FOURTH SECTION
CASE OF INTERNATIONALE HUMANITÄRE HILFSORGANISATION e.V. v. GERMANY
(Application no. 11214/19)
 
JUDGMENT
 
Art 11 • Freedom of association • Proscription of applicant association, entailing its dissolution and asset confiscation, due to considerable financial donations to charitable societies linked to terrorist organisation Hamas • Fight against international terrorism through protection of concept of international understanding constituted legitimate aim of protecting rights and freedoms of others • Aims pursued by prohibition of indirect support for terrorism very weighty and States’ margin of appreciation wider • Proscription a measure of last resort following extensive assessment of potentially less restrictive measures • Duly established that applicant association, while presenting its activities under guise of humanitarian aid, knowingly supported international terrorism, directly or indirectly • Association’s conduct incompatible with core Convention values • Comprehensive and transparent balancing exercise conducted by domestic courts • Relevant and sufficient reasons • Margin of appreciation enjoyed in cases concerning incitement to violence not overstepped • Interference proportionate and “necessary in a democratic society”
 
STRASBOURG
10 October 2023
 
FINAL
 
19/02/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Internationale Humanitäre Hilfsorganisation e.V. v. Germany,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Faris Vehabović,
 Armen Harutyunyan,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins,
 Sebastian Răduleţu, judges,
and Andrea Tamietti, Section Registrar,
Having regard to:
the application (no. 11214/19) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Internationale Humanitäre Hilfsorganisation e.V., formerly an association with its headquarters in Frankfurt am Main (“the applicant association”), on 22 February 2019;
the decision to give notice to the German Government (“the Government”) of the above application;
the Government’s observations;
Having deliberated in private on 19 September 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the compatibility with Article 11 of the Convention of the proscription of the applicant association, entailing its dissolution and the seizure of its assets, for pursuing aims incompatible with the concept of international understanding between peoples (Völkerverständigung – hereinafter “international understanding”). The proscription was based on a finding that a charitable society to which the applicant association had made nearly half of its financial donations was associated with Hamas, a terrorist organisation. THE FACTS
2. The applicant association was a non-profit association with its headquarters in Frankfurt am Main. Founded in 1997 and now proscribed and dissolved, it was active until June 2010. The applicant association was represented by Mr R. Marx, a lawyer practising in Frankfurt am Main. 3. The Government were represented by one of their Agents, Ms N. Wenzel, of the Federal Ministry of Justice. 4. The facts of the case may be summarised as follows. BACKGROUND TO THE CASEThe applicant association’s statutory object and leading members

5. The applicant was a non-profit association. Its registered name means “International Association for Humanitarian Aid”. According to its statutes, the applicant association’s object was to “provide appropriate humanitarian aid worldwide in cases of natural disasters, wars and other catastrophes”. 6. All the members of the applicant association’s board of trustees were also members of staff of the largest Islamic organisation in Germany, Millî Görüş e.V. The applicant association’s funding activities as established by the national courts and undisputed before the Court
7. Until 2010 the applicant association collected donations in Germany and channelled them to six organisations in predominantly Muslim countries. 8. Among the organisations supported by the applicant association were two charitable organisations known as “social societies”, which carried out social projects for the benefit of the Palestinian population, particularly in Gaza and the West Bank. 9. In particular, one out of the two “social societies” financially supported by the applicant association was the “Islamic Society” (Arabic اليميه الاسلامية – Al-Yamiya al-Islamiya), an organisation founded in 1979 in the city of Jabaliya in Gaza which carried out, in particular, projects in Gaza benefiting orphaned children of so-called “martyrs” – people who had died or been wounded in combat against Israel. 10. In spring 2010 I.J., until then the chairman of the Jabaliya office of the Islamic Society, became mayor of Jabaliya, representing Hamas. In the same year, the applicant association terminated its financial support for the Islamic Society and started supporting the Salam Society for Relief and Development (hereinafter “Salam”), which was also based in Gaza. 11. Salam had been established by a former board member of the Jabaliya office of the Islamic Society, Y.S., who later became the chairman of Salam’s supervisory board. Salam employed several people who had previously worked for the Islamic Society and it supported the same projects. 12. From 2006 to 2010 a substantial proportion of the applicant association’s overall financial donations were made to the Islamic Society. THE APPLICANT ASSOCIATION’S PROSCRIPTION BY A DECISION OF THE GERMAN FEDERAL MINISTRY OF THE INTERIOR OF 23 JUNE 2010
13. On 23 June 2010 the German Federal Ministry of the Interior (hereinafter “the Ministry”) issued a decision by which it declared the applicant association to be acting against the concept of international understanding between peoples (Völkerverständigung) and proscribed it, which had the effect of causing its dissolution under section 3(1), first sentence, of the Law on Associations (see paragraph 29 below). It further ordered the confiscation of the applicant association’s assets. 14. Basing its decision on the applicant association’s long-term and substantial financial support for “social societies” (in particular, the Islamic Society) which were part of the terrorist organisation Hamas, the Ministry considered that the applicant association was indirectly contributing to the violence brought by Hamas into the relationship between the Palestinian and the Israeli people. 15. The Ministry found it established, on the basis of Hamas’s original Charter and its actions, that Hamas denied the right of the State of Israel to exist, called for its destruction in a proactively aggressive manner and engaged in terrorist attacks. The political, military and social branches of Hamas were equal, intertwined parts of a single organisation; in particular, the social support for families of so-called “martyrs” served the purpose of encouraging the violent fight against Israel. 16. Furthermore, the Ministry considered that these circumstances were known to the members of the applicant association’s board of trustees, who were all leading members of the largest Islamic organisation in Germany (see paragraph 6 above) and were therefore familiar with the structures and personalities of political Islamism, as well as with the Federal Administrative Court’s judgment of 3 December 2004 on “social societies” (see paragraphs 35-36 below); they also identified with Hamas. 17. Lastly, with regard to the proportionality of the proscription, the Ministry considered that no less intrusive measures were available, as the applicant association’s very object and purpose was to collect and channel donations for organisations directly and indirectly connected with Hamas. THE PROCEEDINGS BROUGHT BY THE APPLICANT ASSOCIATIONProceedings before the Federal Administrative Court

