On some problems of human rights protection movement in Ukraine
Does the civil society exist in Ukraine and, in particular, that part of it, which is traditionally named human rights protection movement? These questions, like many other questions of the post-totalitarian society, may be answered both „yeas“ and „no“ these both answers may be confirmed by weighty arguments.
While considering these questions one must bear in mind the objectively grounded antagonism between the civil society and the state. Any state (including the countries with well-established democracy), tending to stability and order, tries to expand the sphere of its influence, to increase areas of regulating the life of its citizens, thus decreasing the freedom of choice. This is the nature of a state. A state official always thinks that he is a priori cleverer than a man in the street and knows better how the latter must live. This expansion is opposed by the civil society – a set of all non-governmental structures, which is self-conscious, a structured non-governmental part of the people. Its political sense lies in identifying itself with the dominating factor of the social progress, in understanding its natural superiority over the state. The developed civil society, being an intellectual opponent of the state, makes the state to be oriented to public interests and public opinion in the main aspects of interior and foreign state policy. Fulfilling the protecting functions, the civil society makes the violations of human rights the object of public attention and analysis, it supports justice or minimizes these violations.
In a totalitarian country, which the USSR was, the civil society was completely suffocated. On the contrary, everyone, who tried to struggle for order and justice, was completely discredited by the dependent mass media and corrupted public organization created by the CPSU. Any attempts to create any public structures from below resulted in the unpleasant attention on the side of the former 5th Directorate of the KGB and in the suspension of their activities. Nonetheless, the people were, in Ukraine in particular, who, being not afraid of the repressions, joined various independent organizations, including human rights protecting ones. Yet, it was impossible to legalize these informal associations. With the beginning of the so-called perestroyka numerous cultural, ecological and political public structures appeared. It is essential that almost everyone, who named himself a human rights protector, went in for politics. In the end of the 80s all the parties of national-democratic direction were headed by the former political prisoners. Human rights protection organizations had to be created from the roots.
The Law of Ukraine „On citizens unions“, which regulates NGO activities, came into effect on 16 June 1992. BY 1 January 1996 about 5000 NGOs were registered in Ukraine, up to the beginning of 2002 – about 37000 NGOs. It seems that public movements become more and more significant and influential. Nonetheless, all experts notice weakness and shapelessness of the civil society in Ukraine. Last year, judging by the results of research, the activities of only 5000-6000 organization was noteworthy. And how many of them may be related to real NGOs that protect public interests?
British researcher Alan Fowler from the International NGO Training and Research Centre) pub the book „Striking a Balance“ devoted to the problems of the development of non-governmental unprofitable organizations. He investigated the activities of about 700 NGOs throughout the world and reached distressing conclusions: not more than 15-20% of NGOs may be regarded as influencing the actions of authorities and protect other public interests. The remaining 80-85% are created for other purposes. Such NGOs are especially frequent in the countries of the East and Central Europe, former USSR, Latin America and Africa. Fowler classified these NGOs as follows [ Information from http://www.washprofile.com].
• BRINGO (Briefcase NGO) – is created by politicians, commercial or mafia structures only for writing propositions to state organs. These NGOs do nothing else.
• CONGO (Commercial NGO) -- is created by business for decreasing taxes, obtaining the needed equipment, aid in signing contracts and lobbying the interests of the mother-firm in state organs.
• GRINGO (Government NGO) – is created by state organs for imitating and influencing public activities. According to Fowlers data, such NGOs make the lion share in African countries.
• MANGO (Mafia NGO) – is created by criminal groups for money washing, raising their image, for masking their criminal activities and pressure on the administration. As Fowler states, such NGOs flourish in the East and Central Europe and former USSR.
• MONGO (My own NGO) – is created only for self-expression of a certain individual.
• PANGO (Party NGO) – this from is most popular in the Central Asia and Indo-China. It enables political parties to carry out their propaganda and to lobby their interests on different levels of power.
• QUANGO (Quasi NGO) – is created by the state for imitating opposition activities and demonstrating it to international community.
Each one may find corresponding examples in the Ukrainian reality. Even without conducting social research one may be sure that the classification and characteristics given by Fowler are also suitable for Ukrainian NGOs.
