Human rights in Ukraine – 2007. 10. Freedom of association

[1]

I. Overview

There was no major change in the situation as far as freedom of association is concerned in 2007. Current legislation on associations, passed in the main at the beginning of the 1990s, has long failed to meet modern conditions, the needs of civic society as well as international standards.

Nonetheless in the second half of the year some positive movement was observed. This was linked with the development by the Ministry of Justice, in conjunction with a working group which includes members of the public, of a draft law “On civic associations”. The draft law could provide a major step towards safeguarding freedom of association in Ukraine, and as it stands at the present moment does basically meet international standards. In September 2007, the draft was looked at by the Cabinet of Ministers and sent back for reworking. The time limit for agreeing the draft law was extended to 1 March 2008, with it being sent meanwhile to be agreed with the Ministry of Employment and Social Policy (letter from the Ministry of Justice from 27 November 2007 No. 18-12=1076). Another public discussion with the Ministry of Justice was held in February 2008.

In November 2007 the Cabinet of Ministers approved a Strategy for the promotion by executive bodies of the development of civic society[2] drawn up in close cooperation with civic organizations. This contains virtually all necessary amendments needed to improve safeguards to freedom of association.

  II  The formation of associations

  One of the most serious problems remains the considerable obstacles which the State puts in the way of those creating associations. These obstacles are to a large degree artificial, being the result of numerous clashes in legislation and do not comply with European human rights standards.

  The timescale for registration when it comes to most associations (charitable, religious, international civic organizations, etc) are discriminatory. There is no logical reason for why charities are registered within a month or two, civic organizations within 3 days (in practice this period cannot be adhered to), which an enterprise is registered between 3-5 days.  Such discrimination is fixed at a legislative level, but is exacerbated in practice. For example, a profit-making enterprise is registered within 14 days by virtually all bodies and can begin functioning. The period of registration for a civic organization may stretch from one month to two. This is due to numerous cases where the authorities fail to meet time limits, to double State registration and to complicated procedure for receiving non-profit making status. The latter makes it possible for an organization to not have income taxed (this takes between one and two months). While a civic organization should, according to legislation, be registered within 3 days, in practice, the authorities may give a certificate regarding the registration within this time period, however registration by the State registrar (the second necessary registration) takes around two or three weeks. The period required is therefore at least three weeks just at this stage. And this is when the authorities have a positive attitude to the organization which happens all too seldom.

  The bodies which register organizations (the Ministry of Justice, its local departments and bodies of local self-government) systematically interfere in the internal management of organizations during registration. This is primarily linked with an extremely scrupulous check of the charter for any failure, however minor, to comply with legislation. 

  Legislation is not sufficiently clear in defining either the degree to which failure of the charter to comply with legislation is admissible, or clear grounds for refusing to legalize the organization. This gives huge scope for manipulation by the authorities which many of them use. We should add that discrepancies in the articles of association have no relation to the real activities of the organizations involved, and the checking of the articles is therefore of a purely formal nature. This formalistic approach runs counter to the practice of the European Court of Human Rights, as reflected, for example, in the case of the Turkish Communist Party vs. Turkey.

  The Kyivsky District Court in Kharkiv on 19 February 2007 passed a Resolution which declared unlawful the behaviour of the Kharkiv Regional Department of Justice in cancelling via notification in writing the legalization of the Eurasian Youth Union. On 4 December 2006, the claimant, together with two other people, had founded the Union and applied to the Department of Justice to be legalized via notification. However on 11 December, a letter arrived from the Head of the Department of Justice returning the application for it to be brought into line with current legislation, in particular, by stating the general name of the civic association. The court ruled that the law allows for rejection only of an application for registration, and not of legalization of civic associations, and that the authorities did not therefore have the right to refuse to legalize a civic association via notification in any circumstances. The Union was legalized by Order of the Central Department of Justice for the Kharkiv Region No. 70/2, dated 24 April 2007, with the appropriate entry being added to the register of civic associations through entry No. 264 from 24 April.

  The Ministry of Justice via Order No. 843/5 from 28 September 2007 allowed for the possibility of checking that a decision of the statutory body on changing the makeup of the governing bodies comply with the charter of the organization and legislation. The Law “On State registration of legal entities and individual entrepreneurs” also envisages submission of notification about changes in the governing bodies however it does not cover civic organizations legalized by means of notification, or representative offices and branches of foreign nongovernmental organizations.  It is difficult to predict the consequences of this Order. It could encourage interference by Ministry of Justice bodies in the internal procedure of associations which would run counter to international standards[3].