18. On 27 November 2010 the applicant association, represented by counsel, lodged an application against the proscription order with the Federal Administrative Court (Bundesverwaltungsgericht). The applicant association alleged, in particular, that the proscription violated its right to freedom of association under Article 9 of the Basic Law (see paragraph 32 below). It denied that it had supported or identified with Hamas. 19. On 25 May 2011 the Federal Administrative Court held an oral hearing, following which it made a proposal for a friendly settlement, subject to the approval of both parties (rule 106, second sentence of the Administrative Court Rules – see paragraph 34 below). Pointing to the litigation risk on both sides, the Federal Administrative Court considered it reasonable to propose that the applicant association be given the opportunity to continue its activities outside the Palestinian areas for a provisional period of about three years, as long as it could demonstrate that it had stopped its Palestinian support activities. If the applicant association respected the terms of the settlement during this period, the proscription order would expire automatically, and the Ministry would be given the opportunity to reassess the case in the light of the new circumstances. Although the applicant association signed the proposal, the Ministry refused; accordingly, no settlement was reached. 20. On 18 April 2012 the Federal Administrative Court, after holding another hearing and assessing a wide range of evidence, dismissed the applicant association’s application. Although this did not apply to the other organisations supported by the applicant association, the court confirmed that the applicant association’s support of the Islamic Society meant that its activities were directed against the principle of international understanding. The applicant association was therefore liable to proscription under Article 9 § 2 of the German Basic Law in conjunction with the Law on Associations (see paragraphs 32-33 below). 21. The Federal Administrative Court referred in particular to the fact that the same Islamic Society that was supported by the applicant association had been identified in its judgment of 3 December 2004 (see paragraph 35 below) as part of the essential overall structure of the terrorist organisation Hamas, which compromised the peaceful coexistence of the Israeli and Palestinian peoples through, among other things, violent acts. The Palestinian population attributed the social engagement of the “social societies” to Hamas, thus enhancing its overall acceptance and facilitating the recruitment of activists for violent action; the military branch of Hamas also profited from the applicant association’s long-term and substantial financial support of its social branch. 22. The Federal Administrative Court also considered that when the political involvement of the Islamic Society had become evident, with I.J. becoming mayor of Jabaliya (see paragraph 10 above), Salam had taken over from it as the recipient of the donations. The Hamas follower Y.S., a member of the board of Salam and the treasurer of the Jabaliya office of the Islamic Society, was also one of the applicant association’s contacts in the Islamic Society and had organised the transfer of the donations and principal contacts from the Islamic Society to Salam. The main activities, especially care for orphans of “martyrs”, had been carried on as before, which showed that the objective of the transfer had been to disguise the fact that the donations were meant to support Hamas. 23. The Federal Administrative Court further concurred with the Ministry in finding that the applicant association’s leading members had known about the links of the Islamic Society, and later Salam, with Hamas and that they had been informed about the Federal Administrative Court’s judgment of 3 December 2004 (see paragraphs 35-36 below). The attempt to disguise support for Hamas to avoid proscription, which had become likely after the court’s judgment of 3 December 2004, showed that the applicant association identified with Hamas. 24. With regard to the overall amount of the donations, the Federal Administrative Court calculated that the applicant association had steadily increased its donations to the Islamic Society and Salam until they had reached about 723,000 euros (EUR) in 2010 (prior to its proscription), amounting to almost 50% of its overall donations of about EUR 1,450,000. 25. The Federal Administrative Court noted in that context that there was nothing to suggest that an association should be permitted merely because it also pursued funding activities that were not prohibited in respect of other organisations in other parts of the world, as this would invite associations that supported terrorist activities to circumvent proscription by simply diversifying their activities. 26. The Federal Administrative Court also confirmed that the Ministry had not been formally obliged to hear the applicant association before proscribing it, so as not to offer it the opportunity to dispose of assets or remove evidence. Proceedings before the Federal Constitutional Court