In the database „Partners“ created and supported by the KhG about 200 NGOs are registered, which have human rights protection among their statute goals, about 10-15 of them, by our estimate, work on the professional level. Is it many or few? If one recollects that ten years ago they did not exist at all, then it seems many. Yet, if one compares their number with Western countries, where human rights protecting NGOs are counted tens and even hundreds thousands, then it seems negligibly few, and the influence of the Ukrainian NGOs on the events is practically absent. However, the results of the work of even such a small handful of human rights protecting organizations are astonishing. On their account they have hundreds of victorious courts cases, positive changes in laws, preparation of independent reports on the fulfillment by Ukraine of her international obligations, publication of basic documents on human rights, organization of educational seminars for various professional and social groups and many other successful actions. Yet, they remain unnoticeable on the background of mass violations of human rights. Our experience shows that the activities of human rights protecting organizations are more fruitful, when several such organizations join their efforts. In our opinion, the degree of ripeness of human rights protecting NGOs is already such that it is possible to speak about the creation of institutional opportunities of cooperation. It is desirable to discuss the question about the perfection of the existing interaction mechanisms without organizational blending and the expediency of the creation the joint organizational structures for increasing the capabilities and the influence of human rights protection movement as a whole. So, in our opinion, it would be reasonable to organize the Common Council of human rights protecting organizations, which would realize the connection with the Parliamentary Committee on human rights, national minorities and interethnic relations and with the ombudspersons staff, would suggest some standards of human rights protecting NGOs activities, standards of their behavior and self-regulation. If the Common Council is created and its activities appear successful, it will be possible to make the next step and to raise question about the creation of the National association of non-governmental human rights protecting organizations.
The development of Ukrainian NGOs is braking with obsolete laws, whose imperfection is aggravated by administrative and court practices. Let us consider two most essential, in our opinion, drawbacks of the Law „On citizens unions“.
First, a public organization is defined by Article 3 as a union of citizens for servicing their legal social, economic, creative, age, national-cultural, sporty and other common interests. This definition is treated by executive organs literally, that is they regard public unions as protecting interests of their members only. Remark that political interests are absent in this list, i.e. there are no legal grounds for creating public political NGOs, in particular, human rights protecting ones. In later years we have observed the growth of the number of messages about the refusals to register organizations on the base of disagreement of their statute goals with Article 3. The chances to win such cases in court are very weak: in its letter No. 01-8/319 of 6 July 2000 the Superior Arbitrary court of Ukraine pointed out that „a citizens union is created for joint realizing by its members their rights and freedoms on the basis of the unity of interests and the fulfillment of the duties, which reflect the main goal, tasks, directions, forms and methods of the activities of such unions“. The Lugansk directorate of justice refused to register the changes in the statute of the Lugansk NGO „Postup“, which declared as the main goal of its activities „cultural and educational work among children and youth and stimulating their creative activities“. The refusal was based namely on the disagreement with Article 3 and the above-mentioned letter.
Secondly, the sources of financing Ukrainian NGOs are strictly limited. The laws concerning taxation of the income do not distinguish NGOs from the establishments created for extracting profit. In fact, Ukrainian NGOs may not earn money for supporting their statute activities, otherwise they will loose the status of non-profitable ones. Our laws do not encourage charity of businessmen, who may direct for charity not more than untaxable 4% of the income. So, practically the only source of financing of Ukrainian NGOs, whose main condition of successful activities is the independent of the state, business, political parties, etc., remain Western charity funds. The experience of the cooperation with such funds proves that human rights protecting organizations preserve their independence.
It follows that there is an urgent necessity to introduce changes in the laws on NGOs and in the practice.