  The Ministry of Justice also acknowledges that there are considerable problems with registration. The Minister of Justice has stated: “According to present Ukrainian laws, the procedure for creating non-profit making organizations – political parties, civic organizations, charities etc, is unwarrantedly cumbersome in contrast to the procedure for profit-making enterprises. The existence of double registration is an impediment to the formation of institutions of civic society, slows down ensuring the right to freedom of association and creative activity”. The Minister adds that legislation regulating the specific features of registration of non-business societies is not coordinated with other laws.[4] 

  An important problem from the point of view of freedom of association remains the inability to create different types of associations as one chooses. One cannot, for example, create associations of legal entities and individuals, associations of citizens’ associations and other types of organizations, such as charities, associations of charities or charities founded in accordance with a will, and others.

  Perhaps the greatest problem for human rights organizations remains the constitutional provision that a civic organization may only engage in defending the rights of its own members. This provision is reflected in the Law on Citizens’ Association and entails considerable restrictions on their activities. The provision effectively prohibits organizations of public benefit. Since charities are not entitled at all to engage in human rights protection. This is one of the most common grounds for refusing to register an organization. It should be noted that on the grounds on provisions in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Ministry of Justice has removed these restrictions in its draft law on civic organizations.

  Another problem not in keeping with European standards is the maintenance of an association’s territorial status with this limiting the association’s activities exclusively to the place where it is registered.  This means that an association registered in the Podol district of Kyiv does not have the right to hold events in the Pechersky district. It is good that the authorities are not overly strict in observing this provision of legislation nevertheless there have been cases where they were applied where it suits, for example, in order to suspend the activities of the European Youth Union (see below). Profit-making organizations do not face such restrictions with this serving yet again to demonstrate the discriminatory attitude in relation to civic associations.

During the year the Constitutional Court twice scrutinized the constitutionality of the norms of the Law on political parties. In its judgment of 12 June[5], it reviewed the procedure for creating political parties and judged as follows:

-  It confirmed the constitutionality of the ban on financing of political parties by charitable and religious organizations, as well as by businesses, institutions and organizations whose property is partially owned by non-residents;

-  It found unconstitutional the quota of signatures to form a political party in districts (raion) of the region (oblast). The Law demands that signatures be collected in two thirds of the districts of no less than 2/3 of the regions, and also imposes the requirement to create and register local party branches in raions and cities within 6 months of the party’s registration.

At the same time the Ministry of Justice has been drawing up a draft law on amendments to the Law “On political parties in Ukraine”. With Ukraine’s joining the Group of States against Corruption (GRECO), and its commitment to adhere to key principles on combating corruption prepared by the Council of Ministers of the Council of Europe, the law requires amendments to bring it into line with general rules for fighting corruption in the financing of political parties and electoral campaigning.

In its next judgment of 16 October[6], the Constitutional Court confirmed the constitutionality of the norms of the Law which state that in order to create a political party, no less than 10 thousand signatures are required from no less than 2/3 of Ukraine’s regions (oblasts), Kyiv and Sevastopol, as well as the requirement to create and register the relevant branches in these regions within six months of the party’s registration.

Considerable restrictions remain on the creation of associations by foreign nationals or stateless persons, even when these are legally and permanently resident in Ukraine.  They may not, for example, form trade unions or religious organizations. 

On 16 April Parliament ratified the European Convention on the Legal Status of Labour Migrants, by which it recognizes the right of foreign nationals to create civic organizations except organizations created to protect their economic and social rights, not counting political parties and trade unions.[7]  However the legislation has not yet been brought into line with the norms of the international agreement which in turn infringes the norms on ratification of an international agreement according to which amendments to legislation should precede ratification.

As of 1 January 2008, certificates of articles of association agreements and other documents from legal entities are attested by a notary on condition that State duty of one minimum income before tax [17 UAH] has been paid.[8] This has led to double payments to the Budget in cases, for example, where amendments are registered to articles of association, where first the State duty is paid for a notarized confirmation, and then another for registration.

There is still no full register of all citizens’ associations. Effectively only exact information about legalization is available where this has involved the Ministry of Justice, however is only approximate information regarding local associations.