27. On 6 July 2012 the applicant association lodged a constitutional complaint, alleging in particular that its proscription had been disproportionate and had violated its right to freedom of association under Article 9 of the Basic Law. Among other arguments, the applicant association relied on the authorities’ obligation to consider less intrusive measures and mentioned the possibility of restricting its activities to support for other foreign societies outside Gaza. 28. In a judgment of 13 July 2018 (1 BvR 1474/12), the Federal Constitutional Court found that in the present case both the proscription of the applicant association and section 3(1), first sentence, of the Law on Associations were compatible with the applicant association’s freedom of association as guaranteed by Article 9 of the Basic Law (see paragraphs 32‑33 below). 29. The Federal Constitutional Court found that the interference with the applicant association’s freedom of association had been justified under Article 9 § 2 of the Basic Law, the applicant association’s funding activities being contrary to the concept of international understanding. It emphasised that although the wording of Article 9 § 2 of the Basic Law only provided for the “proscription” of associations, the constitutional principle of proportionality inherent in the rule of law was to be applied to it by way of interpretation. The proscription of an association as the most serious form of interference could thus only be imposed where less restrictive measures would not be sufficiently effective to achieve the aims pursued by the authorities. Among the less restrictive measures that could be imposed were restrictions on the association conducting certain activities, measures against individual members, the prohibition of specified events, restrictions on statements linked to places and events, restrictions on or prohibition of assemblies or injunctions relating to the use of weapons, regardless of whether they derived from the Law on Associations, regulatory or administrative law or criminal law. 30. In order for their application to be proportionate, the relevant legal provisions had to be interpreted restrictively; Article 9 § 2 of the Basic Law, as a manifestation of a pluralistic and at the same time constitutional democracy capable of defending itself, restricted proscription to cases where an association’s activities were directed against specific rights of paramount importance, such as the criminal law, the constitutional order, or the concept of international understanding. Proscription would be appropriate when an association actively advocated and promoted violence or similarly serious acts in breach of international law, such as international terrorism, and also when an association supported third parties in a way that was objectively capable of significantly, seriously and deeply compromising international relations, and where the association was aware of that fact and at least condoned it. The Federal Constitutional Court highlighted, however, that proscription of associations could not be used to prevent every form of humanitarian aid in crisis areas merely because such aid might indirectly promote terrorism. Referring explicitly to Article 11 of the Convention, it found no further requirements beyond those established under the Basic Law. Turning to the case at hand, the Federal Constitutional Court found that the outcome of the judgment of the Federal Administrative Court satisfied the above-mentioned requirements, given that the proscription was also proportionate. While the findings of the Federal Administrative Court as outlined in paragraph 25 above were insufficiently specific, and while that court had not expressly elaborated on why less restrictive measures had not been used, its detailed findings made it possible to conclude that no such measures had been available in the specific circumstances of the case: over a long period of time, the applicant association had intentionally channelled substantial funds collected from donations to a terrorist organisation (Hamas) and tried to disguise its support by putting in place a substitute organisation (Salam), while “fundamentally identifying” (prägend identifizieren) itself on the basis of the illegal objectives of Hamas. 31. The Federal Constitutional Court held that, in the present case, restrictions on specific activities “or other less restrictive measures” would not have been sufficiently effective. RELEVANT LEGAL FRAMEWORK AND PRACTICE
DOMESTIC LAWThe German Basic Law

