOs and the international community in April 2019.

In Kosovo, in 2019, the Ministry of Internal Affairs began the process of drafting a new Law on Public Gatherings. Even though the draft law passed the stage of online public consultation, it did not seem to address the problematic areas identified by CSOs, such as legal restrictions on simultaneous and counter assemblies. Moreover, it remains unclear whether freedom of assembly in Kosovo extends to stateless persons, refugees, foreign nationals and other persons, apart from Kosovo residents.

Similar challenges have been observed in the rest of the countries as well. In Serbia, the Public Assembly Act does not recognize a counter assembly category. In Albania, despite the improvements made in 2018 with the adoption of the procedures pertaining to the Albanian Police State based on the recommendations of the Ombudsman, amendments to the legal framework on peaceful assemblies are still needed. This mostly refers to the need to for clarification of the legal confusion between giving notification and submitting request/obtaining permission for holding an assembly. The right to spontaneous and counter assemblies has not been addressed here as well.

In practice, most of the countries see a growing trend of assemblies, which is considered a positive indicator of the enabling environment for public assemblies. On the other hand, what is worrisome are the cases of restrictive police interventions in almost all of the countries. In Serbia, numerous cases were reported. In certain instances, for example, even though the police was present, it did not take action to protect protestors when their security was compromised. In other cases, “over policing” was observed, with the police using considerable force and even injuring and detaining protestors. In Montenegro, participants of informal groups reported having witnessed the police using excessive force on the elderly, people with health problems and pregnant women. To illustrate, in December 2019, the adoption of the Law on Freedom of Religion led to spontaneous public gatherings in several cities in Montenegro, resulting in protests and riots during which the police used force and detained 30 people. The media also reported excessive use of force during civic initiatives and protests in the country, many of which were backed by evidence such as video recordings that were shared with the online public.

North Macedonia recorded only one case of use of excessive force by the police and detention of protestors, five cases of administrative burdens, three instances of restriction of physical access, three obstructions of the desired time for protesting. Kosovo witnessed only one case of use of force by the police against protestors, leaving several injured, including children.

On a final note, it is worth pointing out that North Macedonia, Bosnia and Herzegovina and Serbia had their first Pride Parades in 2019, which were held peacefully and without any incidents.

Freedom of Expression 

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

Freedom of expression is a constitutional right, legally protected in all aspects across the whole region. Limitations to the freedom of expression are legally prescribed and valid and particularly focused on the prohibition of hate speech. In view of the global and regional trends of fake news and disinformation campaigns, almost every country has taken action to tackle this problem. Libel is decriminalized in all of the countries, with the exception of Albania and Kosovo. In Albania, defamation is still a criminal offence, although not punishable by imprisonment. In 2019, the Government of Albania also drafted an anti-defamation legal package on regulating electronic media. According to the proposed legal provisions, electronic media are obligated to review every written complaint about the content published on their website, including requests for content removal. The proposed legal package was widely opposed by media and human rights organizations as it was thought to violate the right to freedom of expression. The package was approved by the Parliament in December 2019, but it was not enacted since the President resubmitted it for further improvements. How the issue will be resolved remains to be seen in the period to follow. In Kosovo, despite the amendments made to the Penal Code in 2019, libel still continues to be considered as a misdemeanor.

Even though freedom of expression is rigorously protected by law, violations have been reported in practice. Facts across the region show that journalists face continuous interference in their work. A great number of cases in all of the countries show intimidation, threats, arrests, verbal and physical attacks, political, institutional and economic pressure on journalists, journalist associations and media outlets, especially those that speak out against the government. What is more problematic in each of the countries is the lack of efficient investigations and prosecution with regard to cases involving attacks on journalists, which needs addressing in order to promote a more enabling environment for freedom of expression. The use of smear campaigns against CSO representatives is also practiced in the region.

 

Access to Information

LegislationPracticetotal Score 0 – 20 Fully disabling environment 20 – 40 Disabling environment 40 – 60 Partially enabling environment60 – 80 Enabling environment 80 – 100 Fully enabling environment

All of the countries in the region have legal guarantees in place to protect the free access to information and the right to safely receive and impart information through any media. The legal framework also provides certain guarantees against illegal monitoring of communication channels.

In 2019, the legal framework did not undergo changes in any of the countries, with the exception of Montenegro, which adopted amendments relating to free access to information. Namely, the proposed Draft Law Amending the Law on Free Access to Information in Montenegro includes new restrictions that could severely limit the possibility to exercise the constitutional right of free access to information. Particularly problematic, according to experts, is the provision giving public officials the authority to determine which information is of public interest and therefore may be accessed by the public. This could lead to subjective interpretations and unjustified rejections of requests for accessing information, impeding the exercising of this right. The procedure for the adoption of the law is expected to conclude in 2020.

Current practice shows very few cases of infringement of the right of access to information and the freedom to receive and impart information. In Montenegro, an informal group member stated that phone calls, Viber and WhatsApp chats were monitored on several occasions and access to Facebook was suspended. In Serbia, unjustified monitoring of communication channels by the authorities was also reported. To illustrate, a report by the Belgrade Centre for Security Policy „A Case Study – Threats and Pressures Faced by Activists” indicated that almost every interviewee believed that their electronic communications were being monitored, although most of them said that they had no solid evidence to support it. Nevertheless, data shows that in recent years, CSOs have increasingly used social media and online platforms to inform and communicate with the public and advocate for concerning issues, which is a rather positive indicator for the state of the environment in which CSOs operate.

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