Statistics of associations’ registration[9]

Statistics on refusals to register associations from the Ministry of Justice[10]

According to information from Departments of Justice, during 2007 670 executive committees of city councils and executive bodies of local self-government and village councils were checked on how they were exercising the authority given them to register civic organizations. The Ministry of Justice departments found the following typical shortcomings in the work of these executive committees:

-  control and supervisory files on civic associations are not kept;

-  the legislative requirements regarding applications by the foundations are not adhered to;

-  registers and a record of civic associations are not kept (This, for example, explains the lack of exact data regarding the number of civic associations);

-  Certificates of registration of civic associations are not issued or are issued with infringements of the Cabinet of Ministers Resolution of 26 February 1993 No. 140;

-  Proper legal expert assessments of the articles of association are not carried out;

-  The time limits for consideration of civic associations’ status are infringed since the frequency of meetings of the executive committees of local councils does not take into consideration the three day time limit for review of such documents;

-  The executive committees of local councils do not pay sufficient attention to monitoring the activities based on these articles of association of registered civic organizations/

The lack of registration files on civic associations is a serious problem. Documents are attached to the decisions of the executive committees and every 3-5 years are passed to the State Archive. This makes it impossible to register amendments to the articles of association of civic organizations and exercise any supervision over their activities.

A separate problem is with the formation of trade unions, the legalization of which encounters certain artificial administrative obstructions.

In March 2007 a case was being considered in the Lviv Regional Court of Appeal based on a suit filed by the Sambir Free Trade Union of Science and Education, against the Regional Department of Justice over its refusal to legalize a local trade union. This is an infringement of the right to freedom of association since legislation provides no grounds for refusing to legalize trade unions.

Many problems also arise when registering religious organizations, and this receives separate attention in the section “Freedom of thought, conscience and religion”.

However the difficulty of registering civic associations is explained not by the exceptionally bureaucratic procedure for registration in the Ministry of Justice and its territorial departments. Many problems arise during the next stage, this being registration of associations in the State Tax Administration and inclusion in the Register of non-profit making organizations in order to receive concessionary tax and reporting status.

III   The rights of associations, freedom of internal organization and checks into the activities of civic associations

In accordance with the Ministry of Justice’s plan for 2007, checks were carried out of 325 All-Ukrainian civic associations registered in 1995 (against over 250 in 2006). These checks found three civic associations not to be at the legal address stated in the articles of association. Checks in 2004-2005 were only able to find 4 civic organizations which had not been identified earlier.

Checks in 2007 of over 6.5 thousand civic associations with local status (against 5.5 thousand in 2006) carried out by territorial Departments of Justice led to written warnings being issued to over 550 such associations (against 790 in 2006), as well as the relevant material being submitted to the courts to have certain civic associations forcibly dissolved.[11]

The Ministry of Justice issued an Order on warning the international civic organization “International Committee for Human Rights Protection”.  The warning was issued over the unlawful use of the name of a State institution which is viewed as an infringement of Article 8 of the Law “On citizens’ associations” (the prohibition on interference in the activities of State bodies) which creates a dangerous precedent for sanctions against civic organizations.[12]  Although, on the other hand, human rights organizations had long drawn attention to the activities of this organization and its link with the UN International Human Rights Committee.

The forms for reporting by associations to the State Statistics bodies have become stricter. Since 1 January 2008 the central statutory bodies of legalized civic associations must submit by 10 March each year extended reports to the Statistics offices for their area. Besides information about the number of members of the branches, as well as the procedure for using funding, the civic organizations also have to indicate the number of rallies, seminars, training seminars and other events held in accordance with their tasks as per their articles of association.[13]

  I.  Temporary ban on types of activities and the liquidation of associations

The Kharkiv Area Administrative Court on 19 September 2007 issued a Resolution allowing the administrative suit brought by the Deputy Prosecutor of the Kharkiv Region in the interests of the State as represented by the Central Department of Justice for the Kharkiv Region, against the civic organization “Eurasian Youth Union” asking for a three-month ban on its activities.  The application was argued on the grounds that the Union had:

-  violated the territorial principle in its activities beyond the confines of the Kharkiv region where it was registered;

-  carried out activities not in keeping with the aim of its creation;

-  bases its ideological principles on non-recognition of Ukraine’s statehood and territorial integrity;

-  it presumes extremist methods for upholding its political views and restricts the universally recognized rights of others.

The grounds for the application, according to the Prosecutor were information from the SBU [State Security Service) about a mass protest action held by the Union on 12 June 2007 in front of the Central Department of the SBU with demands supposedly of a political nature, that the SBU revoke its ban on entry into Ukraine of the leaders of the International Eurasian Movement. During the action material had been distributed with content deemed as showing that the Union’s aim was, via revolutionary means, to create a single Eurasian Empire on the basis of Russia which would include Ukraine’s territory. The material also denied Ukrainian sovereignty and statehood. The fact of the Union’s participation in this protest action was confirmed by a letter from 8 June 2007 signed by the Head of the Union.