32. The relevant parts of Article 9 of the German Basic Law, on freedom of association, read as follows:
[Freedom of association]
“(1)  All Germans shall have the right to form corporations and other associations. (2)  Associations whose aims or activities contravene the criminal law, or are directed against the constitutional order or the concept of international understanding, are proscribed.
...”
The Law on Associations
33. The relevant part of section 3 of the Law on Associations (Vereinsgesetz) provides:
Proscription
“(1)  An association can only be proscribed (Article 9 § 2 of the Basic Law) if the competent authority declares by decree that its aims or its activity contravene the criminal law or that it is directed against the constitutional order or the concept of international understanding; the declaration shall order the dissolution of the association (proscription). As a general rule, proscription shall entail the confiscation and seizure of
1.  the association’s assets,
...”
The Administrative Court Rules
34. Rule 106 of the Administrative Court Rules provides:
“In order to settle the legal dispute completely or partly, the parties may reach a settlement to be recorded by the court or by the delegated or requested judge in so far as they are able to dispose of the subject matter of the settlement. A judicial settlement may also be concluded by the parties accepting a proposal of the court, the presiding judge or the reporting judge made in the form of an order, in writing or by means of a declaration on the record made to the court during the oral proceedings.”
DOMESTIC PRACTICE
35. In its judgment of 3 December 2004 (no. 6 A 10.02), generally known under the plaintiff association’s name of “Al Aqsa”, the Federal Administrative Court found that the proscription of the plaintiff association by an order of the Ministry had been lawful. It held that the plaintiff association’s activities were contrary to the concept of international understanding because it had indirectly contributed to the violence brought into the relationship between the Palestinian and the Israeli people by supporting Hamas financially over a long period of time and to a considerable extent, through so-called “social societies” based in the Palestinian areas. 36. The Federal Administrative Court based its decision, in particular, on the plaintiff association’s support for the so-called “Islamic Society”. The relevant parts of the judgment in this regard read as follows:
“... (2)  The plaintiff has financially supported the ‘social society’ Al-Yamiya al-Islamiya (Islamic Society), which can be identified with Hamas. It has been established that the plaintiff provided financial means to the association. ... The Islamic Society belongs to Hamas. A strong indication that it is affiliated to Hamas is that ... at least until February 2003, the chairman of the association was [A.B.], who simultaneously held a leading position in Hamas. In addition, the society was affected by the ‘closure’ of Palestinian ‘social societies’ by the Palestinian Authority in September 1997. In this context, the Islamic Society is described in an [Agence France Presse] report of 25 September as ‘one of the major social institutions belonging to Hamas’ and an ‘essential link in the network of Hamas institutions in Gaza’. The account freeze imposed by the Palestinian Authority in August 2003 on Hamas-affiliated ‘social societies’ affected eleven branches of the Islamic Society. ... In addition, the Islamic Society was affected by measures taken by the Palestinian Authority against ‘social societies’ in the winter of 2001-02. In the official testimony of the Federal Intelligence Service of 28 November 2002, the accuracy of which has not been questioned by the plaintiff, it was stated that in the winter of 2001-02, Al‑Jamiya al-Islamiya was ‘banned’. ... The court is convinced that the measures directed against the Islamic Society in the winter of 2001-02 were based on the fact that the Palestinian Authority had linked the society to Hamas. That conclusion is also supported by the fact that ... the ‘social societies’ affected by the measures were either associated with Hamas or with the Palestinian Islamic Jihad organisation. If there are reliable indications that a ‘social society’ had connections to Hamas and if the measure taken in the winter of 2001-02 was also directed against it, it can be assumed that the affiliation to Hamas was the motive of the Palestinian Authority. From the evidence presented, the Senate is certain that Al-Jamiya al-Islamiya belongs to Hamas. The correctness of this assumption is confirmed by the fact that the Israeli authorities declared the ‘social society’ an ‘unlawful association’ in February 2002 because of its connection to Hamas. ...”
INTERNATIONAL AND EUROPEAN UNION LAW AND PRACTICEInternational prohibition of the indirect financing of terrorism

