NGOs under European Convention on Human Rights / Tymofeyeva

governmental powers or run a public service under governmental control. When determining whether a particular subject is free from the influence of the state, the Court applies the test of independence . This test relies on the verification of four elements, specifically: 1) legal status of an entity, 2) the nature of the activity carried out, 3) the context in which it is carried out, and 4) the degree of the entity’s independence from the political authorities. The Court does not always attend to each element step by step, but may simply conclude that, according to the information in its possession, the applicant NGO enjoys institutional autonomy. 161 In the case of Islamic Republic of Iran Shipping Lines v. Turkey, 162 the Court did not directly call the applicant company an ‘NGO’, but mentioned that “public-law entities can have the status of a ‘non-governmental organisation’ in so far as they do not exercise ‘governmental powers’, were not established ‘for public-administration purposes’ and are completely independent of the State”. 163 Having analysed the elements of the test of independence regarding the Iran Shipping Lines, the Court concluded that the applicant company is entitled to bring an application under Article 34 of the Convention. The fact that the state is a shareholder of the applicant NGO is not decisive for the Court. In the previously discussed case of Ukraine-Tyumen v. Ukraine , 164 the government argued that the state owns 28.56% of the share capital of the applicant, the joint-stock company Ukraine-Tyumen, and therefore, the company is not independent from governmental influence. They illustrated that in a similar situation in the case of Kosarevskaya and Others v. Ukraine , 165 where the state owned 32.67% of the share capital of the applicant company, the government was found to be responsible for the company debts. The Court ruled that, even assuming that Ukraine still owns around one third of the applicant’s share capital, no evidence had been submitted which could indicate that the state was entitled to a greater role in managing the company than the other shareholders. Moreover, there were nothing in the case-file to suggest that the applicant company carried out activities other than those which could be classified as business, irrespective of the fact that some provisions of its articles of association were construed as to entrust the applicant with a public-service mission, namely to implement ‘inter-governmental decisions’ in the field of business cooperation. This judgment of the Court demonstrates that the nature of activities and the context in which they are carried out may be more important than the formal legal status of an NGO. In addition, based on the above-mentioned judgment, we may conclude that a joint-stock company is clearly covered by the term ‘NGO’. Nevertheless, it does not mean that every joint-stock company is an NGO in the sense of Article 34 of the Convention. The decisive factor for the Court is the fourth criterion: a degree of

Ibid .

161

162 Islamic Republic of Iran Shipping Lines v. Turkey , no. 40998/98, ECHR 2007-V. 163 Ibid ., § 80. 164 Ukraine-Tyumen , cited above, § 26. 165 Kosarevskaya and Others v. Ukraine , nos. 29459/03, 4935/04 and 26996/04, 6 December 2005.

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