In its ruling, the court stressed that the Union had engaged in unlawful behaviour earlier as well. For example, on 27 February 2007, on being detained by customs officers at the customs control point “Hoptivka”, a video disk had been removed from the Head of the Union. The disk contained material disseminated via the Internet regarding the dismantling of the Memorial to the fighters of the UPA [Ukrainian Resistance Army] in Kharkiv’s Youth Park on 20 December 2006, as well as literature, including some containing the ideological principles of the Eurasian Youth Union, based on the non-recognition of Ukraine’s statehood and territorial integrity. A criminal investigation had previously been launched over the dismantling of the memorial. The organization had also failed to provide documents for a check to the Kharkiv Regional Department of Justice, over which it had previously received a warning.

It is interesting that despite its non-recognition of Ukraine’s independence, this organization did not call to violence or other unlawful means of changing the territorial system. It spoke out only for a change in the system which clearly does not contravene legislation/

Effectively the activity of the Union was banned on the formal grounds of non-observance of the territorial restriction of the activities of a civic organization which does not comply with international standards. Since such activities are carried out by the majority of associations without any sanctions being applied, one can with full justification assume that the application was part of a deliberately policy by the authorities aimed at stopping the activities of the Eurasian Youth Union by any means.

There were no other cases recorded where the activities of associations were banned.

There were also no cases noted where associations were liquidated which would be a violation of freedom of association.

  II.  Participation in associations: joining, sanctions for participation, forced membership

No cases were observed during the year of people being forced to join associations, or of having sanctions applied for taking part in such associations.

However problems do exist with regard to membership of trade unions.

In the course of monitoring observance of the labour rights of public sector employees in Ukraine, it was found that in many institutions there are no protocols for the formation of primary trade unions, nor applications from employees to join these organizations and have their membership fees deducted. An employee is automatically added to one of the trade unions from the day the employment commences, and membership fees are changed. There is thus often no voluntary membership of a trade union.

Cases also remain common of representatives of independent trade unions being persecuted by the administration of an enterprise.

On 12 December 2007 the Head of the primary trade union of the Kyiv local trade union “Defence of labour”, electrical appliance technician Volodymyr Demyan was dismissed from the limited liability company “Metro Cash and Carry Ukraine”, as a result of his trade union activities. This event came after a long battle following his creation of a trade union organization on 19 February 2007. During the year, according to reports from the trade union, they constantly tried to dismiss him, the security people threatened physical reprisals and the administration constantly carried out surveillance over his activities and exerted pressure in other ways. After his dismissal, the conflict heightened, and a number of pickets were held, and an application lodged with the court to have his job reinstated.[14]  It was only after the intervention of the Moscow office of the Global Federation of Trade Unions and private negotiations, that the disputing parties reached an understanding and the trade union representative was reinstated and negotiations began on signing a collective agreement.[15]

  III.  Recommendations [16]

1.  Change the current law “On citizens’ associations” by passing a law “On civic associations” which should be in line with the requirements of the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Recommendations of the Committee of Ministers of the member states of the Council of Europe “On the legal status of nongovernmental organizations in Europe” (СМ/Rec(2007)14). The following, among other measures, are needed:

-  Make the registration procedure cheaper, quicker and non-discriminatory as compared with profit-making organizations;

-  Abolish double registration of civic organizations by concentrating all registration functions on the Ministry of Justice and its local departments, and also cancel double payment for registration via the introduction of a single registration fee;

-  Remove restrictions on types of activities for associations;

-  Recognize the right of civic organizations to not only defend the rights and interests of their own members, but also allow them to engage in any activities helping other individuals or society as a whole;

-  abolish territorial restrictions on associations’ activities (the all-Ukrainian status may remain, however it should not lead to a restrict of the territory of local associations, while the procedure for gaining all-Ukrainian status should be voluntary

-  Provide the possibility of creating different forms of associations (associations of legal entities and individuals, associations of citizens’ associations and other types of organizations, for example, charities, etc);

-  Abolish the obligation for local braches of civic organizations to register (we are not speaking of associations and unions of civic associations where the members are independently legalized citizens’ associations);

-  Recognize the right of civic organizations to engage in economic activities without the purpose of receiving and dividing between the founders of the profits, but rather directed the profits towards fulfilling activities as per the articles of association.

  2.  Introduce amendments to the Law on publishing activities in order to enable non-profit making organizations, and not only businesses, to establish publishing houses.

2.  Introduce amendments to the law on charities and charity activities in order to:

-  harmonize the procedure for their registration with civic associations and other legislation, and also abolish double registration;

-  Cancel territorial restrictions over the activities of charitable organizations;

-  Make it possible to create other forms of charities, for example, funds (including those created in accordance with a will.