37. Within the framework of the United Nations, UN Security Council Resolution 1373 (2001) on threats to international peace and security caused by terrorist acts (28 September 2001, UN Doc. S/RES/1373) and UN Security Council Resolution 2462 (2019) on threats to international peace and security caused by terrorist acts: Preventing and combating the financing of terrorism (28 March 2019, UN Doc. S/RES/2462) – both adopted under Chapter VII of the Charter of the United Nations concerning “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression” – set out wide-ranging strategies to combat terrorism, including, in particular, the funding of terrorism. The resolutions employ the term “terrorism” in a way permitting a broad interpretation thereof. For example, in Resolution 2462 (2019) the UN Security Council reaffirms that
“all States shall prevent and suppress the financing of terrorist acts and refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts ...”. 38. The International Convention for the Suppression of the Financing of Terrorism (2178 UNTS 197), adopted by UN General Assembly Resolution 54/109 of 9 December 1999, entered into force in respect of Germany on 17 June 2004. Article 2 § 1 provides that a person commits an offence if that person
“by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out [terrorist acts]”. Article 4 provides:
“Each State Party shall adopt such measures as may be necessary:
(a)  To establish as criminal offences under its domestic law the offences set forth in article 2;
(b)  To make those offences punishable by appropriate penalties which take into account the grave nature of the offences.”
39. Within the framework of the European Union, Article 2 §§ 1 (b) and 3 of Council Regulation (EC) No. 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70) specifically provides:
“1. Except as permitted under Articles 5 and 6:
... (b)  no funds, other financial assets and economic resources shall be made available, directly or indirectly, to, or for the benefit of, a natural or legal person, group or entity included in the list referred to in paragraph 3.
... 3. The Council, acting by unanimity, shall establish, review and amend the list of persons, groups and entities to which this Regulation applies, in accordance with the provisions laid down in Article 1(4), (5) and (6) of Common Position 2001/931/CFSP; such list shall consist of:
i)  natural persons committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism;
ii)  legal persons, groups or entities committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism;
iii)  legal persons, groups or entities owned or controlled by one or more natural or legal persons, groups or entities referred to in points (i) and (ii); or
iv)  natural legal persons, groups or entities acting on behalf of or at the direction of one or more natural or legal persons, groups or entities referred to in points (i) and (ii).”
As outlined in paragraph 40 below, Hamas is listed among the organisations referred to in Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, adopted by the Council of the European Union on 27 December 2001 (OJ 2001 L 344, p. 93). Article 3 § 1 of Council Regulation (EC) No. 2580/2001 similarly uses the term “directly or indirectly” and provides:
“The participation, knowingly and intentionally, in activities, the object or effect of which is, directly or indirectly, to circumvent Article 2 shall be prohibited.”
European framework designating Hamas as a terrorist organisation
40. The European Union’s Council Common Position 2003/651/CFSP of 12 September 2003 updating Common Position 2001/931/CFSP (see paragraph 39 above) and repealing Common Position 2003/482/CFSP (OJ 2003 L 229, p. 42) included (the entirety of) “Hamas” in the list of the “persons, groups and entities involved in terrorist acts”, that is, among the organisations referred to in Common Position 2001/931/CFSP (see paragraph 39 above), which implements UN Security Council Resolution 1373 (2001) (see paragraph 37 above). 41. Furthermore, in its judgment of 23 November 2021 in Council v. Hamas (C‑833/19 P, EU:C:2021:950) the Court of Justice of the European Union (Grand Chamber) dismissed an action brought by Hamas against several Council of the European Union decisions maintaining Hamas’s name on the (updated) lists of persons, groups and entities involved in terrorist acts. In the case giving rise to that judgment, the General Court of the European Union – in its judgment of 4 September 2019 in Hamas v. Council (T‑308/18, EU:T:2019:557) – had rejected a plea that there had been an error of assessment as regards the terrorist nature of Hamas (§§ 201-26). THE LAW
ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
42. The applicant association complained that its proscription and the seizure of its assets had violated its right to freedom of association as provided in Article 11 of the Convention, the relevant part of which reads as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others ... 2. No restrictions shall be placed on the exercise of these rights other than such as 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. ...”
Admissibility
43. Without formally raising a separate plea of inadmissibility in their observations, the Government submitted under the heading “Legal Assessment” that the application was inadmissible in so far as the applicant association had claimed that there had been no opportunity to obtain redress prior to its proscription. In this connection they referred to their subsequent submissions under the heading “Proportionality of the measure” where they maintained that in the proceedings before the Federal Constitutional Court, the applicant association had not raised the issue that it had not been heard by the Ministry or given an opportunity to remedy shortcomings prior to its proscription and that this complaint should therefore be rejected for non-exhaustion of domestic remedies. 44. The applicant association did not reply to the Government’s observations but manifested its continued interest in the examination of the application. 45. The general principles on exhaustion of domestic remedies are summarised, inter alia, in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). In particular, Article 35 § 1 of the Convention requires that the complaints intended to be made subsequently to the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (ibid., § 72, with further references).
46.

Outcome for Article 11: no_violation