The degree of freedom of Ukrainian NGOs activities is sharply lowered also because of the absence of the law on the procedure of holding peaceful public actions; this serves a reason for numerous conflicts, which often lead to violent clashes. It is enough to recollect about the events of 9 March 2001, 16 September 2002 and many others. Ukrainian laws in general do not treat such terms as „picket“, „tent camp“, etc. The organs of state power and local self-rule still use the Edict of the Presidium of the Supreme Soviet of the USSR of 18 July 1988, which contradicts Article 39 of the Ukrainian Constitution, since the edict introduces only permissive procedure of public actions. Since other laws are absent, courts must base their decision on this edict. Yet, the adoption of the needed law in the Parliament proceeds with many difficulties. The drafts of the Law prepared by MPs G. Udovenko and V. Pustovoytov were considered in the first reading by the Supreme Rada on 22 March 2001, the draft by V. Pustovoytov was adopted as main. This draft has been already prepared for the second reading with all corrections taken into consideration, but it is not considered yet. At the same time the Ministry of Interior jointly with the USS developed an alternative law draft, agreed it with the Ministry of Justice and passed to the Cabinet of Ministers for consideration [ „Zerkalo nedeli“, No. 38, 5 October 2002]. So, there appeared an urgent need to organize a wide public discussion of these drafts and to accelerate the adoption of the law. From this point of view it is very important to hold the seminar planned a year ago by the KhG in the framework of the cooperation with the Directorate of human rights in the Council of Europe. The seminal will be conducted on 28-29 November 2002 in Kyiv. We believe that it would be expedient to join the seminar with the debate of the conception, problems and tasks of the modern human rights protection movement using for this one additional day 27 November. It is also needed to prepare for the seminar the edition that will contain the survey of the messages about violating the freedom of peaceful gatherings and freedom of associations, the analysis of the corresponding laws and law drafts, the materials concerning the conception and tasks of the modern human rights protection movement and the propositions on perfecting the mechanisms of the interaction of human rights protecting organizations. In particular, it would be useful to remind the Ukrainian public about the law draft prepared by the KhG in 1998 „On public (civil) control over the state activities“ that, as we learned not long ago, on May 2002 was suggested by Moldova President M. Voronin to the Moldova Parliament for adoption.
So, we invite our colleagues to discuss the above-mentioned questions on the pages of „Prava ludyny“, by e-mail, on the forum of our site, etc. If the majority decides that it is preferable to meet in advance of the seminal of 28-29 November, then we will try to find money to add one more day, 27 November, for the work meeting.
Professor Valeriy Ivanov. You have begun to consider a very important problem. NGOs activities are very far from humanistic ideals. Yet, in my opinion, the problem is not only that too many organizations follow Mr. Fowlers classification, but also that leaders and members of NGOs have no proper experience of such activities (both financial, which is very important, and in general NON-GOVERNMENTAL). It seems to me that this is a proper explanation why NGOs working efficiently in media sphere, for example, can be counted by fingers, while the number of registered ones is tremendous, as it appeared during creating the Public council in charge of informational policy. Sifting of inefficient structures is a natural process, but, on the contrary, efficient structures must be aided, especially in the regions, which have difficulties to develop because of the lack of experience.
Mykhaylo Bardin, the head of the board of the Podolsky center of human rights. I hope that the discussion devoted to this topic will be vivid and fruitful. I encourage the creation of the Public council of human rights protecting organizations. Its role and external ties certainly must be discussed too.
It is necessary to develop the general standards for human rights protecting organizations. The standards that have been distributed by the KhG for already the long time may serve as the basis. I agree not with all arguments of the article, but I consider is a sound basis for the continuation of the work with the general standards.
Volodymir Shcherbachenko, the students brotherhood of the Lugansk oblast. Great thanks to the KhG that they dare to raise such topics.
• Taking into account the positive image of the KhG one can feel certain hopes that this is done rather for the common benefit of the society, and not for some other interests, which, unfortunately, happens rather often. We hope that the organizational power of the structure will enable it to achieve a favorite finish.
• In our opinion, the debate of the creation of the institutional opportunities for the cooperation of human rights protecting NGOs is very urgent.
• It seems that the tasks of the Public council of human rights protecting organizations must include the links not only with the Parliamentary Committee of human rights, national minorities and interethnic relations, as well as with the ombudspersons staff, but also with other committees.
During the debate of the cooperation of the human rights protecting NGOs, the topic certainly must be raised of the perfection of the joint work of such NGOs and the legislative power (it is obvious that many human rights protectors are interested in the cooperation with the committees in charge of ecology, science, education, etc.).
• The idea of the creation of the National association of non-governmental human rights protecting organizations in the prospect also seems very promising and useful.
• We support lobbying the changes, which must be introduced in the laws on NGOs. Some time ago, when organization, the students brotherhood, was re-registered, the Lugansk oblast directorate of justice made us to change some statute statements concerning purposes and tasks of our organization forcing us to narrow them to satisfying the needs of our members. Because of these changes the tax inspection imposed on us such taxes that we loose 30% of all money coming to our account.
• The problems of taxes and legality of public actions are not less actual.
• There is a technical problem. The author of the article proposed the discussion in various „places“ – „on the pages of „Prava ludyny“, by e-mail, on the forum of our site, etc.“. Maybe, this proposition ought to be somewhat more concrete, otherwise a reader will hesitate where to send his arguments.
We hope that this process will develop.