3.  Remove Article 186-5 which establishes liability for the activity of unregistered civic organizations from the Code of Administrative Offences  

4.  Sign and ratify the Convention on recognizing the legal rights of an international nongovernmental organization (ETS № 124), which came into forced on 1 January 1991.

5.  Bring legislation, in particular the law on citizens’ associations, on freedom of conscience and religious organizations with norms with the European Convention on the Legal Status of Labour Migrants, ratified by parliament in April 2007.

6.  Abolish the practice of licensing social services which are provided by non-profit making organizations, and not from State or local authority budgets. Involve nongovernmental non-profit making organizations.in providing social services paid for by the State and local budgets.

7.  Legislate the conditions of State assistance to nongovernmental non-profit making organizations, for example, stipulating the criteria for such assistance and the procedure for receiving it. Make the procedure for providing and using State funding directed at civic associations for carrying out State programmes competitive and open.

8.  Stimulate charitable or other non-profit-making activity by providing tax incentives solely on condition that charitable or other socially significant activity is carried out, and not by virtue of having created a specific type of organization which may not even provide such services

9.  Ensure the functioning and accessibility of registers of citizens’ associations, charities, religious organizations, trade unions and other associations.

[1]  Prepared by Volodymyr Yavorsky, UHHRU Executive Director

[2]  Cabinet of Ministers Instruction No. 105-I from 21 November 2007

[3]  Order of the Ukrainian Ministry of Justice No. 843#5 from 28.09.2007 “On amendments to the Procedure for preparing and formalizing decisions to legalize civic associations and other civic formations” // Legislation for organizations of civic society. Electronic Bulletin, No. 10, October 2007 http://ucipr.kiev.ua

[4]  See Information on the results of the work of the Ministry of Justice in 2007 // www.minjust.gov.ua

[5]  Judgment of Ukraine’s Constitutional Court from 12.06.2007 following a constitutional submission by 70 National Deputies concerning the adherence to the Constitution (constitutionality) of the provisions in Article 10 § 1.3, paragraphs two, five and six of Article 11, Articles 14 and 24, and item 3 of Section VI “Concluding provisions” of the Law “On political parties in Ukraine” (case on the creation of political parties in Ukraine).

[6] Judgment from 16 October 2007 in a case brought via the constitutional submission of the Ministry of Justice asking for an official explanation of the provisions of Article 11 § 6 of the Law “On political parties in Ukraine” (case on the creation and registration of political organizations in Ukraine). .

[7] Legislation for organizations of civic society. Electronic Bulletin, No. 3, March 2007 http://ucipr.kiev.ua  Ukraine ratified while adding its provisos, as here.  .

[8]  Law of Ukraine “On amendments to Article 3 of the Cabinet of Ministers Decree “On State duty” regarding act of associations documents”, No. 811 from 23.03.2007

[9] Information generalized from that provided by the Ministry of Justice  www.minjust.gov.ua. The information is, moreover, fairly contradictory. There are, for example, discrepancies in information releases from the press centre for different periods, as well as in information from the reports on the work of the Ministry of Justice over recent years..

[10] Based on information from the Ministry of Justice. The information does not include refusals by regional and local Departments of Justice or executive committees of bodies of local self-government. Such overall information is not accessible, and probably does not exist.

^[11] „Information and analysis report on the activity of the Ministry of Justice and its territorial bodies regarding legalization of civic associations and other citizens’ formations  http://minjust.gov.ua/0/13796

[12] Order of the Ministry of Justice № 35/5 from 15.01.2008. "On issuing a warning to the international civic organization “International Committee for Human Rights Protection” // Legislation for organizations of civic society. Electronic Bulletin, No. 1, January 2007 http://ucipr.kiev.ua.

[13] Order of Ukraine’s State Committee of Statistics № 365 from 01.10.2007 "On approving instructions for filling in State Statistical Observation form No. 1 – civic organization. “Report on the activities of a civic organization”. //  Legislation for organizations of civic society. Electronic Bulletin, No. 10, October 2007 http://ucipr.kiev.ua.

[14] More details in Russian can be found here: “Dismissal of labour leader Volodymyr Demyan “Struggle for trade union rights in the TNK network are beginning” http://livasprava.in.ua/index.php?option=com_content&task=view&id=481&Itemid=75; The website of the Kyiv Local Trade Union “Defence of Labour” http://zpworkres.narod.ru.

[15] Press release: The Development of Social Dialogue and Social Partnership in the company Metro Cash and Carry, Ukraine http://uni-cis.ru/news2.php?nid=427.

[16] Some of these recommendations, as well as their more extensive presentation, are contained in the Strategy for promoting the development of civic society through a strategy of promotion by State executive bodies approved by Cabinet of Ministers Instruction №105-I from 21 November 2007.